R v Nguyen

Case [2002] SASC 341

R v NGUYEN
[2002] SASC 341

Court of Criminal Appeal:  Perry, Williams and Gray JJ

  1. PERRY J.               This is an appeal against the sentence imposed in the District Court following the appellant’s committal for sentence to that court on his plea of guilty to two counts of armed robbery and one count of illegal use of a motor vehicle.

  2. After taking into account approximately seven months, during which the appellant had been in custody prior to sentencing, the learned sentencing judge imposed a head sentence of 8 years on those offences. In addition, the commission of the offences activated a suspended sentence of 9 months imprisonment which had been imposed in January 2001. So that the total head sentence became 8 years and 9 months, against which the learned sentencing judge set a non-parole period of 7 years.

  3. The head sentence and the non-parole period were both directed to commence on the date upon which the appellant was sentenced, that is to say, from 15 March 2002.

  4. There are three grounds of appeal:

    “a.The non-parole period in all the circumstances was manifestly excessive.

    b.The Learned Sentencing Judge failed to take any adequate account of the Appellant’s youth and rehabilitation as a factor in sentencing.

    c.the Learned Sentencing Judge failed to take into account the Appellant’s contrite plea as a factor in setting the non-parole period.”

  5. The circumstances of the offences were serious. At about 8.30 pm on the day in question the appellant, together with two other men, entered the premises of a Vietnamese restaurant at Mansfield Park. All three were wearing balaclavas. The appellant was armed with a knife. Some patrons were dining in the restaurant. The owner’s wife was standing behind the front counter, with her daughter and four-year-old grand-daughter. Also behind the counter was a waitress, and the owner.

  6. One of the intruders, who was described by the owner as armed with a “dagger”, walked up to the owner, grabbed him by the collar of his jumper and pulled him over to the customer side of the counter.

  7. It does not appear that the appellant was the man responsible for this assault, but the papers are not entirely clear on that point. At all events, another one of the men, speaking in Vietnamese, was heard to tell the appellant to “rip off” the waitress’s necklace. The appellant thereupon approached the waitress and held the blade of the knife which he was carrying against her stomach. He then took hold of the necklace, which was a neck chain holding a pendant, and pulled it so that it broke.

  8. On seeing this, the owner’s wife, who was anxious to protect her grand-daughter, took hold of her own neck chain and broke it off and gave it to another of the intruders. The man who took that necklace also removed from the cash register a tray containing between $400 and $500. The two necklaces were worth over $2,000.

  9. All three intruders then made off in a car which had been…

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Details
AGLC
R v Nguyen [2002] SASC 341
Case
[2002] SASC 341
Decision Date

CaseChat Overview and Summary

Phong Thanh Nguyen appealed against his sentence for armed robbery and illegal use of a motor vehicle. The sentencing judge imposed a head sentence of eight years, to be served after a non-parole period of seven years, and disqualified his driving licence for 12 months. The appellant argued that the non-parole period should be fixed in a way that gave proper credit for his early pleas of guilty and his time in custody since the date of the offending. The appeal raised issues concerning the appropriate approach to credit for time spent on remand and the fixing of a non-parole period.

The court held that the appeal should be allowed. The head sentence of eight years should commence on the expiration of the activated sentence. The non-parole period should be six years, with respect to the total sentence of eight years and nine months. The sentence and the non-parole period should commence on 9 August 2001. The court found that the sentencing judge did not adequately take into account the appellant's early pleas of guilty and his time in custody when fixing the non-parole period. The court emphasised that the time spent on remand should be brought into account in an appropriate manner. The appropriate approach was to set a non-parole period that gave proper credit for the appellant's early pleas of guilty and his time in custody since the date of the offending.

