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Supreme Court 15 November 2004

Regina v Phuoc Giau Nguyen

[2004] NSWSC 1067

Assault & violenceHomicideFirearms & weapons
CRIMINAL LAW: SENTENCE MURDER, SHOOT WITH INTENT TO MURDER PLEAS OF NOT GUILTY UNPREMEDITATED INTENT TO KILL.

Citation: Regina v Phuoc Giau Nguyen [2004] NSWSC 1067
Court: Supreme Court of New South Wales
Date: 15 November 2004
Judge(s): Hidden J

Background

In the early hours of 2 February 2002, the offender was at the Pavilion Hotel in George Street, Sydney, when one of his associates flicked a cigarette butt at another patron, sparking an argument that drew in several people. The offender and his associates later followed the deceased and a second man downstairs to a gaming lounge, where the offender confronted them over the earlier incident.

The offender drew a handgun and shot the deceased twice, inflicting fatal wounds. He then shot the second man three times, wounding him in the shoulder, hip, and thigh. The offender was restrained by his associates before all three fled the hotel.

The offender was arrested on 20 March 2002. Following a jury trial, he was convicted of the murder of the deceased and of shooting at the second man with intent to murder him. The sentencing proceedings took place on 21 May 2004.

  • What sentences were appropriate for murder and shooting with intent to murder, arising from the same brief incident?
  • How should the aggravating factors, including the offender being on parole and the use of a firearm in a public place, bear on sentence?
  • Whether any mitigating factors, including a difficult background, spontaneity of the offences, and prospects of rehabilitation, justified a reduction in sentence.
  • Whether special circumstances existed to justify departing from the standard non-parole period proportion.
  • How to structure cumulative sentences to reflect totality while preserving adequate parole supervision.

Decision

Hidden J found that the offences were not premeditated, arising spontaneously from a relatively trivial confrontation. Nonetheless, the court was satisfied that the offender shot the deceased with intent to kill. The suggestion that the earlier altercation on the second floor constituted provocation was rejected as an adequate explanation for the extreme violence; it was relevant only to underscore the spontaneous nature of the conduct.

Several aggravating factors were identified. The offender was on parole at the time of the offences, which the court characterised as a serious aggravating factor. The shootings occurred in a public place, putting other hotel patrons at risk. Although use of a firearm is listed as an aggravating factor under the Crimes (Sentencing Procedure) Act, the court noted its limited weight in a homicide and that it could not be used to aggravate the shooting with intent charge, as it forms an element of that offence.

In mitigation, the court took into account the offender's difficult upbringing in Vietnam, his migration to Australia, his relatively young age at the time of the offences, and the assessment by a clinical psychologist that he had reasonable prospects of rehabilitation. The offender maintained his innocence and did not give evidence, but expressed compassion for the victims' families through the psychologist's report.

The court determined that partly cumulative sentences were appropriate, given the two offences arose from one incident. A non-parole period was declined for the shooting with intent charge. The court found that, although evidence of special circumstances existed, a significant departure from the statutory proportion would produce a non-parole period inadequate to reflect the offender's criminality. The structure of the sentences was designed to maintain the statutory proportion overall while preserving a meaningful parole period to support rehabilitation.

Orders Made

  • Shooting with intent to murder: imprisonment for 12 years, commencing 20 March 2002 (no non-parole period set for this sentence).
  • Murder: imprisonment for 20 years, with a non-parole period of 14.5 years, commencing 20 March 2004.
  • Aggregate sentence: 22 years' imprisonment, with an aggregate non-parole period of 16.5 years, commencing 20 March 2002.
  • Earliest parole eligibility date: 19 September 2018.

Key Takeaways

  • Under the Crimes (Sentencing Procedure) Act, the use of a weapon cannot be applied as an aggravating factor where it forms an element of the offence charged, as confirmed in relation to the shooting with intent to murder count.
  • A finding of unpremeditated or spontaneous conduct does not preclude a finding of intent to kill; the court accepted intent to kill as established by the circumstances and the jury's verdict on the intent-based charge.
  • Being on parole at the time of the offences is a serious aggravating factor, now codified in the Crimes (Sentencing Procedure) Act but long recognised at common law.
  • Where two serious offences arise from a single brief incident, partly cumulative sentences may still be appropriate, provided the overall sentence is assessed with regard to totality.
  • Reasonable prospects of rehabilitation, supported by psychological evidence, can inform the structure of non-parole periods without necessarily reducing the overall length of the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), including ss 21A(2)(c), 21A(2)(i), 21A(2)(j), 21A(3)(c)

Cases cited: None cited in the provided text.