R v Nguyen
[2006] VSCA 39
•14 February 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No. 237 of 2005 |
| v. | |
| HIEU HUU NGUYEN |
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JUDGES: | WARREN, C.J., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 February 2006 | |
DATE OF JUDGMENT: | 14 February 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 39 | |
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CRIMINAL LAW – Sentence – Affray – Attempting to cause serious injury – Offenders armed with Samurai swords – Hand amputated during affray – Attacker causing amputation receiving lesser sentence, although uninjured – Disparity – Imprisonment more burdensome – Sentence not manifestly excessive – Control of Weapons Act 1990 (Vic.) ss.5(1), 6(1) – Crimes Act 1958 (Vic.) s.31B – Control of Weapons Regulations 2000.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Ms F. Dalziel | Pro Bono |
WARREN, C.J.:
I invite Charles, J.A. to state his reasons for judgment first.
CHARLES, J.A.:
The applicant pleaded guilty on 25 July 2005 in the County Court at Melbourne to a presentment alleging one count of affray (count 1) and one count of attempting to cause serious injury intentionally (count 3). The maximum penalties were, for affray, five years' imprisonment and for attempting to cause serious injury intentionally, 15 years' imprisonment, respectively. The applicant admitted 15 prior convictions from four previous appearances in the Magistrates' Court, including five charges of trafficking in heroin, one further charge of trafficking in a drug of dependence, and one charge of being found without lawful excuse in possession of a controlled weapon.
On 8 August 2005, the judge sentenced the applicant on the count of attempting to cause serious injury intentionally to 18 months' imprisonment and on the count of affray to 15 months' imprisonment. Six months of the sentence imposed on the count of affray was made cumulative on the other sentence, making a total effective sentence of two years' imprisonment. The judge fixed a non-parole period of nine months.
The applicant now seeks leave to appeal on the grounds -
“1.The sentence imposed upon him was disproportionate to that imposed upon the co-offender Tuan Mai, having regard to the principle of parity;
2.The judge failed to give sufficient weight to mitigating factors associated with the applicant's injury, in particular -
(a)the serious permanent consequences of the injury;
(b)the additional burden of imprisonment by reason of the injury;
(c)that imprisonment would have an adverse effect on the applicant's health.”
The Crown prosecutor opened the case to the sentencing judge in the following terms. During February 2004, a 17-year-old youth, Hai Nguyen, who was part of a group known as "Little Fitzroy", and another male, Viet Quoc Nguyen, who was part of a second group known as "SNK", were in conflict because Viet had been making advances to Hai's girlfriend, Tiffani. This conflict grew to include other members of both groups. On the evening of 21 February the applicant, who was part of the SNK group, and Tuan Mai, who was part of the "Old Fitzroy" group, had a verbal altercation. On the evening of Friday 27 February, Hai Nguyen was approached by a group of SNK members including the applicant. The prosecutor claimed that the applicant arranged a fight between the two groups by saying to Hai Nguyen "Tomorrow ... 6 o'clock at Fitzroy Gardens". Hai Nguyen told Tuan Mai of this arrangement later that evening.
On Saturday 28 February the applicant picked up a number of members of the SNK group and collected a bag of weapons including at least three Samurai swords, machetes, knives, and metal poles. The applicant had possession of a 30cm Samurai sword. The Fitzroy group including Tuan Mai also met and gathered weapons both individually and collectively, including machetes, Samurai swords, poles and baseball bats. Tuan Mai had in his possession a full-size Samurai sword when he subsequently entered the gardens.
The SNK and another group known as "Young Richmond" arrived at the Fitzroy Gardens first with the Fitzroy group arriving some time later. It was estimated that there were between 30 and 70 members of the SNK group and between 10 and 15 members of the Fitzroy group. Another group, "Old Richmond", attended unarmed to observe the fight.
At approximately 7 p.m., upon observing the arrival of the Fitzroy group, the SNK and Young Richmond groups charged towards them. The applicant led the SNK group armed with his Samurai sword. Tuan Mai and Zair Xiong led the Fitzroy group. The applicant attempted to stab Tuan Mai with his 30cm Samurai sword with an underhand movement aimed at the stomach region. Tuan Mai took a step backwards and then produced his full-size Samurai sword, initially holding it by his side. At this time other members of the SNK group were standing nearby waving their weapons. Zair Xiong was standing near Tuan Mai waving his sword at the SNK members. The applicant then again attempted to stab Tuan Mai with his sword in an underhand movement aiming at the stomach. Tuan Mai stepped back again and with one hand on his full-size Samurai sword swung at the applicant and missed. The applicant for a third time attempted to stab Tuan Mai with his sword. Tuan Mai then put both hands on his full-size sword and swung in the region of the applicant's head. The applicant raised his left hand in a reflex to protect his head and ducked, but he was horrifically injured when his hand was completely severed at the wrist. He screamed with pain and fell to the ground. The SNK and Young Richmond boys then ran in the direction from which they had arrived, and the Fitzroy group chased them for a short distance.
