R v Nguyen; R v Le

[2015] SASCFC 181

Supreme Court of South Australia

(Court of Criminal Appeal)

R v NGUYEN; R v LE

[2015] SASCFC 181

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Auxilliary Justice David)

4 December 2015

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT OR BEING FOUND WITH INTENT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeals against sentence.  The appellants were convicted by a jury of the offence of aggravated serious criminal trespass in a place of residence.  The jury found the offence to be aggravated as the appellants were in the company of each other at the time of their offending.  On 20 January 2014, the appellants determined to attend at the address of the niece of Le.  They arrived at the home of the niece and her husband in the early hours of the morning.  The appellants banged aggressively on the door.  The door was opened by the niece’s husband.  The niece arrived at the door shortly thereafter.  The Judge concluded that the appellants entered the house as trespassers, knowing that they were trespassers, and knowing that they were not welcome, but entered and remained notwithstanding.  The Judge sentenced each appellant to a term of imprisonment of four years and fixed a non-parole period of two years.  The Judge suspended the sentence in respect of each appellant on entry into a three year good behaviour bond. 

Whether the head sentences and non-parole periods were manifestly excessive.

Held per Gray J (Peek J and David AJ agreeing)(allowing the appeal):

1.      The offending was at the lower end of seriousness.

2.      The head sentence imposed on each of the appellants was manifestly excessive.

3.      The appellants should be resentenced to a head sentence of 12 months of imprisonment with a non-parole period of six months.  The sentences imposed on each appellant should be suspended on entry into a good behaviour for a period of three years.

Criminal Law Consolidation Act 1935 (SA) s 20(3), s 20(4) and s 170(1), referred to.
R v Matthews [2003] SASC 228, considered.

R v NGUYEN; R v LE
[2015] SASCFC 181

Court of Criminal Appeal:       Gray and Peek JJ and David AJ.

GRAY J.

1. These are two appeals against sentence.  The appeals were heard together and it is convenient to address both appeals in these reasons.

2. The defendants and appellants, Ninh Phuc Nguyen and Thanh Tong Le, were jointly charged and tried before a jury in respect of the alleged offences of one count of aggravated assault,[1] two counts of aggravated assault causing harm[2] and one count of aggravated serious criminal trespass in a place of residence.[3]  The jury returned verdicts of not guilty against both defendants in respect of the three assault charges. 

   [1]    Criminal Law Consolidation Act 1935 (SA) section 20(3).

   [2]    Criminal Law Consolidation Act 1935 (SA) section 20(4).

   [3]    Criminal Law Consolidation Act 1935 (SA) section 170(1).

3. The jury returned verdicts of guilty against both defendants on the charge of aggravated serious criminal trespass in a place of residence.  The Information in respect of this charge provided the following particulars:

   Ninh Phuc Nguyen and Thanh Tong Le on the 20th day of January 2014 at Para Hills West, entered the place of residence of Peter Stafford and Thi Thanh Van Stafford as trespassers, with the intention of committing an offence therein, namely an offence against the person.

   It is further alleged that Ninh Phuc Nguyen and Thanh Tong Le committed the offence whilst in company with one another.

   It is further alleged Ninh Phuc Nguyen and Thanh Tong Le used an offensive weapon, namely a metal bar and a knife, when committing the offence.

   It is further alleged that Ninh Phuc Nguyen and Thanh Tong Le committed the offence when another person was present in the residence and Ninh Phuc Nguyen and Thanh Tong Le knew of the persons [sic] presence or were reckless as to whether anyone was in the place.

4. The jury, in returning the verdict in respect of both defendants, found that the circumstances of aggravation, that the offence was committed while in company with one another, had been proved.  However, the jury returned verdicts of not proven in relation to the allegation that an offensive weapon was used when committing the offence.

5. The Judge sentenced each defendant to a term of imprisonment of four years and fixed a non-parole period of two years.  The Judge suspended the sentence in respect of each defendant on entry into a three year good behaviour bond. 

6. The Judge made non-intervention orders against both defendants in relation to both victims of the offence.  There is no complaint against these orders.

7. The defendant Nguyen is the son-in-law of the defendant Le.  On 20 January 2014, the defendants determined to attend at the address of the niece of Le. They arrived at the home of the niece and her husband in the early hours of the morning.  It was said that this was shortly after Le finished work as a chef.  The sentencing Judge found the purpose of their attending was to confront Le’s niece about a family dispute. 

8. On arrival, Nguyen knocked on the door which was then opened by the niece’s husband.  The niece arrived at the door shortly thereafter.  The defendants gained entry to the house as trespassers with the intention of committing an offence against the person.  It is not known what offence against the person was intended.  The Information provided no particulars and the jury’s verdict did not address that issue. 

9. The Judge, when sentencing, said that he was satisfied that both defendants wanted to confront the niece and, if necessary, her husband and that they went to her home with that intention.  The Judge made no finding as to the nature of the intended offence against the person. 

