R v Nguyen

[2000] NSWCCA 44

CITATION:	R v Nguyen [2000] NSWCCA 44
FILE NUMBER(S):	CCA 60637/98
HEARING DATE(S):	Friday 25 February 2000
JUDGMENT DATE:	25 February 2000
PARTIES :	Regina v Kiet Huu Nguyen
JUDGMENT OF:	Grove J at 1, 19; Smart AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0649
LOWER COURT JUDICIAL OFFICER :	Naughton DCJ

COUNSEL :	P. G. Berman (Crown) S.R. Norrish QC (Appellant)
SOLICITORS:	S. E. O'Connor (Crown) T.A. Murphy (Appellant)
CATCHWORDS:	Criminal Law and Procedure - Demand Money With Menaces - Sentence - Organized Attempt at Extortion from Operators of Brothel - Group of Men Attend to Enforce Demand - Some Armed - Inferences of Knowledge Available to Sentencing Judge
DECISION:	Leave to Appeal Refused.

IN THE COURT OF
CRIMINAL APPEAL

60637/98

GROVE J
SMART AJ

Friday 25 February 2000

REGINA v KIET HUU NGUYEN

JUDGMENT

1    GROVE J: I will ask Smart AJ to give the first judgment.

2    SMART AJ: Kiet Huu Nguyen seeks leave to appeal against the severity of a sentence comprising a minimum term of three years six months and an additional term of one year two months for the offence of demanding money with menaces. The applicant was convicted after a six day trial.

3    The judge found the following facts:

"At about 9pm on Wednesday 19 February 1997 a receptionist at 'The Wild Orchid' Private Hotel at 429A Pitt Street, Sydney received a telephone call from Nhan Thanh Troung. The receptionist did not know that man. He introduced himself to the receptionist as "Tony". Troung said that he wanted protection money of $500 a week and that he wanted to see the person in charge of 'The Wild Orchid' at 7pm on Friday 21 February 1997. The receptionist told the manager who in turn contacted the police.
On Friday afternoon 21 February 1997 undercover police officers set up a video camera in the office of "The Wild Orchid" Private Hotel. Just after 7.15pm undercover police officers posing respectively as the manager of the private hotel and as a bartender saw Minh Han Ly and the prisoner Karauwan enter the reception/bar/lounge room next to the office. Each of them was armed with a loaded .22 calibre semi-automatic pistol. Neither of them had a licence authorising possession of those weapons. The weapons were not produced and were not visible.
A short time after the entry of Ly and Karauwan, Troung and Nguyen entered the premises. They were shown into the office by a staff member of the premises. The office was immediately adjacent to the reception/bar/lounge room.
The undercover police officer who was posing as the manager said to Troung, 'Who are you?' He said, "My name is Tony." The officer said to Nguyen, 'Who are you?' He said, "I'm Kiet." Troung then said to the officer, 'You know why we are here.' The officer said, "No, why are you here?" Troung said, 'Our brothers were here a couple of nights ago.' The officer said to Nguyen, "What's he talking about?" Nguyen said, 'Our brothers came here two nights ago and asked for money for protection.' The officer said, "What happens if we don't pay?" Troung said, 'If you don't pay tonight you have trouble, but if you pay I guarantee you are safe.' The officer said, "Have you got a phone number I can contact you on?"
Troung and Nguyen then engaged in conversation in their own language. Nguyen then said to the officer, 'No phone. We'll be back later, about 9 o'clock.' The officer said, "What's wrong?" Troung said, "We come back 9 o'clock." The officer said, 'I don't want any trouble.' Troung said, "If you pay money, no trouble." Nguyen then nodded his head in agreement.
Troung and Nguyen then walked out of the premises. They were followed by Ly and Karauwan. All four were then arrested by police outside the premises.
At least three of the four arrested men were part of a joint criminal enterprise to demand with menaces money from the private hotel with intent to steal it. Those three were Troung, Nguyen and Karauwan.
Karauwan's possession of a .22 calibre semi-automatic pistol was, to the knowledge of Troung and Nguyen, intended to be used for the purpose of enforcing the demand, if necessary, and/or for self safety purposes if the men got into trouble in attempting to carry out their joint enterprise."