Nghia Trong Nguyen and Duong Minh Duong helped the applicant from the scene, and conveyed him to St Vincent's Hospital. Police searched for and recovered the applicant's hand a short time later and took it to St Vincent's Hospital where it was surgically reattached. There had been numerous members of the public present in Fitzroy Gardens at the time of the incident, including picnickers and joggers and others attending a seminar at the nearby Dallas Brookes Hall, many of whom would have been severely alarmed and no doubt traumatised by these events.
The applicant made a statement to police on 16 March 2004. He said that the fight had been arranged between SNK and Fitzroy, and that this was because someone he knew named "Nigger Viet" who was part of SNK liked the girl called Tiffani, and a man in the Fitzroy group liked her as well. The applicant said that Viet Nguyen had made the arrangements for the fight, and that Nghia Nguyen, Lanh Nguyen and Viet Nguyen were all part of SNK. On the day of the fight he had picked up Nghia Nguyen, who brought a blue bag containing a few Samurai swords and metal poles. They drove to the Fitzroy Gardens where they met 20 to 30 other friends. The applicant said that they saw the Fitzroy group and he walked towards them, followed by the rest of his group. He said there were 20 to 30 in the Fitzroy group as well. He said he walked in front of his group carrying a Samurai sword, and that a few others in his group were armed with Samurai swords and poles. He saw three people from the other group carrying Samurai swords. He said he swung his sword two or three times at waist height at these people, and that the three males he met swung their swords at him. His account was otherwise in accord with the prosecutor's opening. At the time of making the statement, and indeed at sentencing, he was still undergoing an extensive rehabilitation program to regain movement and feeling in his hand.
In his sentencing remarks the judge noted that the applicant was 21 years and five months at the time he committed these crimes. He said that the applicant had a significant and unenviable criminal record. The judge found that the applicant was prominent in the preliminary arrangements leading to the fight, was aware that weapons were to be used in it, and that he led the SNK group from the front while armed with a 30cm Samurai sword. His Honour accepted that the applicant was not responsible for mobilising a large number of people for the fight, but rather that those that attended the fight did so due to the efficiency of communication by word of mouth.
By way of mitigating factors, the judge took into account that the applicant made an early plea of guilty, his troubled background and the severity of his appalling hand injury, with which the judge dealt at considerable length. His Honour accepted as to the applicant's hand injury that a good result would allow him to lift large, light objects such as a carton of milk, but that it was unlikely that he would ever be able to use his hand for tasks which required a strong two-handed grip. His Honour accepted that the applicant was likely to suffer permanent disability due to his hand injury and that this was a matter to be taken into account in sentencing. General deterrence and protection of the community were, his Honour thought, important considerations. Conversely, his Honour considered that specific deterrence was not a particularly significant consideration having regard to the injury the applicant had sustained.
By way of contrast, Tuan Mai (who was dealt with by the same judge at the same plea hearing) was sentenced on one count of affray and one count of recklessly causing serious injury (count 4). Tuan Mai had said that he had gone to the Fitzroy Gardens unarmed expecting a fist fight between himself and the applicant. He said that when he saw that the SNK group had weapons he quickly grabbed a Samurai sword from the person next to him to defend himself. He said that after being attacked three times by the applicant he swung his sword, which resulted in the amputation of the applicant's hand. Tuan Mai was 18 years old when he committed these offences, his prior history consisting of 13 offences proven against him in the Children's Court from two appearances, but no convictions recorded and no offences involving violence. He pleaded guilty. The judge accepted that the applicant had been the original aggressor and that he had lunged at Tuan Mai on three occasions. But his Honour also found that Tuan Mai was involved in the preliminary discussions prior to the event, and that he was armed with a large Samurai sword at the time the SNK group moved towards the Fitzroy group. His Honour refused to accept Tuan Mai's claim that he merely went to the gardens to "talk things over".
The judge noted that Tuan Mai had, since the offence, held down employment in Domino's Pizza, and had undertaken management training courses. He took into account that Tuan Mai was a young offender, and thus rehabilitation was important. His Honour also accepted that Tuan Mai was remorseful for the injury he had caused the applicant.
On the first ground of the application, alleging disparity, Ms Dalziel argued that the applicant had suffered a terrible injury, and had caused no injury to Tuan Mai. Tuan Mai had, none the less, been sentenced to a period of imprisonment only six months greater than the applicant. It was put that the small difference between the sentences, in light of the very different offending and consequences, was such that the applicant is justified in feeling a sense of grievance, and an objective observer would take the view that justice had not been done.
