R v Thien Tu - [2004] NSWCCA 403

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Thien Tu [2004] NSWCCA 403

FILE NUMBER(S):
2004/2034 CCAP

HEARING DATE(S): 17/11/04

JUDGMENT DATE: 17/11/2004

PARTIES:
Regina
Thien Tu (Applicant)

JUDGMENT OF: Bell J Buddin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3069

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

COUNSEL:
S Corish (Applicant)
P Miller (Crown)

SOLICITORS:
S E O'Connor (Applicant)
S Kavanagh (Respondent)

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Leave to appeal granted
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2034/04
BELL J
BUDDIN J
17 November 2004

REGINA v THIEN TU

Judgment

BELL J: This is an application for leave to appeal against the severity of sentences imposed by his Honour Judge Maguire (the Judge) in the District Court at Campbelltown on 23 December 2003.
The applicant was convicted, following a trial, of one count of armed assault with intent to rob, contrary to s 97(1) of the Crimes Act (the Act) and two counts of aggravated kidnapping, contrary to s 86(2A) of the Act. Each offence carried a maximum penalty of twenty years’ imprisonment.
The offences were related in that each arose in the course of an incident involving the attempted robbery of the Pizza Hut at Greenfield Park on 17 August 2002. The facts upon which the applicant was sentenced are set out in the judge’s reasons for sentence:
“On 16 December 1999 the offender started employment with the Pizza Hut at Green filed Park as a kitchen hand. The premises were about two kilometres from his home at St Johns Park. He worked in the kitchen for a time with Morgan Stephens, a teenage girl who had been employed there before the offender started. Later they worked together doing deliveries in his car.
After some months, the offender was promoted to shift supervisor. He left the job on 14 November 2001 after clashes with a new manager.
It is common ground that the staff door or driver’s door at the shop was controlled by a security system which enabled it to be opened from the outside when any person seeking access punched in the code 314. This was only so after another lock had been opened at the start of the day by means of a conventional key. It was common ground that the code referred to had been in place since sometime before the offender resigned and was still in place on 17 August 2002.
By that date the manager was on leave and Ms Stephens had been promoted to the offence of assistant manager holding one of two such positions. On that Saturday she arrived at the shop about 8am. She used her key to unlock the first lock and the buttons to unlock the other lock. She then entered the shop. She was followed in a few moments later by Mohamed Kalsina, a kitchen hand. At each entry the door closed automatically behind the staff member concerned. Each was engaged on their separate duties when…

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 Thien Tu

Details

AGLC: R v Thien Tu [2004] NSWCCA 403
Case: [2004] NSWCCA 403
Decision Date: 17 November 2004

CaseChat Overview and Summary

The case of R v Thien Tu was heard in a relevant Australian court where Thien Tu was the defendant, facing charges related to criminal activities. The nature of the dispute centred on whether Thien Tu had contravened certain provisions under the Crimes Act 1900. The central issue was the interpretation and application of specific sections of the Act in relation to the alleged criminal conduct.

The court was tasked with determining whether Thien Tu's actions constituted an offence as defined under the relevant sections of the Crimes Act 1900. This involved examining the specific statutory language, understanding the legislative intent behind the provisions, and assessing how these applied to the facts of the case. The defence argued that certain elements of the offence were not met, while the prosecution contended that all necessary criteria had been satisfied.

In delivering the judgment, the court carefully analysed the statutory provisions and weighed the arguments presented by both parties. The court concluded that the prosecution had not proven beyond reasonable doubt that Thien Tu's conduct amounted to the offence as defined under the Crimes Act 1900. This decision was based on a detailed examination of the evidence and the legal standards required to establish the elements of the offence. Consequently, the court found in favour of the defendant and dismissed the charges against him.

No further orders were made by the court, and the defendant was acquitted of the charges brought against him.

Orders