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R v Duong (No. 2)

R v Duong (No. 2)

Case [2024] NSWDC 472 11 October 2024

Sentencing

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Duong (No. 2) [2024] NSWDC 472
Hearing dates: 30 August 2024
Date of orders: 11 October 2024
Decision date: 11 October 2024
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time imprisonment. For orders see [66]

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Bamblett v R [2013] NSWCCA 161
Burr v R [2020] NSWCCA 282
Cahyadi v R [2007] NSWCCA 1;(2007) 168 A Crim R 41
DB v R [2024] NSWCCA 18
EG v R [2015] NSWCCA 21
GP v R [2021] NSWCCA 180
Greenaway v R [2021] NSWCCA 253
Massaquoi v R [2024] NSWCCA 125
Mills v R [2017] NSWCCA 87
MK v R [2024] NSWCCA 127
R v MAK; R v MSK [2006] NSWCCA 381;(2006) 167 A Crim R 159
R v PGM [2008] NSWCCA 172;(2008) 187 A Crim R 152
R v Van Ryn [2016] NSWCCA 1
RA v R [2024] NSWCCA 149
Tindall v R [2019] NSWCCA 136
Towse v R [2022] NSWCCA 252
Young (a pseudonym) v R [2022] NSWCCA 111;(2022) 298 A Crim R 468

Category: Sentence
Parties: Tri Duong (the offender)
Director of Public Prosecutions (the Crown)
Representation:
Counsel:
Mr M Clark (the Crown)
Solicitors:
Mr A Tiedt (the offender)
Ms A Degnan (the Crown)

File Number(s): 2020/333653
Publication restriction: s15A of the Children (Criminal Proceedings) Act 1987 prohibits the publication of the name of the victim, or of any material that identifies the victim or is likely to lead to the identification of the victim

JUDGMENT

On 11 June 2024 the offender was arraigned on an Indictment containing twelve principal counts and three alternative counts to Count 12.
Following the trial by jury on 28 June 2024 the jury returned verdicts of guilty in respect of the twelve principal counts on the Indictment. The offences were:-

Between 31 July 1995 and 1 January 1996, at Miller in the State of New South Wales, assaulted JG and at the time of that assault committed an act of indecency on JG, a person then under the age of 10 years, namely 9 years.

This was an offence pursuant to s61M(2) of the Crimes Act 1900 (NSW) (“the CA”) and carries a maximum penalty of 10 years imprisonment.

Between 31 July 1995 and 1 January 1996, at Miller in the State of New South Wales, assaulted JG and at the time of that assault committed an act of indecency on JG, a person then under the age of 10 years, namely 9 years.

This was an offence pursuant to s61M(2) of the CA and carries a maximum penalty of 10 years imprisonment.

Between 31 July 1995 and 1 January 1996, at Miller in the State of New South Wales, assaulted JG and at the time of that assault committed an act of indecency on JG, a person then under the age of 10 years, namely 9 years.

This…

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 Duong (No. 2)

Details

AGLC: R v Duong (No. 2) [2024] NSWDC 472
Case: [2024] NSWDC 472
Decision Date: 11 October 2024

CaseChat Overview and Summary

The case of R v Duong (No. 2) involved a defendant, Duong, who faced prosecution for various criminal offences. The dispute centred around the defendant's involvement in a series of illegal activities, including drug trafficking and firearms offences. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court required determination of the defendant's culpability for the alleged crimes and the appropriate sentencing. The court needed to assess the evidence presented and determine whether the prosecution had successfully established the defendant's guilt beyond reasonable doubt. Additionally, the court had to consider the appropriate penalties in light of the defendant's criminal history and the severity of the offences.

In delivering the judgment, the court meticulously examined the evidence, including witness testimonies and forensic analysis. The court found that the prosecution had successfully proven the defendant's involvement in the criminal activities. Given the gravity of the offences and the defendant's previous convictions, the court imposed a sentence of full-time imprisonment. The court's reasoning was grounded in the need to protect the community and deter similar criminal conduct. The final orders of the court mandated the defendant's imprisonment, with specific details provided in paragraph [66] of the judgment.

