R v KM

[2004] NSWCCA 65

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 the respondents was arraigned on 25 March 2003. The respondent KM pleaded guilty to six counts in an indictment presented against him alone and was remanded for sentence. The three respondents Hoang Viet Tran (otherwise known as John Tran), John Nguyen and Linh Van Nguyen and a fourth co-accused Simon Huynh respectively pleaded not guilty to nine counts in a separate indictment in which each was charged jointly with a number of related offences. A jury was empanelled. The trial commenced and continued until the morning of 27 March 2003, when counsel announced that it was proposed that the three respondents would plead guilty to an amended indictment. A document described as a substituted indictment in full discharge of the previous indictment was handed up. It contained seven counts, charging each of the three respondents jointly on five counts, namely counts 1, 2, 3, 5, and 7. Hoang Viet Tran and Linh Van Nguyen only were charged jointly on count 4. John Nguyen only was charged on count 6. The counts charging Hoang Viet Tran and Linh Van Nguyen were for present purposes identical to those in the indictment presented against KM.

5 Each of the three respondents was arraigned on the substituted indictment and pleaded guilty as charged. His Honour discharged the jury from giving verdicts and found the three respondents guilty. They were remanded for sentence. (The co-accused, Simon Huynh, was remanded for trial, whether on the original indictment or an indictment still to be presented is not clear, but it is not to the point.) The procedure followed the provisions of section 157 (then section 91) of the Criminal Procedure Act 1986 and any irregularity with regard to the indictment may be taken to have been cured by the consent of the respondents.

6 The offences for which the respondent KM was convicted were as follows:

Count 1: That between 3 and 4 August 2001 at Canley Vale in the State of New South Wales, he did detain Minh Phung Le with intent to hold him for an advantage;

Contrary to the provisions of section 90A of the Crimes Act , 1900, maximum penalty imprisonment for 20 years;

Count 2: That between 3 and 4 August 2001 at Canley Vale in the State of New South Wales, he did detain The Phong Nguyen with intent to hold him for an advantage;

Contrary to the provisions of section 90A of the Crimes Act , 1900, maximum penalty imprisonment for 20 years;

Count 3: That on 3 August 2001 at Canley Vale in the State of New South Wales, being armed with an offensive weapon, namely a pistol, he did rob Minh Phung Le of certain property, namely a sum of monies, a Nokia mobile telephone and a quantity of gold jewellery;

Contrary to the provisions of section 97(1) of the Crimes Act , 1900, maximum penalty imprisonment for 20 years;

Count 4: That on 3 August 2001 at Canley Vale in the State of New South Wales, being then armed with an offensive weapon, namely a pistol, he did rob The Phong Nguyen of certain property, namely a sum of monies, a quantity of gold jewellery, a chrome Zippo lighter and a wallet and its contents;

Contrary to the provisions of section 97(1) of the Crimes Act , 1900, maximum penalty imprisonment for 20 years;

Count 5: That on or about 3 August 2001 at Canley Vale in the State of New South Wales, he did maliciously inflict grievous bodily harm upon Minh Phung Le with intent to do him grievous bodily harm;

Contrary to the provisions of section 33 of the Crimes Act , 1900, maximum penalty imprisonment for 25 years; and

Count 6: That on or about 3 August 2001 at Canley Vale in the State of New South Wales, he did assault The Phong Nguyen, thereby occasioning actual bodily harm to him;

Contrary to the provisions of section 59 of the Crimes Act , 1900, maximum penalty imprisonment for 5 years.

7 It may be noted that KM was born on 31 May 1985 and was accordingly 16 years old at the time of the offences and 18 at the date of sentence. Division 4 of the Children’s (Criminal Proceedings) Act 1987 applied and he was to be dealt with according to law.

8 The respondent KM was sentenced as follows:

Counts 1, 2, 3 and 4: Concurrent terms of imprisonment for three and a half years, commencing on 11 May 2002 and expiring on 10 November 2005, with a non-parole period of eighteen months commencing on 11 May 2002 and expiring on 10 November 2003.

Counts 5 & 6: Concurrent fixed terms of imprisonment for twelve months commencing on 11 May 2002 and expiring on 10 May 2003.