4    The applicant was born on 26 December 1973. His criminal record comprises seven convictions in the Children's Court on 4 June 1991 for two counts of malicious damage, two counts of using a motor vehicle without consent, and three dishonesty offences.

5    The judge found that the applicant had not shown any real contrition or remorse.

6    The applicant was born in South Vietnam. His family escaped from Vietnam and became refugees. They entered Australia in about 1983. He went to school and achieved his Higher School Certificate with a TER of 49. In 1997 he completed the first year of a TAFE course in electrical technology. He says that he wants to complete that course.

7    He comes from a stable and close family and he has a firmly established boyfriend/girlfriend relationship. All are supportive of him.

8    The applicant has had some intermittent employment. For six months prior to the offence he had been unemployed. The judge accepted this statement of the psychologist Mr W J Taylor:

"It seems likely that his impulsiveness and identification with his peers was responsible for his involvement in the present offence. There is no evidence of any other factor which was influential in his behaviour."

9    There was evidence that the applicant was immature. The judge was at pains to achieve parity of sentencing amongst the various co-offenders. He carefully assessed the role and circumstances of each and whether they entered a plea of guilty or not guilty.

10    The applicant contended that the sentence on its face was manifestly excessive. I do not agree. This was a bad offence. The applicant was one of a party of four men, two of whom were armed, who attended at the Private Hotel to extort money from the proprietor of the business on a continuing basis. These were standover tactics of a very bad kind. It is important that people are able to conduct their business and lives free of such illegal and frightening demands. The judge was correct in the view he took of the offence and the punishment it required. Public and personal deterrence are important.

11    The applicant submitted the judge erred in finding that the applicant was aware that Karauwan had a pistol. I do not agree. There was ample evidence to justify such a finding. This was a case of a planned visit by a group of four men, two of whom were armed, to require the owner of the business to pay protection money on an ongoing basis. Trouble was promised if it was not paid.

12    A previous demand had been made. It was not known whether those at the Private Hotel would yield or resist. The group had to be prepared for resistance. It is inconceivable, given the circumstances, that the applicant did not know that Karauwan was armed. The weapons were brought to add weight to the group's demands and to deal with any trouble.

13    The applicant submitted that the judge failed to properly consider the issue of parity between the applicant and Karauwan. As mentioned, the judge examined the issue of parity at some length. The applicant and Karauwan had different matters in their favour. Karauwan had no prior convictions and did not himself make any demand or threat. The applicant did not have a weapon. Karauwan had no previous convictions. The applicant did, albeit when he was a juvenile.

14    Both, however, were part of the group and they were there in sufficient numbers to handle most situations. Each would have been conscious of the re-enforcing provided by the others of the group. It is true that Karauwan was convicted of the additional offence of possessing a loaded firearm in a public place. The possession of the loaded firearm was ancillary to the demand for money and the steps taken to deal with any eventuality that could arise consequent upon resistance to the demand. In my opinion the judge did not err. I would reject the challenge on the ground of parity.

15    The judge is not open to criticism for noting that Justice Blanch, when he sentenced Troung, was not aware of the presence of firearms in the group when the demand was made. If Justice Blanch had been so aware it probably would have led to the imposition of a sentence greater than the one Troung received. That seems fairly obvious.

16    The applicant further submitted that the judge erred in determining that there were no special circumstances. The applicant was a relatively young man, this was his first custodial offence and he was probably influenced by some men who were a little older. He has now forsaken those acquaintances.

17    He was twenty four years of age at the time of sentencing. He has the support of his family and girlfriend. He does also have a TAFE course to complete. Fourteen months supervision should be sufficient. The judge did not err in not setting a longer additional term.

18    The minimum term of three and a half years was at the bottom of the range of sentences which could be imposed for the gravity of the criminality. Leave to appeal should be refused.

19    GROVE J: I agree. The order of the Court will be as proposed by Smart AJ.

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