R v Nguyen and Ors - Sentence - [2006] NSWSC 850

CITATION: R v NGUYEN & ORS - Sentence [2006] NSWSC 850
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28 July 2006; 11 August 2006

JUDGMENT DATE :
11 August 2006

JUDGMENT OF: Hulme J at 1

DECISION: See paragraphs 96-100

PARTIES: Regina
Khanh Hoang Nguyen
Minh Thy Huynh
Duong Nguyen
ATCN

FILE NUMBER(S): SC 2005/191; 2005/189; 2005/205; 2005/424

COUNSEL: Crown: Mr J Kiely SC
Khan Nguyen: Mr C Simpson
Minh Huynh: Mr W Terracini SC
Duong Nguyen: Mr R Button SC
ATCN: Mr PD Young SC

SOLICITORS: Crown: S Kavanagh
Prisoner: S O'Connor

- 18 -

`IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HULME J
2005/191
2005/189
2005/205
2005/424

Friday, 11 August 2006

R v Khanh Hoang Nguyen
R v Minh Thy Huynh
R v Duong Nguyen
R v ATCN

REMARKS ON SENTENCE

1 HULME J: On 6 January 2004 four males, some few seconds apart, entered a billiard hall known as Billiards 2000, located in Cabramatta and walked through it to the rear. To a substantial degree their entry and movement through the billiard hall, and the subsequent departure of 2 of them, was recorded via 2 CCTV cameras which were mounted on the ceiling of the premises. The men made no attempt to hide their faces or conceal their appearance. As they walked through the billiard hall the first man reached into his waistband. I have no doubt that what he reached for was a pistol which, though only as a dark object, is to be seen in a photograph as he entered. As he walked through, the fourth man pulled out a Samurai sword or something similar from a towel or other cloth under which it was concealed and threw the cloth, and a scabbard onto one of the billiard tables. As he left a little later, he retrieved these items.

2 At least 3 of them entered a room behind the main part of the billiard hall where they were seen and the fourth man identified by a witness Mai Nguyen. (I may interpolate that, although there is a deal of commonality of names, first or family, between those involved in this case, virtually none of the persons with the same name were related. The similarity led to a number of persons being identified by their first names during the trial and it may be convenient at times for me to retain that nomenclature here. )

3 The first man passed through that room and into a courtyard behind. By the time of his entry in to the courtyard, he had the pistol drawn. In the courtyard at the time some sort of celebration was being held for the birthday of Tien Duc Nguyen and about 10 people were then present. The first man advanced some distance with the weapon pointed at or in the direction of Tien Duc Nguyen and then fired at fairly close range – albeit…

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.

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Details

Case: [2006] NSWSC 850
Decision Date: 11 August 2006

CaseChat Overview and Summary

The case of R v Nguyen and Ors involved four defendants: Khanh Hoang Nguyen, Minh Thy Huynh, Duong Nguyen, and ATCN. The defendants were charged with murder and maliciously inflicting grievous bodily harm with intent. The case was heard in the Supreme Court of New South Wales, Criminal Division. The legal issues included determining the appropriate sentences for the defendants based on the principles of sentencing under the Crimes (Sentencing Procedure) Act 1999. The court had to consider the aggravating and mitigating factors, the standard non-parole periods, and the overall criminality of the offenders.

The court found that the murder offence was substantially above the mid-range in objective seriousness due to the intention to kill, premeditation, and the brazen nature of the crime. The court also found that the defendants were equally culpable as they were all actively participating in the joint criminal enterprise. The court considered various aggravating factors such as the use of a firearm, disregard for public safety, and the planned nature of the crime. Mitigating factors such as the lack of prior convictions and the potential for rehabilitation were also taken into account. The court concluded that the sentences for murder should exceed the standard non-parole period to serve the purposes of retribution and general deterrence.

The sentences imposed were as follows: Duong Nguyen and Khanh Nguyen were each sentenced to 7 years imprisonment with a non-parole period of 23 years for the murder of Linda Huynh, and 7 years imprisonment with a non-parole period of 2 years and 4 months for the grievous bodily harm offence. Minh Huynh was sentenced to 7 years imprisonment with a non-parole period of 21 years for the murder offence, and 7 years imprisonment with a non-parole period of 2 years and 4 months for the grievous bodily harm offence. ATCN was sentenced to 7 years imprisonment with a non-parole period of 15 years for the murder offence, and 7 years imprisonment with a non-parole period of 2 years and 4 months for the grievous bodily harm offence, with an additional order for detention as a juvenile offender until the age of 21 years.

Orders