His Honour directed that the whole of the term of the sentences of imprisonment be served in a juvenile detention centre. As soon as the non-parole periods of eighteen months for the sentences imposed on counts 1, 2, 3 and 4 had expired on 10 November 2003, KM was released on parole.

9 The offences for which each of the respondents Hoang Viet Tran and Linh Van Nguyen was convicted were as follows:

Count 1: That between 3 and 4 August 2001 at Canley Vale in the State of New South Wales, he did detain Minh Phung Le with intent to hold him for an advantage;

Contrary to the provisions of section 90A of the Crimes Act , 1900, maximum penalty imprisonment for 20 years;

Count 2: That between 3 and 4 August 2001 at Canley Vale in the State of New South Wales, he did detain The Phong Nguyen with intent to hold him for an advantage;

Contrary to the provisions of section 90A of the Crimes Act , 1900, maximum penalty imprisonment for 20 years;

Count 3: That on 3 August 2001 at Canley Vale in the State of New South Wales, being armed with an offensive weapon, namely a pistol, he did rob Minh Phung Le of certain property, namely a sum of monies, a Nokia mobile telephone and a quantity of gold jewellery;

Contrary to the provisions of section 97(1) of the Crimes Act , 1900, maximum penalty imprisonment for 20 years;

Count 4: That on 3 August 2001 at Canley Vale in the State of New South Wales, being then armed with an offensive weapon, namely a pistol, he did rob The Phong Nguyen of certain property, namely a sum of monies, a quantity of gold jewellery, a chrome Zippo lighter and a wallet and its contents;

Contrary to the provisions of section 97(1) of the Crimes Act , 1900, maximum penalty imprisonment for 20 years;

Count 5: That on or about 3 August 2001 at Canley Vale in the State of New South Wales, he did maliciously inflict grievous bodily harm upon Minh Phung Le with intent to do him grievous bodily harm;

Contrary to the provisions of section 33 of the Crimes Act , 1900, maximum penalty imprisonment for 25 years; and

Count 7: That on or about 3 August 2001 at Canley Vale in the State of New South Wales, he did assault The Phong Nguyen, thereby occasioning actual bodily harm to him;

Contrary to the provisions of section 59 of the Crimes Act, 1900, maximum penalty imprisonment for 5 years; and

10 The respondents Hoang Viet Tran and Linh Van Nguyen were sentenced as follows:

Counts 1, 2, 3 and 4: Concurrent terms of imprisonment for four years with a non-parole period of two years. The sentences imposed on Linh Van Nguyen were to commence on 14 January 2002 and those imposed on Hoang Viet Tran to commence on 4 August 2001.

Count 5: Imprisonment for five years with a non-parole period of three years. That sentence was also to commence on 4 August 2001 in the case of Hoang Viet Tran and 14 January 2002 in the case of Linh Van Nguyen.

Count 7: Imprisonment for a fixed term of six months. Again in the case of Hoang Viet Tran, the sentence was to commence on 4 August 2001 and in the case of Linh Van Nguyen on 14 January 2002.

11 The offences for which John Nguyen was convicted were identical to those for which Hoang Viet Tran and Linh Van Nguyen were convicted except that he was not charged on count 4. In addition, however, he was charged and convicted on count 6 on the substituted indictment of the armed robbery of Minh Phung Le of a motor vehicle and registration papers. Further, His Honour took into account, as he was asked to do, John Nguyen’s admission on form 1 of a further offence, that being his participation in the offence charged against the other two respondents on count 4.

12 John Nguyen was sentenced as follows:

Counts 1, 2, 3 and 6: Concurrent terms of imprisonment for four years with a non-parole period of two years to commence on 4 August 2001.

Count 5: Imprisonment for five years with a non-parole period of three years to commence on 4 August 2001.

Count 7: Imprisonment for a fixed term of six months to commence on 4 August 2001.

13 In summary of the above, KM was sentenced to an effective term of three years and six months imprisonment, made up of a series of four sentences of three years and six months and two sentences of 12 months, all concurrent in the sense that they commenced on the same date with an effective non-parole period of 18 months. The other three respondents received effective terms of five years imprisonment, made up of a series of one sentence of five years, four of four years and one of six months, all concurrent, and a non-parole period of three years.

