Citation: Regina v Thanh Van Nguyen [2001] NSWCCA 132
Court: New South Wales Court of Criminal Appeal
Date: 6 April 2001
Judge(s): O'Keefe J; Smart AJ
Background
The applicant sought leave to appeal against the severity of a sentence of three years imprisonment with a non-parole period of 18 months, imposed by Tupman DCJ in the District Court for supplying a prohibited drug (8.26 grams of heroin, with an estimated street value of approximately $600).
In sentencing, the judge took into account seven additional offences on a Form 1 (meaning they were acknowledged but not separately sentenced). Those offences included three driving charges, two charges of attempting to steal from the person, possession of goods in custody, and possession of car-breaking implements. The applicant had committed the March and April 1999 offences while on bail for the original February 1999 drug and driving offences.
The applicant had a prior criminal history including drug possession, driving a vehicle without consent, and goods in custody. He had been using heroin since 1997 but reportedly ceased in May 1999 and had been drug-free since. Psychological evidence indicated he was of sound average intelligence, struggled with English, and held a genuinely negative self-image, though he did not present as markedly antisocial.
Legal Issues
- Whether the two charges of attempting to steal from the person were sufficiently pleaded, given that neither charge identified specific property as the subject of the attempted theft
- Whether the sentence of three years imprisonment was manifestly excessive in all the circumstances
Decision
On the first ground, the applicant argued that a charge of attempting to steal must identify specific, tangible property, and that because the charges merely referred to stealing from "an unknown female's handbag" without naming any item, no offence was disclosed. Smart AJ rejected this argument. The court found that the charges were not deficient: the elements of an attempt to steal from the person were sufficiently captured by the charges as framed, and the judge had correctly taken them into account.
On the second ground, the applicant contended the supply offence sat at the lower end of the scale and that, while a custodial sentence was open given the Form 1 matters, three years was excessive. The court declined to make any finding as to whether the applicant had been trafficking, noting the sentencing judge had made no such finding. The court proceeded on the basis that trafficking had not been established beyond reasonable doubt.
Smart AJ accepted that the driving offences carried limited weight in the sentencing context but regarded the two attempts to steal from women's handbags at Flemington Markets as significant. When the supply offence and the Form 1 matters were considered together, the court concluded the sentence was within the permissible range. The sentencing judge had also identified special circumstances, varied the non-parole period accordingly, and given appropriate weight to the applicant's personal history, drug dependency, and rehabilitation.
Orders Made
- Leave to appeal refused
Key Takeaways
- A charge of attempting to steal from the person is not rendered deficient merely because it identifies the container (a handbag) rather than specifying individual items of property within it; the Court of Criminal Appeal confirmed that the charges as framed were sufficient to disclose the offence.
- Where a sentencing judge takes multiple offences into account on a Form 1, the cumulative weight of those matters can support a custodial sentence even where the primary offence might, viewed alone, sit at the lower end of the sentencing range.
- In dismissing the leave application, the Court of Criminal Appeal declined to interfere with the sentencing judge's assessment of objective seriousness, reaffirming that appellate intervention requires a sentence to fall outside the permissible range, not merely to sit toward the upper end of it.
- A finding of trafficking will not be imported into the sentencing exercise where the sentencing judge made no such finding; the Court of Criminal Appeal proceeded only on what had been established beyond reasonable doubt.
- Sentencing statistics from the Judicial Commission carry limited utility where the range of sentences for the offence in question is large and the individual circumstances vary considerably.
Legislation and Cases Referenced
The judgment noted no specific legislation or cases were cited in the proceedings.