R v Nguyen

[1997] QCA 177

[1997] QCA 177

COURT OF APPEAL
FITZGERALD P
de JERSEY J

DOWSETT J

CA No 123 of 1997
THE QUEEN
v.

THO NGOC NGUYEN	Appellant
CA No 127 of 1997
THE QUEEN
v.
QUANG MINH PHAN	Applicant
BRISBANE ..DATE 02/06/97 020697 T10-11/KBE18 M/T CMS63/97

de JERSEY J: The appellant, Nguyen, was convicted of doing grievous bodily harm to one, Vo, a Year 12 school student. He appeals against that conviction on the ground that the learned trial Judge's direction to the jury on section 7 of the Criminal Code was inadequate.

The incident occurred at about 7.30 a.m. on 21 October 1994 at the Oxley Railway Station. The appellant and another man, Phan, were dressed in street clothes and carried concealed weapons, a machete and meat cleaver. The complainant, Vo, and one or two others arrived dressed in school uniform. One of them, but not Vo, had a Samurai sword.

There was considerable variation in the evidence as to how the fracas developed. Two year 9 students who saw the incident said that the appellant and Phan were the instigators. That was Vo's claim also. On the other hand, the accused gave evidence of provocation and having acted in self defence following an attack by the man carrying the sword.

In any event, the jury acquitted on the charge of intentionally doing grievous bodily harm and convicted on the charge of doing grievous bodily harm.

There is no reason to doubt that Phan's weapon, a form of meat cleaver, hit Vo's leg and did him grievous bodily harm. The Crown contended that the appellant, Nguyen, who was involved in fighting at the time with another of Vo's group was party to 020697 T10-11/KBE18 M/T CMS63/97

Phan's conduct in causing grievous bodily harm to Vo. The jury accepted that.

When putting the Crown case to the jury during the summing-up the learned Judge directed that one basis for convicting the appellant would be if he aided Phan to commit the offence. One form of assistance, the Judge suggested, would be handing to Phan the meat cleaver so that he could use it as a weapon. The issue of self defence was left to the jury which obviously found that excluded beyond reasonable doubt.

The issue raised on the appeal is whether the Judge should have told the jury that they could not find the appellant guilty if the appellant provided the meat cleaver to Phan in order to help Phan defend himself rather than to commit the offence against Vo. In other words, did the Judge sufficiently distinguish between acts of the appellant which may have aided Phan to commit an offence against Vo, and acts to aid Phan in Phan's own self defence against Vo or others in his company.

At the end of the summing-up counsel for the appellant sought a redirection to the effect that if the appellant was handling the meat cleaver for the purpose of self defence, that could not be aiding in the commission of the offence. The Judge declined to redirect saying that the point would be clear enough to the jury.

His Honour said in his summing-up:
"Our law provides firstly, that any person who does an act for

the purpose of enabling another person or aiding another person to commit an offence, is equally guilty as the

020697 T10-11/KBE18 M/T CMS63/97

person who commits the offence. And our law also provides that every person who aids another person in committing the offence is equally guilty with the person who does the offence".

I note the reference to "the" and "an" offence. In addition, the point was referred to in a written aide-memoir provided by the Judge to the jury. In my opinion, the jury could have been left in no doubt that in order to be guilty the aider's purpose must be to aid in the commission of an offence and that, as would follow, a purpose of aiding self defence was not a possible basis of guilt.

In any event, as Mr Martin submitted for the Crown, the proposition is one of commonsense. And it is very difficult to imagine a lay person of ordinary intelligence thinking that a bona fide purpose of aiding self defence could found a basis for conviction. I would dismiss the appeal against conviction.

Phan seeks leave to appeal against sentence for doing grievous bodily harm to Vo. He, like Nguyen, was sentenced to four years imprisonment suspended after 12 months with an operational period of four years.

At the time of committing the offence the applicant was 16 years old. Nguyen was 20. The applicant, Phan, had no prior criminal history, neither did Nguyen.