In my view there is no substance in the submissions based on disparity. The judge made a number of findings regarding the roles played by Tuan Mai and the applicant in the affray. Tuan Mai received an additional three months’ sentence for affray and six months for the count of causing serious injury. The sentences imposed on Tuan Mai and the applicant were explicable (in terms of parity) having regard to the findings made by his Honour as to the roles each of them played in the fight as well as other significant differences between them. The applicant had a substantial prior criminal record, including for drug trafficking, and was two-and-a-half years older than Tuan Mai, who in contrast remained a "young offender" under the Sentencing Act 1991 at the time of sentence. The applicant had previously served a sentence in a youth training centre whereas Tuan Mai had never previously lost his liberty. Tuan Mai also had obtained gainful employment since the commission of these offences. The difference between the sentences imposed in all the circumstances does not, I think, result in a disproportionate sentence or warrant a justifiable sense of grievance on the part of the applicant.
As to the second ground, Ms Dalziel argued that the judge had accepted that even with a good recovery the applicant would be left with significant permanent impairment. Injury suffered by an offender in the course of the commission of an offence is a factor which may be taken into account in mitigation, and it was submitted that the injury would remain a terrible reminder to the applicant of his crime and as such could be considered a form of punishment. It was argued that since the applicant's injury and the disability it caused will result in his imprisonment being a greater burden, it also becomes for that reason a factor in mitigation. The judge accepted that the applicant would find prison life more onerous because of the disability to his hand. Furthermore, imprisonment was likely to make his rehabilitation more difficult, in part because the necessary hand therapy was not available (or less so) in the prison system (a matter not disputed by the Crown), and his future use of his hand would be detrimentally affected by the sentence. It was argued that all these matters had not been taken sufficiently into account by the judge in sentencing.
Again there is, I think, nothing in these submissions. The judge had before him a significant body of evidentiary material regarding the effect of the injury suffered by the applicant, and detailed submissions from counsel regarding the weight that was to be attributed to the effect of the injury suffered. His Honour referred to all this material in considerable detail and I do not think it can be said that his Honour accorded insufficient weight to it. Indeed, the sentence imposed was, I think, very carefully considered and reasoned and moderate in all the circumstances, and the judge dealt very fairly with all the accused in a most difficult sentencing exercise.
The weapons carried by these young men as they went to the Fitzroy Gardens, as I have said, included Samurai swords and machetes. It is perfectly obvious that any fight involving weapons such as these is likely to produce terrible injuries of the kind suffered by the applicant, leading to the mutilation and potentially the death of the participants. The Control of Weapons Act 1990 makes swords (which would include Samurai swords) “prohibited weapons”. Section 5(1) of this Act makes it an offence to possess, carry or use a prohibited weapon without an exemption or approval under the Act. By s.6(1) it is an offence to possess, carry or use a “controlled weapon” without lawful excuse. “Prohibited weapons” and “controlled weapons” are both defined as meaning articles that are prescribed as such under the Control of Weapons Regulations 2000 (the “regulations”).
I doubt if machetes are presently covered by any of the paragraphs under the heading “Prohibited Weapons” or “Controlled Weapons” in the regulations. Swords are prohibited weapons, being expressly mentioned in Schedule 2, clause 47. The maximum penalty, however, for an offence of possessing, carrying or using a prohibited weapon, or possessing, carrying or using a controlled weapon, is, in each case, a mere six months’ imprisonment.
Under s.31B of the Crimes Act 1958 a person who, with criminal intent, is armed with a prohibited weapon is guilty of an indictable offence for which the maximum penalty is five years' imprisonment. There is a question whether a person who arms himself in self-defence with such a weapon could be said to be acting with "criminal intent". Counsel appearing before us today were not able to suggest any other legislation which would prevent a recurrence of events of this nature.
In my view Parliament should give urgent consideration to amending the definition of either or both of the expressions “prohibited weapon” and “controlled weapon” to ensure that the legislation prohibits any person from carrying or using weapons such as Samurai swords. The use of axes and machetes as weapons should also be prohibited although both implements have many quite proper uses. The maximum penalties available under ss.5 and 6 of the Control of Weapons Act 1990 should be substantially increased. The legitimate use of axes by members of the community, and devices similar to machetes by persons such as butchers would, presumably, not be prohibited if these implements were covered by the description “controlled weapons”, since such possession or use would take place “with lawful excuse”.
This community cannot afford to tolerate the use of weapons such as Samurai swords and machetes in circumstances akin to those that occurred in the Fitzroy Gardens on 28 February 2004.
Notwithstanding Ms Dalziel's careful submissions, in my view both grounds of appeal fail. The application for leave to appeal against sentence should be dismissed.
WARREN, C.J.:
I agree with the reasons for judgment of Charles, J.A. and that the application for leave to appeal against sentence should be dismissed. I would further emphasise that the events of the applicant's offending were dreadful and frightening. The
carrying and use of weapons such as samurai swords and machetes in the community ought not be tolerated. In this respect I especially endorse the remarks of Charles, J.A. with respect to the Control of Weapons Act 1990.
CHERNOV, J.A.:
I also agree with Charles, J.A. and I endorse his Honour's remarks in relation to the weapons to which he has referred.
WARREN, C.J.:
The order of the Court is that the application for leave to appeal against sentence is dismissed.
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