R v Nguyen - [2013] NSWSC 197

Supreme Court

New South Wales

Medium Neutral Citation: R v Nguyen [2013] NSWSC 197
Hearing dates: 1/03/2013; 8/03/2013
Decision date: 15 March 2013
Before: Fullerton J
Decision:
On the charge of manslaughter, sentenced to a term of imprisonment of 9 years and 6 months, comprised of a non-parole period of 7 years and a balance of term of 2 years and 6 months.
On the charge of wounding with intent to inflict grievous bodily harm, sentenced to a term of imprisonment of 6 years and 3 months, comprised of a non-parole period of 4 years and 9 months and a balance of term of 1 year and 6 months.
Sentences for each offence backdated to commence on 8 September 2010.
First eligible for release to parole on 7 September 2017.

Catchwords: CRIMINAL LAW - sentence - manslaughter - excessive self-defence - wounding with intent to inflict grievous bodily harm - victim was police officer -- objective seriousness
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Cases Cited: Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, Re [2002] NSWCCA 518; 56 NSWLR 146; 137 A Crim R 180
Iskov v R [2011] NSWCCA 241
Josefski v R [2010] NSWCCA 41
Muldrock v R [2011] HCA 39; 244 CLR 120
R v De Simoni [1981] HCA 31; 147 CLR 383; 5 A Crim R 329
R v Penisini [2004] NSWCCA 339
Category: Sentence
Parties: The Crown
Philip Nguyen (Offender)
Representation: Counsel:
M Tedeschi QC (Crown)
L Ledinh (Solicitor) (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Ledinh Lawyers (Offender)

File Number(s): 2010/300562

REMARKS ON SENTENCE

HER HONOUR: Upon his re-arraignment on 19 July 2012 the offender entered a plea of guilty to the manslaughter of William Crews on 8 September 2010 contrary to s 18(1)(b) of the Crimes Act 1900 and a further count of wounding Mr Crews with intent to inflict grievous bodily harm on the same date contrary to s 33(1)(a) of the Crimes Act ("the wounding offence"). At the time of his death William Crews was a serving member of the New South Wales Police Service holding the rank of Constable. He was aged 26.

Manslaughter attracts a maximum sentence of 25 years imprisonment. The wounding offence also attracts a maximum of 25 years imprisonment to which a standard non-parole period of 7 years applies.

The Crown accepted the pleas of guilty in satisfaction of a range of charges, including shooting at Constable Crews with intent to murder contrary to s 29 of the Crimes Act, upon which the offender was committed to stand trial in December 2011 and upon which he was arraigned in March 2012 when the matter was listed for trial.

On his re-arraignment it was also agreed that two of the offences upon which he was committed for trial would be included on a Form 1 to be taken into…

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 Nguyen

Details

AGLC: R v Nguyen [2013] NSWSC 197
Case: [2013] NSWSC 197
Decision Date: 15 March 2013

CaseChat Overview and Summary

In the case of R v Nguyen, the defendant stood accused of manslaughter by way of excessive self-defence, stemming from an incident where the victim, a police officer, was wounded with intent to inflict grievous bodily harm. The case was heard by the Supreme Court of Victoria, which was tasked with determining the appropriate sentence for the defendant.

The primary legal issue before the court was to assess whether the defendant's actions constituted excessive self-defence and, if so, to determine the appropriate sentence considering the nature of the offence and the role of the victim. The court was required to weigh the objective seriousness of the offence, the circumstances in which the offence was committed, and the defendant's state of mind at the time of the incident.

The court considered the objective seriousness of the offence, noting that the victim was a police officer, which inherently elevated the gravity of the situation. The court also examined the defendant's state of mind, his perception of threat, and the proportionality of his response. Ultimately, the court found that the defendant's actions were indeed excessive self-defence, leading to a manslaughter conviction. The sentence imposed reflected the severity of the crime and the need for general deterrence, considering the unique context of the case.

The final orders of the court included the conviction for manslaughter and a sentence that was determined to be commensurate with the circumstances of the case. The court's decision provided clarity on the application of the excessive self-defence doctrine in cases involving police officers and set a precedent for similar future cases.

Orders