Nguyen v R

[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 the accumulation of the non-parole period with that imposed by Judge Morgan and in failing to consider principles of totality

2. The sentencing Judge erred in his approach to s 44 of the Crimes (Sentencing Procedure) Act and in failing to find that the accumulation constituted “special circumstances”.

3. In consequence of grounds 1 and/or 2 a different, less severe sentence is warranted and/or ought to be imposed.

5 The facts are that on 18 April 2001 the applicant and a co-offender entered a house at Lansvale. Alone in the premises at the time was a 29 year old female. The victim was about to leave the house to pick up her husband, who was returning from work, when the two offenders confronted her in the hallway. One was holding a long-bladed knife that was pointed towards her face and the other a large bag. The victim’s mouth was taped and her hands and feet bound with rope. She was forced to the floor. One of the offenders demanded money, jewellery and credit cards. She said that she had none and one of the men searched her wallet. A bag of some type was placed over the victim’s head so that she could not see other than through a small hole. Her car keys and pin number were demanded and her watch and two bankcards were taken.

6 The two men then picked up the victim and placed her on a bed. Her pockets were searched. The rope was then removed from her legs and her jeans and underwear removed. She said a number of times, “Don’t do that”. Each of the offenders then had sexual intercourse with her. Her clothing was replaced and her feet rebound. A jumper was placed over her head and the offenders left the house. The victim managed to free herself from the ropes and raise the alarm.

7 The offence for which Judge Morgan sentenced the applicant was committed on 9 May 2001. Judge Hughes described the offence as “a home invasion with weapons”. After he was placed in prison, a sample of DNA was taken from the applicant and eventually matched with DNA taken from the victim. This resulted in his being charged with these offences.

8 The applicant was 18 years of age at the time of the offences. As a result of his exposure to domestic violence in his childhood he turned to alcohol and drugs. He had no prior offences and the judge treated the applicant as a first offender and held that he should be presumed to have been of previous good character. The Judge took into account that the applicant had been using his period in custody “appropriately” and had been involved in courses addressing his misuse of alcohol and drugs and his offending behaviour. He had favourable reports in relation to his behaviour while in custody. A psychological report indicated that the applicant was suffering from a “major depressive disorder”.

9 There were in my opinion at least three significant errors in the exercise of Judge Hughes’s discretion in favour of the applicant. The first was the Judge’s assessment of the seriousness of the offences. His Honour stated:

The crime of sexual intercourse without consent in company is a very serious offence. The crime of robbery with an offensive weapon is also a very serious offence and (sic) is noted by the maximum penalty involved. I find it more particularly serious when it takes place in a person’s own home. However I regard both the offences to be at the lower mid range of any scale constructed by the offences. There appears not to have been any roughness aside from the sexual assault itself that could damage the victim. However, of course, the sexual assault itself is such a horrific affair in one’s own home that will be conscious (sic) on the victim for many years. The serious nature of those offences are ones which should result in a prison sentence.

10 In my opinion neither offence could be described as “at the lower mid range” of seriousness. The armed robbery offence was aggravated by being planned, by being committed in company, by being committed in the victim’s home, and by the manner in which the victim was treated. Had the weapon used been a firearm it would have been a more serious offence under s 97(2). The sexual assault offence was aggravated by the threat to inflict actual bodily harm with the knife, the fact that it was committed in the victim’s home and that the victim was blindfolded and had her hand’s and feet bound. In those circumstances the fact that there was no additional “roughness” seems to me to have been of little, or no, significance. I would have thought that at least the sexual assault offence was in the upper seriousness of its kind.

11 It was an error of principle to make both offences totally concurrent. The Judge stated:

Having regard to the fact that both offences were committed on the same day I am prepared to order that the sentences be served concurrently.

12 It seems obvious from a number of matters that have been before this Court recently, that there is abroad an insufficient understanding of the principles of totality and of the relevant factors to be taken into account when determining whether to order that sentences be served concurrently or made, at least, partially cumulative. There is no rule that sentences for offences committed on the same day or in the same criminal enterprise should be served concurrently. The issue has been considered in a number of decisions of this Court that should make it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence; see generally R v MMK [2006] NSWCCA 272. The position was explained in Cahyadi v R [2007] NSWCCA 1 as follows:

27 ….. there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

13 During the course of argument the Presiding Judge put to the applicant’s counsel a proposition to the following effect. The applicant and his co-offender having committed the armed robbery had two courses available to them. They could have decided that they had accomplished what they had set out to do by the robbery and could thereupon leave the premises with the property they had obtained. In any such case they would both have stood for sentence for that offence. Alternatively, they could have decided to take the opportunity to commit a further offence, this one of personal violence against their hapless victim and so they sexually assaulted her. Why then should they receive the same sentence as if they had left the premises after committing the robbery and without violating the complainant? Or to put the issue in terms of totality, how could it be thought that the criminality involved in the robbery could encompass the further serious criminality involved in the rape? The offences committed were of a completely different nature and each was individually of extreme gravity. The mere fact that they occurred in the same criminal episode or on the same day could not justify concurrent sentences.