Facts

14 The facts may be set out compendiously as they affect all respondents.

15 On Friday, 3 August 2001, the two victims, Minh Phung Le (Minh) and The Phong Nguyen (The) attended a gambling night in a house at Canley Vale at the invitation of a man referred to as Quang. Quang has not been apprehended despite efforts.

16 Whilst the two victims were at the gambling table, the respondents entered the room, some with handguns. The victims were forced up against a wall and threatened. Linh Van Nguyen removed jewellery and $4,000 cash from Minh’s person. With the assistance of KM, the hands and feet of both victims were tied with ducting tape. The victims were made to lie face down on the floor with the threats continuing and Hoang Viet Tran pressing a gun against the neck of The. Other items were removed from both victims including $2,500 cash and a credit card from The. The card was used to remove $2,000 in two separate withdrawal transactions over the ensuing day or so.

17 The bound victims were repeatedly assaulted, threatened and abused in an effort to have them divulge the whereabouts of further sums of money. Linh Van Nguyen and Hoang Viet Tran punched and kicked Minh to the extent that he suffered a fractured sternum. The suffered less serious but substantial injury to the same area.

18 The victims were kept tied up overnight. Their families were made aware. In the morning, Hoang Viet Tran instructed The to telephone his girlfriend to bring money and car registration papers. The made the call but it was terminated by the man Quang who was heard to make demands over the telephone with regard to bringing more money to the premises. Quang informed The that he would be killed if he did not raise $40,000 in three hours. On that basis The was released. He drove home but was too afraid to seek medical attention or inform police of what had happened.

19 Later in the morning at about 8.40am, Quang told Minh, who was still detained, that, as he had failed to provide further money, his car would be seized. John Nguyen, with the co-offender Simon Huynh, took Minh, under threat of being shot, to his home where he provided the registration papers. They proceeded to the Fairfield Motor Registry where Minh was forced to sign a document transferring the car to John Nguyen. The document was lodged at the registry. Minh was taken to his home and released.

Judge’s Remarks on Sentence

20 After referring to the history of the matter and the facts, His Honour found that all respondents had been acting in a joint criminal enterprise to lure Minh Phung Le and The Phong Nguyen to the premises at Canley Vale and to detain them there until they parted with the property on their persons and provided the respondents with other property as demanded.

21 His Honour concluded that the offences were all serious, the majority (that is, all but the offence of assaulting The Phong Nguyen occasioning actual bodily harm) extremely serious. His Honour put the offences of maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm in the mid range, balancing on the one hand the actual injury inflicted and on the other the intention of terrifying the victim with fear of further injury if he did not comply with the continuing demands to arrange for the handing over of more money.

22 His Honour further concluded that the offences of detaining for advantage were extremely serious but that the man Quang (who of course was not before the court and not represented) was the main planner and intended beneficiary. In proceeding to sentence, His Honour gave explicit and detailed consideration to the guideline judgment of this Court in R v Henry (1999) 46 NSWLR 346 and said that he took into account, as he had indicated or would indicate, the various matters mentioned in Henry as going to aggravation of the offence. In relation to aggravating circumstances, His Honour said:

“I agree with the Crown that it is clear from the fact that these offences were the result of a planned and concerted operation where the two victims were lured to the premises at Arbutus Street for the express purpose of being robbed of their property, that being achieved in several ways which can be described as ranging from extortion to robbery. In the course of the night, they were not only threatened with offensive weapons but also beaten and as related already in one case, caused grievous harm. They were held captive both by physical restraint and the threat of reprisals if they sought to escape, including while being taken to obtain further property. Family members of the victims were made aware that they were being held captive”.

23 His Honour then discussed the individual circumstances of each appellant and referred to the High Court decision In R v Pearce (1998) 194 CLR 610 before proceeding to impose the sentences already referred to.

Subjective factors

24 The subjective factors in relation to each respondent were significant and go some way to explain the apparent leniency of the sentences.

