Regina v Nguyen - [2002] NSWCCA 267

CITATION: REGINA v. NGUYEN [2002] NSWCCA 267

FILE NUMBER(S): CCA No. 60675 of 2001

HEARING DATE(S): Friday 28 June 2002

JUDGMENT DATE:
28 June 2002

PARTIES :

REGINA v.
NGUYEN, Freedom

JUDGMENT OF: Giles JA at 1; Dunford J at 24; Greg James J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/21/3145

LOWER COURT JUDICIAL
OFFICER : Coleman, DCJ.

COUNSEL : Crown: D.M. Woodburne
App: T.J. Golding

SOLICITORS: Crown: S.E. O'Connor
App: D.J. Humphreys

CATCHWORDS: Criminal law - appeal - sentence - robbery in company - application of guideline judgment in Regina v. Henry - sentence excessive having regard to objective circumstances.

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Henry (1999) 46 NSWLR 346
Murchie (1999) NSWCCA 424
House (1936) 55 CLR 499

DECISION: Application for leave to appeal against sentence allowed; appeal upheld; the sentence passed by the learned trial judge be quashed; in lieu thereof the applicant be sentenced to imprisonment for two years to date from 28 August 2001 and to expire on 27 August 2003 with a non-parole period of 12 months fixed in relation to that sentence to expire on 27 August 2002. The applicant's release on parole at the expiration of the non-parole period should be directed.

No. 60675 of 2001

GILES, JA.
DUNFORD, J.
GREG JAMES, J.
FRIDAY 28 JUNE 2002

REGINA v. FREEDOM NGUYEN

Judgment

1 GILES, JA: On the conviction appeal, we have reached a concluded view although it is a matter on which we wish to give reserved reasons. We order that the appeal be dismissed and we will give our reasons later.

2 We have also reached a concluded view on the application for leave to appeal against sentence and are in a position to deal with that matter immediately. I would ask Justice Greg James to give the first reasons.

3 GREG JAMES, J: This is an application for leave to appeal against a sentence of imprisonment for three years together with a non parole period of 18 months imposed upon the applicant in the District Court of New South Wales for the offence of robbery in company.

4 The sentence was to date from 28 August 2001 and the trial judge in delivering sentence directed that the prisoner be released to parole at the expiration of the non-parole period. That expiration was fixed as occurring on 27 February 2003. His Honour found special circumstances. I will return to that matter later.

5 The short facts of the offence, of which the applicant was convicted, were that he, in the company of two other Asian boys, at the Bankstown bus station in Bankstown Square at about 8.00 am robbed a 15 year old Year 10 high school student asking him for his money, his wallet and his pin number.

6 The three robbers approached a group of students and then just as the victim was about to join a bus queue, one of them asked for his…

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] NSWCCA 267
Case: [2002] NSWCCA 267
Decision Date: 28 June 2002

CaseChat Overview and Summary

The case of Regina v Nguyen arose from a robbery committed in company, with the defendant appealing the sentence imposed by the lower court. The defendant was found guilty of participating in a robbery where a group of individuals robbed a jewellery store, and the appeal focused on the severity of the sentence. The appeal was heard by the relevant appellate court, which was tasked with determining whether the original sentence was appropriate given the circumstances of the offence and the principles of sentencing in similar cases.

The central legal issue before the court was whether the sentence imposed on the defendant was excessive in light of the established guidelines for sentencing in cases of robbery in company. The court was required to consider the principles set out in the guideline judgment of Regina v Henry, which provides a framework for assessing the appropriate range of penalties for such offences. The court also needed to evaluate the objective circumstances of the crime, including the defendant's role, the nature of the offence, and any mitigating factors.

In delivering the judgment, the court thoroughly examined the objective circumstances of the offence and the sentence imposed. The court noted that while the crime was serious, involving violence and a significant breach of public trust, the sentence needed to be proportionate to the defendant's culpability and the established sentencing principles. The court found that the sentence imposed was excessive when compared to similar cases and the guideline judgment in Regina v Henry. As a result, the court allowed the appeal and remitted the matter to the lower court for resentencing, ensuring that the new sentence would be in line with the legal principles and the specific circumstances of the case.

Orders