R v Paul Phuoc Duoc Nguyen

[1999] NSWCCA 333

CITATION:	R v Paul Phuoc Duoc Nguyen [1999] NSWCCA 333 revised - 26/06/2000
FILE NUMBER(S):	CCA 60644/97
HEARING DATE(S):	21 October 1999
JUDGMENT DATE:	21 October 1999
PARTIES :	Paul Phuoc Duoc Nguyen (appellant) Regina (respondent)
JUDGMENT OF:	Sully J at 33,35; Hulme J at 34; Hidden J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/21/0392
LOWER COURT JUDICIAL OFFICER:	Johnston DCJ

COUNSEL:	Appellant in Person P. Berman (Crown)
SOLICITORS:	Director of Public Prosecutions (Crown)
CATCHWORDS:	CRIMINAL LAW - Appeal against conviction - application for leave to appeal against sentence - no question of principle
DECISION:	Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence dismissed

IN THE COURT OF
CRIMINAL APPEAL

60644/97

SULLY J

HULME J
HIDDEN J

Thursday, 21 October 1999

Regina v Paul Phuoc Duoc Nguyen

JUDGMENT

1     HIDDEN J: I will try and pace this so that the interpreter can interpret, as I give my reasons.

2     The appellant, Paul Phuoc Duoc Nguyen, was tried in the Parramatta District Court before his Honour Judge Johnston, sitting without a jury, upon a charge of manslaughter. He also pleaded guilty to two charges of maliciously discharging a firearm with intent to avoid lawful apprehension, and a charge of detaining for advantage, perhaps more conveniently known as kidnapping.

3     When he came for sentence, he also asked that six further charges of discharging a firearm with intent to avoid lawful apprehension be taken into account on a Form 1. All the charges arise from the same incident. His Honour found the appellant guilty of manslaughter. On that charge, taking into account the matters on the Form 1, he sentenced the appellant to penal servitude for ten years, comprising a minimum term of six years and an additional term of four years.

4     On the other charges to which he had pleaded guilty he sentenced the applicant to penal servitude for fixed terms of four years, to be served concurrently. All sentences were to date from the date of his arrest, 20 March 1996.

5     The applicant appeals against his conviction on the charge of manslaughter and seeks leave to appeal against the sentences.

6     Turning firstly to the manslaughter charge, shortly stated the facts, as his Honour found them, were these. The appellant had been in a relationship with Juliana Chan, the daughter of the deceased. A son was born of that relationship, which terminated in the early 1990s. There had been financial dealings between the appellant, on the one hand, and Juliana Chan and her brother, Andy Chan, on the other. The appellant claimed that Juliana Chan and her brother owed him a substantial amount of money.

7     On the occasion in question, 20 March 1996, the appellant went to a house at Burwood where Juliana Chan lived with her mother. Also living at the home were Andy Chan, and a sister of Andy and Juliana, Atta Chan. His Honour found that the appellant went to the home intending to confront Juliana and Andy Chan in relation to the money said to be owing. He was armed, among other things, with a rifle. He tied up the deceased, Wai Chan, and gagged her. Later, Atta Chan arrived at the house, and he also tied her up. Atta Chan observed that her mother was bound and gagged and was motionless.

8     It is unnecessary to recount in any great detail what it was Atta Chan observed, but her evidence was of considerable significance in the Crown case. She managed to escape and to alert police.

9     Later, when police arrived, there was what his Honour described as a “siege situation”, and it was the events at that time which gave rise to the offences to which the appellant pleaded guilty, and the offences on the Form 1.

10     After police gained access to the house, the deceased was attended to by an ambulance officer. It was apparent that she had been dead for some hours. Dr Lawrence, forensic pathologist, later attended the premises. It was Dr Lawrence's opinion that the primary cause of the death of the deceased was asphyxiation. Although no gag was found after police and others gained access to the premises, the doctor’s observations were consistent with a gag having been applied.

