Regina v Nguyen

[2000] NSWCCA 45

CITATION:

Regina v Nguyen [2000] NSWCCA 45

FILE NUMBER(S):

CCA 60325/99

HEARING DATE(S):

16 February 2000

JUDGMENT DATE:

16 February 2000

PARTIES :

Regina

v

Minh Hieu Nguyen

JUDGMENT OF:

Spigelman CJ at 1; Hulme J at 23; Smart AJ at 2

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70015/95
LOWER COURT JUDICIAL OFFICER :	McInerney AJ

COUNSEL :	A - P Zahra C - P Berman
SOLICITORS:	A - Trevor Nyman & Co C - S E O'Connor
CATCHWORDS:	Criminal Law - sentencing - manslaughter - pre-sentence custody - special circumstances - minimum term required
DECISION:	Leave to appeal against sentence granted; appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60325/99

SPIGELMAN CJ
HULME J
SMART AJ

WEDNESDAY 16 FEBRUARY 2000

REGINA v MINH HIEU NGUYEN

JUDGMENT

1   SPIGELMAN CJ: I invite Smart AJ to deliver the first judgment. 2   SMART AJ: Minh Hieu Nguyen seeks leave to appeal against the severity of his sentence for manslaughter comprising a minimum term of three years and an additional term of one year. The judge took into account the period of pre-sentence custody of one year eleven months twenty-two days. 3   The applicant was arrested and charged on 15 June 1994 with murder. He and his co-accused were tried for murder in mid-1997. The applicant was convicted. His appeal against conviction was upheld by this court on 1 October 1998 and a new trial was ordered. 4   On 31 May 1999 the applicant was again indicted for murder. He pleaded not guilty to murder but guilty to manslaughter. The Crown accepted his plea to manslaughter in full satisfaction of the indictment. The plea was accepted on the basis of an unlawful and dangerous act, namely, the striking of the deceased by the applicant with a baseball bat around the neck and head. 5   The Crown case was that the applicant was engaged in a common criminal enterprise to assault and attack the deceased. Many of the facts were in dispute. The judge made detailed findings, all of which were open and justified on the evidence. The summary which follows is based on those findings. 6   On the evening of 28 May 1994 some hundreds of people, mostly of Vietnamese origin, attended a concert at Bankstown RSL Club. The judge accepted that this was a legitimate well-conducted evening until the series of events next mentioned occurred. 7   The deceased, a small man weighing only 37 kilos, attended with his de facto wife, two nieces and a group of friends. The applicant was present at some stage with his girlfriend and later in the company of his friends. During the concert, when dancing was being undertaken, someone in the group with which the applicant was associated approached one of the deceased's nieces, then aged fifteen, and asked her to dance, which she did. The deceased, on seeing this, told the young man not to dance with her again and this annoyed the young Vietnamese man. 8   As the concert was ending the deceased was suddenly struck by a chair by one of the audience and this caused him to fall down and bleed. The identity of that person was much in dispute. After the concert the deceased, with the assistance of some friends, entered a nearby carpark. He was attacked by a group of young men who kicked and punched him, and by the applicant, who struck him on the head with the baseball bat. There was an upheaval. Shots were fired, another person was killed, and a third person was wounded. The applicant was not associated with these latter incidents. A short time later a Suzuki Vitara motor vehicle driven by the applicant sped off and drove through a red light. 9   When first spoken to by the police on the morning of 30 May 1994 and on subsequent occasions, the applicant denied that he was present when the shooting occurred and the deceased was assaulted. The investigation and his denials continued. On 15 June 1994 he was escorted to the Bass Hill police station. He conceded that he had a dark jacket with patches. A garment of this description was worn by the attacker. The applicant continued to deny being present when the incident occurred, asserting he had left before it happened. When told by the police there were traces of blood on the driver's side door of the Suzuki vehicle, the applicant said that the man who went to the hospital hit him. He said, "I walking past and he hit me. I want to hit him back but there were too many people." 10   He asserted that he went to the carpark and that he "was looking for the man who hit me. I saw people fighting. I saw them kicking each other." He said that he went looking for something to hit the deceased with and "I found a baseball bat on grass in the street." He said that he grabbed it, went back and hit the deceased. He said, "I hit him once. I kept trying to hit him but I miss. Someone pull me off." He said that he went to the car, drove off with one of his friends, and threw the bat away. On further questioning, he conceded he had obtained the bat from the car, did not throw it away but burned it. He next took part in a record of interview in which he made certain admissions. 11   The judge determined that the applicant's evidence could not be approached "with any great degree of confidence". The judge evaluated the evidence at some length and with care. The account of events which the applicant gave to his forensic psychologist was intriguing. He endeavoured to minimise his criminality. 12   In his evidence the applicant said, "At the time I was drunk and I didn't know anything about what I was doing. I was struck, so I just wanted to get back and hit the guy back." The judge rejected that explanation. The judge said:

"I do not accept for a moment that at the time he was drunk he did not know what he was doing. This was ... a very deliberate act and a determined act on his part."

