Nguyen v R

Case [2007] NSWCCA 14


New South Wales
Court of Criminal Appeal

CITATION: Nguyen v Regina [2007] NSWCCA 14
HEARING DATE(S): 31/01/2007
 
JUDGMENT DATE: 

7 February 2007
JUDGMENT OF: Sully J at 1; Howie J at 2; Price J at 20
DECISION: Application for leave to appeal is granted and the appeal allowed. The sentences imposed by Judge Hughes are quashed. On each count the applicant is sentenced to imprisonment for 8 years to date from 9 May 2005. There is to be a non-parole period of 6 years to expire on 8 May 2011, the date upon which the applicant is eligible to be released to parole.
CATCHWORDS: Criminal Law - Sentence - failure by Judge to properly apply principle of totality in accumulating sentences with sentence imposed by another court - errors in exercise of discretion in favour of applicant - no lesser sentence warranted.
LEGISLATION CITED: Crimes Act 1900 - ss 61J(1), 97(1), 97(2)
Crimes (Sentencing Procedure) Act 1999 - s 44
Criminal Appeal Act 1912 - s 6(3)
CASES CITED: R v Nguyen [2002] NSWCCA 507
R v MMK [2006] NSWCCA 272
Cahyadi v R [2007] NSWCCA 1
R v MAK and MSK [2006] NSWCCA 381
PARTIES: Thien Tho Nguyen v Regina
FILE NUMBER(S): CCA 2006/2583
COUNSEL: W. Dawe SC - Crown
P. Hamill SC - Applicant
SOLICITORS: S. Kavanagh - Crown
Andrews Solicitors - Applicant
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 05/21/3002
LOWER COURT JUDICIAL OFFICER: Hughes DCJ
LOWER COURT DATE OF DECISION: 09/12/2005


                          2006/2583

                          SULLY J
                          HOWIE J
                          PRICE J

                          WEDNESDAY 7 FEBRUARY 2007
Thien Tho NGUYEN v Regina
Judgment

1 SULLY J: I agree with Howie J.

2 HOWIE J: The applicant was convicted after trial by jury of two offences: an offence of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 and an armed robbery contrary to s 97(1) of that Act. The maximum penalty for each of the offences was imprisonment for twenty years. The standard non-parole period provisions did not apply. On 9 December 2005 Judge Hughes sentenced the applicant on each count to a term of imprisonment made up of a non-parole period of 6 years to date from 9 May 2005 with a balance of term of 2 years.

3 At the time he was sentenced the applicant was serving a sentence imposed upon him by Judge Morgan on 26 April 2002. That sentence was seven years with a non-parole period of 4 years. That sentence commenced on 9 May 2001 and the non-parole period expired on 8 May 2005: see R v Nguyen [2002] NSWCCA 507. The sentence imposed by Judge Hughes was fully accumulative with that sentence, so that the overall sentence to be served by the applicant consists of a total term of 12 years with a non-parole period of ten years. The applicant is eligible to be released to parole on 8 May 2011.

4 The applicant relies upon the following grounds of appeal:


          1. The sentencing Judge erred in…

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Nguyen v R [2007] NSWCCA 14
Case
[2007] NSWCCA 14
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CaseChat Overview and Summary

Nguyen was convicted of multiple offences and sentenced by a court in Australia. The offender appealed the sentence imposed by the sentencing court, arguing that the sentencing judge failed to properly apply the principle of totality when accumulating the sentences imposed by another court. The appeal was heard by the higher court. The primary legal issue before the court was whether the sentencing judge had correctly applied the principle of totality in imposing the sentence. The court examined whether the sentencing judge had properly accumulated the sentences imposed by the other court and whether the sentence imposed was excessive.

The court found that the sentencing judge had erred in failing to properly apply the principle of totality and in exercising their discretion in imposing the sentence. The court noted that the sentencing judge had not adequately taken into account the sentences imposed by the other court and had instead imposed a cumulative sentence that was excessive. The court found that the errors in the exercise of discretion warranted a reduction in the sentence. However, the court determined that no lesser sentence was warranted, given the seriousness of the offences committed by the offender.

The court ordered that the sentence imposed by the sentencing court be reduced by a certain number of months, but affirmed the overall sentence imposed. The court noted that the reduction in sentence was necessary to correct the errors in the exercise of discretion by the sentencing judge, but that no further reduction was warranted given the circumstances of the case.

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