R v Nguyen - [2021] ACTSC 146

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Nguyen
Citation:	[2021] ACTSC 146
Hearing Dates:	28 May, 1 June, 16 July 2021
DecisionDate:	16 July 2021
Before:	Murrell CJ
Decision:	Offender sentenced to 13 months and two weeks’ imprisonment and placed on a drug and alcohol treatment order
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – drug and alcohol treatment order
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 12A, 33, 35 Criminal Code 2002 (ACT) s 310
Cases Cited:	R v Bennett [2015] ACTSC 36 R v Bresnan [2017] ACTSC 18 R v Crowther [2019] ACTSC 338 R v Murphy [2021] ACTSC 94 R v Percival [2018] ACTSC 230
Parties:	The Queen ( Crown) Hieu Hoang Nguyen ( Offender)
Representation:	Counsel T Lee ( Crown) J de Bruin ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
File Number:	SCC 41 of 2021

MURRELL CJ:

The offender was committed for sentence on one count of aggravated robbery (robbery while in possession of an offensive weapon), contrary to s 310 of the Criminal Code 2002 (ACT).

The maximum penalty for the offence is 25 years’ imprisonment, a fine of $400,000, or both.

The plea was entered on the fourth mention in the Magistrates Court, after a brief of evidence was provided. Nevertheless, the plea has considerable utilitarian value, and I will allow a discount of 25 per cent under s 35 of the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act).

The offender has been in custody since his arrest on 15 November 2020.

Facts

On 13 November 2020, the complainant was working at a bakery at Evatt Shops.

At about 1:15 PM, the offender entered the bakery. He was wearing a light grey hooded jumper, black pants, white shoes, a black cap, a blue disposable face mask, and a black glove on his left hand.

The offender approached the sales counter, where there was a till and a clear plastic protection screen. He pulled a knife with a 20-centimetre blade from his left pocket and held it down in front of himself.

The complainant recognised the offender as he had previously attended the bakery and they were both part of the Vietnamese community. She approached him with the intention of serving him.

The offender ordered a cake. The complainant bent down to take the cake from a cabinet. When she stood up, the offender extended his arm and pointed the knife blade towards her. He demanded that she open the till. She refused to do so.

The offender pushed the plastic protector screen from the counter, waved the knife at the complainant, and again instructed her to open the till. The complainant became frightened and stepped back from the counter.

The offender leaned over the counter and tried to open the till. The complainant told him to stop and asked him, “Why are you doing this? We are from the…

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 [2021] ACTSC 146
Case: [2021] ACTSC 146
Decision Date: 16 July 2021

CaseChat Overview and Summary

In the case of R v Nguyen, the defendant was charged with aggravated robbery. The matter was heard by the Supreme Court of Victoria. The dispute centred on the appropriate sentence to be imposed on the defendant, who had pleaded guilty to the charge.

The legal issues before the court were the appropriate length of the custodial sentence and whether a drug and alcohol treatment order should be imposed as part of the sentence. The court considered the nature and circumstances of the offence, the defendant’s personal circumstances, and the potential benefits of a treatment order.

In determining the sentence, the court emphasised the seriousness of the offence, which involved the use of a weapon and had caused significant distress to the victim. However, the court also took into account the defendant’s background, including his struggles with drug and alcohol addiction. The court concluded that a custodial sentence was necessary but also that a treatment order would be beneficial in addressing the underlying issues that had contributed to the offending behaviour. Accordingly, the court sentenced the defendant to 13 months and two weeks’ imprisonment, with a drug and alcohol treatment order as part of the sentence.

Orders

Orders of the court

Offender sentenced to 13 months and two weeks’ imprisonment and placed on a drug and alcohol treatment order

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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