13   The judge was not satisfied that the applicant was responsible for hitting the deceased on the head with a chair, although there was some evidence to that effect. The judge said:

"Despite misgivings I am driven to conclude beyond reasonable doubt that I should accept with modifications the version of facts given by the prisoner. I do not accept, as I have said earlier, that he was drunk but I accept that he consumed some alcohol which may have affected him to some extent and caused him to lose his temper. Furthermore and not without some reservation, I accept that something happened to him to lose his cool and I accept for the purposes of sentence that he was struck accidentally as the fight was taking place. For some reason not satisfactorily explained he apparently lost his temper and, I would emphasise, without any real justification in the circumstances even if he was hit in the manner in which he said he was.

I find, however, without justification he determined to hit the deceased with the baseball bat which he had conveniently in the back of his vehicle. This necessitated him leaving the auditorium, crossing the RSL carpark to where his car was parked on the other side of Kitchener Parade and obtaining from that vehicle the baseball bat. He did not, in my view, give a satisfactory explanation of why he had it in his car. He said it was for his safety. In using it as he did on this night it could hardly be said he used it for his safety. He, having obtained the bat, then deliberately returned to the scene when the unfortunate deceased, I find as a fact, was on his knees having been seriously assaulted by the other individuals and then, swinging the baseball bat, hit him hard over the head."

14   The judge was unable to say whether the applicant struck the deceased more than once, but he attempted to do so. The judge was satisfied that the applicant struck the deceased with the bat with considerable force, with the obvious intention of inflicting violence on the deceased. The judge characterised the blow "as a cold-blooded and deliberate act perpetrated on a man who was already seriously injured, on his knees and defenceless." The judge continued:

"...there was absolutely no justification for this activity and it has been in some sense responsible, together with the other assaults, for a death and calls for, in my view, severe punishment for such a cowardly attack on ... a very small defenceless man."

15   The judge took into account that the applicant had no prior convictions and was otherwise a man of good character. This act was out of character. The judge also took into account his solid family ties and background with a reasonable employment record. The judge thought the applicant's regret resulted in the main from the predicament in which he found himself. The judge made allowance for the plea of guilty, including saving the Crown the expense of a long and costly trial, and that the matter had been hanging over the applicant's head for a long time. 16   The judge thought that the argument that there were special circumstances because this was the applicant's first prison sentence lacked weight. The applicant had previously been sentenced and had already spent nearly two years in gaol. The judge also thought that, given the applicant's strong family support, an additional term of one year would give more than adequate time for him to readjust into the community. The judge thought that there were no special circumstances warranting an additional term longer than one year. 17   The applicant complained that while the additional term of one year amounted to one-third of the minimum term of three years, the additional term was one-fifth of the period to be served in custody, taking into account the pre-sentence custody. The judge regarded six years penal servitude as the appropriate total sentence. 18   The applicant submitted this was a case in which the judge should have found special circumstances and directed a longer additional term. The special circumstances included that the offence in question was the occasion for the applicant to go to prison for the first time, his age of twenty when he committed the offence, the time spent in custody would amount to almost five years of a total sentence of six years, and the length of time that the matter had been hanging over the applicant's head. The applicant further submitted that with a longer sentence a longer period of parole supervision was required. It was also stressed that the applicant became depressed while in gaol. That is quite common. Reliance was also placed on a psychological assessment. 19   The difficulty with the applicant's submissions is that they are at variance with the judge's findings. The judge had the opportunity to assess the applicant and his family situation. The evidence revealed that after the applicant underwent his first stretch of pre-sentence custody he was able to find employment and worked overtime. He was naturally affected as the charge was still pending. 20   The judge took the pre-sentence custody into account. He determined that an additional term of one year sufficed in the circumstances of the applicant. The judge regarded five years in custody as being required. This was a very bad and a very serious offence and the judge was not in error in the view which he held. It should not be overlooked that after each of the periods of pre-sentence custody he spent significant periods out of custody on bail; that is, two years two months and seven and a half months respectively. This is not a case of a continuous period of five years in custody. 21   As matters of substance were argued, I propose that leave to appeal be granted. The appeal, however, should be dismissed. 22   SPIGELMAN CJ: I agree. 23   HULME J: I also agree. 24   SPIGELMAN CJ: The order of the court will be appeal dismissed.

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