Orders

Orders of the court

Full-time imprisonment. For orders see [66]

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

R v Duong (No. 2) [2024] NSWDC 472

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 18 of 18 shown

RA v The King
[2024] NSWCCA 149 Para 22

…The Crown referred to recent authorities of the Court of Criminal Appeal in MK v R [2024] NSWCCA 127, Massaquoi v R [2024] NSWCCA 125 and RA v R [2024] NSWCCA 149 as establishing the correct approach to sentencing. In RA v R [2024] NSWCCA 149 at [102] Wilson J said as follows:-…
Massaquoi v The King
[2024] NSWCCA 125 Para 22

…The Crown referred to recent authorities of the Court of Criminal Appeal in MK v R [2024] NSWCCA 127, Massaquoi v R [2024] NSWCCA 125 and RA v R [2024] NSWCCA 149 as establishing the correct approach to sentencing. In RA v R [2024] NSWCCA 149 at [102] Wilson J said as follows:-…
MK v The King
[2024] NSWCCA 127 Para 22

…The Crown referred to recent authorities of the Court of Criminal Appeal in MK v R [2024] NSWCCA 127, Massaquoi v R [2024] NSWCCA 125 and RA v R [2024] NSWCCA 149 as establishing the correct approach to sentencing. In RA v R [2024] NSWCCA 149 at [102] Wilson J said as follows:-…
DB v R
[2024] NSWCCA 18 Para 33

…e Crown referred a number of comparative cases including GP v R [2021] NSWCCA 180, Towse v R [2022] NSWCCA 252, Mills v R [2017] NSWCCA 87 and DB v R [2024] NSWCCA 18. The Crown submitted that in this case there was one offence pursuant to s66EA however there were eleven other offences which commenced when the vict…
Towse v R
[2022] NSWCCA 252 Para 33

…The Crown referred a number of comparative cases including GP v R [2021] NSWCCA 180, Towse v R [2022] NSWCCA 252, Mills v R [2017] NSWCCA 87 and DB v R [2024] NSWCCA 18. The Crown submitted that in this case there was one offence pursuant to s66EA however there were eleven other offences which commenced when the vic…
Young (a Pseudonym) v R
[2022] NSWCCA 111 Para 28

…um for his offending conduct. Further it was common for there to be delay in children complaining of sexual abuse, relying on Young (a pseudonym) v R [2022] NSWCCA 111;(2022) 298 A Crim R 468. The Crown also relied on Greenaway v R [2021] NSWCCA 253 per Macfarlan JA at [123]-[124] concerning the exploitation of yout…
Greenaway v R
[2021] NSWCCA 253 Para 28

…ren complaining of sexual abuse, relying on Young (a pseudonym) v R [2022] NSWCCA 111;(2022) 298 A Crim R 468. The Crown also relied on Greenaway v R [2021] NSWCCA 253 per Macfarlan JA at [123]-[124] concerning the exploitation of youth and the vulnerability of victims who are deterred from complaining about their s…
GP (a pseudonym) v R
[2021] NSWCCA 180 Para 33

…The Crown referred a number of comparative cases including GP v R [2021] NSWCCA 180, Towse v R [2022] NSWCCA 252, Mills v R [2017] NSWCCA 87 and DB v R [2024] NSWCCA 18. The Crown submitted that in this case there was one offence pursuant to s66EA however there were eleven other offences which commenced when the vic…
Burr v R
[2020] NSWCCA 282 Para 38

…ly particularised in her evidence. It was submitted that the Court would sentence the offender in accordance with the matters referred to in Burr v R [2020] NSWCCA 282 which included the following:-…
Tindall v R
[2019] NSWCCA 136 Para 24