10. According to the niece, the defendants simply followed her into the house.  The niece’s husband gave evidence, however, that Le was pulling on the door while his wife was trying to hold it shut.  The Judge did not resolve this issue.  However, the Judge did conclude that the defendants banged aggressively on the door.  The Judge also concluded that the defendants entered the house as trespassers, knowing that they were trespassers, and knowing that they were not welcome, but entered and remained notwithstanding.  The Judge remarked that the niece’s triple zero call, which had been recorded and played in the trial, made it plain that she was terrified about whatever the defendants were doing in the house.  The Judge further remarked that both the niece and her husband, in their victim impact statements, spoke of the trauma of the event and the continuing consequences.  The Judge noted that they immediately sold their house and moved.  It is plain that the offending conduct of the defendants caused distress to the victims. 

11. At the time of sentencing, Nguyen was aged 33 years.  He was born in Vietnam and came to Australia when 11 years old.  He was successful at school, graduating in 2007 from the University of South Australia with a Bachelor of Mathematics and Computer Modelling.  He has been gainfully employed since graduation.  He is divorced and has no children.  The Judge noted his criminal antecedents, essentially involving traffic offending, including one drink driving offence.  

12. At the time of sentencing, Le was aged 55 years.  He was born in Vietnam and came to Australia as a 21 year old in 1981.  He is married with four adult children, all of whom are studying.  He owns a restaurant in suburban Adelaide, employing relatives and several casual employees.  The Judge noted that he had convictions for drink driving but no other criminal convictions. 

    The Appeal

13. Both defendants have appealed against sentence, arguing that the head sentences and non-parole periods were manifestly excessive.  It was emphasised that the offending involved no acts of physical violence and that, on any view, the offending was of the lower end of seriousness. 

14. The Court’s attention was drawn to the observations of this Court in Matthews,[4] where the defendant was resentenced on appeal to a term of imprisonment of 12 months, reduced to nine months on account of his pleas of guilty in respect of three offences, being two counts of common assault and one count of aggravated serious criminal trespass in a place of residence.  At first instance, he had received a head sentence of 20 months.  At the time of the offending, the defendant was aged 28 years and had a long history of criminal offending, including a number of offences of breaking and entering.  He had been sentenced to terms of imprisonment, both immediate and suspended, in the past.  The Court, in allowing his appeal and resentencing, accepted that the defendant’s conduct the subject of the offending was impulsive.  Debelle J, in agreeing with the reasons of Mullighan J, observed:[5]

    I agree. It is clear that the assaults in this case did not result in any serious injury. It is also apparent that the appellant broke into the premises whilst undergoing a good deal of emotional stress, by reason of the breakdown of the former relationship with one of the victims. Regard must be had to the wide variety of circumstances which constitute the offence of serious criminal trespass. This court is only too well aware of the concerns about the prevalence of the offence which is now called serious criminal trespass but, I repeat, the sentence in each case must reflect particular facts and circumstances, both of the offending and of the offender. I believe that the sentence which has been prescribed by Mullighan J is an appropriate sentence, having regard to the particular facts and circumstances of this case. I, too, would allow the appeal.

    [Emphasis added].

    It is to be accepted that there is no standard or range of sentences in respect of the offence of aggravated serious criminal trespass in a place of residence. 

    [4]    R v Matthews [2003] SASC 228.

    [5]    R v Matthews [2003] SASC 228, [27].

15. In the particular circumstances of the defendants’ offending, it is relevant that no injury to the person or other damage was occasioned.  It is to be noted that the evidence of the niece suggested that the defendants simply followed her into the house, although as trespassers.  The only matter of aggravation was that the defendants were in the company of each other at the time of their offending.  The jury concluded the allegation that there was a weapon was not proved.  In my view, these circumstances suggest that the offending was at the lower level of seriousness.  It is plain, however, that the defendants’ trespassing was unwelcome, caused distress and, in the circumstances, I am satisfied that the defendants’ conduct warranted a term of imprisonment.

16. In my view, considering the circumstances of the offending and the defendants’ antecedents, the head sentence imposed on each defendant of four years of imprisonment was manifestly excessive and that this Court should allow the appeal and resentence the defendants.  In respect of each defendant, I would impose a head sentence of 12 months of imprisonment and fix a non-parole period of six months.  I would suspend the sentence to be imposed on each defendant on entry into a good behaviour for a period of three years.

17. PEEK J.   I agree with the orders proposed by Gray J and with his reasons.

18. I should add that this Court did not hear any argument on questions such as whether any of the counts as pleaded were valid counts; or whether the conviction on count 3 was valid having regard to either the form of count 3, the findings concerning circumstances of aggravation on count 3 or the acquittals on counts 1, 2 and 4.  I express no opinion on any of those matters.

    DAVID AJ.

19. I would allow the appeals.  I agree with reasons of Gray J and the orders he proposes.