Regina v Nguyen - [2002] NSWSC 536

CITATION: REGINA v. NGUYEN [2002] NSWSC 536

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): SC No. 70018 of 2002

HEARING DATE(S): 23/05/2002; 14/06/2002

JUDGMENT DATE: 14 June 2002

PARTIES :

REGINA v.
NGUYEN, Minh Hau

JUDGMENT OF: Greg James J at 1

COUNSEL : Crown: P. Conlon
Off: A. Haesler/J. Weir

SOLICITORS: Crown: S.E. O'Connor
Off: P. Murphy

CATCHWORDS: Criminal law - sentence - manslaughter - malicious wounding - excessive self-defence against robbers - offender on parole - possession of unregistered firearm dealt with on Form 1 requires more than minimial regard - prospects for rehabilitation - appropriateness of backdate - special circumstances - 50% non-parole period - application of Regina v. Pearce.

LEGISLATION CITED: Crimes Act 1900
Home Invasion (Occupants Protection) Act 1998
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Previtera (1997) 94 A. Crim. R. 76
Pearce (1998) 194 CLR 610

DECISION: Count 1 - A sentence of seven years imprisonment to commence 16.5.01 and to expire 15.5.08. There should be a non-parole period of three and a half years to commence 16.5.01 and to expire 15.11.04. Count 2 - A fixed term of imprisonment to date from 16.5.01 of three years. Count 3 - A fixed term of imprisonment of two years. Count 4 - A fixed term of imprisonment of two years. On Counts 3 and 4, the fixed term is to commence on 16.5.01 and are to be served wholly concurrently with the non-parole period imposed on Count 1.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

GREG JAMES, J.

FRIDAY 14 JUNE 2002

No. 70018 of 2002

REGINA v. MINH HAU NGUYEN

SENTENCE

1 HIS HONOUR: The offender Minh Hau Nguyen has pleaded guilty before me to the manslaughter of Sok Cheat Hem on 10 February 2001 at Erskine Park. He has also pleaded guilty to the malicious wounding with intent to do grievous bodily harm of Tautai Fuimaono at that place and at that time, and two charges of maliciously discharging a pistol with intent to do grievous bodily harm to Lue Lanosga and Danilo Lareza respectively. In addition, he has sought that I take into account on sentencing for the crime of manslaughter, an offence of possess unregistered firearm, the firearm in question being the pistol with which he shot Sok Cheat Hem and Tautai Fuimaono and which he discharged with intent to do grievous bodily harm to Mr. Lanosga and Mr. Lareza.

2 That last offence, I am informed, is punishable by a maximum, in these circumstances, of two years imprisonment. The crime of manslaughter is punishable by a maximum of 25 years imprisonment. The crime of maliciously wound with intent to cause grievous bodily harm is punishable by a maximum of 25 years imprisonment. That crime may be committed in a number of ways: by maliciously wounding with intent, or maliciously shooting at with intent. The remaining offences are crimes under s.33A of the Crimes Act 1900, and are punishable by a maximum, in each case, of 14 years imprisonment.

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 Nguyen

Details

AGLC: Regina v Nguyen [2002] NSWSC 536
Case: [2002] NSWSC 536
Decision Date: 14 June 2002

CaseChat Overview and Summary

In the Supreme Court of Queensland, the matter of Regina v Nguyen was presented. The defendant, Nguyen, was convicted of manslaughter and malicious wounding following a violent encounter with robbers. Nguyen claimed he acted in excessive self-defence, but the court found his actions went beyond what was necessary. The case also involved the defendant's possession of an unregistered firearm, which was addressed under Form 1, requiring more than minimal regard.

The central legal issues involved determining an appropriate sentence for the crimes committed, considering the nature of the offences, the circumstances of the self-defence plea, and the defendant's prior criminal history. The court had to weigh the excessiveness of the self-defence response, the defendant's status on parole, and the implications of possessing an unregistered firearm. Additionally, the court examined the defendant's prospects for rehabilitation and whether a backdated sentence would be appropriate.

The court considered the defendant's prior criminal history, which included being on parole at the time of the offence. The court found that the use of excessive force in self-defence was a significant aggravating factor. The possession of an unregistered firearm added another layer of seriousness to the case. Despite acknowledging the special circumstances of the case, the court ruled that a 50% non-parole period was appropriate, following the precedent set in Regina v. Pearce. The court also determined that the sentence should not be backdated.

The final orders of the court included a sentence of imprisonment with a 50% non-parole period. The sentence took into account the gravity of the offences, the defendant's history, and the need for general and specific deterrence. The court did not order a backdated sentence, considering it inappropriate given the circumstances.

Orders