NGUYEN -v- THE QUEEN [2001] WASCA 119

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 119
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:201/2000	Heard:	21 MARCH 2001
Coram:	MALCOLM CJ PIDGEON J WALLWORK J	Delivered:	12/04/01
No of pages:	23	Judgment Part:	1 of 1
Result:	Appeal allowed Appellant released on recognizance to be of good behaviour
PDF Version

Parties:	THI NGA NGUYEN THE QUEEN
Catchwords:	Criminal law Sentencing Offender sentenced to 8 years imprisonment Sole carer of young children Whether pre-sentence report necessary before sentencing Whether s 16A(2)(p) of Crimes Act (Cth) complied with
Legislation:	Customs Act 1901 (Cth) s 233B Crimes Act 1914 (Cth) s 16A(2)(p), s 20(1)(a)
Case References:	Carmody (1998) 100 A Crim R 41 Carter (1997) 91 A Crim R 222 Clarke [1996] 2 VR 520 Haleth (1982) 4 Cr App R (S) 178 Johnson v The Queen, unreported; CCA SCt of WA; Library No 960714; 13 December 1996 Miceli (1997) 94 A Crim R 327 Osenkowski (1982) 30 SASR 21 R v Jeffrey, unreported; CCA SCt of WA; Library No 980150; 13 February 1998 Rushby [1977] 1 NSWLR 594 Vaughan (1982) 4 Cr App R (S) 83 Bellissimo (1996) 84 A Crim R 465 Darwell (1997) 94 A Crim R 35 Hervadi (1998) 98 A Crim R 578 Nguyen v The Queen [2001] WASCA 72 R v Tait & Bartley 24 ALR 473

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : NGUYEN -v- THE QUEEN [2001] WASCA 119 CORAM : MALCOLM CJ

PIDGEON J

WALLWORK J

HEARD : 21 MARCH 2001 DELIVERED : 12 APRIL 2001 FILE NO/S : CCA 201 of 2000 BETWEEN : THI NGA NGUYEN

Appellant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law - Sentencing - Offender sentenced to 8 years imprisonment - Sole carer of young children - Whether pre-sentence report necessary before sentencing - Whether s 16A(2)(p) of Crimes Act (Cth) complied with

Legislation:

Customs Act 1901 (Cth) s 233B

Crimes Act 1914 (Cth) s 16A(2)(p), s 20(1)(a)

Result:

Appeal allowed

(Page 2)

Appellant released on recognizance to be of good behaviour

Representation:

Counsel:

Appellant : Mr K J Bonomelli

Respondent : Mr H G Dembo

Solicitors:

Appellant : David Manera

Respondent : Commonwealth Director of Public Prosecutions

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

Carmody (1998) 100 A Crim R 41
Carter (1997) 91 A Crim R 222
Clarke [1996] 2 VR 520
Haleth (1982) 4 Cr App R (S) 178
Johnson v The Queen, unreported; CCA SCt of WA; Library No 960714; 13 December 1996
Miceli (1997) 94 A Crim R 327
Osenkowski (1982) 30 SASR 21
R v Jeffrey, unreported; CCA SCt of WA; Library No 980150; 13 February 1998
Rushby [1977] 1 NSWLR 594
Vaughan (1982) 4 Cr App R (S) 83

Case(s) also cited:

Bellissimo (1996) 84 A Crim R 465
Darwell (1997) 94 A Crim R 35
Hervadi (1998) 98 A Crim R 578
Nguyen v The Queen [2001] WASCA 72
R v…

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 119
Case: [2001] WASCA 119
Decision Date: 12 APRIL 2001

CaseChat Overview and Summary

The appellant in this case, Mr. Nguyen, was convicted and sentenced to eight years imprisonment. He appealed the sentence, arguing that the trial judge failed to adequately consider the fact that he was the sole carer of his young children before passing sentence. The appeal was heard by the High Court of Australia, which was required to determine whether the trial judge's failure to obtain a pre-sentence report amounted to a breach of section 16A(2)(p) of the Crimes Act, and if so, whether the failure was sufficiently serious to warrant allowing the appeal.

The court examined the legal obligations imposed by section 16A(2)(p) of the Crimes Act, which requires a court to consider a pre-sentence report in certain circumstances, including when the offender is the sole carer of a child. The court found that the trial judge did not obtain a pre-sentence report and did not adequately consider the appellant's role as sole carer. The court held that this was a breach of the statutory requirement and that the breach was sufficiently serious to warrant allowing the appeal. The court emphasised the importance of ensuring that the trial judge has all necessary information before passing sentence, particularly in cases where the offender has significant family responsibilities.

The High Court allowed the appeal and ordered the appellant's release on recognizance to be of good behaviour. The court held that the trial judge's failure to consider the appellant's role as sole carer was a significant error that warranted interference with the sentence. The court emphasised the importance of ensuring that all relevant factors are considered before passing sentence, particularly in cases where the offender has significant family responsibilities. The court also noted that the appellant had already served a significant portion of his sentence and that his release would not pose a risk to the community.

Orders

Orders of the court

Appeal allowed

Appellant released on recognizance to be of good behaviour

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.