At the time of conviction and sentence Phan was 18 years old. The Judge considered the delay between the offence and sentencing as a mitigating factor. He sentenced the applicant, of course, as an adult. For such an offence a 16 year old if 020697 T10-11/KBE18 M/T CMS63/97

sentenced at that time, that is as a child, would be liable to
detention for up to seven years.

The Judge took the view that the applicant and Nguyen initiated the incident. He referred to the serious aspects of the carrying of weapons and the high level of resultant violence in this case, warranting a deterrent sentence.

I have pointed out that Nguyen also was sentenced to the same term. It must be remembered that Phan struck the blows although on the other hand, Nguyen was 20 at the time by contrast with Phan being only 16. Those circumstances may, to some extent, tend to balance each other out.

Mr Rafter who appeared for the applicant, Phan, submitted that 18 months imprisonment suspended after six months with an operational period of two years would have been appropriate.

The President alerted counsel to the fact that there was no application before us in relation to Nguyen. In the interests of parity if there is to be any interference with the sentence imposed on Phan then, in my view, a similar variation would need to be made to the sentence imposed on Nguyen. We, accordingly, did give leave to, in effect, have the application brought by Phan treated as an application brought by both offenders.

Mr Martin, supporting the sentence which was imposed on Phan, referred us to two decisions in particular, Johnson, Court of Appeal, 398 of 1995 in which it was said that for an offence of 020697 T10-11/KBE18 M/T CMS63/97

this general character "an adult might expect to receive a term
of imprisonment ranging from three to five years".
And also to Buckingham and others, Court of Appeal 26 of 1996,
in which there was reference made as appropriate to a term of
imprisonment between two and four years.

In my opinion, even allowing for the high order of violence in this case which involved the use of dangerous weapons which were in a public place, weapons plainly not being carried for innocent purposes, allowing for the circumstance that the offenders were the initiators of the violence and that the public must be deterred from attempting to resolve, in this sort of manner, pre-existing disputes such as have apparently arisen in this case; the age of the applicant, Phan, at the time - being only 16 years - and the absence of any prior criminal history nevertheless assumed considerable significance. And I say that notwithstanding the fact that the Judge rightly sentenced him as an adult.

The Judge was nevertheless obliged to take account of the youthfulness of the man at the time of committing the offence and his previously unblemished record. Nguyen also, I point out, had no prior criminal history.

Not wishing in any way to diminish the extremely significant features concerning the carrying of weapons and the order of violence involved in the incident, I consider that the sentence of four years imposed on this young man without a previous criminal history was nevertheless manifestly excessive.

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I note that Johnson and Buckingham were talking about the range of penalty which might be imposed on adults. I consider that although this sentence of four years obviously fell within that range, the range was not appropriate to the sentencing of a boy so young at the time of commission of the offence albeit that he was subsequently sentenced on the basis that he was an adult.

I would reduce the sentence from four years to three years with a requirement that he serve nine months of that prior to the suspension of the sentence for which the operational period should be three years. I would allow the application in respect of Phan and the application of Nguyen and in each case substitute, for the sentence of four years imprisonment suspended after nine months with an operational period of four years imposed in each case, a term of three years imprisonment suspended after nine months imprisonment with an operational period of three years in each case.

THE PRESIDENT: I agree. In relation to the appeal against conviction I merely add by way of emphasis that there was no evidence that either the complainant or any other person was threatening Phan with a weapon or that there was any other circumstance which might have led Nguyen to believe that Phan might have needed a meat cleaver for the purposes of self defence.

DOWSETT J: I also agree.
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THE PRESIDENT: The order of the Court is in relation to the
appeal against conviction by Nguyen, appeal against conviction
dismissed. In relation to the applications for leave to appeal
against sentence by both Nguyen and Phan the order is
application for leave to appeal is granted and appeal allowed,
sentences imposed below set aside and in lieu, each sentenced to
a period of imprisonment for three years to be suspended after
nine months with an operative period of three years.

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