R v Dole; R v Nguyen - [2010] NSWCCA 101

New South Wales
Court of Criminal Appeal

CITATION: R v Dole; R v Nguyen [2010] NSWCCA 101

HEARING DATE(S): 2 February 2010

JUDGMENT DATE:
13 May 2010

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Harrison J at 14

DECISION: 1. Appeal allowed.
2. Sentences imposed in the District Court quashed.
3. Each of the respondents is sentenced to a term of imprisonment made up of a non-parole period of 2 years and a balance of term of 1 year and 4 months. The sentences should date from 21 July 2009 and the non-parole period expire on 20 July 2011 the date upon which the respondents are eligible to be considered for release to parole.

CATCHWORDS: CRIMINAL LAW – Crown appeal – specially aggravated break and enter and commit serious indictable offence – whether sentencing judge failed to give sufficient weight to the objective criminality of the offences or gave disproportionate weight to the respondents' subjective circumstances – whether sentencing judge erroneously double counted factors when determining degree of departure from the standard non-parole period - whether degree of departure from the standard non-parole period so great as to manifest error - sentences manifestly inadequate – appeals allowed.

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

CATEGORY: Principal judgment

CASES CITED: Barlow v The Queen [2008] NSWCCA 96; (2008) 184 A Crim R 187
Carroll v The Queen [2009] HCA 13; (2009) 254 ALR 379
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mulato v Regina [2006] NSWCCA 282
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Fidow [2004] NSWCCA 172
R v JW [2010] NSWCCA 49
R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
SKA v R; R v SKA [2009] NSWCCA 186
Woodgate v R [2009] NSWCCA 137

PARTIES: Regina
Yasir Dole (Respondent)
Steven Nguyen (Respondent)

FILE NUMBER(S): CCA 2008/15208; 2008/15209

COUNSEL: P Leask (Crown)
J Galluzzo (Respondent Dole)
D Pullinger (Respondent Nguyen)

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions (Crown)
The Criminal Law Centre (Respondent Nguyen)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/15208; 2008/25209

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

LOWER COURT DATE OF DECISION: 21 July 2009 (date of sentence)

2008/15208; 2008/15209

McCLELLAN CJ at CL
HOWIE J
HARRISON J
13 May 2010

R v Yasir DOLE; R v Steven NGUYEN

Judgment

1 McCLELLAN CJ at CL: I agree with Howie J.

2 HOWIE J: I have received the benefit of reading the judgment of Harrison J in draft. I agree that the sentences are manifestly inadequate to a significant degree. I am able to adopt the facts and generally the arguments set out by his Honour in his judgment. However, I wish to make some short additional observations of my own and reach a different conclusion from his Honour as…

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.

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Details

Case: [2010] NSWCCA 101
Decision Date: 13 May 2010

CaseChat Overview and Summary

The respondents, Dole and Nguyen, were convicted for their roles in a specially aggravated break and enter and commit serious indictable offence. The Crown appealed against the sentences imposed by the sentencing judge, arguing that the judge failed to give sufficient weight to the objective criminality of the offences and gave disproportionate weight to the respondents' subjective circumstances. Additionally, the Crown submitted that the sentencing judge erroneously double counted factors when determining the degree of departure from the standard non-parole period, and that the degree of departure was so great as to manifest error.

The legal issues before the court were whether the sentencing judge failed to give sufficient weight to the objective criminality of the offences or gave disproportionate weight to the respondents' subjective circumstances, whether the sentencing judge erroneously double counted factors when determining the degree of departure from the standard non-parole period, and whether the degree of departure from the standard non-parole period so great as to manifest error. The court found that the sentencing judge had failed to give sufficient weight to the objective criminality of the offences and had given disproportionate weight to the respondents' subjective circumstances. The court also found that the sentencing judge had erroneously double counted factors when determining the degree of departure from the standard non-parole period. As a result, the degree of departure from the standard non-parole period was so great as to manifest error.

The appeals were allowed, and the sentences were quashed. The respondents were to be re-sentenced by a different judge, taking into account the court's findings regarding the objective criminality of the offences, the respondents' subjective circumstances, and the correct approach to determining the degree of departure from the standard non-parole period. The respondents were remanded in custody pending re-sentencing.

Orders