Van Dang v Moore

[2007] NTSC 68

Van Dang v Moore [2007] NTSC 68

PARTIES:VAN DANG, Cong

v

MOORE, David Steven

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:JA 42 of 2007 (20707626)

DELIVERED:  8 NOVEMBER 2007

HEARING DATES:  8 NOVEMBER 2007

JUDGMENT OF:  MARTIN (BR) CJ

APPEAL FROM:  Dr Lowndes SM, Court of Summary Jurisdiction, 20707626, 22 July 2007

CATCHWORDS:

APPEAL – JUSTICES APPEAL

Criminal law – going armed in public – assault – appeal against sentence – whether period of imprisonment to be served manifestly excessive – appeal dismissed.

REPRESENTATION:

Counsel:

Appellant:M Powell

Respondent:  E Armitage

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:         B

Judgment ID Number:  Mar0715

Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Van Dang v Moore [2007] NTSC 68

No. JA 42 of 2007 (20707626)

BETWEEN:

CONG VAN DANG

Appellant

AND:

DAVID STEVEN MOORE

Respondent

CORAM:     MARTIN (BR) CJ

REASONS FOR JUDGMENT

(Delivered 8 November 2007)

1. This is an appeal against a total sentence of twenty months imprisonment, suspended after service of nine months.  That sentence was comprised as follows: 

   1.  

   Going armed in public with a red Swiss Army pocket knife in such a manner as to cause fear to a person of reasonable firmness and courage: 12 months imprisonment;

   
   
   

   2.   Two counts of unlawful assault in circumstances of aggravation that the victim suffered harm and was threatened with an offensive weapon, namely a knife: an aggregate sentence of twenty months imprisonment to be served concurrently with the first sentence.

2. In substance the appellant complains that the total sentence is manifestly excessive and in particular that the period that is to be served is manifestly excessive.  Counsel also contended that the learned Magistrate erred in giving insufficient weight to the appellant's medical condition.

3. The appellant is now 47 years of age.  He was born in Vietnam and raised in a happy and financially stable family.  In the mid-seventies following the fall of Saigon, the appellant's family circumstances deteriorated.  In 1988 the appellant managed to flee alone to Thailand where he resided in a refugee camp for nearly two years.  The appellant arrived in Australia in 1990 and was granted Australian residency approximately 14 to 15 months later.

4. Due to a heart condition, the appellant has been unable to work for extended periods.  At the time of his offending on 15 March 2007 the appellant had been on a disability pension for a considerable period.   The pre-sentence report provided to the Magistrate disclosed that the appellant lives a lonely life centred around church and mixing with other members of the Vietnamese community, but without making close friends.

5. The appellant has a long history of substance abuse.  He commenced using heroin in 1994 as a means of managing his pain following a heart operation.  He has also used sleeping tablets in conjunction with cannabis and morphine.  Alcohol abuse has also become a…