Citation: Regina v Nhan Thanh Truong [1999] NSWCCA 272
Court: NSW Court of Criminal Appeal
Date: 6 August 1999
Judge(s): Carruthers AJ; Levine J
Background
The applicant, a man of Vietnamese background in his early twenties, pleaded guilty in the District Court to one count of demanding money with menaces with intent to steal under s 99 of the Crimes Act 1900. The offence carried a maximum penalty of ten years' penal servitude.
The offending arose from a coordinated attempt by a group of four men to extort $500 per week in "protection money" from a Sydney massage parlour. The applicant attended the premises on 21 February 1997 and, believing he was speaking with the parlour's manager, identified himself as "Tony" and made the demand directly. In fact, he was speaking to an undercover police officer. All four men were arrested as they left the premises.
Chief Judge Blanch of the District Court sentenced the applicant to a minimum term of three years and six months, with an additional term of one year and two months, producing an overall sentence of four years and eight months. The sentence commenced from the date of arrest. The applicant sought leave to appeal on the grounds that the sentence was too severe.
Legal Issues
- Whether the sentence lacked parity when compared with sentences subsequently imposed on co-offenders
- Whether the sentencing judge allowed a sufficient discount for the guilty plea
- Whether the sentence was manifestly excessive, having regard to Judicial Commission statistics
Decision
On the parity ground, the Court noted that the applicant was sentenced before his co-offenders Nguyen and Karauwan, who were later dealt with by a different judge. The Court accepted that a parity argument is not automatically defeated because a co-offender was sentenced later, but found no substance in the argument on the facts. The sentencing judge who dealt with the co-offenders had carefully attempted to achieve parity across the group, and had done so to the highest degree the differing factual circumstances allowed. Crucially, evidence was led before the later judge that one co-offender was armed, a factor not present in the applicant's sentencing.
On the guilty plea discount, the Court was satisfied the Chief Judge had specifically acknowledged the plea and taken it into account. The Court found that, given the applicant's significant prior criminal history and the circumstances of the offence, this was not a case calling for a substantial discount, but that the applicant did receive some allowance consistent with established authority.
On manifest excess, the Court rejected the argument. It characterised the offence as particularly serious, noting the prevalence of standover tactics involving threats of violence in extortion cases and the consequent need for strong general deterrence. The applicant's prior record included a sentence for attempted armed robbery, and the present offence was committed while he was on a two-year recognisance. Those factors significantly limited his subjective case in mitigation.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A parity argument remains available to an offender sentenced before co-offenders, but will not succeed where the later sentencing court carefully calibrated sentences to reflect genuinely different factual circumstances, including differences in culpability and the evidence before each court.
- General deterrence carries substantial weight in sentencing for protection rackets and standover offences, particularly where such conduct is prevalent and involves threats of violence.
- A guilty plea entitles an offender to some sentencing discount, but the extent of that discount is diminished by a serious prior criminal record and limited subjective circumstances.
- Judicial Commission statistics do not automatically establish manifest excess; the sentencing court retains a broad discretion where aggravating features justify a sentence above the statistical range.
- Committing an offence while on a recognisance, combined with a pattern of prior offending despite judicial leniency, significantly reduces the mitigating weight available to an applicant on appeal.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 99 (demanding money with menaces with intent to steal; maximum penalty 10 years' penal servitude)
Cases
- Hodges (1997) 95 A Crim R 85 (parity arguments and co-offenders sentenced on different factual bases)
- Winchester (1992) 58 A Crim R 345 (guilty plea discount)