14 The Judge gave the applicant the benefit of having no prior offences and of being of prior good character. Judge Morgan, also, sentenced the applicant on the basis that he was of previous good character. The applicant on the face of it received the benefit of that finding, whatever it meant in real terms, twice. This situation was considered in R v MAK and MSK [2006] NSWCCA 381. The Court held that, where after the offences for which sentence was being passed, the offender had committed other serious offences of a similar nature, little or no significance could be given to the fact that the offender had no prior convictions at the time of the commission of the offences for which he was being sentenced. In the circumstances of that case it was held that the fact that the offender had no prior offences could not be considered as a mitigating factor.

15 So it was here. In light of the fact that the applicant had committed another serious home invasion about three weeks later meant that there was no relevance in the fact that he was of prior good character before he committed the offences before his Honour. The present offences could not be considered as being aberrations or, in any other sense, foreign to the applicant’s character. Rather, the existence of the later offence militated against the applicant’s receiving leniency to which he might otherwise been entitled by reason of the fact that these were his first criminal offences.

16 In my opinion a sentence of 8 years with a non-parole period of 6 years was probably inadequate. This is so notwithstanding the applicant’s age and the delay in the matter’s being dealt with. That delay was due to the fact that the applicant’s guilt of the offences had to be discovered and then proved. There was no evidence to show that this delay had in anyway prejudiced the applicant. The applicant had no remorse and was entitled to no benefit that would have been the case had he pleaded guilty. Any advances he had made in his rehabilitation had to be seen in the light of his refusal to accept responsibility for these offences and that fact ought to have detracted from any favourable assessment of his prospects of rehabilitation and the unlikelihood of further offending. There was nothing in his personal circumstances that could explain, let alone mitigate, the offences he committed, particularly the sexual assault.

17 I accept the submission there was a further error by the Judge in failing to have any regard to the principle of totality so far as the accumulation of these sentences with the sentence imposed by Judge Morgan was concerned. The Judge ought to have taken into account the criminality involved in that offence and the fact that it was committed three weeks after the offences for which he was sentencing the applicant. The Judge also should have had regard to the overall non-parole period the applicant was to serve as a result of the accumulation of sentences and how that should affect a finding of special circumstances in order to result in an appropriate parole period. The ultimate sentence imposed resulted in a parole period that was out of proportion to the non-parole period particularly in light of the fact that the applicant was a young man with some issues that could be addressed by assistance on parole. This was a result of the failure of the Judge to consider whether the accumulation of sentences should itself have resulted in a finding of special circumstances, at least to preserve the statutory relationship between the overall non-parole period and the total term to be served by the applicant.

18 I would uphold the first two grounds of appeal. The issue then arises as to whether any lesser sentence was warranted: see s 6(3) of the Criminal Appeal Act 1912. I am of the view that the sentencing discretion of the Judge miscarried in a number of ways. But I believe that overall the errors were significantly to the advantage of the applicant. Were I to resentence him the only possible result would be that the overall sentence would be increased to provide for a longer period on parole but I would specify an overall non-parole period of at least ten years. Notwithstanding the applicant’s young age and personal circumstances the offences for which he was before Judge Morgan and Judge Hughes were extremely serious and warranted a condign sentence for all the purposes of punishment including both personal and general deterrence. As the Court should not increase the sentence to provide for a longer period on parole the appeal should be dismissed.

19 The sentence as imposed by Judge Hughes did not comply with the provisions of the Crimes (Sentencing Procedure) Act operative at the time the offences were committed. Section 44 of that Act had been amended since the date of the offences but that amendment only applied to offences committed after 1 February 2003. It has been held that errors of this kind are formal in nature but should be corrected by this Court.

20 I propose the following orders:

1. The application for leave to appeal is granted and the appeal allowed;

2. The sentences imposed by Judge Hughes are quashed;

3. 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.

21 PRICE J: I agree with Howie J.

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