R v Nguyen - [2002] NSWCCA 305

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. NGUYEN [2002] NSWCCA 305

FILE NUMBER(S):
No. 60114 of 2002

HEARING DATE(S): Tuesday 30 July 2002

JUDGMENT DATE: 30/07/2002

PARTIES:
REGINA v.
NGUYEN, Ninh Thai

JUDGMENT OF: Sperling J Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1187

LOWER COURT JUDICIAL OFFICER: Kinchington, DCJ.

COUNSEL:
Crown: P. Ingram
App: M. Thangaraj

SOLICITORS:
Crown: S.E. O'Connor
App: Nyman Gibson & Co.

CATCHWORDS:
Criminal law - appeal - sentence - multiple robberies - young offender - prospects of rehabilitation - necessity for custodial sentence - relevance of sentence of co-accused for these and other crimes - application of s.6(3) Criminal Appeal Act 1912.

LEGISLATION CITED:
Criminal Appeal Act 1912
Justices Act 1902
Crimes Act 1900

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 60114 of 2002
SPERLING, J.
GREG JAMES, J.
TUESDAY 30 JULY 2002

REGINA v. NINH THAI NGUYEN

Judgment

GREG JAMES, J: This is an application for leave to appeal against sentence. An appeal against sentence may be brought under s.5(1) of the Criminal Appeal Act 1912 only by leave. On such an application the court is empowered by s.6(3) of the Criminal Appeal Act 1912 if it is of opinion that some other sentence more or less severe is warranted in law and should have been passed to quash the sentence and to pass such other sentence in substitution therefore but s.6(3) continues that, “in any other case the court shall dismiss the appeal”.
In the present case the applicant pleaded guilty initially in the Central Local Court and pursuant to s.51A of the Justices Act 1902 was committed for trial to the District Court. Subsequently in the District Court, on 10 December 2001 he adhered to his pleas. The relevant offences were: the first, an offence of robbery in company, an offence under s.97(1) of the Crimes Act 1900 committed on the 26 February 2001; the second, robbery and at the time depriving a person of his liberty, committed on 14 March 2001, an offence under s.95(1) and (2)(c) of the Crimes Act 1900 and a second offence of robbery and at the time depriving a person of his liberty committed at the same time and place but on a different person. All three of those offences are not only serious offences but are punishable by maximum sentences of 20 years imprisonment.
On 4 February 2002 the applicant was sentenced in respect of those crimes. For the first offence he was sentenced to imprisonment for a fixed term of 18 months to date from 4 February 2002. The applicant had been at liberty following his arrest on 18 June 2001 until sentenced by the learned District Court Judge on 4 February 2002.
For the second offence the applicant was sentenced to imprisonment for a term of three years and six months and a non-parole period of 18 months was imposed on that sentence. Both the sentence and the non-parole period were to date from 4 February 2002.
For the third sentence a similar head sentence and non-parole period were imposed.
The effect, therefore, in totality was that the applicant was subject to a sentence of imprisonment to commence from the time he went into custody and to continue for three years and six months although the non-parole period of 18 months coupled with the concurrent 18 months fixed term would require him to spend at least 18 months in custody.
The short facts of the commission of the offences were:-
"As to the first count. At about 2.30 pm on Monday 26 February last year, Ka Tsun Yeung was leaving the toilets at the Market City Shopping Centre in Haymarket when he was confronted by a young man named Pong Dang and yourself. During the conversation that followed, demands were made on Yeung, firstly for his wallet, secondly for his credit cards and money, and thirdly for his mobile phone. Eventually, Yeung handed over $300 or that money was taken from his wallet. After that money was taken his mobile phone was also taken and you and your co-offender Dang, left the area.
As to the second and third offences, at about 6.30 pm on Wednesday 14 March last year, two young men named Richard Loggy and Liam Tong were shopping at Paddy's Markets also in the Haymarket area when they were confronted by yourself, Pong Dang and a young man by the name of Arnold Lee. They were asked whether they were members of a gang. Demands were then made for their wallets ostensibly so that their identification could be checked out. Key cards were taken from each of their wallets and demands were made of them for their pin numbers. Initially the pin numbers that they gave were not the correct numbers. After getting the pin numbers however, two of your group left and one remained in effect to detain Loggy and Tong. Those two subsequently returned having ascertained that the pin numbers were not the correct numbers and after threatening your two victims, the correct pin numbers were obtained and the two men again left. Shortly thereafter the man that remained received a phone call where upon he handed back the wallets to your two victims and they were allowed to leave. Your two victims subsequently checked their bank accounts and Loggy found that $780 had been withdrawn from his bank account while $550 had been drawn from Tong's bank account."
