Criminal law and procedure - Manslaughter and assault occasioning bodily harm - Ten persons charged, a number plead guilty and a number go to trial - Criminal complicity - Common purpose to commit serious assault upon victims - Whether common purpose needed to encompass use of weapons - Direction required as to probable consequence of prosecution of common purpose

Criminal law and procedure - Sentencing - Parity of sentence with co-offenders - Application of totality principle - Whether total term of 12 years imprisonment with eligibility for parole for aggravated burglary, manslaughter and assault occasioning bodily harm manifestly excessive

Legislation:

Criminal Code (WA), s 8

Result:

Leave to appeal against conviction and sentence refused

Representation:

Counsel:

Applicant: Mr B S Hanbury
Respondent: Mr J Mactaggart

Solicitors:

Applicant: Beau Hanbury
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Brennan v The King (1936) 55 CLR 253
Jarvis v The Queen (1993) 20 WAR 201
Mason v The Queen (1995) 15 WAR 165
McAuliffe v The Queen (1995) 183 CLR 108
Osland v The Queen (1998) 197 CLR 316
Postiglione v The Queen (1997) 189 CLR 295
R v Barlow (1997) 188 CLR 1
Saunders v The Queen [1980] WAR 183
Stuart v The Queen (1974) 134 CLR 426
Warren v The Queen [1987] WAR 314
Wicks v The Queen [1989] 3 WAR 372

Case(s) also cited:

Borg v R [1972] WAR 194
G v R (1997) 96 A Crim R 162
Jeffries v R (1916) 18 WALR 143
Johns v R (1980) 28 ALR 155
Markby v The Queen (1978) 140 CLR 108
McKenzie v R (1996) 190 CLR 348
Nicolakis v R (1988) 32 A Crim R 451
R v Anderson & Morris [1966] 2 QB 110
R v Drury (1971) 56 Cr App R 104
R v Walton (1997) 95 A Crim R 98

MALCOLM CJ: In my opinion this application for leave to appeal against conviction and the applicant's further application for leave to appeal against sentence should each be refused. I have reached these conclusions for the reasons to be published by Murray J with which I agree.
MURRAY J:

Introduction

On 2 February 1998, 11 male persons went to a duplex in Casserley Avenue, Girrawheen. Their purpose it appears was to violently attack those whom they might find there. They had a particular target in mind, a person named Howson. He was attacked in the house and received a number of stab wounds from which he died as he fled the house, attempting to make his escape. He suffered a further attack in the yard outside. Another occupant of the house, a…

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 The Queen

Details

AGLC: Nguyen v The Queen [2001] WASCA 176
Case: [2001] WASCA 176
Decision Date: 13 JUNE 2001

CaseChat Overview and Summary

Nguyen was charged with manslaughter and assault occasioning bodily harm as part of a group of ten individuals. After several pleaded guilty, a number of the accused went to trial in the Supreme Court of Victoria. The case hinged on whether the accused had a common purpose to commit a serious assault on the victims and, if so, whether this purpose needed to encompass the use of weapons. Additionally, the court had to determine if the direction required as to the probable consequence of prosecuting a common purpose was adequately given.

The court examined whether the accused had a common purpose to commit a serious assault, and if this purpose included the use of weapons. The accused argued that the direction given to the jury regarding the probable consequence of prosecuting a common purpose was inadequate. The court found that the trial judge had correctly directed the jury on the necessary elements of common purpose and the potential consequences of such an offence. The use of weapons did not need to be specifically included in the common purpose if the weapons were used in furtherance of the common purpose.

The Supreme Court concluded that the trial judge's directions to the jury were appropriate, and the jury's findings of common purpose and the accused's involvement in the assault were supported by the evidence. The court also considered the sentencing, noting that the totality principle should be applied to ensure parity of sentence with co-offenders. After evaluating the totality of the offending and the principles of sentencing, the court found that the total term of 12 years imprisonment, with eligibility for parole, was not manifestly excessive.

The court upheld the convictions and sentences, affirming that the trial judge had correctly applied the principles of criminal law and procedure in reaching the verdict.

Orders