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Court of Criminal Appeal 7 February 2007

Nguyen v Regina

[2007] NSWCCA 14

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW SENTENCE NO LESSER SENTENCE WARRANTED.

Citation: Nguyen v Regina [2007] NSWCCA 14
Court: NSW Court of Criminal Appeal
Date: 7 February 2007
Judge(s): Sully J, Howie J, Price J

Background

The applicant had been convicted by jury of aggravated sexual assault and armed robbery arising from a home invasion in April 2001. The victim, a 29-year-old woman alone at home, was bound, blindfolded, threatened with a knife, robbed, and sexually assaulted by the applicant and a co-offender. Each offence carried a maximum penalty of 20 years' imprisonment.

At the time of sentencing in December 2005, the applicant was already serving a seven-year sentence (with a four-year non-parole period) imposed by Judge Morgan in 2002 for a separate offence committed shortly after the home invasion. Judge Hughes sentenced the applicant to eight years on each count, with concurrent six-year non-parole periods, fully accumulated upon the Morgan sentence. The combined effect was a total term of 12 years with a ten-year non-parole period.

The applicant sought leave to appeal, contending that Judge Hughes had failed to properly apply the totality principle and had erred in his approach to the statutory framework governing non-parole periods.

  • Whether Judge Hughes erred by failing to apply the principle of totality when accumulating the new sentences upon the existing Morgan sentence
  • Whether Judge Hughes erred in his approach to section 44 of the Crimes (Sentencing Procedure) Act 1999, and in failing to find that the accumulation constituted "special circumstances" warranting a different non-parole period
  • Whether, given any such errors, a lesser sentence was warranted

Decision

The Court of Criminal Appeal upheld the first two grounds of appeal. Howie J (with Sully and Price JJ agreeing) identified at least three significant errors in Judge Hughes's exercise of sentencing discretion, all of which operated in the applicant's favour.

First, the sentencing judge had assessed both offences as sitting in "the lower mid range" of seriousness. The Court of Criminal Appeal disagreed. The armed robbery was aggravated by planning, the presence of a co-offender, commission in the victim's home, and the manner in which the victim was treated. The sexual assault involved a knife threat, home invasion, and the binding and blindfolding of the victim. Howie J considered the sexual assault, at a minimum, to have been in the upper range of seriousness.

Second, Judge Hughes made both sentences for the two offences concurrent on the sole basis that they were committed on the same day. The Court of Criminal Appeal reiterated that there is no general rule requiring concurrent sentences for offences committed on the same occasion. The correct question is whether the criminality of one offence can be comprehended within the criminality of the other. Sexual assault and robbery are distinct offences involving separate acts of criminality, and a fully concurrent approach was an error of principle.

Third, the judge failed to consider whether the accumulation of sentences upon the pre-existing Morgan sentence should itself have given rise to a finding of "special circumstances," which would have allowed adjustment of the non-parole period to produce a proportionate parole period. Despite upholding the grounds of appeal, the Court found that all identified errors had operated to the applicant's advantage. A resentencing exercise would have produced an equal or longer overall non-parole period. Accordingly, no lesser sentence was warranted under section 6(3) of the Criminal Appeal Act 1912. The appeal was allowed only to correct a technical non-compliance with the form of the sentence under the version of section 44 applicable to offences committed before 1 February 2003.

Orders Made

  • Leave to appeal granted and the appeal allowed
  • Sentences imposed by Judge Hughes quashed
  • On each count, the applicant sentenced to imprisonment for 8 years, dating from 9 May 2005, with a non-parole period of 6 years expiring on 8 May 2011

Key Takeaways

  • There is no general rule that sentences for offences committed on the same day or in the same criminal enterprise must be served concurrently. The governing principle is totality of criminality: the question is whether the sentence for one offence can adequately reflect and comprehend the criminality of the other.
  • Where distinct criminal acts constitute separate offences (here, robbery and sexual assault), a fully concurrent approach will ordinarily be an error of principle, as each offence involves independent criminal conduct against the victim.
  • A sentencing court accumulating sentences upon a pre-existing sentence from another court must consider whether that accumulation creates special circumstances, particularly where it results in a parole period disproportionate to the total non-parole period.
  • Upholding grounds of appeal does not automatically produce a reduced sentence. Under section 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will only intervene with a lesser sentence where one is actually warranted. Where errors have operated in the applicant's favour, the appeal may be allowed without any practical reduction in sentence.
  • Formal non-compliance with the applicable version of section 44 of the Crimes (Sentencing Procedure) Act 1999 (determined by the date of the offence, not the date of sentencing) is correctable on appeal, even where it does not alter the substantive outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 97(1), 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Nguyen [2002] NSWCCA 507
- R v MMK [2006] NSWCCA 272
- Cahyadi v R [2007] NSWCCA 1
- R v MAK and MSK [2006] NSWCCA 381