R v Nguyen [2005] NSWCCA 232

New South Wales Court of Criminal Appeal

CITATION: R v Nguyen [2005] NSWCCA 232

HEARING DATE(S): 20 May 2005

JUDGMENT DATE: 30 June 2005

JUDGMENT OF: Simpson J at 1; Buddin J at 38; Hall J at 39

DECISION: (i) leave granted to appeal against the sentences imposed in respect of the two offences of malicious damage to property and the offence of affray, but appeals dismissed; (ii) leave granted to appeal against the sentence imposed in respect of the offence against s33 of the Crimes Act 1900; (iii) appeal in respect of that sentence allowed; (iv) the sentence imposed in respect of that offence quashed and in lieu thereof the applicant sentenced to imprisonment for nine years and nine months, with a non-parole period of seven years and four months, commencing on 13 July 2004. The non-parole period to expire on 13 November 2011, and the head sentence on 12 April 2014.

CATCHWORDS: application for leave to appeal against severity of sentence - plea of guilty - maliciously inflicting grievous bodily harm with intent so to do - malicious damage - affray - prior criminal record - parity - comity - assessment of totality of the criminal conduct - applicant subject to parole revocation at the time of offence - also subject to sentence to be served by way of periodic detention - accumulation of sentences

Crimes Act 1900, s33 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s44(2)

R v Perre and Duncan [2005] NSWCCA 431 CASES CITED: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWR 383

Crown - Respondent PARTIES: Chi Binh Nguyen - Applicant

FILE NUMBER(S): CCA 2005/293

G Rowling - Crown COUNSEL: A Francis - Applicant

S Kavanagh - Crown SOLICITORS: SE O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0921

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/293

SIMPSON J BUDDIN J HALL J

Thursday 30 June 2005 REGINA v Chi Binh NGUYEN Judgment 1 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him by Judge Dodd in the District Court on 18 August 2003, following his pleas of guilty to four counts. The most serious count was brought under s33 of the Crimes Act 1900, charging an offence of maliciously inflicting grievous bodily harm with intent so to do. That offence carries a maximum penalty of imprisonment for 25 years. The other charges to which the applicant pleaded guilty were one of affray, and two of malicious damage to property. In each case, the property damaged was a motor vehicle. Each of these charges carries a maximum penalty of imprisonment for five years. 2 On the malicious damage charges Judge Dodd sentenced the applicant to concurrent terms of imprisonment for three years, with non-parole periods of two years and three months, to commence on 30 August 2002. On the affray charge, he sentenced the applicant to a fixed term of imprisonment for two years to commence on 30 November 2004, that is, at the expiration of the non-parole periods fixed in respect of the malicious damage charges. On the s33 charge he imposed a sentence of 12 years' imprisonment with a non-parole period of nine years, also to commence on 30 November 2004. The total effective sentence was therefore fourteen years and three months with a non-parole period of eleven years and three months. The starting date of the first of the sentences was selected as being the expiration of an earlier imposed sentence of nine months and sixteen days imposed as a consequence of the cancellation of an order that certain terms of imprisonment to which the applicant was subject be served by way of periodic detention. That accumulation meant that the applicant would be in custody for a minimum term of twelve years and sixteen days, and a possible maximum term of fifteen years and sixteen days.

