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Nguyen v R

Nguyen v R

Case [2019] NSWCCA 87 29 April 2019

Sentencing

Appeal

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v R [2019] NSWCCA 87
Hearing dates: 12 April 2019
Decision date: 29 April 2019
Before: Gleeson JA at [1]
Wilson J at [76]
Ierace J at [77]
Decision:
(1)   Extend the time for the application for leave to appeal against sentence.

(2)   Grant leave to appeal.
(3)   Appeal against sentence dismissed.
Catchwords:
CRIMINAL LAW – leave to appeal – sentencing appeal – offences of aggravated kidnapping, intimidation and assault occasioning actual bodily harm – where offences occurred in domestic situation – where applicant under influence of crystal methylamphetamine– whether sentencing process miscarried – where no evidence or submission at sentencing hearing that applicant suffering mental illness at time of the offending

CRIMINAL LAW – leave to appeal – sentencing appeal – whether sentence should be mitigated on grounds of character – whether sentencing judge failed to take into account applicant’s otherwise good character

CRIMINAL LAW – leave to appeal – sentencing appeal – whether sentencing judge erred in assessment of objective seriousness of intimidation offence and assault occasioning actual bodily harm offence – where related findings not challenged
CRIMINAL LAW – leave to appeal – sentencing appeal – whether aggregate sentence imposed was unreasonable or plainly unjust – limited utility of sentencing statistics and case law involving similar offending where such material reflects a range of different factual circumstances and subjective features
Legislation Cited: Crimes Act 1900 (NSW), ss 59(1), 86(2)(b)
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 21A(3)(e) and (f), 21A(5AA)
Cases Cited: Ali v R [2010] NSWCCA 35
Bao v R [2016] NSWCCA 16
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Diaz v R [2018] NSWCCA 33
Hammond v R [2008] NSWCCA 138
Hanania v R [2012] NSWCCA 220
Hazel v R [2015] NSWCCA 26
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v R [2018] NSWCCA 2
JM v The Queen [2014] NSWCCA 297
Kerr v R [2016] NSWCCA 218
Kresovic v R [2018] NSWCCA 37
MLP v R [2014] NSWCCA 183
Newell v R [2004] NSWCCA 183
Owen v R [2017] NSWCCA 54
R v Baker [2000] NSWCCA 85
R v Isaacs (1997) 41 NSWLR 374
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Salafia v R [2015] NSWCCA 141
Vaiusu v R [2017] NSWCCA 71
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Yang v R [2012] NSWCCA 49
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Hoang Minh Nguyen (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
Mr M Ramage QC (Applicant)
Ms C B Curtis (Respondent)
Solicitors:
AKN & Associates (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 2015/10544
Decision under appeal

Court or tribunal:

District Court of New South Wales, Gosford

Jurisdiction:

Criminal

Before:

Bennett SC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nguyen v R

Details

AGLC: Nguyen v R [2019] NSWCCA 87
Case: [2019] NSWCCA 87
Decision Date: 29 April 2019

CaseChat Overview and Summary

In the matter of Nguyen v R, the applicant appealed against his sentencing for aggravated kidnapping, intimidation, and assault occasioning actual bodily harm. The appeal was heard in the High Court of Australia, which was asked to consider whether the applicant's sentence was unreasonable or plainly unjust. The case arose from a domestic situation where the applicant was under the influence of crystal methylamphetamine at the time of the offending. The applicant argued that the sentencing process miscarried as there was no evidence or submission that he was suffering from a mental illness at the time of the offences.

The court was required to decide whether the sentencing process was flawed due to the absence of evidence or submissions about the applicant's mental state at the time of the offences. Additionally, the court needed to consider whether the sentencing judge failed to take into account the applicant's otherwise good character when mitigating the sentence. The court was also asked to determine whether the sentencing judge erred in assessing the objective seriousness of the intimidation and assault occasioning actual bodily harm offences. Finally, the court had to consider whether the aggregate sentence imposed was unreasonable or plainly unjust, taking into account the limited utility of sentencing statistics and case law involving similar offending.

The High Court found that the sentencing process did not miscarry as there was no evidence or submissions that the applicant was suffering from a mental illness at the time of the offences. The court also held that the sentencing judge did not fail to take into account the applicant's otherwise good character when mitigating the sentence. Furthermore, the court found that the sentencing judge did not err in assessing the objective seriousness of the intimidation and assault occasioning actual bodily harm offences. Finally, the court held that the aggregate sentence imposed was not unreasonable or plainly unjust. The appeal was dismissed.

The High Court did not make any orders in relation to the appeal.

Orders