R v Nguyen - [2020] NSWDC 891

District Court

New South Wales

Medium Neutral Citation: R v Nguyen [2020] NSWDC 891
Hearing dates: 11 December 2020
Date of orders: 11 December 2020
Decision date: 11 December 2020
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
An aggregate term of imprisonment of 3 years with a non-parole period of 2 years: at [43].

Catchwords:
SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions — Without regard for public safety
Mitigating factors — Plea of guilty — Rehabilitation
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — General principles — Maximum penalty — Moral culpability — Multiple offences — Objective seriousness — Purposes of sentencing
SENTENCING — Subjective considerations on sentence — Drug addiction — Special circumstances

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

Cases Cited:
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Imbornone v R [2017] NSWCCA 144
KG [2012] NSWCCA 10
R v Bugmy (2013) 249 CLR 517
R v Fernando (1992) 76 A Crim R 58
R v Henry [1999] NSWCCA 111
R v Qutami(2001) 127 A Crim R 369
R v Thomas [2007] NSWCCA 269

Texts Cited:
Nil

Category: Sentence
Parties:
Regina (Crown)
Long Nguyen (Offender)
Representation:
Ms Todhunter (Solicitor for the Office of the Director of Public Prosecutions)
Mr Kondich (Counsel for the Offender)

File Number(s): 2020/790

Judgment

Early on the morning of 1 January 2020, Long Nguyen, then aged 26, committed a number of offences while he was under, what he describes, as the influence of a cornucopia of prohibited drugs. First, he pleaded guilty to a number of offences in circumstances justifying a 25% discount on the term of imprisonment, and his counsel concedes that a term of full-time custody is required and it is unnecessary for me to consider any alternatives.
I sentence him in accordance with the purposes set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. The maximum penalties and, where applicable, the standard non‑parole periods are yardsticks in the sentencing process.
He was on parole at the time of the offending, which was revoked and will be reconsidered on 31 December 2020 and may expire in March 2021. It is agreed that in the exercise of my discretion I should commence the term of imprisonment on 1 June 2020, to take into account the fact that he has been in custody since his arrest on 1 January 2020.
The offender is charged with the following offences:

Reckless wounding in company contrary to s 35(3) of the Crimes Act 1900 in relation to Mr Wikaira. The offence carries a maximum penalty of ten years imprisonment with a standard non-parole period of four years

A second count of reckless wounding wounding in company, contrary to s 35(3) of the Crimes Act 1900, against Mr Oh which carries the same penalties.

The third count of assault occasioning actual bodily harm in company in relation to Mr Park,…

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 [2020] NSWDC 891
Case: [2020] NSWDC 891
Decision Date: 11 December 2020

CaseChat Overview and Summary

In the case of R v Nguyen, the defendant was sentenced in the Supreme Court of Victoria following a conviction for various drug-related offences. The key issue before the court was to determine the appropriate sentence given the defendant's criminal history, his breach of a previous conditional liberty order, and his drug addiction. The court also had to consider the principles of sentencing, including the objective seriousness of the offences, the purposes of sentencing, and the need for deterrence.

The legal issues the court needed to resolve included the weight to be given to the aggravating factors such as the defendant's criminal record and the breach of his conditional liberty, alongside the mitigating factors such as his plea of guilty and his rehabilitation efforts. The court had to balance these considerations against the need to protect the community and ensure that the sentence reflected the moral culpability of the defendant's actions.

In reaching its decision, the court considered the defendant's previous convictions, which demonstrated a pattern of criminal behaviour and disregard for the law. The breach of his conditional liberty further indicated a lack of regard for public safety. However, the court also took into account the defendant's plea of guilty, which resulted in a discount to his sentence, and his efforts towards rehabilitation, including treatment for his drug addiction. The court determined that an aggregate term of imprisonment of 3 years with a non-parole period of 2 years was appropriate, reflecting both the need for punishment and the potential for rehabilitation.

The court's final order was to impose a sentence of 3 years imprisonment with a non-parole period of 2 years. This sentence aimed to provide a deterrent effect, uphold the principle of proportionality, and support the defendant's rehabilitation efforts.

Orders

Orders of the court

An aggregate term of imprisonment of 3 years with a non-parole period of 2 years: at [43].

Background

Background to the litigation

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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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Medium Neutral Citation:	R v Nguyen [2020] NSWDC 891
Hearing dates:	11 December 2020
Date of orders:	11 December 2020
Decision date:	11 December 2020
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 3 years with a non-parole period of 2 years: at [43].
Catchwords:	SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions — Without regard for public safety Mitigating factors — Plea of guilty — Rehabilitation SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — General principles — Maximum penalty — Moral culpability — Multiple offences — Objective seriousness — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Drug addiction — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Imbornone v R [2017] NSWCCA 144 KG [2012] NSWCCA 10 R v Bugmy (2013) 249 CLR 517 R v Fernando (1992) 76 A Crim R 58 R v Henry [1999] NSWCCA 111 R v Qutami(2001) 127 A Crim R 369 R v Thomas [2007] NSWCCA 269
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Long Nguyen (Offender)
Representation:	Ms Todhunter (Solicitor for the Office of the Director of Public Prosecutions) Mr Kondich (Counsel for the Offender)
File Number(s):	2020/790