facts 3 All offences were committed on the same date, and as part of the same criminal enterprise. The circumstances may, without hyperbole, be described as horrifying. They may, however, be stated with relative brevity. 4 On the evening of Friday, 2 November 2001, the applicant was one of a large number of individuals attending a birthday party at a home in Wollongong. At the same time another group of young men and women from Sydney ("the Sydney group") had gathered in Stuart Park in Wollongong. They included the man who was to become the victim of the s33 offence, Christopher Wilson. The Sydney group was observed by Paul Duncan, who had previously been at the birthday party, but who had left and was also in Stuart Park. He recognised one of the women in the group and telephoned her brother, who was still at the birthday party. In the agreed statement of facts, the following is attributed to him: "If you do not want your sister to be raped by a bunch of lebbo's get down to Stuart Park." 5 A number of men ("the Wollongong group") who were still at the birthday party, including the applicant, drove to Stuart Park and joined Duncan. There Duncan stole the mobile phone of one of the men in the Sydney group, and then drove a car "furiously" around the car park, causing people to scatter to avoid injury. A number of the men in the Wollongong group armed themselves with weapons from cars in the car park. The applicant armed himself with a machete. Most of the men and women in the Sydney group fled, and were chased by some of the men from the Wollongong group. Christopher Wilson was not able to run away and was confronted by the applicant who swung the machete at him. The first blow almost amputated his right little finger. Mr Wilson was then struck to the back of the head and fell to the ground. The applicant and a number of co-offenders repeatedly struck him with weapons and kicked and punched him as he lay on the ground. The ferocity of the attack may be gauged from the observations of ambulance officers on their arrival. They described finding fragments of skull and brain matter at the scene. 6 After the assault on Mr Wilson the applicant and others attacked the motor vehicles in which the Sydney group had travelled. Using poles and sticks they smashed the windows of a Celica and a Camry. Both vehicles sustained extensive damage. The Wollongong group left the scene. 7 Mr Wilson was taken by ambulance to Wollongong Hospital. He was unconscious and in a critical condition. His injuries included multiple bruises over his face and scalp, including lacerations requiring suturing, and abrasions and bruising of the neck and right shoulder. The most severe injury was a depressed skull fracture resulting in serious and permanent brain damage. The medical treatment he received at Wollongong Hospital saved his life. 8 In an appeal against conviction by two co-offenders arising out of the same events (R v Perre and Duncan [2005] NSWCCA 431, to which more extensive reference will be made), Wood CJ at CL described Mr Wilson's condition as follows: "[117] He suffers permanent disability, arising from the comminuted fracture of the left parietal and occipital bones, the fracture of the right parietal bone, the underlying haematoma and bruising and the diffuse axomal injury which was occasioned. He has ongoing and permanent loss of visual function, reduced memory and learning capability, slowed thinking and motor responses, and is at increased risk of post-traumatic epilepsy."

subjective circumstances 9 The applicant did not give evidence in the sentencing proceedings. Evidence of his subjective circumstances was put before the sentencing judge by way of a pre-sentence report, and a report of a psychologist, Dr Christopher Lennings. From these, and other material, the following emerges. The applicant was born in Australia of Vietnamese parents on 19 June 1982. He was 19 years and four months of age at the time of this offence. He already had an extensive criminal history which included at least six entries of common assault, two of affray, two of assault occasioning actual bodily harm, one of malicious damage and one of being armed with intent to commit an indictable offence. He had been under the supervision of the Probation and Parole Service at the time of the offence, that resulting from a bond imposed on 7 May 2001 in the Port Kembla Children's Court. At the same time he was ordered to perform 250 hours of community service under the supervision of the Department of Juvenile Justice. On 31 July 2001, now in the Local Court, in respect of three counts of common assault and one of occasioning actual bodily harm, he was sentenced to imprisonment for nine months to be served by way of periodic detention, was subjected to two good behaviour bonds, and was ordered to accept supervision. His criminal history suggests that, on 14 November 2001, the Parole Board made the order, referred to above, cancelling the order that the nine month sentence be served by way of periodic detention and imposed a term of imprisonment of nine months and sixteen days, commencing on 14 November 2001. (Just how a nine-month sentence was converted by the Parole Board to one that was longer by sixteen days was not explained, but that is the information that was before this court, and was not challenged. Mysterious though it is, this court has to operate on the assumption that it is correct. If it is not, adjustments may be made to the starting dates of the subsequent sentences.) 14 November 2001 was the day on which the applicant was arrested in respect of the present charges. 10 The applicant's response to supervision was said to have been superficial due to erratic reporting and failure to attend programmes on anger and stress management. His response was said initially to have been "above average" when supervised by the Department of Juvenile Justice, but to have deteriorated when his supervision was transferred to the adult Probation and Parole Service. His attendance at the Periodic Detention Centre had been irregular (said to have been as a result of illness) and his attendance in respect of the community service order had also been irregular. He explained this by saying that he found the load too much and he was very tired. 11 The applicant is the second eldest of six children in the family. His father came to Australia as a refugee and worked for a time at the steelworks at Port Kembla before suffering a serious accident as a result of which he had been for many years receiving social security payments. He had been a strict and physical disciplinarian. Based on the applicant's account of his family, Dr Lennings characterised the family as "very dysfunctional". The applicant had observed domestic violence. As a result of family conflict he left home at 15 years of age but subsequently returned. He was expelled from school during year 10. He enrolled in a TAFE course but dropped out. He began using marijuana at the age of 14 and did so until he graduated to heroin at the age of 16. He began using alcohol at 15 and did so for the purpose of becoming intoxicated. Testing showed that he had significant and ongoing problems with managing alcohol abuse. Also at the age of 15 he began to use stimulant drugs (amphetamine, ecstasy, and, experimentally only, cocaine). His use of these drugs was sufficient to provoke psychoses including paranoia and hallucinations. He also reported "some gambling behaviour from time to time". 12 Dr Lennings was of the opinion that he has only limited ability to feel remorse, but nevertheless concluded that his expression and demeanour did suggest some genuine awareness and genuine regret for his actions. 13 Although the officer of the Probation and Parole Service who was the author of the pre-sentence report gained an impression of the applicant as "an intelligent young man", testing by Dr Lennings portrayed "a man in the lower end of the average range for ability". 14 Again based on the applicant's own description, Dr Lennings' assessment of his personality gave two results, depending on his state of intoxication. When not intoxicated he perceives himself as "a quiet, reasonable and gregarious kind of person"; when intoxicated he reports "an extremely volatile and reactive temper". Dr Lennings discerned two clusters of symptoms relevant to personality assessment. One is a personality disorder type dominated by dependent and avoidant behaviours and a degree of passive aggressive or resentful behaviours; the second revolves around very high levels of anxiety and a recognition of the problems resulting from drug use. Dr Lennings therefore assessed him as "psychologically fragile and vulnerable, and who lacks a strong sense of self".

