R v Van Xuan Nguyen - [2005] NSWSC 600

CITATION:
Regina v Van Xuan Nguyen [2005] NSWSC 600

HEARING DATE(S): 2 May 2005, 2 June 2005

JUDGMENT DATE :

23 June 2005

JUDGMENT OF:
Johnson J at 1

DECISION:
Sentence of imprisonment of six years with a non-parole period of four years, both to date from 23 June 2003.

CATCHWORDS:
SENTENCING - Manslaughter - plea of guilty - involvement in extended joint criminal enterprise - prospect of deportation not relevant on sentence - finding of "special circumstances" based upon onerous nature of imprisonment.

LEGISLATION CITED:
Criminal Procedure Act 1986
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Maxwell v The Queen (1995-1996) 184 CLR 501
R v Hill (1981) 3 A Crim R 397
R v MacDonald (Court of Criminal Appeal, 12 December 1995, BC9501664)
R v Blacklidge (Court of Criminal Appeal, 12 December 1995, BC9501665)
R v Mohamad Ali [2005] NSWSC 334
R v Walsh (2004) 142 A Crim R 140
R v Martin [2005] NSWCCA 190
R v Thomson and Houlton (2000) 49 NSWLR 383
Shrestha v The Queen (1991) 173 CLR 48
R v Van Hong Pham [2005] NSWCCA 94
R v Mirzaee [2004] NSWCCA 315
R v Puta and Others [2002] NSWCCA 495
R v Curry [2002] NSWCCA 109
R v Stelfox [2002] NSWCCA 331
R v Yu [2003] NSWSC 1153

PARTIES:
Regina
Van Xuan Nguyen

FILE NUMBER(S):
SC 2003/76

COUNSEL:
Ms L Wells (Crown)
Mr W Terracini SC (Prisoner)

SOLICITORS:
Solicitor for Public Prosecutions (Crown)
Mark Klees & Associates (Prisoner)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JOHNSON J

23 June 2005

2003/76 Regina v Van Xuan Nguyen
SENTENCE

1 JOHNSON J: On 2 May 2005, the prisoner, Van Xuan Nguyen, appeared before me and pleaded not guilty to an indictment alleging that, on 27 February 2001, at Marrickville in the State of New South Wales, he did murder Ngoc Quyen Nguyen and that, at the same time and place, he did attempt to murder Jung Wan Min. However, the prisoner pleaded guilty to manslaughter and the Crown accepted that plea in full satisfaction of the indictment. Thereafter, the proceedings were adjourned for sentence to 2 June 2005.

2 On 4 May 2005, a co-accused, Thanh Vu Tran, pleaded not guilty to an indictment alleging the murder of Ngoc Quyen Nguyen and attempted murder of Jung Wan Min and, in the alternative to the attempted murder count, the malicious wounding of Jung Wan Min. Following a trial before a jury and myself, the jury acquitted Thanh Vu Tran on all counts on 27 May 2005.

3 On 2 June 2005, sentencing proceedings involving the present prisoner resumed before me. Documentary evidence was tendered, without objection, by both the Crown and Counsel for the prisoner. No oral evidence was given in the sentencing proceedings. Following submissions, I remanded the prisoner for sentence until today.

The Offence

4 The following findings of fact are drawn from an Agreed Statement of Facts tendered by the…

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.

Keep reading for free

Create a free CaseChat account to read R v Van Xuan Nguyen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWSC 600
Decision Date: 23 June 2005

CaseChat Overview and Summary

The case of R v Van Xuan Nguyen was heard by the court where the defendant had pleaded guilty to manslaughter. The nature of the dispute involved the defendant's involvement in an extended joint criminal enterprise. The court was tasked with determining the appropriate sentence, considering the defendant's role in the criminal activity and the potential for deportation upon completion of the sentence.

The primary legal issues before the court were whether the prospect of deportation upon completion of the sentence should be considered in the sentencing and whether "special circumstances" existed to warrant a departure from the standard sentencing principles. The court had to determine if the onerous nature of imprisonment constituted a special circumstance and how this should influence the sentencing.

The court found that the prospect of deportation was not a relevant consideration in the sentencing process. It acknowledged that the defendant's involvement in the extended joint criminal enterprise was significant. However, it emphasised that the onerous nature of imprisonment was a special circumstance that warranted a reduction in the sentence. The court concluded that the defendant's role in the criminal activity, coupled with the special circumstances, justified a departure from the usual sentencing guidelines.

The final orders of the court reflected the consideration of the special circumstances, leading to a sentence that was reduced from what might have been expected in the absence of such factors. The defendant's sentence was tailored to reflect both the gravity of the offence and the unique aspects of the case, including the onerous nature of imprisonment.

Orders