R v Nguyen

[2006] QCA 542

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nguyen [2006] QCA 542

PARTIES:

R
v
NGUYEN, Khanh Dinh
(applicant)

FILE NO/S:

CA No 274 of 2006
SC No 130 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2006

JUDGES:

Williams, Jerrard and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – where the applicant pleaded guilty to unlawfully doing grievous bodily harm with intent and was sentenced to eight years imprisonment, with a serious violent offence declaration – whether the sentencing judge paid adequate regard to the applicant’s good work history and favourable references – whether the applicant’s plea of guilty was properly reflected in the sentence – whether the sentence was manifestly excessive in all the circumstances

R v Bryan; ex parte A-G (Qld) [2003] QCA 18; (2003) 137 A Crim R 489, considered
R v Eade [2005] QCA 148; CA No 50 of 2005, 10 May 2005, distinguished
R v Johnston [2004] QCA 12; CA No 263 of 2003, 6 February 2004, distinguished

COUNSEL:

P E Smith for the applicant
D R MacKenzie for the respondent

SOLICITORS:

A W Bale & Sons for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. WILLIAMS JA:  The applicant pleaded guilty on 29 August 2006 to a charge of unlawfully doing grievous bodily harm with intent.  The offence was committed on 3 April 2005.  He was sentenced to eight years imprisonment and a declaration made that it was a serious violent offence.  He was given credit for 514 days spent in pre-sentence custody.  He seeks leave to appeal against the sentence on the basis that in the circumstances it was manifestly excessive. 

1. In oral submissions counsel for the applicant advanced three arguments in support of the application:

(i)   The sentencing judge did not take into account the favourable references placed before the court and the applicant's good work history;

(ii)    The applicant received an inadequate mitigation of penalty consequent upon his timely plea of guilty;

(iii)  No regard was had to the fact that the offence was less serious than a carefully premeditated attack resulting in the offence of grievous bodily harm with intent being committed; it was said that the fact that made this case less serious than that was that the applicant was intoxicated.

1. The applicant was born on 1 January 1982 making him aged 23 at the time of the offence.  Between 1997 and 1999 the applicant was dealt with in the Children's Court in Victoria for heroin related offences.  Because of his age he received non‑custodial sentences. 

1. The offence arose out of an incident…