the remarks on sentence 15 Judge Dodd sentenced five of the offenders, including the applicant, at the same time, on 18 August 2003. The others were Adam Paul Lamacchia, Paul Duncan, Adam Perre and Chi Tan Huynh. Like the applicant, Lamacchia and Huynh pleaded guilty; Duncan and Perre were convicted by a jury after trial. Judge Dodd recounted the applicant's involvement in the offences, and referred extensively to the subjective material that had been placed before him. Two of his findings should here be noted. His Honour referred expressly to the explanation given by the applicant to the Probation and Parole Officer for his failure to comply with his community service and periodic detention obligations and said: "I find your complaint that you had found the load too much disingenuous. The fact is that you ended up not doing any of the things ordered by the Courts. You did not do your community service, you did not attend for anger management counselling and apparently you regarded periodic detention as optional. Nevertheless, you found time and energy to be with your friends at a birthday party and to roam around the environs of Wollongong looking to inflict assaults upon innocent persons. You certainly were not of good behaviour." 16 A little later, having extracted from Dr Lennings' report the applicant's account of his participation and the reason for it, his Honour said: "I reject your account or accounts as to why you committed these offences. ... Importantly, you have put no evidence before me, and no evidence was given in any of the other cases before me, that any of your friends was ever in any difficulty whatsoever, such that it could reasonably be said that you or anyone else went to his 'aid'." 17 His Honour made other observations in the same vein. As a consequence of these findings, his Honour expressed himself as unpersuaded as to the genuineness of expressions of such remorse as had been made by the applicant. 18 The applicant entered his pleas of guilty on 6 February 2003 on arraignment in the District Court. This was 18 days before the day fixed for the trial of Duncan and Perre, and, presumably, the applicant, had he not pleaded guilty. His Honour accepted that his pleas of guilty were entered at the first opportunity that the main charge under s33 was offered and therefore avoided the necessity of a trial. (The evidence does not disclose what charges had previously been laid.) As a consequence of this finding, Judge Dodd gave the applicant a discount of 25% on the sentences that otherwise would have been imposed. This is an allowance at the very top of the range promulgated by this court in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. 19 Finally, his Honour referred to the applicant's youth, but did not consider that this should give rise to a significant reduction in sentence because of the greater weight to be attached to considerations of rehabilitation than to retribution and deterrence. He took this view having in mind the objective circumstances of the offences, the applicant's criminal history, and the conclusion he had reached as to lack of remorse. He was dubious about the applicant's prospects of rehabilitation. Having considered those circumstances (i.e. youth and the need for rehabilitation) that might have warranted a reduction in the non-parole period at the expense of the parole period, his Honour declined to find special circumstances warranting departure from the statutory proportion between the head sentence and the non-parole period pursuant to s44(2) of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Procedure Act"). Accordingly, he imposed the sentences I have outlined above.

