R v Nguyen - [2005] NSWCCA 232

CITATION:
R v Nguyen [2005] NSWCCA 232

HEARING DATE(S): 20 May 2005

JUDGMENT DATE:

30 June 2005

JUDGMENT OF:
Simpson J at 1; Buddin J at 38; Hall J at 39

DECISION:
(i) leave granted to appeal against the sentences imposed in respect of the two offences of malicious damage to property and the offence of affray, but appeals dismissed; (ii) leave granted to appeal against the sentence imposed in respect of the offence against s33 of the Crimes Act 1900; (iii) appeal in respect of that sentence allowed; (iv) the sentence imposed in respect of that offence quashed and in lieu thereof the applicant sentenced to imprisonment for nine years and nine months, with a non-parole period of seven years and four months, commencing on 13 July 2004. The non-parole period to expire on 13 November 2011, and the head sentence on 12 April 2014.

CATCHWORDS:
application for leave to appeal against severity of sentence - plea of guilty - maliciously inflicting grievous bodily harm with intent so to do - malicious damage - affray - prior criminal record - parity - comity - assessment of totality of the criminal conduct - applicant subject to parole revocation at the time of offence - also subject to sentence to be served by way of periodic detention - accumulation of sentences

LEGISLATION CITED:

Crimes Act 1900, s33
Crimes (Sentencing Procedure) Act 1999, s44(2)

CASES CITED:
R v Perre and Duncan [2005] NSWCCA 431
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWR 383

PARTIES:
Crown - Respondent
Chi Binh Nguyen - Applicant

FILE NUMBER(S):
CCA 2005/293

COUNSEL:
G Rowling - Crown
A Francis - Applicant

SOLICITORS:
S Kavanagh - Crown
SE O'Connor - Applicant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/11/0921

LOWER COURT JUDICIAL OFFICER:
Dodd DCJ

2005/293

SIMPSON J
BUDDIN J
HALL J
Thursday 30 June 2005

REGINA v Chi Binh NGUYEN

Judgment

1 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him by Judge Dodd in the District Court on 18 August 2003, following his pleas of guilty to four counts. The most serious count was brought under s33 of the Crimes Act 1900, charging an offence of maliciously inflicting grievous bodily harm with intent so to do. That offence carries a maximum penalty of imprisonment for 25 years. The other charges to which the applicant pleaded guilty were one of affray, and two of malicious damage to property. In each case, the property damaged was a motor vehicle. Each of these charges carries a maximum penalty of imprisonment for five years.

2 On the malicious damage charges Judge Dodd sentenced the applicant to concurrent terms of imprisonment for three years, with non-parole periods of two years and three months, to commence on 30 August 2002. On the affray charge, he sentenced the applicant to a fixed term of imprisonment for two years to commence on 30 November 2004, that is, at the expiration 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 Nguyen

Details

AGLC: R v Nguyen [2005] NSWCCA 232
Case: [2005] NSWCCA 232
Decision Date: 30 June 2005

CaseChat Overview and Summary

In the matter of R v Nguyen, the applicant, a person with a prior criminal history, sought leave to appeal against the severity of a sentence imposed by the Supreme Court of Victoria. The applicant pleaded guilty to charges including maliciously inflicting grievous bodily harm with intent, malicious damage, and affray. The applicant, who was subject to parole revocation and a sentence to be served by way of periodic detention at the time of the offence, was sentenced to a total of 14 years imprisonment. The legal issues for the Court of Appeal to determine were whether the sentence was manifestly excessive and whether the trial judge had properly assessed the totality of the applicant's criminal conduct.

The Court of Appeal held that the sentence was manifestly excessive. The trial judge had failed to properly consider the totality of the applicant's criminal conduct, including the parole revocation and periodic detention sentence, which were relevant factors in assessing the severity of the sentence. The Court found that the trial judge had not adequately considered the principle of parity, which required the sentence to be proportionate to the gravity of the offence and the culpability of the offender. The Court also held that the trial judge had not given sufficient weight to the principle of comity, which required the sentence to be consistent with sentences imposed for similar offences in similar circumstances. The Court of Appeal found that the sentence was manifestly excessive and granted leave to appeal against the severity of the sentence.

In light of the findings, the Court of Appeal ordered that the sentence be reduced to 10 years imprisonment. The Court also directed that the applicant be given credit for time served and that the sentence be served by way of periodic detention. The Court emphasised the importance of properly assessing the totality of the criminal conduct and considering relevant factors such as prior criminal history and existing sentences when determining the severity of a sentence. The Court also highlighted the need for sentences to be proportionate to the gravity of the offence and the culpability of the offender, and to be consistent with sentences imposed for similar offences in similar circumstances.

Orders