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Nguyen v Wyk

Nguyen v Wyk

Case [2021] WASC 66 11 March 2021

Miscarriage of Justice

Specific Performance

Criminal Law

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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:

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.
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.

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 Wyk

Details

AGLC: Nguyen v Wyk [2021] WASC 66
Case: [2021] WASC 66
Decision Date

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.

Orders