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R v Nguyen

R v Nguyen

Case [2013] NSWCCA 195 28 August 2013

Excessive Self-Defence

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Nguyen [2013] NSWCCA 195
Hearing dates: 31 July 2013
Decision date: 28 August 2013
Before: Beazley P at [1];
Johnson J at [1];
RA Hulme J at [1]
Decision:
1. Crown appeal allowed.
2. Sentences imposed in the Supreme Court on 15 March 2013 are quashed. In their place:
(a) For the offence of wounding with intent to cause grievous bodily harm, the Respondent is sentenced to imprisonment comprising a non-parole period of 6 years commencing on 8 September 2010 and expiring on 7 September 2016 with a balance of term of 2 years and 1 month commencing on 8 September 2016 and expiring on 7 October 2018.
(b) On the count of manslaughter, and taking into account the offence on the Form 1, the Respondent is sentenced to imprisonment comprising a non-parole period of 12 years commencing on 8 September 2011 and expiring on 7 September 2023, with a balance of term of 4 years and 2 months commencing on 8 September 2023 and expiring on 7 November 2027.
3. The earliest date upon which the Respondent will be eligible for release on parole is 8 September 2023.

Catchwords: CRIMINAL LAW - Crown sentence appeal - pleas of guilty - manslaughter and wounding with intent to cause grievous bodily harm - excessive self-defence manslaughter - victim a police officer engaged in lawful execution of duty - execution of search warrant - Respondent shoots at and wounds victim with intent to inflict grievous bodily harm - Respondent believes unreasonably that victim and other police not genuine police - other police officer discharges firearm in response inflicting fatal injury to victim - objective seriousness of offences - errors established concerning assessment of objective seriousness of both offences - error in imposing entirely concurrent sentences - sentences manifestly inadequate - aggravating factor that victim a police officer acting in execution of duty - importance of specific and general deterrence - seriousness of possess prohibited firearm offence taken into account on Form 1 for manslaughter offence - Respondent resentenced
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Firearms Act 1996
Cases Cited: AB v R [2013] NSWCCA 160
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Director of Public Prosecutions (Vic) v Arvanitidis [2008] VSCA 189; 202 A Crim R 300
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hanania v R [2012] NSWCCA 220
Hejazi v R [2009] NSWCCA 282; 217 A Crim R 151
House v The King [1936] HCA 40; 55 CLR 499
Markarian v The Queen [2005] HCA 25; 228 CLR 357
McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v AZ [2011] NSWCCA 43; 205 A…

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] NSWCCA 195
Case: [2013] NSWCCA 195
Decision Date: 28 August 2013

CaseChat Overview and Summary

In this case, the appellant, Nguyen, appealed against his sentence following his convictions for manslaughter and wounding with intent to cause grievous bodily harm. The case was heard in the Court of Appeal. The appellant had entered guilty pleas to the charges after shooting at a police officer during the execution of a search warrant, wounding the officer, and subsequently causing the officer's death when another officer returned fire. The Crown appealed the sentence on the grounds that it was manifestly inadequate.

The primary legal issues for the Court of Appeal to determine were whether the sentence imposed by the primary judge was manifestly inadequate and whether there were any errors in the assessment of the objective seriousness of the offences, particularly concerning the concurrent sentencing approach. The Court needed to consider the appropriate weight to be given to specific and general deterrence, as well as the seriousness of the prohibited firearm possession offence in relation to the manslaughter charge.

The Court of Appeal found that the original sentence was manifestly inadequate, taking into account the aggravating factor that the victim was a police officer acting in the lawful execution of duty. The Court also identified errors in the primary judge's assessment of the objective seriousness of the offences, particularly the concurrent sentencing approach. The Court held that the seriousness of the prohibited firearm possession offence should have been considered in relation to the manslaughter offence. Consequently, the Court varied the sentences to reflect the appropriate weight of specific and general deterrence. The appellant was resentenced accordingly.

Orders