The applicant had a clear prior record. He was a young single man, the trial judge noted, having been aged 19 at the time of the commission of the offences. His family were refugees from Vietnam and his eduction in Australia had been disrupted although he had been a reasonable student with a high degree of intelligence. In the few years prior to these offences his domestic relationship with his father had broken down. He left home. He fell under the influence of the co offender, Dang, and was sharing premises with him at the time of the commission of the offences.
The trial judge noted the influence of the co-offender Dang and, in particular, held that the offender had been subject to the pernicious influence of that person as inducing him to commit the crimes in question. However the trial judge, whilst accepting he was not the instigator of the robberies, was satisfied that, for reasons best known to the applicant himself, he played an active role in each of them.
The trial judge gave particular attention to the applicant’s prospects for rehabilitation. He noted the return of the applicant to his family and the support of that family. He noted the applicant had, between arrest and coming forward for sentence, terminated his association with those who had led the applicant into the committing of the offences. He gave particular attention to the entirely favourable report of Dr. Christopher Lennings and the favourable pre-sentence report of Miss Pauline Smith. Those reports, his Honour concluded, showed that the applicant, although an intelligent person, had made a poor choice of associates who had led him into the commission of the offences and he had real further prospects of rehabilitation. His Honour said:-
"Those two reports are most encouraging, both to the court and they should be encouraging to you. You have the prospects of being able to make something of your life after you put your criminality behind you."
His Honour noted the evidence of the applicant and that of his sister and concluded that there were positive steps in the process of rehabilitation as a consequence of reconciliation with the family. There was remorse, contrition and a determination by the applicant to put his life in order. His Honour was of the view that there should be a full discount for the plea of guilty and for remorse and contrition.
His Honour had regard to the sentence passed upon the co offender for a number of crimes which included the present crime and which, in totality, amounted to a sentence with an overall term of six years imprisonment and a non parole period of four years but concluded that the applicant’s criminality, by comparison with the overall criminality of Dang, was such that parity principles hardly applied since Dang had committed so many more offences. He also concluded that Dang was “the leader of the push and got you involved in this criminal activity.”
However, all of this being said his Honour then turned to the nature of the offences, their prevalence and the appropriateness, when dealing with such offences, of emphasising, in the context of what his Honour had referred to relating to the offender’s personal movement towards rehabilitation, of the necessity for both specific and general deterrence.
At page 7 of his remarks on sentence his Honour said:-
"Robberies of the nature to which you have pleaded guilty are far too prevalent in our society at the present time. While the whole of the material herein would tend to indicate that you became involved in this criminal activity as a result of falling under the influence of a bad crowd, that fact while it might explain how you came to be involved in committing these three offences, does not excuse you from participating in any one of them. To my mind the public at large and in particular young people should be allowed to walk about the streets of this city without fear of being stood over, intimidated and robbed by groups of young men such as you were involved with when you committed these two offences. Gangs of young men seem to be roaming the streets of our city and in particular in the Haymarket area and they seem to think that if they act aggressively they will grow in stature in the eyes of others and that they can intimidate and rob people at their will. Such groups must be discouraged from acting in that way.
In these circumstances, both the concepts of specific and general deterrent are important concepts in a case such as this and to my mind require me to subject persons such as yourself to a severe penalty for partaking in the criminal behaviour I have previously identified. While I accept that you were not the instigator of either robbery, I am satisfied for reasons best known to yourself, you played an active role in each of them. In my opinion the community's abhorrence to this type of criminal behaviour can only be appeased as I previously indicated by subjecting you to a custodial sentence of some severity as it must be brought home not only to you but also to groups of young men or gangs of young men who roam and wander the streets of this city, that if they attempt or do intimidate law abiding citizens and rob them of their lawful property, that if they do so and they are caught they will be severely dealt with by this court."
It was in the light of those remarks that his Honour came to the conclusion that, notwithstanding the efforts the applicant had made for rehabilitation, it was necessary to subject the applicant to the sentences he passed. He said, concerning the sentences:-
