Citation: Nguyen & Anor v R [2002] NSWCCA 507
Court: NSW Court of Criminal Appeal
Date: 19 December 2002
Judge(s): Sperling J; Buddin J
Background
Two co-offenders, one aged 18 and the other aged 16 and a half at the time of the offences, were sentenced in the District Court at Campbelltown following guilty pleas to charges of aggravated break, enter and commit a serious indictable offence (larceny in circumstances of aggravation) and aggravated robbery under the Crimes Act 1900. Both offences carry a maximum penalty of 20 years imprisonment. Neither offender had any prior criminal history.
The offences involved a home invasion in which the victim was threatened with machetes, physically restrained with tape, and robbed of cash, bank cards and firearms. The victim's daughter escaped and called police. The episode was serious and prolonged.
The older co-offender received a sentence of seven years imprisonment with a non-parole period of four years on the first count, and a concurrent fixed term of two years on the robbery count. The younger co-offender was sentenced separately. Both sought leave to appeal against their sentences on grounds of alleged severity.
Legal Issues
- Whether the sentences imposed on each applicant were of such a character that a lesser sentence was warranted in law and should have been passed, applying the test in Simpson (2001) 52 NSWLR 704
- Whether the sentencing judge gave sufficient weight to the lack of planning involved in the offences
- Whether the sentencing judge gave sufficient weight to subjective matters, including the youth and immaturity of the offenders
- Whether the younger co-offender's lesser and subordinate role in the offending was adequately reflected in his sentence
Decision
Thien Tho Nguyen (the older co-offender)
Sperling J applied the threshold from Simpson, which requires the Court of Criminal Appeal to form a positive opinion that some other sentence was warranted in law and should have been passed, rather than simply identifying error in the sentencing process. The Court was not satisfied that a lesser sentence was warranted in this case. The sentencing judge's remarks were described as a carefully reasoned judgment, and the appeal was dismissed.
Dai Phuc Nguyen (the younger co-offender)
The Court reached a different conclusion for the younger applicant. Although the sentencing judge's remarks were again described as a model of care and clarity, Sperling J found that the significance of the applicant's youth and his lesser role in the episode had not been sufficiently taken into account.
The Court noted that the younger applicant was 16 and a half at the time of the offending, that psychological evidence established he was immature and lacked sophistication, and that he had largely followed the directions of the older co-offender throughout the episode. His one act of threatening behaviour, holding a machete to the victim's throat, was characterised as an unplanned act of desperation arising after he had been left alone by his co-offender and confronted by police. The evidence strongly indicated the older co-offender held the dominant role.
On that basis, the Court allowed the appeal, set aside the sentence, and resentenced the younger applicant to a term of four years imprisonment with a non-parole period of two years, to be served in a juvenile justice centre. Special circumstances were found by reason of the applicant's youth and his being a first-time custodial offender. Buddin J agreed with Sperling J in all respects.
Orders Made
Thien Tho Nguyen:
- Leave to appeal against sentence granted
- Appeal dismissed
Dai Phuc Nguyen:
- Leave to appeal against sentence granted
- Appeal allowed
- Sentence set aside
- Resentenced to four years imprisonment commencing 22 March 2002, with a non-parole period of two years expiring 21 March 2004
- Sentence to be served in a juvenile justice centre
Key Takeaways
- The Court of Criminal Appeal confirmed the threshold from Simpson (2001): before quashing a sentence, the Court must form a positive opinion that some other sentence was warranted in law and should have been passed, not merely identify error in the sentencing process.
- Where youth and immaturity are established as contributing factors to offending, those matters may reduce the assessed criminality compared with an equivalent offence committed by a more mature adult.
- In resentencing the younger co-offender, the court treated his subordinate role, psychological immaturity, and first-time custodial status as grounds for finding special circumstances and imposing a shorter overall term with a proportionally extended parole period.
- Two co-offenders charged with the same offences and sentenced at the same time may properly receive materially different sentences where the evidence establishes a meaningful difference in culpability, role, and maturity.
- Careful and well-reasoned sentencing remarks do not in themselves preclude appellate resentencing where the weight given to particular factors is found to be insufficient.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 95, 112
Cases cited:
- Simpson (2001) 52 NSWLR 704
- AEM [2002] NSWCCA 58
- Blackman v Walters [2001] NSWCCA 121
- DAR (Unreported, NSWCCA, 1 October 1997)
- Hammoud (2000) 118 A Crim R 66
- Hearne (2001) 124 A Crim R 451
- Li (Unreported, NSWCCA, 9 July 1997)
- Mazzilli [2001] NSWCCA 117
- Nichols (1991) 57 A Crim R 391
- Pearce (1998) 194 CLR 610