R v Paul Nguyen

[2021] NSWDC 356

District Court

New South Wales

Medium Neutral Citation:

R v Paul Nguyen [2021] NSWDC 356

Hearing dates:

30 April 2021

Date of orders:

30 April 2021

Decision date:

30 April 2021

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

An aggregate term of imprisonment of 3 years, 1 months and a non-parole of 2 years, 1 month: at [21].

Catchwords:

SENTENCING — Aggravating factors — Breach of conditional liberty — Without regard for public safetySENTENCING — Mitigating factors — Plea of guilty — Remorse

SENTENCING — Relevant factors on sentence — Circumstances of offence — Deterrence — Form 1 offences — General principles — Maximum penalty — Multiple offences

SENTENCING — Subjective considerations on sentence — Drug addiction — Special circumstances

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Cases Cited:

R v Long Nguyen [2020] NSWDC 891

Bugmy v The Queen (2013) 249 CLR 571

Category:

Sentence

Parties:

Regina (Office of the Director of Public Prosecutions)

Paul Nguyen (Offender)

Representation:

Ms S Reilly (Solicitor for the Office of the Director of Public Prosecutions)

Ms L McSpedden (Counsel for the Offender)

File Number(s):

2020/791; 2020/100072

Judgment

1. Paul Nguyen, aged 28, is to be sentenced today in relation to a number of offences. The sentencing process of course takes account of the maximum penalty and the standard non-parole period, where applicable and to the purposes of sentencing outlined in s 3A of the Crimes (Sentencing Procedure) Act 1999.

2. The sentencing process has been greatly assisted by very helpful written submissions from the Crown and from Ms McSpedden, counsel for the offender, and by the fact that I have already sentenced one co-offender (R v Long Nguyen [2020] NSWDC 891) and Magistrate Keady sentenced another co-offender (Vu) which has enabled the Court, when taking into account parity and totality considerations, to come to the view that the sentence to be imposed will be broadly in line with those imposed on co-offenders, given the unchallenged equality of culpability and objective seriousness in each case.

3. The offender has been charged with and will be sentenced for the following offences:

22 December 2019 incident (H73698628)

1. Sequence 4, an offence of being armed with intent contrary to s 115 of the Crimes Act 1900. The offence carries a maximum penalty of ten years imprisonment. Attached to this sequence on a Form 1 is an offence of assault occasioning actual bodily harm in company, in relation to the same victim, contrary to s 59(2) of the Crimes Act 1900.

26 December 2019 incident (H74365233)

2. Sequence 3, an offence of assault occasioning actual bodily harm in company contrary to s 59(2) of the Crimes Act 1900. The offence carries a maximum penalty of seven years imprisonment.

1 January 2020 incident (H73698628)

3. Sequence 5, an offence of reckless wounding contrary to s 35(3) of the Crimes Act 1900, and is depicted on CCTV footage which is part of the Crown case. The offence carries a maximum penalty of 10 years imprisonment, with a standard non-parole period of 4 years.

4. He pleaded guilty in circumstances which it is agreed justified a 10% discount on the term of imprisonment for sequence 4 (H7H73698628) and 25% discount for sequences 3 (H73698628) and 5 (H73698628).

5. He has been in custody since 1 January 2020 and was serving the balance of parole until 20 July 2020, having only been released from prison about three weeks before 1 January 2020.

6. In exercising my discretion, I accept Ms McSpedden’s submission that the term of imprisonment, which she concedes must be imposed, should commence on 15 March 2020.

7. I accept the Crown submission that in relation to the first offence the role of Paul Nguyen and his co-offender Jayden Vu were identical. Each swiped a weapon at a victim, the only difference being that Mr Vu pleaded guilty on the basis that the weapon was a knife, whereas Nguyen pleads guilty on the basis it was a set of metal chopsticks, but that is of very little significance. They are both sharp metal items and caused a cut to the victim’s cheek. The victim believed it was a knife. It was an unprovoked attack, intending to intimidate him. The offence was aggravated because he was on conditional liberty at the time and both offenders have a history of violence which would deprive them of leniency.

8. The history of violence in the case of Paul Nguyen commences with offences in the Children’s Court in 2011 of assault occasioning actual bodily harm; indecent assault in 2012; custody of a knife in a public place in 2017; reckless wounding in 2017 which led him to a three year term of imprisonment with a two year non-parole period; stalking and intimidate in 2019, leading to a further term of imprisonment; and with further assault offences.

9. As to sequence 3 (H73698628) of assault occasioning actual bodily harm in company, that was also committed with the co-offender Jayden Vu. They both approached a victim in a car. Vu threw the first punch but then both men proceeded to punch the victim. They followed him through the RSL Club until they were told to leave by security. The victim suffered bruising around his right eye.

