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R v Nguyen

R v Nguyen

Case [2015] SASCFC 40 2 April 2015

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NGUYEN
[2015] SASCFC 40
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Nicholson and The Honourable Justice Lovell)
2 April 2015
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
The appellant pleaded guilty to numerous offences committed on various days between 23 March 2012 and 8 January 2014: illegal interference with a motor vehicle without consent; carrying an offensive weapon; unlawful possession; breach of bail (10); unlawfully on premises; driving under disqualification; serious criminal trespass in a place of residence; theft; and aggravated robbery. On 2 December 2014, a District Court Judge exercised the discretion available under section 18A of the Criminal Law (Sentencing) Act 1988 to impose the one penalty for all of the offending. However, in doing so, his Honour identified notional starting points with respect to each offence standing alone and the extent to which he would have allowed for concurrency but before allowing any discount for guilty pleas. His Honour started at a term of 10 years and six months imprisonment which was reduced to eight years and four months after applying a global discount of 20 per cent for the appellant’s pleas of guilty. That was further “rounded down” to eight years. In effect, the appellant received a total discount of approximately 24 per cent. A non-parole period of six years was set. The sentence was backdated to commence 8 November 2013 to take account of time served. A compulsory licence disqualification for 12 months was also imposed.
The appellant appeals against the sentence on the grounds that: the sentence was manifestly excessive; the Judge erred by not allowing a greater reduction in accordance with the statutory regime now governing discounts for guilty pleas; and the Judge erred in his application of the principle of totality. The appellant seeks that the sentence imposed be set aside, and that he be resentenced.
Held by Nicholson J (with whom Sulan and Lovell JJ agreed) allowing the appeal and resentencing:
1. Having regard to the applicable statutory regime the Judge erred in allowing too low a discount with respect to the appellant’s guilty pleas.
2. Having regard to the applicable statutory regime, the Judge erred in failing to provide reasons explaining how he arrived at the discount to be allowed.
3. For the reasons in 1 and 2, the appeal should be allowed and the appellant resentenced.
4. In the circumstances, it is not necessary to determine whether or not the sentence was manifestly excessive.
5. The Judge’s apparent application of the totality principle, although, misdescribed, did not have a materially adverse effect on the sentence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Nguyen

Details

AGLC: R v Nguyen [2015] SASCFC 40
Case: [2015] SASCFC 40
Decision Date: 2 April 2015

CaseChat Overview and Summary

The case of *R v Nguyen* concerned an appeal against sentence. The appellant, Mr. Nguyen, had pleaded guilty to a number of offences, and the sentencing judge imposed a cumulative sentence. The appeal was heard by Sulan, Nicholson and Lovell JJ of the Supreme Court of New South Wales.

The primary legal issues before the Court were whether the sentencing judge had erred in imposing a cumulative sentence, and whether the total sentence imposed was excessive, having regard to the principle of totality. The Court was also required to consider the weight to be given to the appellant's plea of guilty in the sentencing process.

The Court affirmed that when sentencing an offender for multiple offences, a sentencing judge must consider the totality of the sentence, ensuring that the aggregate punishment is just and appropriate. While cumulative sentences are permissible, they should not result in an unduly severe overall sentence, particularly where the offences are closely related. The Court reiterated that a plea of guilty is a significant mitigating factor, and its benefit should be reflected in the sentence imposed. In this instance, the Court found that the sentencing judge had failed to adequately consider the principle of totality, and that the cumulative nature of the sentence, when combined with the length of the individual sentences, resulted in an excessive overall punishment.

The Court allowed the appeal, quashed the original sentence, and resentenced the appellant to a shorter term, to be served concurrently.

Orders