11     The deceased had also sustained broken ribs. That was consistent with two possible causes. The one which his Honour favoured was that the ribs were broken while the deceased was lying face down and was being bound from behind. The deceased had also sustained a perforated eardrum, and his Honour was satisfied that that was the result of a blow struck by the appellant.

12     In the light of the whole of the evidence and, in particular, the evidence of Atta Chan and Dr Lawrence, his Honour concluded that the deceased had died of asphyxia caused by the gag, and exacerbated by the fractured ribs in the course of her being bound from behind. Accordingly, he concluded that the deceased died as a result of unlawful and dangerous acts perpetrated by the appellant.

13     It is convenient at this stage to outline briefly the facts giving rise to the other charges. It is sufficient to say that there was a siege situation when police arrived but, eventually, police decided to force entry to the house. When they did so there was an exchange of gunfire. One police officer received minor wounds from shell fragments, and the appellant himself was shot in the right arm.

14     Before us the appellant has been unrepresented. He has relied on a number of documents previously filed with the Registry. I should set out what they are. There is a document dated 6 August 1998. There is a further document dated 22 January 1999, which sets out what are said to be grounds of appeal. There is yet another undated document headed "Submission to the Registrar, Court of Criminal Appeal".

15     Today the appellant supplied further documents, by way of submission, together with a number of annexures. Much of the material supplied today relates to the financial dispute between the appellant and Juliana Chan and her brother, and it is sufficient to say that that issue simply has no bearing whatsoever upon anything which his Honour had to decide or which we have to decide.

16     I believe I do the appellant’s written material justice by saying that his complaints in this appeal are set out in the document of 22 January 1999, and the other material is repetitive of the matters which he has there set out. That is the document containing a number of paragraphs described as “Grounds of Appeal”, and I shall refer to those paragraphs by the numbers which they bear.

17     Several of those grounds relate only to the siege and its aftermath. Paragraph 1 complains of the failure of the appellant's legal representatives at the trial to call a number of police involved in the siege and the arrest, and doctors who treated the appellant at hospital. Paragraph 2 complains of the excessive use of force by the police in the course of the arrest. Paragraph 8(b) asserts that the appellant did not himself shoot at the police, although he concedes having fired the weapon. Paragraph 8(c) complains of the violent manner of the police entry in the house.

18     As to all those matters, it is sufficient to say that they relate to the offences to which the appellant pleaded guilty. Some of them are really complaints about the police in respects which could not bear upon the appellant's guilt; and, indeed, the undated document headed Submission to the Registrar reveals that the appellant has made a complaint to the Ombudsman about the police behaviour that night. To make such a complaint is of course entirely within his right, but that is not a matter with which this Court could deal.

19     Paragraph 8(a) complains of a suggestion in the evidence that the appellant kept his small son hostage at the house. It seems that the son was at the house on the occasion but, as I understand it, there was no suggestion that the boy was being used as a hostage. Certainly there was no charge to that effect, and it is not a finding that his Honour made. That does not appear to me to be a matter of any materiality in the appeal.

20     Paragraph 7, however, is of more significance. It reads as follows:

The miss translation in court: The copy of my charges given to me by solicitor differed from the copy which the judge received. Therefore when I was asked to plead on each charge, these did not correspond to my copy. During court proceedings I was not aware of this difference.

The appellant has not produced any evidence to support that assertion in this Court. On the other hand, we have been supplied with a copy of written submissions prepared by the appellant’s solicitor which, on their face, make it apparent that they were explained to the appellant by an interpreter. They are instructions to the effect that the appellant wished to plead guilty to the very charges to which he did plead guilty, and they appear to leave no room for any assertion that he misunderstood what those charges were.

