Nguyen v Wyk

Case [2021] WASC 66


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   NGUYEN -v- WYK [2021] WASC 66

CORAM:   MCGRATH J

HEARD:   24 FEBRUARY 2021

DELIVERED          :   11 MARCH 2021

FILE NO/S:   SJA 1066 of 2020

BETWEEN:   CHAU THI KIM NGUYEN

Appellant

AND

ELIZABETH VAN WYK

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   DEPUTY CHIEF MAGISTRATE WOODS

File Number            :   PE 27164 OF 2020


Catchwords:

Criminal law - Appeal against sentence - Stealing as a servant - Whether sentence manifestly excessive - Express error of law - Failure to take into account mental illness - Failure to specify discount afforded under s 9AA of the Sentencing Act

Legislation:

Criminal Code (WA), s 9AA, s 378(7)
Sentencing Act 1995 (WA), s 45

Result:

Extension of time in which to appeal granted
Leave to appeal on grounds 1 and 3 granted
Leave to appeal not granted on ground 2
Appeal allowed

Category:    B

Representation:

Counsel:

Appellant : Mr A J Robson
Respondent : Ms K C Cook

Solicitors:

Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)

Cases referred to in decision:

Allie v The State of Western Australia [2016] WASCA 6

Cartwright v The State of Western Australia [2010] WASCA 4

Dimanopoulos v The State of Western Australia [2011] WASCA 62

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

GNR v The State of Western Australia [2015] WASCA 5

Gok v The Queen [2010] WASCA 185

Heaney v The State of Western Australia [No 2] [2013] WASCA 238

Krijestorac v The State of Western Australia [2010] WASCA 35

Pflug v The State of Western Australia [2018] WASCA 65

R v Tognini [2000] WASCA 31

R v Tsiaras [1996] 1 VR 398

Roberts v The State of Western Australia [2014] WASCA 239

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Sharpe v Vinning [2020] WASCA 79

Thompson v The Queen [2005] WASCA 223

Wheeler v The Queen [No 2] [2010] WASCA 105

Wright v McMurchy [2012] WASCA 257

MCGRATH J:

  1. On 31 July 2020 the appellant was convicted, upon her own plea, of one offence of stealing as a servant contrary to s 378(7) of the Criminal Code (WA). The learned magistrate imposed an 8 month term of imprisonment suspended for 12 months.

  2. The appellant now seeks leave to appeal against the sentence imposed. The appellant contends that the learned magistrate erred in law by failing to take into account a relevant factor in mitigation, namely that she was suffering a mental illness at the time of the offending, and secondly, by failing to afford the appellant a discount for the plea of guilty pursuant to s 9AA of the Sentencing Act1995 (WA). The appellant further contends that the learned magistrate imposed a sentence that was manifestly excessive in that a different type of sentence should have been imposed, namely a community based order. In addition, the appellant seeks a spent conviction order.

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Nguyen v Wyk [2021] WASC 66
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[2021] WASC 66
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CaseChat Overview and Summary

In the Supreme Court of Western Australia, Chau Thi Kim Nguyen appeals against the sentence imposed on her by the Magistrates Court. Nguyen was convicted of stealing as a servant and was sentenced to an 8-month term of imprisonment, suspended for 12 months. Nguyen contends that the sentence was manifestly excessive and that the sentencing magistrate erred in failing to take into account her mental illness and failing to discount the sentence for her guilty plea. The court granted leave to appeal on the first and third grounds and dismissed the second ground. The appeal was allowed and a sentence of 6 months 2 weeks suspended for 8 months was imposed. A spent conviction order was not made. The court found that the offending was not trivial and that Nguyen was not unlikely to commit such an offence again.

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