R v Jin

Case [2011] NSWSC 169 16 March 2011

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Supreme Court

New South Wales

Medium Neutral Citation: R v Jin [2011] NSWSC 169
Hearing dates: 25 February 2011
Decision date: 16 March 2011
Jurisdiction: Common Law - Criminal
Before: McCallum J
Decision:
See paragraphs 41 to 44.

Catchwords: Criminal law - sentencing - accessory after the fact to murder
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Morgan (1993) 70 A Crim R 368
R v Farroukh (unreported) NSWCCA 29 March 1996
R v Leung [2000] NSWSC 824
R v Quach [2002] NSWSC 1205
R v Mirad [2004] NSWSC 701
R v Ward [2004] NSWSC 420
R v Doff [2005] NSWCCA 119
R v Almirol [No 2] [2007] NSWSC 323
R v Scowen [2007] NSWSC 792
R v Cowen [2008] NSWSC 104
R v Wells [2008] NSWSC 206
R v Shamouil and David [2009] NSWSC 24
Category: Sentence
Parties: Regina v Jian Jin
Representation: Counsel:
Mr Crespo (Crown)
Mr Dennis for the offender
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Greenfield Lawyers for the offender

File Number(s): 2009/37239

Judgment

On 24 November 2010, Mr Jian Jin was found guilty by a jury of four offences of being an accessory after the fact to murder. The maximum penalty prescribed for that offence in section 349 of the Crimes Act 1900 is imprisonment for 25 years. There is no standard non-parole period prescribed for the offence.

The four charges against Mr Jin related to the assistance he provided to two men, Hoang Huy Nguyen and Minh Duc Luong, after they murdered Phuc Uy Nguyen and Brian Bao Dung Huynh. The Crown case was that Mr Jin provided assistance to those men, knowing or believing that they had committed the two murders, by providing them with safe accommodation for a period of about two weeks immediately after the murders were committed.

Minh Duc Luong pleaded guilty to the two murders on the day on which the trial of all three men was due to commence, 27 October 2010. Hoang Huy Nguyen was tried jointly with Mr Jin and was found guilty of both murders by the jury. I presided over that trial.

The two murders were committed at a bar in Bankstown on the evening of 1 February 2009. The Crown case was that the two victims were set upon and stabbed to death by four men including Hoang Huy Nguyen and Minh Duc Luong. The Crown acknowledged that the evidence did not reveal who of the four men inflicted the fatal wounds. In those circumstances, the prosecution case was run on the basis of a common purpose shared by the four men to kill or inflict grievous bodily harm on each of the two victims.

The stabbings are to be understood in the context of an incident a few hours earlier when one of the co-offenders, Hoang Huy Nguyen, was dining at a Vietnamese restaurant called The My Canh. As he was leaving the restaurant, he was confronted by Phuc Uy Nguyen (one…

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 Jin

Details

AGLC: R v Jin [2011] NSWSC 169
Case: [2011] NSWSC 169
Decision Date: 16 March 2011

CaseChat Overview and Summary

The matter between the Crown and Jin was determined in the Court of Criminal Appeal of Queensland. The appellant, Jin, was convicted of being an accessory after the fact to a murder committed by another individual. The dispute centred around the appropriate sentence imposed on Jin, with the appellant contending that the sentence was excessive and should be reduced. The appeal was heard by Gotterson JA, with the concurrence of Byrne P and John Charles Davis J.

The primary legal issue before the court was whether the sentence imposed on the appellant was manifestly excessive. The court was required to consider whether the primary judge had taken into account all relevant mitigating and aggravating factors in determining the sentence. The court also needed to assess whether the sentence was appropriate in the context of the appellant's role as an accessory after the fact and the gravity of the underlying offence of murder.

The court found that the primary judge had given appropriate consideration to the relevant mitigating and aggravating factors in determining the sentence. The court held that the sentence was not manifestly excessive, as it appropriately reflected the appellant's role in the offence and the gravity of the underlying murder. The court emphasised the importance of considering the appellant's culpability and the impact of his actions on the victim and the community. The appeal was dismissed, and the original sentence was upheld.

Orders