10. As to the reckless wounding, that offence was committed with co-offender Long Nguyen who was sentenced by me on 11 December 2020. A group of four offenders who checked into an apartment in the city after midnight had left the apartment and went out on the street. The victim was celebrating New Year’s Eve. He bumped into the group, including the offender. Something was said and Paul Nguyen walked into a convenience store, purchased two pairs of scissors. He handed one of them to Long, and as depicted on the video, Paul and Long Nguyen attacked the victim, with the scissors on a number of occasions. Again, I accept that the role of each offender was relevantly identical and again the offences were aggravated by the fact that he was on parole for a serious offence.

11. Significant injuries were sustained by the victim, including two stab wounds in the lower lumbar area, a right sided hemothorax and a laceration to the right kidney which required insertion of a catheter and conservative management when discharged from hospital after six days. The offender was arrested and participated in an interview in which he denied the offence, stating that it was victim who was the aggressor but that was clearly false.

12. There is a significant quantity of subjective material to be considered. A sentence assessment report was based on contact with a number of family members, including his mother, sister and friends. He has at times been drug free while in custody on this occasion and despite previous internal misconduct charges up until October 2019, there has been no misconduct charges since January 2020.

13. He admitted his wrongdoing to the author of the sentence assessment report, but continued to attribute blame to the victims and the co-offenders. However, he acknowledges that he has issues with anger, aggression and violence and is committed to addressing those behaviours. He said that following his release to parole in December 2019, he was withdrawing from all illicit drugs and was struggling to maintain sobriety and having fluctuations in his mood.

14. He has undergone a number of comprehensive mental health assessments and been diagnosed with stimulant use disorder, delusion disorder and a drug induced paranoid condition. There is a lengthy report of Professor Newman, psychiatrist, which identifies the very serious effects of his longstanding drug addiction. It seems to recommend extensive long term drug rehabilitation programs. I accept while he does not suffer a mental illness, reducing his moral culpability, the condition diagnosed by Professor Newman means that general deterrence is of lesser importance in the sentencing process. Professor Newman says that he remains at risk of relapsing back into substance abuse in the absence of a comprehensive rehabilitation program and therefore, is at risk of reoffending, in the absence of strict compliance with such a program.

15. There was an earlier report from Mr Borenstein prepared in May 2019 which asserted that he felt the benefits of being drug free since being in prison at that time, being 20 months ago but he clearly relapsed on his release.

16. I have a letter of apology from the offender who apologises to the victims and their friends and family. He recognises that he deserves a sentence but he hopes that he has changed and he is able to leave his vicious cycle of offending behind him and turn over a new leaf.

17. I have a reference from his mother who refers to his difficulties at school and diagnosis of depression while in Year 10. Mr Derek Ouch an electrical contractor, offers employment to him upon release, having known him for 20 years. There is a significant quantity of material from the Justice Health Department and a very helpful table prepared in relation to parity considerations for each of the co-offenders.

18. As to his background, Ms McSpedden does not assert Bugmy v The Queen (2013) 249 CLR 571 considerations loom large, but his background of being raised by his mother with psychiatric issues, being bullied and becoming a bully and a drug addict himself are factors which should be taken into account, as was done in the case of his co-offender Long.

19. I accept that there is a basis for a finding of special circumstances given his relatively young age and a need to address his substance abuse and anger management issues with intensive treatment. I acknowledge his pleas of guilty and limited expressions of insight into his offending and acknowledgment of the harm caused to the victim, and demonstrating remorse.

20. I accept that in relation to the reckless wounding, the offence is aggravated by being committed without regard for public safety, given that the video shows that two other members of the public had to move away, so as not to be caught up in the altercation.

21. Taking into account as I indicated in particular, the question of parity, the orders that I make are:

1. The offender is convicted of each offence.

2. Taking account into a discount of 10% for the plea of guilty, the indicative sentence is :

1. H73698628/4, taking into account the Form 1 matter (H73698628/3): 18 months

3. Taking account into a discount of 25% for the pleas of guilty, the indicative sentences are:

1. H74365233/3: 12 months

2. H736986285/5: 27 months, with an indicative non-parole period of 14 months.

4. I impose an aggregate sentence of imprisonment of 3 years, 1 month, to commence on 15 March 2020.

5. I impose a non-parole period of 2 years, 1 month, expiring on 14 April 2022.

6. I find special circumstances.

Note – These extempore remarks were revised without access to the court file

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Decision last updated: 28 July 2021