"… I have fixed the non-parole period in the special circumstances of your case. In particular because I am satisfied that, not only should you be encouraged while in custody to continue with your efforts to rehabilitate yourself, but also because of your release from custody you probably will need professional help and guidance to help you to become a law abiding citizen."
His Honour thereafter made a recommendation that the Department consider placing the applicant in a “minimum security institution" and should afford him an opportunity to further his education and continue with his rehabilitation. He expressed the hope that the applicant would be released on parole at the first available opportunity.
It is in that context that the submissions made on behalf of the applicant contend that the trial judge erred, firstly, in failing to have regard to other sentencing options and, secondly, in failing to give sufficient regard to the sentences passed upon Dang they being such, so it is said, as to have left the applicant with a legitimate sense of grievance in having been dealt with, as he had, although Dang had been dealt with as he had for the more extensive range of crimes.
The written submissions filed contend that, in the light of seven factors, even taking into account totality, the trial Judge should have considered, particularly having regard to the applicant’s rehabilitation and the community’s interest in the applicant’s rehabilitation, the imposition of a non custodial sentence or at least the imposition of a sentence to be served by way of periodic detention. Those factors are – the age of the applicant, the absence of prior offences, that it was the first time in custody, that the offences were committed at a time of family breakdown, that he was pushed into the offences by the criminally experienced co-offender, that there was positive rehabilitation and family support.
It was submitted that the applicant would not have committed the offences but for a breakdown in his family life, his vulnerable state, the absence of support from a trustworthy person, and was making every effort to rehabilitate himself.
Dr. Lennings’ recommendation that, should a non-custodial sentence be considered, Mr. Nguyen would be likely to make an excellent response to it, was specifically referred to.
In my view this submission, while well intentioned, mistakes the function of this court. The trial judge, in my view, gave consideration to all these matters. He gave consideration as to whether a custodial sentence should have been imposed. He did not expressly make reference to non-custodial options. I do not see that, in failing to make reference to non-custodial options when deciding that there must be a custodial sentence amounts to any such error in reasoning or in procedure as would warrant the interference of this court.
In any event the trial judge took into account all of the matters referred to and emphasised them in his reasons. The considerations, however, that he had to take into account were not limited to the rehabilitation of the individual offender, or even the community’s interest in the rehabilitation of the individual offender.
I see no error in the trial judge having regard to both specific and general deterrence in the context of this case, nor in the trial judge imposing a sentence which, as far as the non parole period was concerned, to my mind had in it an element of leniency.
These were serious offences and his Honour’s remarks as to principle and how these offences are required to be dealt with by the courts accord with a long series of decisions in this court. I do not regard that ground of appeal as made out.
In that regard I should say that counsel valiantly attempted in his appeal submissions to suggest ways in which the sentences might be reconstructed to involve either periodic detention or a suspended sentence such as to diminish that period of time the offender would have to spend in custody. To my mind these attempts were artificial. Indeed as to one of them, that regarding periodic detention, it fell foul of s.70 of the Crimes (Sentencing Procedure) Act 1999. In any event, to my mind, 18 months was the least period the offender should spend in custody for these offences so that I cannot say some other sentence is warranted in law and should have been passed at least insofar as the non parole period was concerned.
As to the argument concerning the parity of this sentence with Dang, true it is Dang might have received, had we known the full facts for the offences for which he was sentenced, a lenient sentence but that is not the point. Absent the sort of considerations to which the High Court averted in Postiglione v. The Queen (1997) 189 CLR 295, that submission is not made out either. His Honour adequately took into account Dang’s role in inducing the applicant to commit the offences but his Honour appropriately had regard to what the applicant did himself in the commission of the offences. I, therefore, conclude that, having regard to s.6(3) of the Criminal Appeal Act 1912, leave should be granted, but the appeal is dismissed.
SPERLING, J: I agree. The orders of the court will be as proposed by Greg James, J.

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LAST UPDATED: 09/08/2002