The final orders of the court were that the appeal should be allowed, the head sentence of eight years should commence on the expiration of the activated sentence, a non-parole period of six years should be fixed with respect to the total sentence of eight years and nine months, and the sentence and the non-parole period should commence on 9 August 2001. The court noted that the appellant had already served nine months in custody since the date of the offending.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against sentence.Background On 19 December 2001 Phong Thanh Nguyen (“the appellant”) pleaded guilty in the Magistrates Court to two counts of armed robbery and one count of illegal use of a motor vehicle.[5] The matters were committed to the District Court for sentence. [5] “On 9th day of August 2001, at Mansfield Park in the said State, [Phong Thanh Nguyen] being armed with an offensive weapon or instrument, namely a firearm and a knife, robbed VQ of money to the amount of $500.00 and a necklace to the value of about $2000. The offending arose out of the one incident on 9 August 2001. The appellant entered a restaurant at about 8:30 pm with two other men. All were wearing balaclavas. There were three knives involved and a “sawn off” shotgun containing live ammunition. The appellant pressed a knife against a waitress’s stomach and ripped her necklace from around her neck. Another employee was behind the counter. She was fearful for her four year old granddaughter and pulled off her necklace so that she would not suffer the same fate. The men demanded money and $500 was handed over.[6] A stolen car was used to travel to the restaurant. This offending breached a nine month suspended sentence bond imposed on 23 January 2001. The appellant acknowledged the breach of bond before the sentencing judge.[6] Jewellery valued at around $2000 and $450 cash was recovered. The appellant was aged 25 years. He was born in Vietnam but had been living in Australia with his family since 1990. His fiancée lived in Vietnam. He completed his secondary schooling in Australia and had been employed since he was 18 years. His command of English is poor. He worked as a farm hand and picked fruit. He also made furniture but became dissatisfied with working seven days a week for 12 hours a days on a low income. The appellant lost his job when his employer “went under”. He was owed money by his employer. The appellant had been an intermittent heroin user for some five years. On the day of the offending he had taken more Serepax and Valium than usual. He committed the robbery to obtain money for drugs. On 15 March 2002 the appellant was sentenced. No victim impact statements were before the court.[7] The judge’s remarks included:[7] This was said to be due to administration difficulties.“You have been in custody since 9 August and you pleaded guilty in the Magistrates Court to these matters at a very early stage.…You have previous convictions for relatively minor matters and, of course, nothing is a serious as this in your previous record.Having said that, it is obvious that this is a very serious offence and in many ways an outrageous offence. The use of knives and guns to rob and terrify innocent members of the public is something that is now disturbingly prevalent.The fact that the cause of such behaviour may be an addiction to heroin is a very little consolation to your victims. General deterrence for offending as serious as this and as violent as this must take precedence. I bear in mind that although you have pleaded guilty to two counts of armed robbery, in a sense it was one planned robbery involving two victims, which technically makes it less serious than two discrete armed robberies.Also, I take into account that you have pleaded guilty at a very early stage and, through your counsel, you have not tried to make spurious excuses for your behaviour, you have been very frank with the court and I give you benefit for that.However, as you must understand, these offences call for a substantial term of imprisonment. I take into account in sentencing that you’ve been in custody since 9 August and I indicate I will give one sentence in relation to all three offences.Normally, I would impose a head sentence of 10 years. However, because of your very early pleas of guilty, I reduce that to eight years. That head sentence will start at the expiration of nine months from today, in relation to your breach of bond.I also, as a matter of completeness, disqualify your driving licence for a period of 12 months, because that is the mandatory sentence for illegal use. I set a non parole period of seven years, which will commence from today.”Issues on Appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J WILLIAMS J (dissent) GRAY J
The appeal should be allowed. The head sentence of eight years should commence on the expiration of the activated sentence. A non-parole period of six years should be fixed with respect to the total sentence of eight years and nine months. The sentence and the non-parole period should commence on 9 August 2001.JUDGMENT CITATIONSLISTED IN ORDER OF APPEARANCE IN JUDGMENT1. (2002) 81 SASR 395.2. Ibid 429 para 100.3. (1985) 37 SASR 566 at 569.4. Such a course is not open where the period in custody is either not referable to the offending in question, or has been interrupted by a period when the defendant was at large.5. “On 9th day of August 2001, at Mansfield Park in the said State, [Phong Thanh Nguyen] being armed with an offensive weapon or instrument, namely a firearm and a knife, robbed VQ of money to the amount of $500.00 and a necklace to the value of about $2000.Section 158(a) of the Criminal Law Consolidation Act, 1935 On 9th day of August 2001, at Mansfield Park in the said State, [Phong Thanh Nguyen] being armed with an offensive weapon or instrument, namely a firearm and a knife, robbed LTH of a necklace of value.Section 158(a) of the Criminal Law Consolidation Act, 1935On the 9th day of August 2001, at Mansfield Park in the said State, [Phong Thanh Nguyen] used a motor vehicle without first obtaining the consent of MJO the owner thereof.Section 86a of the Criminal Law Consolidation Act, 1935 “ 6. Jewellery valued at around $2000 and $450 cash was recovered.7. This was said to be due to administration difficulties.8. (2000) 202 CLR 321 1538 at [3-4]9. It was submitted however that the judge did not adequately take the pleas into account when fixing the non parole period.10. (1989-1990) 169 CLR 525 at 531, 53611. (1980) 7 A Crim R 14612. (1980) 7 A Crim R, at p 15513. (1988) 164 CLR 465 at p 47714. (1974) 131 CLR 62315. (1984) 58 ALJR 367; 54 ALR 765, at p 76616. (1987) 32 A Crim R 315, at pp 325-32617. (1987) 32 A Crim R at pp 327-32818. (1991-1992) 173 CLR 48 at 68-6919. (2000) 76 SASR 151 at [42]20. (1974) 131 CLR 623 21. (1984) 58 ALJR 36722. (1990) 169 CLR 52523. (1991) 173 CLR 4824. The appellant’s criminal antecedents dated back to juvenile offending in 1994. They initially primarily consisted of motor vehicle offences and more recently drug offences involving possession. The appellant has no record for violent offences and had not previously been in custody. The judge described the offences as being “relatively minor matters”.25. The terms of the appellant’s suspended sentence bond included:“undertake such course or courses as directed by your probation officer in relation to drugs or alcohol. In [addition] undertake such course or courses as directed in relation to literacy.”26. (1988-1989) 50 SASR 551 at 56327. (1989-1990) 53 SASR 480 at 48128. Unreported S 5549 2 April 199629. (2000) 77 SASR 273 at [49-52]30. [2001] SASC 406 at [19-27]31. Counsel for the Crown’s submissions to the judge included:“He is most certainly entitled to full credit and the credit issue here is quite important. He has pleaded at the very earliest opportunity and in fact surrendered money to the police when he was arrested. So the candour is quite significant.” 32. Unreported S 6290 1 August 199733. [1988] SASC 6867, CCA at [24]34. Section 32(10)

