Regina v D N - [2004] NSWSC 426

CITATION: Regina v V D N [2004] NSWSC 426

HEARING DATE(S): 09/02/04, 19/02/04, 26/03/04, 30/04/04

JUDGMENT DATE:
21 May 2004

JUDGMENT OF: Whealy J at 1

DECISION: In relation to the charge that you, being armed with an offensive weapon namely a knife, did in company with others, assault Mrs Lu with intent to rob her, you are convicted and sentenced to a fixed term of imprisonment for 15 months. The sentence is to commence on 4 December 2002 and will have expired on 3 March 2004. In relation to the charge of manslaughter you are convicted and I sentence you to a term of imprisonment of 6 years and 9 months. The sentence is to date from 4 December 2002. I set a non-parole period of 3 years commencing on 4 December 2002 and expiring on 3 December 2005. The offender will be eligible to be released to parole on 4 December 2005. I find that there are, within the meaning of s 19(3) of the Children's (Criminal Proceedings) Act 1987, special circumstances justifying the detention of the offender in a Detention Centre until the expiry of the non-parole period I have set, it being noted that the offender will turn 21 on 8 August 2005. I recommend that upon his release to parole the offender should receive continued counselling and rehabilitive treatment. This should relate especially to anger management, the control of alcohol and avoidance of drug abuse.

LEGISLATION CITED: Children's (Criminal Proceedngs) Act 1987
Crimes Act 1900 NSW
Crimes (Sentencing Procedure) Act 1999
Sentencing Procedure Act
Children's Detention Centre Act
Children's Detention Centre Regulations

CASES CITED: R v O'Connor (2003) NSWSC 1041
R v Avakian (2003) NSWSC 1042
R v WKR (1993) 32 NSWLR 447, 459 and 465
Hill (1981) 3 A Crim R 397 at 402
R v McDonald (NSWCCA) 12 December 1995
R v Dib (2003) NSWCCA 117
R v Newman, R v Simpson (2004) NSWCCA 102
R v McGuire (NSWCCA unreported 30 August 1995)
R v Troja (NSWCCA unreported 16 July 1991)
R v Bloomfield (1998) 44 NSWLR 734 at 738-739
Pearce v Regina (1998) 194 CLR 610 at 662 and 664
Johnson v The Queen 2004 HCA 15

PARTIES :
Regina v V D N

FILE NUMBER(S): SC 70018/03

COUNSEL: Mr P Conlon SC
Mr R Button

SOLICITORS: State DDP
NSW Legal Aid

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

WHEALY J

FRIDAY 21 May 2004

70018/03 - REGINA v V D N

SENTENCE

1 HIS HONOUR: The trial of V D N (“the offender”) commenced before me on 9 February 2004. On that day the offender was arraigned on an indictment that charged that, on 20 March 2002 at Canley Heights in the State of New South Wales he did murder Lu Khiem Lu (“the deceased”). The offender pleaded not guilty to murder but guilty to the alternative charge of manslaughter. The Crown accepted this plea in full satisfaction of the indictment. Evidence and submissions…

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 Regina v D N

Details

AGLC: Regina v D N [2004] NSWSC 426
Case: [2004] NSWSC 426
Decision Date: 21 May 2004

CaseChat Overview and Summary

The case Regina v V D N was heard in the Supreme Court of New South Wales, with Whealy J presiding. The defendant, Van Dien Nguyen, was charged with murder but pleaded guilty to the alternative charge of manslaughter and to the charge of armed robbery. The court found Nguyen guilty on both counts. Nguyen was sentenced to a fixed term of imprisonment of 15 months for the armed robbery charge, to be served concurrently with a term of six years and nine months for manslaughter, with a non-parole period of three years. The sentence was backdated to 4 December 2002.

The court considered the objective criminality of the manslaughter offence, finding it to be serious due to the armed nature of the crime and the fatal outcome. However, the court acknowledged that Nguyen was not the one who stabbed the victim and accepted that he played a secondary role in the crime. The court also considered Nguyen's subjective circumstances, including his background, family situation, and efforts towards rehabilitation. Although there were some concerns about his level of remorse, the court found that Nguyen had expressed genuine remorse and contrition for his actions.

In determining the appropriate sentence, the court considered general principles of sentencing, including the need for deterrence and the purposes of sentencing set out in the Crimes (Sentencing Procedure) Act 1999. The court also took into account aggravating and mitigating factors, as well as Nguyen's guilty pleas. The court decided that a sentence of imprisonment was necessary for both charges and that the sentences should be concurrent, with the manslaughter sentence backdated to 4 December 2002. The court found special circumstances justifying the detention of Nguyen in a detention centre until the expiry of the non-parole period. The court recommended continued counselling and rehabilitative treatment for Nguyen upon his release to parole, with a focus on anger management, alcohol control, and drug abuse prevention.

Orders