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Supreme Court 23 June 2005

Regina v Van Xuan Nguyen

[2005] NSWSC 600

Homicide
SENTENCING MANSLAUGHTER PLEA OF GUILTY

Citation: Regina v Van Xuan Nguyen [2005] NSWSC 600
Court: Supreme Court of New South Wales
Date: 23 June 2005
Judge(s): Johnson J

Background

The prisoner pleaded guilty to the manslaughter of a man shot dead on a Marrickville footpath in February 2001. The killing arose from a long-running feud connected to a karaoke bar. The prisoner was present with the shooter at the time of the attack and had been involved in an exchange of words with the deceased earlier that same day.

The plea was accepted on the basis of an extended joint criminal enterprise. The Crown and defence agreed that the prisoner had participated in a plan to commit a lesser act (at most, a minor assault) and had contemplated that the shooter might commit an unlawful and dangerous act during that plan. The shooter fired multiple times, killing the deceased and wounding a bystander. The court found it was not established beyond reasonable doubt that the prisoner knew the shooter was armed.

The prisoner had been in immigration detention at Villawood at the time a coroner's warrant halted his deportation in June 2003, leading to his arrest and charge. He had remained in custody since July 2003.

  • What sentence was appropriate for a manslaughter conviction based on extended joint criminal enterprise, where the offender was present but did not fire the weapon?
  • What discount applied for the guilty plea?
  • Whether the prospect of deportation following release was a relevant consideration on sentence.
  • Whether "special circumstances" existed justifying a variation from the standard ratio between the non-parole period and the balance of term.

Decision

Johnson J sentenced the prisoner to six years' imprisonment with a non-parole period of four years, backdated to 23 June 2003. The court applied a 15% discount for the guilty plea, consistent with the plea being entered after proceedings had been on foot for some time rather than at the earliest opportunity.

On deportation, the court held that the prospect of the prisoner being deported after release was not a relevant factor in fixing the sentence. This was consistent with existing authority that the possibility of deportation does not warrant an adjustment to the length of a sentence.

The court found "special circumstances" within the meaning of the Crimes (Sentencing Procedure) Act 1999, justifying a longer balance of term relative to the non-parole period than would otherwise apply. The basis for this finding was the onerous nature of the prisoner's custodial experience, which included time spent in immigration detention before entering the mainstream prison system.

In comparing the sentence to other manslaughter cases, the court noted that sentences after trial in comparable matters had ranged considerably higher, and that cases with early pleas and cooperation with authorities attracted more significant reductions. The court treated those comparisons with appropriate caution given the highly fact-specific nature of manslaughter sentencing.

Orders Made

  • Sentence of six years' imprisonment with a non-parole period of four years, both commencing 23 June 2003.
  • Non-parole period to expire 22 June 2007; balance of term to expire 22 June 2009.
  • Earliest parole eligibility date: 22 June 2007.

Key Takeaways

  • The Supreme Court confirmed that the prospect of deportation following the completion of a sentence is not a relevant consideration when determining the length of that sentence.
  • Where an offender's experience of custody has been particularly onerous (including time in immigration detention), this may constitute "special circumstances" justifying an extended balance of term under the Crimes (Sentencing Procedure) Act 1999.
  • An extended joint criminal enterprise can ground a manslaughter conviction even where the offender did not wield the weapon, provided the offender contemplated that the principal might commit an unlawful and dangerous act and did not withdraw.
  • A 15% guilty plea discount was applied where the plea, while not entered at the earliest opportunity, nonetheless spared witnesses and the justice system the burden of a full trial.
  • Comparing sentences across manslaughter cases requires caution given the highly variable factual circumstances of individual offences; the court drew on a range of comparable decisions but noted the significant differences between them.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases:
- Maxwell v The Queen (1995-1996) 184 CLR 501
- R v Hill (1981) 3 A Crim R 397
- R v MacDonald (Court of Criminal Appeal, 12 December 1995)
- R v Blacklidge (Court of Criminal Appeal, 12 December 1995)
- R v Mohamad Ali [2005] NSWSC 334
- R v Walsh (2004) 142 A Crim R 140
- R v Martin [2005] NSWCCA 190
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Shrestha v The Queen (1991) 173 CLR 48
- R v Van Hong Pham [2005] NSWCCA 94
- R v Mirzaee [2004] NSWCCA 315
- R v Puta and Others [2002] NSWCCA 495
- R v Curry [2002] NSWCCA 109
- R v Stelfox [2002] NSWCCA 331
- R v Yu [2003] NSWSC 1153