the application for leave to appeal against severity 20 Three grounds of appeal were pleaded. They were framed as follows: "1. The sentence imposed upon the applicant's co-offenders Perre and Duncan gives rise to a justifiable sense of grievance. 2. The sentencing judge erred in respect of the extent to which he accumulated the sentences imposed upon the applicant. 3. The sentence imposed upon the applicant is manifestly excessive." 21 Given some somewhat unusual circumstances, it is convenient to deal with the first and third grounds of appeal together. Duncan and Perre were convicted by a jury of two charges, the s33 offence, and affray. They were not convicted of offences of malicious damage to property. Judge Dodd sentenced both of them identically; on the s33 charge to imprisonment for 16 years with a non-parole period of 12 years; and on the affray charge to a fixed term of two years, with the same commencing date as the earlier sentence, and therefore to be served wholly concurrently. In each case his Honour expressly declined to find special circumstances pursuant to s44 of the Sentencing Procedure Act. 22 However, on appeal, the sentence imposed on Perre in respect of the s33 offences was held to be: "[229] ... so far outside a proper exercise of legitimate sentencing discretion, that his Honour could not have allowed sufficient weight to be attached to the favourable subjective circumstances of the appellant ... A sentence that would all but extinguish his prospects of rehabilitation, ..." 23 A parallel finding was made in relation to the sentence imposed upon Duncan for that offence. 24 In each case, the Court reduced the sentence to one of imprisonment for 13 years with a non-parole period of nine years. The Court did not interfere with the sentences imposed with respect to the offences of affray. In coming to this result the Court departed from Judge Dodd's refusal to find special circumstances and made a small adjustment in the statutory ratio between the head sentence and the non-parole period. The Court gave as reasons for this the age of each offender, the interests of securing his rehabilitation and the fact that he was still to serve a lengthy period of imprisonment. 25 Of course, neither Perre nor Duncan was entitled to any discount as was allowed to the applicant pursuant to the principles stated in Thomson and Houlton. If the 25% allowed to the applicant is factored back into the sentence imposed in respect of the s33 offence, the result is a sentence of 16 years with a non-parole period of 12 years. In other words, his Honour appears to have assessed the applicant's culpability as identical with that of Perre and Duncan. 26 This was, in my opinion, a view open to his Honour, although it was somewhat generous to the applicant. There were marked differences between the applicant's case and those of the two co-offenders, mostly adverse to the applicant. Both Perre and Duncan were under 18 years of age at the time of the offences, Perre 17 years and 10 months, Duncan 17 years and 11 months. The applicant, as I have said, was 19 years and four months. While this may not seem to be a vast difference, it is significant that he was classed by the law as an adult, which they were not. 27 Also significantly, the applicant's criminal history was noticeably more serious than those of the two co-offenders. Indeed, Perre had no criminal record and was of prior good character. Duncan had a history of assault occasioning actual bodily harm and two counts of affray. This does not remotely compare with the applicant's criminal history which I have outlined earlier. 28 The applicant was on probation and, indeed, in breach of his periodic detention obligations at the time. At the very time he participated in the offence he ought to have been at the Periodic Detention Centre. 29 In respect of Perre, Judge Dodd found that his prospects of rehabilitation were good; in respect of the applicant he expressed doubts. In Perre's case on appeal, Wood CJ at CL made express reference to his "favourable subjective circumstances". He appears to have adopted this also in relation to Duncan. It would take a considerable stretch of imagination to describe the applicant's subjective circumstances as "favourable". 30 On the other hand, his Honour made specific findings in relation to the involvement in the offence of Perre and Duncan; he described Duncan as "the architect"; "the instigator"; "very prominent"; and a "ringleader". He described Perre as "among the worst offenders". He did not make any such express findings in relation to the applicant but the agreed statement of facts, together with the two additional charges faced by the applicant, would not suggest that there ought to have been any significant differentiation in this regard between him and these two co-offenders. 31 In any event, as I have noted, it would appear that, subject to the discount for the utilitarian value of the plea of guilty, his Honour intended that all three offenders should be treated equally. That, in my opinion, makes it inevitable that this court must adopt the reasoning and follow the course taken by the Court as constituted in Perre and Duncan at least so far as the head sentence is concerned. It is not merely a question of strict parity; the very sentence imposed upon the applicant has been held by this Court to have been manifestly excessive. In my opinion, considerations of comity, as well as considerations of parity, demand that the sentence in respect of the s33 offence be reduced by the same proportion as were the sentences imposed upon Perre and Duncan. 