25 KM, the juvenile, had no previous convictions. He has an Indian ethnic background. A Juvenile Justice report and two reports from psychologists were given substantive weight by His Honour and indicated positive prospects for rehabilitation under supervision. His mother, a doctor, brought him to Australia when he was five or six years old but, according to the reports, was unable to work in her profession and returned to Fiji to continue her practice. He lived with an aunt until 2001 when he was befriended by one of the co-offenders to whom he appears to have felt obliged. His schooling was marked by some truanting but otherwise not remarkable. His mother has plans to come to Australia “immediately if necessary” to assist her son. He admitted to drug and gambling habits, perhaps not of a high order.

26 Whether or not KM is “at the crossroads”, it is clear that the limited role of deterrence in sentencing a young person aged 16 at the time of the offences and the positive prospects of rehabilitation after already being released on supervision mean that it is not likely to be in the community’s interest to send him back into a custodial institution.

27 In considering whether or not to intervene in the case of KM, the Court gave leave to file affidavit material which indicates that KM has shown remorse and furthered his education whilst under custodial supervision and proposes to enter a trade apprenticeship. He proposes to live with his aunt. He has the assistance of the Barnados organisation and attended with an officer for the hearing of the appeal.

28 Hoang Viet Tran was born in North Vietnam and spent most of the first seven years of his life in refugee camps in China and Hong Kong. His family then moved to Australia after his parents separated when he was 16 years of age. He had a troubled adolescence. He became an Australian citizen in 1990.

29 He was 20 years of age at the time of the offences. He has previous convictions for assault. According to a pre-sentence report, he expressed no remorse and claimed to be affected by heroin at the time of the offences. The pre-sentence report is of limited assistance as it proceeds on the false premise that Hoang Viet Tran was on parole at the time of the offences. According to a psychologist’s report, he is of above average intelligence. Pre-sentence custody had caused him to take a more positive attitude as to his future. Clearly the community’s interest in his rehabilitation is a strong factor.

30 John Nguyen was born in Vietnam on 20 February 1982. His father left the family when he was very young. He came to Australia at the age of 10 to live with his eldest brother. His mother followed two years later. The eldest brother was shot to death in a robbery in 1998, a matter which continues to disturb him. He was 19 years of age at the time of the offences. Because of his comparatively limited role in the offences, he is not able to accept a proper degree of responsibility for what happened. He also claims to have been under the influence of heroin at the time of the offences. His sister gave evidence that pre-sentence custody had had a positive effect on him.

31 Linh Van Nguyen was born in Vietnam on 7 April 1982. He has a de facto wife and daughter. He came to Australia with his family at age 11 years. His parents returned to Vietnam for a short time and he has had little or no contact with them since. He claims to have been a heavy user of heroin at the time of the offences which he said were to finance his habit. He has had sporadic employment of an unskilled nature. He does not appear to have responded positively to pre-sentence custody but the report states that he expressed regret for his behaviour and is prepared to accept the consequences.

32 It may be noted that by the time of sentencing of the respondents, the co-offender Simon Huynh had been tried and found guilty on two counts: one for detaining Minh Phung Le for advantage and the other for the armed robbery of Minh Phung Le of the motor vehicle and registration papers. On the first count, he was sentenced to two years imprisonment to date from 4 August 2001 with a non-parole period of twelve months. On the second count he was sentenced to three years also to date from 4 August 2001 with a non-parole period of two years. He was found not guilty on the several remaining counts. We were told that Simon Huynh has appealed against his conviction and that his appeal awaits hearing.

Crown Appeal

33 The appeal is brought by the Director of Public Prosecutions and the usual principles relating to Crown appeals need to be recognised although not discussed at length. It is sufficient to say that they were summarised by Wood CJ in R v Wall (2002) NSWCCA 42 at [70]. His Honour’s summary, omitting reference to authorities, may be further reduced to the following:

a) the normal restrictions upon appellate review of the exercise of discretion apply;

b) appeals by a prosecuting authority should be rare and unless a clear error of principle is identified, it would be exceptional for the Court to interfere;

c) appeals against inadequacy of sentence are concerned with establishing principle for the guidance of courts whose duty is to sentence, including the avoidance of manifest inadequacy or inconsistency;

d) the Court may decline to interfere even if error has been shown and will be astute to avoid a result which may be in the nature of double jeopardy;

e) if the Court substitutes its own sentence for an inadequate sentence below that sentence will generally be less than that which should have been imposed and in any event towards the lower end of the available range.