Ratio Decidendi

Legal Principle Established

Established by: PERRY J, GRAY J

The approach of an appellate court when reviewing sentences has been the subject of comment by the High Court in Dinsdale v R [8]. Gleeson CJ and Hayne J said:[8] (2000) 202 CLR 321 1538 at [3-4]“The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v R:‘It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’Those principles [referring to House v R] apply both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness.”Gaudron and Gummow JJ were of a similar opinion. Their Honours said at [22]:“In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been‘upon the facts ... unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.’”Consideration of the Issues The Head Sentence The judge utilised section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed the one sentence for the three offences. He said that “normally” he would have imposed a head sentence of 10 years however he made a reduction of 20% for the pleas of guilty and fixed a head sentence of eight years imprisonment. Given the gravity of the appellant’s crimes the provisional head sentence of 10 years was not suggested by counsel for the appellant to be manifestly excessive. No complaint was made about the adequacy of the 20% reduction for the appellant’s pleas of guilty and contrition[9]. The head sentence of eight years was accepted as appropriate providing that the time spent in custody was brought to account. The Suspended Sentence[9] It was submitted however that the judge did not adequately take the pleas into account when fixing the non parole period. There was no challenge to the judge’s decision to revoke the suspended sentence for the appellant’s breach of bond. However it was said that the time in custody had to be brought to account in an appropriate manner.