32 This means that the applicant should, in respect of the s33 charge, be sentenced to imprisonment for 13 years, less the 25% properly available to him as a result of his plea of guilty. The result is a head sentence of nine years and nine months. Absent a finding of special circumstances, the non-parole period would be seven years and four months. That raises the question whether special circumstances ought to be found in the applicant's case. In this respect the applicant's case may be distinguished from those of the co-offenders. In many ways, his adverse history and troubled background, and his consequent need for a strong rehabilitative effort, would suggest that his case for a finding of special circumstances is stronger than those of the co-offenders. On the other hand, leaving aside the effect of accumulation on the statutory proportion, the sentence for this offence is such that (assuming his release at or near the expiration of the non-parole period) he will have the benefit of a lengthy period under supervision. I have concluded that on balance the matters to which I have referred alone are not sufficient to justify such a finding. The overall sentence, including all separate terms, should be so structured as to be in accordance with the statutory proportions. 33 Like the Court in Perre and Duncan, I would not interfere with the two year sentence imposed in respect of the affray offence. Nor, notwithstanding the oral submissions of counsel for the applicant, would I interfere with the sentences imposed on the malicious damage charges. True it is that each offence attracted a sentence of three years with a non-parole period of two years and three months, and these against a statutory maximum of five years, but they were bad examples of the offence, and the applicant could expect no leniency attributable to his prior history. 34 That leaves for consideration the remaining ground of appeal, the question of accumulation. As noted above Judge Dodd wholly accumulated the s33 and affray sentences on those imposed in respect of the malicious damage offences. It is well recognised that questions of accumulation are very much questions of discretion; but they are tied up also with the assessment of totality. Whether total accumulation results in a total sentence outside the legitimate range available depends upon the assessment of the totality of the criminal conduct. 35 There is no doubt in my mind that the applicant's conduct in damaging the motor vehicles as he did exacerbated his criminality. This action was taken after the completion of the savage attack on Mr Wilson, demonstrating that the applicant's criminal frenzy continued. Some degree of accumulation was, in my opinion, inevitable. If there were no accumulation, then the sentences for those offences, and the affray, would be wholly subsumed in the sentence for the major offence, and the applicant would, in effect, escape punishment for those three serious offences. That does not necessarily mean, however, that the later sentence is required to be wholly cumulative upon the earlier. If the total accumulation is to remain undisturbed, then the applicant's aggregate sentence for these offences will be one of 12 years and nine months with a non-parole period of nine years and seven months. That would incorporate virtually no variation to the statutory ratio. Although it does not bear upon the totality question in relation to this set of offences, it is to be borne in mind that these sentences are to be added to the nine months and 16 days resulting from the cancellation of the periodic detention order, giving a total maximum term of 13 years and six months, and a minimum period of incarceration of ten years and about four months. This, again, does not in any significant way affect the proportion between the two terms. 36 The structure of the sentences I am about to propose is designed to achieve an overall minimum term of ten years, and an overall head sentence of 13 years and four months, which I believe is the minimum that ought to be served by the applicant to reflect the totality of his criminality. 37 The orders I propose are:

(i) leave granted to appeal against the sentences imposed in respect of the two offences of malicious damage to property and the offence of affray, but appeals dismissed;

(ii) leave granted to appeal against the sentence imposed in respect of the offence against s33 of the Crimes Act 1900 ;

(iii) appeal in respect of that sentence allowed;

(iv) the sentence imposed in respect of that offence be quashed and in lieu thereof the applicant be sentenced to imprisonment for nine years and nine months, with a non-parole period of seven years and four months, commencing on 13 July 2004. The non-parole period I propose will expire on 13 November 2011, and the head sentence on 12 April 2014. 38 BUDDIN J: I agree with Simpson J. 39 HALL J: I agree with Simpson J. **********

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