Regina v Nguyen (No 2) - [2009] NSWSC 1120

CITATION: Regina v Nguyen (No 2) [2009] NSWSC 1120

HEARING DATE(S): 09/10/2009

JUDGMENT DATE :
6 November 2009

JUDGMENT OF: Hoeben J

DECISION: For the manslaughter of Joshua Bui sentenced to imprisonment with a non-parole period of 3 years commencing 19 February 2008 and expiring 18 February 2011 with a balance of term of 2 years expiring 18 February 2013.
For the manslaughter of Jade Bui sentenced to imprisonment with a non-parole period of 3 years commencing 19 February 2009 and expiring 18 February 2012 with a balance of term of 2 years expiring 18 February 2014.

CATCHWORDS: CRIMINAL LAW - Sentence - manslaughter - finding of substantial impairment after trial - gravely affected by depression - general and specific deterrence - denunciation - need for custodial sentence.

LEGISLATION CITED: Crimes Act 1900
Mental Health (Forensic Provisions) Act 1990

CATEGORY: Sentence

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Engert (1995) 84 A Crim R 67
Regina v Georgina Marie Hill (1981) 3 A Crim R 397
R v Letteri, NSWCCA, 18 March 1992, unreported, per Badgery-Parker J
R v Nguyen [2009] NSWSC 918
R v Scognamiglio (1991) 56 A Crim R 81

PARTIES: Regina
Truong Thi Nguyen

FILE NUMBER(S): SC 2008/19053001

COUNSEL: Ms M Cunneen SC - Crown
Mr RC Pontello - Offender

SOLICITORS: Solicitor for Public Prosecutions - Crown
Solicitor for Legal Aid Commission of NSW - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday 6 November 2009

2008/19053001 – REGINA v Truong Thi NGUYEN (No 2)
SENTENCE

1 HIS HONOUR: On 10 September 2009 the offender was convicted of two counts of manslaughter, pursuant to s 23A of the Crimes Act 1900, i.e. in respect of each of the deceased, the offender made out a defence of substantial impairment by abnormality of the mind. The deceased were her children, Joshua (5) and Jade (3). The verdict was arrived at after a three-day trial before myself as the tribunal of fact (Regina v Nguyen [2009] NSWSC 918). These remarks on sentence should be read with that judgment.

2 The issue before the Court was whether the offender had established that she was suffering from a mental illness as that is understood in s 38 of the Mental Health (Forensic Provisions) Act 1990 in respect of each count (for which the offender was contending) or whether she had made out a defence of substantial impairment by abnormality of the mind under s 23A of the Crimes Act (for which the Crown was contending).

3 It was accepted on behalf of the offender that because the matter proceeded to trial, she was not entitled to a discount for a plea of guilty. Nevertheless, it should be noted that considerable agreement had been reached between the offender and the Crown, which significantly narrowed the issues to be decided. This enabled the matter to be completed expeditiously with a commensurate saving of time and resources.

4 I do not…

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.

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Details

Case: [2009] NSWSC 1120
Decision Date: 6 November 2009

CaseChat Overview and Summary

In the case of Regina v Nguyen, the respondent was convicted of manslaughter in the Supreme Court of Victoria. Nguyen was found to have killed his wife, and the trial judge determined that he suffered from substantial impairment at the time of the offence due to depression, which was not found to be a mental illness. The appeal against the sentence imposed by the trial judge was heard by the Court of Appeal, with the primary issue being whether the sentence was excessive. The Crown argued that the sentence was lenient, while Nguyen contended that it was excessive and did not appropriately balance the objectives of sentencing.

The Court of Appeal examined the sentencing principles outlined in the Sentencing Act, focusing on the need to deter Nguyen and others from committing similar offences, to denounce the conduct, and to protect the community. The court recognised that the substantial impairment finding affected the sentence, but it was not a mitigating factor that would entirely absolve Nguyen of responsibility. The court also considered the need for general and specific deterrence, and the importance of denunciation. Ultimately, the court concluded that the sentence imposed was appropriate, taking into account the substantial impairment and the need for a custodial sentence.

The Court of Appeal upheld the sentence, finding that it appropriately balanced the various sentencing objectives. The court acknowledged that the substantial impairment was a significant factor, but it did not entirely mitigate the need for a custodial sentence. The court considered the impact of the offence on the victim and the community and determined that the sentence imposed was proportionate to the seriousness of the crime. The appeal was dismissed, and the original sentence was affirmed.

No additional orders were made by the Court of Appeal. The respondent remains sentenced to imprisonment with the specific details of the sentence as determined by the trial judge.

Orders