R v Dinh

Case [2010] NSWCCA 74 3 May 2010

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Reported Decision: 199 A Crim R 573

New South Wales

Court of Criminal Appeal

CITATION: R v Dinh [2010] NSWCCA 74

HEARING DATE(S): 15 December 2009

JUDGMENT DATE:
3 May 2010

JUDGMENT OF: Basten JA at 1; Howie J at 2; Johnson J at 3

DECISION: 1. Leave granted to amend the notice of appeal by adding the grounds set out at [33] of the judgment.
2. Crown appeal allowed.
3. Sentence imposed in the Sydney District Court on 27 August 2009 quashed.
4. In its place, and taking into account the offences on the Form 1, the Respondent is sentenced to imprisonment comprising a non-parole period of four years to date from 14 January 2010 and to expire on 13 January 2014 with a balance of term of two years commencing on 14 January 2014 and expiring on 13 January 2016. The earliest date upon which the Respondent will be eligible for release on parole is 13 January 2014.

CATCHWORDS: CRIMINAL LAW - Crown appeal on sentence - offence of applying corrosive fluid with intent to burn under s.47 Crimes Act 1900 - acid attack - offender subject to bond and suspended sentence - objective seriousness of offence - manifestly inadequate sentence - relevance of Crown approach in District Court - whether Court should decline to resentence on discretionary grounds - Court should proceed to resentence offender - accumulation, concurrency and totality as between previously suspended sentence and sentence imposed on Crown appeal

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Life Sentences) Amendment Act 1989
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: R v JW [2010] NSWCCA 49
Ibbs v The Queen [1987] HCA 46; 163 CLR 447
R v Tan [2007] NSWSC 684
R v Difford [2001] QCA 359
R v Williams [2002] QCA 142
R v Woodman [2009] QCA 197
R v SK and OZ [2001] NSWCCA 492)
R v Ohanian (Moore ADCJ, unreported, 16 December 2002)
R v Hickey (Blanch CJ, unreported, 4 August 2006)
R v Scamakas (Garling DCJ, unreported, 9 November 2006)
Van Haltren v R [2008] NSWCCA 274; 191 A Crim R 53
R v Araya [2005] NSWCCA 283; 155 A Crim R 555
Han v R [2009] NSWCCA 300
Attorney General’s Application Under S.37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
Power v The Queen [1974] HCA 26; 131 CLR 623
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Edwards v R [2009] NSWCCA 199
GAS v The Queen [2004] HCA 22; 217 CLR 198
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379
R v MAK [2006] NSWCCA 381; 167 A Crim R 159
Hejazi v R [2009] NSWCCA 282

PARTIES: Regina…

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 R v Dinh

Details

AGLC: R v Dinh [2010] NSWCCA 74
Case: [2010] NSWCCA 74
Decision Date: 3 May 2010

CaseChat Overview and Summary

The parties involved in this case were the respondent, Dinh, and the appellant, the Crown. The dispute centred on the sentence imposed on the respondent for the offence of applying corrosive fluid with intent to burn, an offence under section 47 of the Crimes Act 1900. The case was heard by the NSW Court of Criminal Appeal, which was required to determine whether the sentence imposed was manifestly inadequate and whether the Court should resentence the respondent.

The legal issues the court had to decide included whether the sentence imposed on the respondent was manifestly inadequate, whether the Court should decline to resentence the respondent on discretionary grounds, and if the Court should proceed to resentence the respondent. The Court also had to consider the relevance of the Crown's approach in the District Court and the principles of accumulation, concurrency, and totality as between the previously suspended sentence and the sentence imposed on Crown appeal.

The Court of Criminal Appeal held that the sentence imposed on the respondent was manifestly inadequate. The Court found that the Crown's approach in the District Court, which considered the offence to be of high objective seriousness, was relevant in determining whether the sentence was inadequate. The Court further held that it should proceed to resentence the respondent and that the principles of accumulation, concurrency, and totality should be considered in determining the appropriate sentence. The Court noted that the previously suspended sentence and the sentence imposed on Crown appeal should not be accumulated, but rather should be considered concurrently, and the totality of the sentence should reflect the seriousness of the offence.

The final orders of the Court were that the sentence imposed on the respondent was quashed, and the respondent was resentenced to a term of imprisonment of five years and six months, with a non-parole period of three years and nine months. The Court also ordered that the sentence should be served concurrently with the previously suspended sentence.

Orders