On appeal from the Supreme Court of New South Wales
Representation
P M Wass SC with G E L Huxley for the appellant (instructed by Legal Aid Commission of NSW)
J H Pickering SC with H Baker for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Nguyen v The Queen
Criminal law – Sentencing – Manslaughter – Excessive self-defence – Where deceased a police officer – Where appellant taken to have shot deceased in honest but mistaken belief that deceased was person posing as police officer with intent to rob appellant – Whether sentencing judge erred in assessment of objective gravity of offence by taking into account absence of circumstance which if present would render subject offence a different offence – Relevance of R v De Simoni (1981) 147 CLR 383.
Criminal law – Sentencing – Totality principle – Where appellant convicted of manslaughter and wounding with intent to cause grievous bodily harm – Whether open to sentencing judge to impose wholly concurrent sentences – Whether appellate court erred in partially accumulating sentences – Whether sentence imposed manifestly inadequate.
Words and phrases – "accumulation", "concurrency", "De Simoni principle", "manifestly inadequate", "objective gravity", "totality".
BELL AND KEANE JJ. This appeal raises two issues concerning the application of common law principles governing the sentencing of offenders. The first issue is whether the principle enunciated in R v De Simoni[1] applies to preclude a sentencing judge from taking into account favourably to the offender the absence of a factor which, had it been present, would have rendered the offender liable for a more serious offence. The second issue concerns the scope of the sentencing judge's discretion to impose wholly concurrent sentences for offences that are the product of the same act. This is an aspect of the application of the principle referred to as totality in sentencing. The issues arise in the context of sentencing under the Crimes (Sentencing Procedure) Act1999 (NSW) ("the Sentencing Act"), which, relevantly, preserves the application of both principles[2].
On 19 July 2012, the appellant pleaded guilty in the Supreme Court of New South Wales to the manslaughter of Constable William Crews[3] and to wounding Constable Crews with intent to cause grievous bodily harm to him[4]. Manslaughter and wounding with intent to cause grievous bodily harm are offences that are each subject to a maximum penalty of imprisonment for 25 years[5]. A standard non-parole period of seven years is prescribed for the wounding offence[6]. The sentencing judge (Fullerton J) took…
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.
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Details
AGLC
Nguyen v The Queen [2016] HCA 17
Case
[2016] HCA 17
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by the appellant, Nguyen, against a decision of the New South Wales Court of Criminal Appeal. The dispute concerned the sentencing of Nguyen for manslaughter and wounding with intent to cause grievous bodily harm. The appellant had been convicted of these offences arising from a single act of firing a pistol. The deceased was a police officer who was shot by the appellant in the mistaken belief that he was an intruder attempting to rob the appellant.
The legal issues before the High Court were whether the Court of Criminal Appeal erred in its application of the principle established in *R v De Simoni* when assessing the objective gravity of the manslaughter offence, and whether it erred in concluding that the sentences for the two offences should be partially accumulated rather than wholly concurrent. The appellant also contended that these errors led the Court of Criminal Appeal to wrongly find the sentences imposed by the trial judge to be manifestly inadequate.
The High Court found that the Court of Criminal Appeal had erred in its application of the *De Simoni* principle. The Court of Criminal Appeal had reasoned that the trial judge had improperly taken into account the absence of a circumstance (the deceased being a police officer) which, if present, would have rendered the offence murder, thereby increasing the perceived gravity of the manslaughter. The High Court clarified that the *De Simoni* principle prohibits a sentencing judge from increasing the objective gravity of an offence by reference to circumstances that would render it a different, more serious offence, but it does not prevent consideration of the actual circumstances of the offence as committed. The High Court also found that the Court of Criminal Appeal had erred in its conclusion that partial accumulation of sentences was necessary, noting that the single criminal act was the genesis of both offences and that the trial judge's decision for concurrent sentences was permissible.