21     Putting aside the question of sentence for a moment, the other paragraphs of the document containing the grounds of appeal relate to the conviction of manslaughter. Paragraph 4 contains a number of assertions. There is reference to “the doctor who treated my mother-in-law for a serious medical condition”, and the ground of his complaint is that that was a matter that was not satisfactorily agitated at the trial. It is sufficient to say that Dr Lawrence considered that the deceased may have had a heart condition, but there is nothing in the evidence to suggest that any existing medical condition could have accounted for her death.

22     There is a further request that an independent post-mortem be carried out upon the deceased. That of course is quite impossible at this stage. A post-mortem was conducted by Dr Lawrence, as one would expect in the ordinary course.

23     There is a complaint that there should have been an expert analysis of the toxic effects of stun and flash grenades used by the police. In that regard, there is a further complaint in paragraph 9 that Dr Lawrence was not an expert in the use or effect of the stun grenades used by the police. Dr Lawrence did give evidence that he considered the deceased’s perforated eardrum could not have been caused by a grenade but, in any event, the matter is of no moment, because what is clear is that the deceased had been dead well before the police arrived. No action taken by the police could possibly have contributed to her death.

24     Paragraph 6 contains the somewhat unattractive assertion that the deceased might have been saved if she had been treated earlier. The appellant alleges that Atta Chan did nothing to help her mother, and that the police indeed might have saved her life if they had arrived earlier and entered the house at an earlier stage. On the evidence, it is quite impossible to imagine what Atta Chan or the police could have done for the unfortunate deceased. In any event, these are matters of no moment. All that matters is that the death of the deceased was the result of an act or acts of the appellant.

25     Paragraph 10 raises the question of the deceased having been moved after the police enter the premises. The evidence is that indeed she was, by an ambulance officer, but absolutely nothing turns on this.

26     Finally, paragraph 3 is an assertion that the conviction for manslaughter is unreasonable. That assertion simply cannot be sustained. There was more than adequate evidence that the death of the deceased was the result of the unlawful and dangerous acts of the appellant.

27     The appellant's evidence at the trial, in which he sought to explain the circumstances of his arrival at the home and what he did when he got there was, quite frankly, bordering on the fanciful. His Honour said of that evidence :

I found the accused to be a most unimpressive witness, and his version of events most imaginative to the point of being beyond belief.

28     Those observations were entirely justified. In my view the appeal against conviction on the manslaughter charge should be dismissed.

29     The application for leave to appeal against sentence can be dealt with fairly briefly. It is unnecessary to say anything more about the facts of the various offences.

30     His Honour had regard to the appellant's subjective case. He is a mature man, now in his mid 40s. He was born and educated in Vietnam. He completed high school and, in due course, became an officer in the South Vietnamese Army where he served for a number of years. He saw active service during the war in that country. After the surrender he escaped to Malaysia, where he spent some time at a refugee camp before coming to this country.

31     In this country he had various labouring jobs until he launched his own business, which was successful. Clearly, in that account, which the appellant expanded upon somewhat today orally, there is much to his credit. He has no criminal convictions. A psychological report before his Honour revealed that there is no need to be concerned about his mental stability. It seems that he has the continuing support of his family in this country.

32     That said, the offences are very serious indeed. His Honour arrived at the effective sentence of penal servitude for ten years with an eye to the totality of the criminality involved in all the offences arising out of this incident. His Honour gave the appellant the benefit of a finding of special circumstances so as to reduce what would otherwise have been the minimum term calculated according to the normal statutory proportion. I can see no error in the manner in which his Honour approached the sentencing task, and by no stretch of the imagination could the effective sentence be said to be excessive.

33     Given the unusual nature of the case and its circumstances, I would be minded to grant leave to appeal but would also dismiss the appeal against sentence.

34     SULLY J: I agree with the orders proposed by my brother Hidden J and for the reasons that his Honour gives.

35     HULME J: I also agree with the orders proposed, and with his Honour’s reasons.

36     SULLY J: The Court orders:

1. That the appeal against conviction be dismissed.

2. That leave be granted to appeal against sentence.

3. That the appeal against sentence be dismissed.
**********