34 It should be noted that it was not submitted on behalf of the appellant that His Honour was in error in finding, for the purpose of fixing a non-parole period, that special circumstances existed in the case of each respondent on account of age and the need to maximise prospects of rehabilitation.

35 The only ground of appeal is that the sentences are manifestly inadequate. The major thrust of the submissions on behalf of the Director of Public Prosecutions was that the totality of the sentences does not reflect the overall seriousness of the criminal conduct on the part of any of the respondents. To support that submission, it was put that His Honour, in relation to the offence of armed robbery, had failed to apply the principles enumerated in the guideline judgment of Henry, that His Honour allowed an excessive discount for the plea of guilty and that His Honour had erroneously directed that all sentences be served concurrently. These specific matters may be dealt with in turn.

36 In relation to Henry, Judge Dodd said:

“In that guideline judgment various matters were identified as going either to the aggravation or mitigation of the offence, including the nature of the weapon; the vulnerability of the victim; the position on a scale of impulsiveness or planning; the intensity of threat or use of force; the number of offenders; the amount taken; the effect on the victims; the age of the offender; any previous record; whether there was any cooperation with authorities; a guilty plea in the absence of a strong Crown case; efforts at rehabilitation; whether the offence was committed on bail and the socio-economic condition of the accused. Various of these matters are present in these cases. I take them into account in all respects already referred to or to be referred to later in these remarks on sentence.”

37 The guideline judgment in Henry is frequently cited to challenge the severity of a sentence for armed robbery longer than “four or five years for the full term” or where there are mitigating factors which are said to be absent in Henry itself and which compel a sentence shorter than four or five years. In principle there is no reason why it should not be relied upon to challenge the inadequacy of a sentence which is less than four or five years, or where there are aggravating circumstances which compel a substantially longer sentence than four or five years. However, as was said by Spigelman CJ in Henry, guidelines are “indicative only”, and similar statements have been made repeatedly by this Court since.

38 It is no doubt correct that there were aspects of the armed robberies for which the respondents were sentenced that make those offences more serious than the offences disclosed in Henry. These included an element of substantive planning (although the individual contributions to the planning by each of the respective respondents is another matter), there was very substantial violence (for which separate counts were charged), a substantial amount of money and other property was taken, family members were threatened and so on. It is to the whole of the circumstances that one repeatedly returns when assessing the criminality of any of the offences. Whilst the sentences for armed robbery must be seen to be lenient, even very lenient, in the light of Henry and otherwise, the ultimate question for this Court (as it was for His Honour) was to ensure that the offenders received an adequate sentence for the overall conduct.

39 The principles laid down in Henry were all recognised by His Honour and there is no reason to conclude that they were misapplied with regard to the sentences for two discrete offences of armed robbery.

40 Turning to the submission that there was an excessive discount for the pleas of guilty, it may be noted that His Honour was careful to distinguish between the respondents who received the discount and the co-offender, Simon Huynh, who was convicted on two counts after trial and received no discount.

41 The submission that His Honour allowed an excessive discount for the pleas of guilty also relied to some extent on the discount allowed in Henry where a 10 per cent reduction was allowed for what was said to be a late plea. The discount which His Honour expressly allowed in the present case was 25 per cent for KM and 15 per cent for the other respondents for the “utilitarian value” of the plea, and it is not otherwise apparent that His Honour took the plea to indicate remorse. In proceeding in this fashion His Honour was clearly endeavouring to follow the guideline judgment in R v Thomson and Houlton [2000] 49 NSWLR 383; 115 A Crim R 104.

42 It is true that the pleas of guilty were not, on the face of it, offered at an early stage but, in the case of the respondents other than KM, it is not to be overlooked that they were tendered only in anticipation of the Director of Public Prosecution amending the charges in the indictment to which they had pleaded not guilty. Nor should it be overlooked that this development took place after KM had acknowledged his guilt two days previously at what was agreed by prosecuting counsel to be the earliest available opportunity.