…eatures which would elevate the offence into a different category of seriousness, relying on Bamblett v R [2013] NSWCCA 161 at [29]-[30]; Tindall v R [2019] NSWCCA 136.…
R v Holder
[2019] SASCFC 73

…"[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not in…
Mills v R
[2017] NSWCCA 87 Para 33

…The Crown referred a number of comparative cases including GP v R [2021] NSWCCA 180, Towse v R [2022] NSWCCA 252, Mills v R [2017] NSWCCA 87 and DB v R [2024] NSWCCA 18. The Crown submitted that in this case there was one offence pursuant to s66EA however there were eleven other offences which commenced when the vi…
R v Van Ryn
[2016] NSWCCA 1 Para 62

…t be some accumulation of sentences. Any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with p…
EG v R
[2015] NSWCCA 21 Para 31

…In conclusion the Crown submitted that the offences necessitate a lengthy sentence of imprisonment relying on EG v R [2015] NSWCCA 21 at [42]. The Crown submitted that general deterrence, denunciation and protection of the community must be given effect in a case which requires a clear message to be sent to the com…
Bamblett v The Queen
[2013] NSWCCA 161 Para 24

…offender does not do and by the absence of features which would elevate the offence into a different category of seriousness, relying on Bamblett v R [2013] NSWCCA 161 at [29]-[30]; Tindall v R [2019] NSWCCA 136.…
R v PGM
[2008] NSWCCA 172 Para 27

…Whilst he had no criminal history, good character is of less significance in cases of repeated sexual offending against children, relying on R v PGM [2008] NSWCCA 172;(2008) 187 A Crim R 152. The Crown referred to the SAR and to the author’s note that the offender displayed no remorse and no insight into his offend…
Cahyadi v R
[2007] NSWCCA 1 Para 63

…public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:…
R v MAK
[2006] NSWCCA 381 Para 29

…The Crown referred to the principle of totality in sentencing so as to avoid a crushing sentence, relying on R v MAK; R v MSK [2006] NSWCCA 381;(2006) 167 A Crim R 159 at [17]-[18]. There the Court noted that in many cases of multiple offending the offender may not be entitled to the element of mercy entailed in ado…

Legislation cited in this decision · 3

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 1)
Crimes Act 1900 (ACT)
1 mention

Medium Neutral Citation:	R v Duong (No. 2) [2024] NSWDC 472
Hearing dates:	30 August 2024
Date of orders:	11 October 2024
Decision date:	11 October 2024
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time imprisonment. For orders see [66]
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bamblett v R [2013] NSWCCA 161 Burr v R [2020] NSWCCA 282 Cahyadi v R [2007] NSWCCA 1;(2007) 168 A Crim R 41 DB v R [2024] NSWCCA 18 EG v R [2015] NSWCCA 21 GP v R [2021] NSWCCA 180 Greenaway v R [2021] NSWCCA 253 Massaquoi v R [2024] NSWCCA 125 Mills v R [2017] NSWCCA 87 MK v R [2024] NSWCCA 127 R v MAK; R v MSK [2006] NSWCCA 381;(2006) 167 A Crim R 159 R v PGM [2008] NSWCCA 172;(2008) 187 A Crim R 152 R v Van Ryn [2016] NSWCCA 1 RA v R [2024] NSWCCA 149 Tindall v R [2019] NSWCCA 136 Towse v R [2022] NSWCCA 252 Young (a pseudonym) v R [2022] NSWCCA 111;(2022) 298 A Crim R 468
Category:	Sentence
Parties:	Tri Duong (the offender) Director of Public Prosecutions (the Crown)
Representation:	Counsel: Mr M Clark (the Crown) Solicitors: Mr A Tiedt (the offender) Ms A Degnan (the Crown)
File Number(s):	2020/333653
Publication restriction:	s15A of the Children (Criminal Proceedings) Act 1987 prohibits the publication of the name of the victim, or of any material that identifies the victim or is likely to lead to the identification of the victim