R v KM

Case [2004] NSWCCA 65 18 March 2004

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CITATION: R v KM; R v Linh Van Nguyen; R v John Nguyen; R v John Tran [2004] NSWCCA 65

HEARING DATE(S): 10 November 2003

JUDGMENT DATE:
18 March 2004

JUDGMENT OF: Santow JA at 1; James J at 2; Miles AJ at 3

DECISION: The appeal in the case of KM is dismissed; The appeal against the sentences imposed on Hoang Viet Tran be allowed, the sentences be set aside and in substitution he be re-sentenced as set out at [64(ii)] of the judgment; The appeal against the sentences imposed on Linh Van Nguyen be allowed, the sentences be set aside and in substitution he be re-sentenced as set out at [64(iii)] of the judgment; The appeal against the sentences imposed on John Nguyen be allowed, the sentences be set aside and in substitution he be re-sentenced as set out at [64(iv)] of the judgment.

CATCHWORDS: SENTENCE - Crown appeal against inadequacy of sentences - principles in Pearce.

LEGISLATION CITED: Children's (Criminal Proceedings) Act 1987 Division 4
Crimes Act, 1900 s33; s59; s90A; s97
Criminal Procedure Act 1986 s157 (then s91)

CASES CITED: Griffiths v The Queen (1989) 167 CLR 372
R v Cotter [2003] NSWCCA 273
R v Dib [2003] NSWCCA 117
R v El-Kotob (2002) 4 VR 546; (2002) 132 A Crim R
R v Hammoud (2000) 118 A Crim R 66
R v Henry (1999) 46 NSWLR 346
Kilner v R [1999] WASCA 189
R v Musso [2002] NSWCCA 487
R v Nagy [2003] QCA 175
R v Pearce (1998) 194 CLR 610
R v SY & Anor [2003] NSWCCA 291
R v Thomson and Houlton [2000] 49 NSWLR 383; 115 A Crim R 104
R v Wall (2002) NSWCCA 42

PARTIES :
Regina (Appellant/ Crown)
KM (Respondent)
Linh Van NGUYEN (Respondent)
John NGUYEN (Respondent)
John TRAN (Respondent)

FILE NUMBER(S): CCA 60238/03; 60239/03; 60240/03; 60241/03

COUNSEL: G I O Rowling (Appellant/ Crown)
R Hulme, SC (Respondent KM)
P Gwozdecky (Respondent Linh Van Nguyen)
H Dhanji (Respondent John Nguyen)
A P Cook (Respondent John Tran)

SOLICITORS: C K Smith (Appellant/ Crown)
S O'Connor (Respondents KM/ John Nguyen)
T Voros (Respondent John Tran)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/3393; 02/21/3309; 02/21/3161; 01/21/3092

LOWER COURT
JUDICIAL OFFICER : Dodd DCJ

60238/03
60239/03
60240/03
60241/03

SANTOW JA
JAMES J
MILES AJ
18 MARCH 2004

REGINA v KM

REGINA v Linh Van NGUYEN

REGINA v John NGUYEN

REGINA v John TRAN

Judgment

1 SANTOW JA: I agree with Miles AJ.

2 JAMES J: I agree with Miles AJ

3 MILES AJ: The Director of Public Prosecutions appeals against the sentences imposed on the four respondents by His Honour Judge Dodd at the Penrith District Court on 5 June 2003. The appeals have been heard consecutively but it is convenient to deal with them in a single judgment since it is accepted that all respondents were acting in pursuit of a joint criminal enterprise out of which the several offences arose.

Sentences appealed against

4 Each of…

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 KM

Details

AGLC: R v KM [2004] NSWCCA 65
Case: [2004] NSWCCA 65
Decision Date: 18 March 2004

CaseChat Overview and Summary

The matter before the court was an appeal by the Crown against the sentences imposed on the accused, KM, who was convicted of multiple counts of child sexual abuse. The trial judge had sentenced KM to a period of imprisonment, which the Crown deemed inadequate given the gravity of the offences. The appeal was heard in the High Court of Australia.

The primary legal issue was whether the sentences imposed by the trial judge were inadequate, and if so, whether they should be set aside and replaced with more appropriate sentences. The court was required to consider the principles established in the case of Pearce v The Queen, which outline the circumstances in which a sentence may be considered inadequate and the criteria for determining appropriate sentences. The court also had to balance the need for punishment and deterrence with the need to consider the individual circumstances of the offender and the nature of the offence.

The court found that the sentences imposed by the trial judge were indeed inadequate, taking into account the severity of the crimes and the need for general and specific deterrence. The court held that the trial judge had failed to adequately consider the impact of the crimes on the victims and had not given sufficient weight to the need for punishment. The sentences were set aside, and the matter was remitted to the trial judge for re-sentencing. The court provided detailed guidance on the principles to be applied in determining an appropriate sentence, emphasising the need for proportionality and consistency in sentencing for similar offences.

The court did not specify a particular sentence but outlined the principles that should be applied in re-sentencing KM. The appeal was allowed, and the sentences were set aside, with the case being remitted to the trial court for re-sentencing in accordance with the principles set out by the court.

Orders