43 In R vSY & Anor [2003] NSWCCA 291 Howie J (with whom Ipp J agreed) pointed out at [86] that:

“It does not always follow that a plea is entered at the first opportunity simply because the plea occurs after negotiations with the Crown once the offender has been committed for trial. Clearly there will be occasions when the nature of the bargain struck does indicate that the offender could not reasonably have been expected to plead guilty before the opportunity to plead to some less serious charge. But that is not always so and it behoves the sentencing judge to look at the situation realistically in determining the value of the plea on the utilitarian basis.”

44 Further, as was held in R v Dib [2003] NSWCCA 117, even though the plea to a lesser offence may have been made at the earliest opportunity, that occasion may be long after the person is first charged with the greater offence, with reduced advantage to the administration of justice, in which case there may be justification for a smaller discount.

45 However, opinions will differ about when an “earliest opportunity” arises and the extent or quality of its utilitarian value. A judge who has sat during a trial which is brought to a premature conclusion by pleas of guilty to an amended indictment will be often in a better position to evaluate both aspects and to express that evaluation in the reduction or discount.

46 A more specific criticism levelled at the discount factor in His Honour’s sentences is that it amounted to “double discount”. The submission is that the guideline sentence in Henry already incorporates a discount factor for a late plea of guilty and that in so far as His Honour purported to follow Henry it was wrong to incorporate a further discount for the utilitarian value of the plea in accordance with Thomson.

47 There is some merit in this criticism to the extent that His Honour’s remarks may lead to the conclusion that such was the line of reasoning followed. However, the remarks are not clear in that regard, and taken as a whole would indicate rather that the ultimate decision in relation to each discrete sentence factored in both the utilitarian value of the plea and to the extent that the circumstance allowed otherwise, the remorse demonstrated by the plea and mentioned in the pre-sentence reports. It was not as if His Honour began with a notional sentence and then reduced it to an unspecified term for the bare plea and then reduced it again by a specified proportion for the utilitarian value. To have done that may have indicated error.

48 Clearly Judge Dodd kept a close interest in the somewhat protracted and complex developments leading to the pleas of guilty and reminded himself correctly of the principles. In the circumstances his assessment of the discount for the pleas of guilty should be set aside only if it were one which was not reasonably open. It was reasonably open and his decision should not be overturned for error in the discount given for the pleas of guilty.

49 Whilst it has not been shown that there was any appellable error in the calculation of the appropriate sentence for any one of the discrete offences, there remains the question whether the sentences viewed as a whole adequately reflect the seriousness of the criminal conduct of any particular offender. As already indicated, the sentences for armed robbery viewed in isolation are in themselves lenient, a matter which immediately raises the consideration of the further question whether it was appropriate for His Honour to direct that they all be served concurrently. The result is that, subject to the outcome of the appeal, each of the respondents will serve a total sentence no longer than the sentences imposed for the single offence of maliciously inflicting grievous bodily harm on Minh with intent to cause grievous bodily harm. In my view, and leaving the particular circumstances of KM to one side, that is an excessively lenient outcome not justified on an overall view of the offences committed and the subjective circumstances of any of the offenders.

50 His Honour did not overlook the matter of overall seriousness and possible accumulating of sentences. He said:

“I must, in accordance with the High Court judgment in Pearce, fix an appropriate sentence for each offence. In my view in each of your cases, these offences, although multiple offences, were committed as part of a continuous episode of criminality that is committed in the course of one extended episode. I must therefore take care to ensure that the overall effective sentence is appropriate, having regard to the offences committed in the course of that episode, and to the extent that there are common elements in the offences I must be careful not to duplicate the sentences. In that respect I have regard to the physical harm inflicted on each of the victims”. (at p19)

51 An acknowledgment of awareness of the decision in Pearce has become perhaps an inevitable feature of the remarks of a judge faced with the task of sentencing an offender for multiple offences. It has had plenty of attention in this Court, since it has been seen as inconsistent with some previous sentencing practices. The principle is considered to be embodied in the judgment of McHugh, Hayne and Callinan JJ at 623-4:

“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.” (emphasis added)

52 In this Court the principle in Pearce has been applied and followed as “imperative and authoritative direction from the High Court to sentencing judges”: R v Musso [2002] NSWCCA 487 at [31] per Sully J. In Hammoud (2000) 118 A Crim R 66, at [67] Simpson J (with whom Mason P agreed) said that as a result of Pearce the question of whether to accumulate sentences for multiple offences had taken on “a new dimension” and that previous sentencing practices which avoided the need for “elaborate exercises in the accumulation of sentences” could no longer be followed. Accordingly it is necessary to fix an appropriate sentence for each offence before considering questions of accumulation, concurrence or totality.

53 Pearce has not been followed in the same way elsewhere in Australia. The Queensland Court of Appeal in R v Nagy [2003] QCA 175 considered that the ratio of Pearce was limited to the question of double jeopardy as it arose in the facts of the case, and that the decision was not intended to overrule Griffiths v The Queen (1989) 167 CLR 372 in which Gaudron and McHugh JJ (Brennan and Dawson JJ appearing to agree at 377-388) said at 393:

“It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender. This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of a head sentence appropriate to the total criminality with all other sentences to be served concurrently.”

54 A similar approach appears to have been taken in Western Australia: see Kilner v R [1999] WASCA 189, and in Victoria: see R v El-Kotob (2002) 4 VR 546; (2002) 132 A Crim R.

55 Nevertheless, whilst it is sometimes difficult, if not artificial, to assess the criminality of an offence in isolation when it is only one of what are, in law, separate offences but inextricably part of the same conduct, the exercise must be undertaken. It may be that in undertaking that exercise, and being anxious to avoid double punishment, a judge may just overlook the need for the sentences as a whole to reflect the seriousness of the offender’s conduct as a whole. In particular, whilst the totality principle is familiar enough and applied commonly enough in favour of an offender in order to avoid an excessive or crushing punishment, it is not to be disregarded for the converse purpose of assessing whether the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.

56 In particular, when there is a series of offences, some committed on one victim, others committed on another victim, there is a special need to ensure that concurrency of sentence does not gloss over that feature, a point made by Hulme J in Cotter [2003] NSWCCA 273 at [69]. Allowing for the flexibility that must be accorded to the notion that the offences in the present matter were committed by the respondents “in the course of one extended episode”, the very length of the episode itself, the seriousness of the variety of offences committed, with the consequent terror that must have been experienced by the victims, dictates that the total length of the sentences to be served had to exceed five years. In other words, if His Honour was of the view as his remarks suggest that the need to avoid duplicating the sentences by reason of common elements in the offences, meant that there should be no accumulation of sentence, His Honour was in error. If that was not what His Honour meant, then the overall effect of the concurrency of the sentences was simply and manifestly inadequate.

57 Subject to what appears below, what this Court ought to do in general terms is to rearrange the sentences by partial accumulation so that each respondent will be sentenced to an effective term of imprisonment which is at the bottom end of the range appropriate to his criminality in the events which occurred and to the subjective circumstances.

58 The practical effect, as far as Hoang Viet Tran and Linh Van Nguyen are concerned, is that their effective overall sentences should be increased by two years to seven years imprisonment with an effective non-parole period of four years.

59 In the case of John Nguyen, he was not directly involved in acts of violence, and he was not convicted of the offence of armed robbery of The Phong Nguyen (although he did admit his involvement on a form 1). With regard to the separate armed robbery of Minh’s vehicle and registration papers, that was committed in the company of Simon Huynh, who was sentenced to three years for that offence after trial. In the circumstances, it would be appropriate that John Nguyen be sentenced to an effective term of six years and three months with a non-parole period of three years and six months.

60 In the case of KM, notwithstanding that he was dealt with even more leniently than the others, there are substantially different subjective circumstances as outlined above. Further, it happened that he became eligible for parole on the day of the hearing of the appeal. The Court was told that the Parole Board had made enquiries of the Director of Public Prosecutions whether the decision to release on parole should take into consideration that the appeal was to be heard on the day the decision was likely to be made. The Director of Public Prosecution had nothing to put to the Parole Board on that matter. The Court was further told that KM had indeed been released and that, although he was not bound to do so, attended to accept the decision of the Court on his liability to be taken back into custody. As a discretionary matter, the Court should not impose this further hardship on him or increase the length of the unserved part of his sentences. The appeal in his case should be dismissed.

