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Court of Criminal Appeal 30 July 2002

REGINA v. NGUYEN

[2002] NSWCCA 305

Assault & violenceTheft & property
CRIMINAL LAW APPEAL SENTENCE MULTIPLE ROBBERIES YOUNG OFFENDER PROSPECTS OF REHABILITATION

Citation: [2002] NSWCCA 305
Court: NSW Court of Criminal Appeal
Date: 30 July 2002
Judge(s): Greg James J (principal judgment); Sperling J (agreeing)

Background

The appellant was a young man aged 19 at the time of the offences, the son of Vietnamese refugees, whose education in Australia had been disrupted. After leaving home and falling under the influence of a co-offender named Dang, he participated in three separate robberies in the Haymarket area of Sydney in early 2001. The offences involved robbing a victim at a shopping centre and, on a later occasion, detaining two men at Paddy's Markets while their bank accounts were drained using stolen keycard details.

The appellant pleaded guilty in the District Court and was sentenced on 4 February 2002. He received a total effective sentence of three years and six months imprisonment, with a non-parole period of 18 months. The sentencing judge accepted that the appellant was not the instigator of the crimes, acknowledged his favourable rehabilitation prospects, and gave full credit for his guilty plea, remorse, and contrition. Nonetheless, the judge imposed a custodial sentence on the basis of specific and general deterrence.

The appellant sought leave to appeal against sentence in the Court of Criminal Appeal, arguing principally that the sentencing judge erred in imposing a full custodial sentence given his rehabilitation prospects, and that the sentence was disproportionate compared to that imposed on the co-offender Dang.

  • Whether the sentencing judge erred by imposing a custodial sentence despite the appellant's strong rehabilitation prospects and favourable pre-sentence and psychological reports
  • Whether the sentence was warranted having regard to the principles of parity, given the co-offender Dang received an overall sentence of six years with a four-year non-parole period for a significantly larger number of offences
  • Whether, under section 6(3) of the Criminal Appeal Act 1912, a different sentence was warranted in law and should have been passed

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Greg James J found no error in the sentencing judge's approach. The judge had plainly and carefully considered all of the mitigating factors, including the favourable reports, the appellant's family reconciliation, and his role as a follower rather than instigator. However, those considerations did not exhaust the court's sentencing obligations. Specific and general deterrence remained relevant and legitimate sentencing purposes, particularly given the prevalence of this type of offending.

The Court rejected the argument that the rehabilitation prospects alone should have displaced the need for full-time custody. Greg James J characterised attempts by counsel to reconstruct the sentences as periodic detention or suspended sentences as artificial. One proposed restructure also failed on statutory grounds under the Crimes (Sentencing Procedure) Act 1999. The Court expressed the view that 18 months was the minimum period the appellant should serve in custody for offences of this seriousness.

On the parity argument, the Court found that the co-offender Dang had committed many more offences and was the acknowledged leader and instigator of the criminal activity. This meant the parity principles discussed in Postiglione v The Queen (1997) 189 CLR 295 did not operate to render the appellant's sentence unjust by comparison. The sentencing judge had adequately accounted for Dang's role in drawing the appellant into the offending, while also properly recognising the active part the appellant himself played.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Rehabilitative prospects, however strong, do not automatically displace the need for full-time custody where offences are serious and general deterrence is engaged.
  • No error was established in the sentencing judge's approach to balancing the appellant's personal circumstances against the public interest in deterring prevalent offending.
  • Under section 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will only substitute a different sentence if it is satisfied that another sentence is both warranted in law and should have been passed; no such conclusion was reached here.
  • Parity principles arising from Postiglione v The Queen carry reduced force where a co-offender's sentence reflects a substantially greater volume and leadership role in offending, not merely the same criminal conduct.
  • In dismissing the appeal, the Court confirmed that 18 months was the minimum appropriate non-parole period for three serious robbery offences carrying maximum penalties of 20 years imprisonment each.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), sections 5(1) and 6(3)
- Justices Act 1902 (NSW), section 51A
- Crimes Act 1900 (NSW), sections 95(1), 95(2)(c), and 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 70

Cases:
- Postiglione v The Queen (1997) 189 CLR 295