Despite these errors in reasoning regarding the *De Simoni* principle and sentence accumulation, the High Court ultimately dismissed the appeal. This was because the Court of Criminal Appeal's conclusion that the sentences were manifestly inadequate, having regard to the nature and gravity of the offences and the surrounding circumstances, remained sound. Therefore, the appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
On 11 December 2015, Kiefel and Gageler JJ granted the appellant special leave to appeal on grounds which contend that the Court of Criminal Appeal erred (i) in its application of the principle in De Simoni to justify the imposition of a sentence of greater severity; and (ii) in concluding that, in circumstances in which the appellant's single act was the genesis of both offences, it was necessary to partially accumulate the sentences. These grounds do not, in terms, challenge the Court of Criminal Appeal's conclusion that each sentence was manifestly inadequate. The appellant seeks to overcome this difficulty by contending that the "De Simoni error" infected the Court of Criminal Appeal's assessment of the inadequacy of the sentence for manslaughter. If that proposition were to be made good, it might affect the Court of Criminal Appeal's allied conclusion that the manslaughter sentence could not comprehend the criminality of both offences. Nonetheless, for the reasons to be given, the proposition is not made good. The Court of Criminal Appeal's conclusion that each sentence was manifestly inadequate stands. It follows that the appeal must be dismissed. The factual background The appellant was living in a unit in Bankstown and had the use of Garage 8, which was located in the basement of the unit complex. About two weeks before the events giving rise to this matter, the appellant was the victim of an attempted robbery. He was inside Garage 8 when two masked men armed with cricket bats entered. The appellant shouted at them and they fled, leaving a mobile telephone behind. Following this incident, the appellant obtained a pistol with a view to defending himself against any further attempted robbery. He did not have a licence to possess the pistol. On the evening of 8 September 2010, the appellant and an associate, Tan Chung, were in Garage 1 of the unit complex discussing a drug deal with three other men. Earlier that day, the police had obtained a warrant to search the appellant's unit and Garage 8. Shortly after negotiations over the drug deal came to an end and the three men left Garage 1, the police entered the basement of the unit complex. Detective Senior Constable Roberts was in charge of the execution of the search warrant. Eight officers were involved in the operation. Three were in uniform and the remainder were in civilian clothing. They did not anticipate that the appellant would be armed and the operation was assessed as a low risk one. Detective Roberts and the deceased, in civilian clothes, were the first officers to enter the basement of the complex. Detective Roberts was carrying a battering ram and the deceased was carrying a folder containing the search warrant and other documents. They walked towards Garage 1 in the mistaken belief that it was Garage 8. Other officers also in civilian clothes were close behind them. None had drawn a firearm. They announced that they were police several times as they approached Garage 1. The deceased was in front of Detective Roberts. Detective Roberts heard the deceased call out "gun, he has a gun".
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
BELL AND KEANE JJ
GAGELER, NETTLE AND GORDON JJ
The second is her Honour's conclusion that the sentence imposed for the offence of manslaughter and the sentence imposed for the offence of wounding should be wholly concurrent. Of that her Honour said this[74]: "Although the consequences of the offender's criminal act are different (in that the bullet he fired caused a wounding while the bullet he caused to be fired caused a death), the same criminal conduct is common to both offences. Detective Senior Constable Roberts has no criminal liability for firing the fatal shot. In these circumstances I am satisfied that the total criminality constituted by his offending can be comprehended by the sentence for the manslaughter, which I accept is the more serious offence by reason of the loss of life." [74]R v Nguyen [2013] NSWSC 197 at [69].The decision of the Court of Criminal Appeal The Court of Criminal Appeal (Beazley P, Johnson and RA Hulme JJ) held that the judge erred in her assessment of the objective gravity of the offence of manslaughter by contrasting it with what the judge supposed would have been the gravity of the offence if the appellant had known that the deceased was a police officer. In substance, the Court of Criminal Appeal reasoned that if the appellant had been aware that the deceased was a police officer the offence would have been murder, not manslaughter, and thus that the judge erred by taking into account the absence of a circumstance which, had it been present, would have warranted conviction for a more serious offence than manslaughter. The Court of Criminal Appeal described that as a breach of the principle deriving from R v De Simoni[75]. [75](1981) 147 CLR 383; [1981] HCA 31. The Court of Criminal Appeal also considered that the judge erred by not cumulating part of the sentence imposed for the offence of wounding on the sentence imposed for the offence of manslaughter. Their Honours reasoned that the two offences were "distinct offences caused by different bullets causing very different consequences" and thus that "[a] measure of accumulation was necessary"[76]. [76]R v Nguyen (2013) 234 A Crim R 324 at 339 [81], 340 [83]. Ultimately, the Court of Criminal Appeal was satisfied that the sentences were manifestly inadequate, having had regard to the nature and gravity of the offences, the circumstances in which they were committed and the personal circumstances of the appellant, including his age and antecedents.Parties' contentions The appellant contends that the Court of Criminal Appeal erred in its application of what it described as the De Simoni principle; erred in holding that the judge was wrong not to cumulate some part of the sentence imposed for the offence of wounding on the sentence imposed for the offence of manslaughter; and, as a consequence, erred in holding that the sentences imposed by the judge were manifestly inadequate. The respondent contends that there is no error disclosed in the Court of Criminal Appeal's reasoning.Reference to De Simoni misplaced
Ratio Decidendi
Legal Principle Established
Established by:
BELL AND KEANE JJ,
GAGELER, NETTLE AND GORDON JJ