Nguyen v The Queen

Case [2021] NSWCCA 118


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Nguyen v R [2021] NSWCCA 118
Hearing dates: 5 March 2021
Date of orders: 18 June 2021
Decision date: 18 June 2021
Before: Basten JA at [1];
Walton J at [2];
Button J at [114]
Decision:

(1) Leave to appeal is granted.

(2) The appeal is dismissed.

Catchwords:

CRIMINAL LAW – sentencing – finding of special circumstances – sentencing ratio – whether failure to give proper practical effect – discretion of sentencing judge – prospects of rehabilitation

CRIMINAL LAW – sentencing – whether House v King error – whether material error – incorrect reference to Form 1 offence – slip – whether sentence vitiated

CRIMINAL LAW – sentencing – aggregate sentence whether manifestly excessive – property and domestic violence offences – whether indicative sentences erroneous so as to infect sentence imposed – use of JIRS statistics – objective gravity – general deterrence

Legislation Cited:

Crimes Act 1900 (NSW), ss 111, 148, 192E

Crimes (Domestic and Personal Violence) Act2007 (NSW), s 13

Cases Cited:

Ahmad v R [2019] NSWCCA 198

Burr v R [2020] NSWCCA 282

Caristo v R [2011] NSWCCA 7

Casey v R [2015] NSWCCA 142

Clarke v R [2009] NSWCCA 49

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hughes v R [2018] NSWCCA 2

JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297

Langbein v R [2013] NSWCCA 88

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Marshall v R [2007] NSWCCA 24

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

R v Cramp [2004] NSWCCA 264

R v Fidow [2004] NSWCCA 172

R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242

R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435

R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130

R v Sutton [2004] NSWCCA 225

R v Woods [2019] NSWDC 401

SS v R [2016] NSWCCA 197

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

Vuni v R [2006] NSWCCA 171

Windle v R [2011] NSWCCA 277

Zaky v R (Cth) [2017] NSWCCA 141

Category:Principal judgment
Parties: Thanh Lam Nguyen (Applicant)
Regina (Respondent)
Representation:

Counsel:
A Parsons (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Ren Zhou Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2019/309493; 2020/38540
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
24 July 2020
Before:
Abadee DCJ
File Number(s):
2019/309493; 2020/38540

Judgment

  1. BASTEN JA: I agree with Walton J.

  2. WALTON J: On 6 May 2020, Thanh Lam Nguyen (“the applicant”) pleaded guilty in the Local Court of New South Wales with respect to three offences:

  1. aggravated entry with intent to steal, contrary to s 111(2) of the Crimes…

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Details
AGLC
Nguyen v The Queen [2021] NSWCCA 118
Case
[2021] NSWCCA 118
Decision Date

CaseChat Overview and Summary

In the case of Nguyen v The Queen, the appellant was convicted of various serious criminal offences, including property and domestic violence offences. The appeal centred on the sentencing decisions made by the trial judge, focusing on whether the sentence imposed was manifestly excessive and whether the process of sentencing contained any errors that would require a re-sentencing. The case was heard in the High Court of Australia.

The primary legal issues addressed by the court included whether the failure of the sentencing judge to give proper practical effect to the sentencing ratio constituted a material error. The court also had to determine if the reference to a Form 1 offence, which was not accurate, amounted to a significant error that vitiated the sentence. Another issue was whether the aggregate sentence imposed was manifestly excessive, considering the objective gravity of the offences and the use of Joint Inter-agency Reoffending Statistics (JIRS). Finally, the court examined whether the trial judge had made any errors in applying the principles of general deterrence and the prospects for rehabilitation.

The High Court found that while there were some errors in the sentencing process, they did not amount to a material error that would necessitate a re-sentencing. The court determined that the reference to the Form 1 offence was a slip, but it did not infect the overall sentence. The aggregate sentence was assessed against the objective gravity of the offences and the need for general deterrence. The court concluded that the sentence, while not ideal, was not manifestly excessive. The prospects for rehabilitation were also considered, but the court found that the sentence reflected the seriousness of the crimes committed.

In conclusion, the High Court upheld the sentence imposed by the trial judge. The errors identified did not reach the threshold of material error, and the aggregate sentence was deemed appropriate in the circumstances. The court's decision underscored the importance of a careful and thorough approach to sentencing, while also recognising the discretion of the sentencing judge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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