61 In order to give effect to the principle in Pearce, I would propose that the re-sentencing of each of the three respondents proceed in the following way:

(a) the sentences for the offences against The should be for fixed terms (that is, with the Court declining to set a non-parole period) all to commence on the same date, that is, to be wholly concurrent with each other;

(b) the sentences for the offences against Minh (other than on count 5) should be for fixed terms all to commence on the same date being the date two years after the commencement of the sentences in (a), that is, to be wholly concurrent with each other but cumulative as to two years on the sentences in (a); and

(c) the sentence for the offence on count 5 should commence on the same date as (b) with a non-parole period fixed in order to give effect to what is indicated in paragraphs [56] and [57] above.

62 If the respondents Hoang Viet Tran or Linh Van Nguyen were being sentenced solely for the offences in counts 2, 4, and 7, then a sentence containing a period during which the applicant would be eligible for release on parole should have been imposed. However, fixed terms of imprisonment should be imposed on counts 2, 4 and 7, because, if a sentence including a non-parole period and a period during which the respondent would be eligible for release on parole was imposed, the period during which the respondent would be eligible for release on parole would be completely subsumed in the fixed terms of imprisonment which should be imposed for the offences on counts 1 and 3 of the indictment and the non-parole period of the sentence which should be imposed for the offence on count 5 of the indictment. Similar considerations apply to John Nguyen, excluding count 4 but adding count 6.

63 Similarly, if the respondents were being re-sentenced solely for offences on counts 1 and 3, then the sentences of 4 years with non-parole periods of 2 years which were imposed by the sentencing judge should have been retained. However fixed terms equivalent in length to the non-parole periods of the sentences imposed by the sentencing judge on counts 1 and 3 should be imposed because, if sentences were imposed which included periods during which the respondents would be eligible for release on parole, these periods would be subsumed in the longer non-parole period of the sentence to be imposed for the offence on count 5.

64 The formal orders I propose are as follows:

(i) the appeal against the sentences imposed on KM be dismissed;

(ii) the appeals against the sentences imposed on Hoang Viet Tran be allowed, the sentences be set aside and in substitution he be re-sentenced as follows:

counts 2, 4 and 7: concurrent fixed terms of imprisonment for two years commencing on 4 August 2001 and expiring on close of 3 August 2003,

counts 1 and 3: concurrent fixed terms of imprisonment for two years commencing on 4 August 2003 and expiring on 3 August 2005, and

count 5: five years imprisonment commencing on 4 August 2003 and expiring on 3 August 2008 with a non-parole period of two years commencing 4 August 2003 and expiring on 3 August 2005;

(iii) the appeal against the sentences imposed upon Linh Van Nguyen be allowed, the sentences be set aside and he be re-sentenced as follows:
counts 2, 4 and 7: concurrent fixed terms of imprisonment for two years commencing on 14 January 2002 and expiring on close of 13 January 2004,

counts 1 and 3: concurrent fixed terms of imprisonment for two years commencing on 14 January 2004 and expiring on 13 January 2006, and

count 5: imprisonment for five years commencing on 14 January 2004 and expiring on 13 January 2009 with a non-parole period of two years commencing on 14 January 2004 and expiring on 13 January 2006.

(iv) the appeal against the sentences imposed on John Nguyen be allowed, the sentences be set aside and he be re-sentenced as follows:
counts 2 and 7: concurrent fixed terms of imprisonment of two years commencing on 4 August 2001 and expiring on 3 August 2003,

counts 1, 3 and 6: concurrent fixed terms of imprisonment of two years commencing on 4 November 2002 and expiring on close of 3 November 2004, and

count 5: imprisonment for five years commencing on 4 November 2002 and expiring on 3 November 2007 with a non-parole period of three years and six months commencing on 4 November 2002 and expiring on 3 May 2006.

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Last Modified: 03/23/2004