Nguyen v The Queen

Case [2001] WASCA 119


NGUYEN -v- THE QUEEN [2001] WASCA 119



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2001] WASCA 119
COURT OF CRIMINAL APPEAL
Case No:CCA:201/200021 MARCH 2001
Coram:MALCOLM CJ
PIDGEON J
WALLWORK J
12/04/01
23Judgment 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…

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AGLC
Nguyen v The Queen [2001] WASCA 119
Case
[2001] WASCA 119
Decision Date

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

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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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