R v Nguyen

[1992] QCA 408

COURT OF APPEAL [1992] QCA 408

PINCUS JA
McPHERSON JA

WHITE J

CA NO. 229 OF 1992
THE QUEEN
v.

SON HOANG NGUYEN

Applicant

BRISBANE

... DATE 20/10/92

JUDGMENT

PINCUS JA: This is an application for leave to appeal against sentence in respect of a conviction of breaking, entering and stealing. The applicant is 36 years of age, and he committed the offence in November 1991. The applicant was found by the police inside a grocery store. He was wearing, among other things, gloves. A small amount of cash was located on him. The premises had been forced. Instruments, which could be used for housebreaking, were found. Plastic bags containing packets of

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cigarettes, which had been removed from a cabinet in the shop,
were located at the rear of the shop.

The District Court Judge, after a trial, sentenced the applicant to one years imprisonment. The principal basis, as it appears to me, upon which one might challenge the sentence is that the applicant, who is a fairly recent immigrant, had only a modest to moderate criminal history, and had not previously been sentenced to imprisonment. His history included an occasion on which he was convicted of possession of an unlicensed concealable firearm, an assault, and more recently (that is towards the end of 1991) a number of minor charges of false pretences. In short, he has the appearance from his criminal history of being a petty criminal at most. The Judge was told that the applicant was supporting a family. He was, at the time, unemployed. He was getting sickness benefit, and it may be that he had a serious need of money. On the other hand, as has been pointed out on behalf of the Crown, the offence in question was committed at a time when he was on bail in relation to the false pretences charges, and the Judge was entitled to take into account, not against him, but as a matter which made it clear that no discount was necessary, the fact that he pleaded not guilty, and did not cooperate with the police.

The decision to send a man or a woman to gaol for the first time is an important one because it can have a substantial impact upon

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people's lives, adverse or beneficial. In the present circumstances, I have not come to the conclusion that the District Court Judge was necessarily in error in deciding that the applicant should serve a term of imprisonment for this particular offence. Had he been a person with no previous convictions my view might have been otherwise. The sentence imposed of 12 months for breaking and entering is not, in itself, a remarkable one, and the real question seems to me to be whether he should have been sent to prison at all. I think the decision to do so was within the range of permissible exercise of discretion, and I would dismiss the application for leave to appeal.

McPHERSON JA: I agree.

WHITE J: I agree.

PINCUS JA: The order will be, application for leave to appeal against sentence dismissed.

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