Citation: R v Dinh [2010] NSWCCA 74
Court: NSW Court of Criminal Appeal
Date: 3 May 2010
Judge(s): Basten JA, Howie J, Johnson J
Background
The respondent was convicted of applying a corrosive fluid (acid) with intent to burn, contrary to s 47 of the Crimes Act 1900, an offence carrying a maximum penalty of 25 years' imprisonment. The attack occurred in September 2008 outside a Leichhardt restaurant, where the respondent and an accomplice, both wearing balaclavas, held down a woman and sprayed acid onto her back and right arm. The victim sustained superficial partial thickness burns and required ongoing outpatient treatment. The attack was witnessed by two children.
The background to the offence involved a family dispute. The victim was in a relationship with the respondent's father, and the respondent's mother was said to be jealous of that relationship. The respondent was living with his mother at the time.
In the Sydney District Court in August 2009, the sentencing judge imposed a non-parole period of two and a half years, with a balance of term of two years, and took into account a number of Form 1 matters (minor drug and other offences). The respondent was already subject to a suspended sentence for a drug supply offence at the time of the acid attack. The Crown appealed on the ground that the sentence was manifestly inadequate.
Legal Issues
- Whether the original sentence was manifestly inadequate given the objective seriousness of the offence
- Whether the Court should decline to resentence on discretionary grounds, particularly in light of the Crown's conduct in the District Court proceedings
- How to apply the principles of accumulation, concurrency, and totality when resentencing, given the interaction between the new sentence and the previously suspended sentence
Decision
The Court of Criminal Appeal found the original sentence manifestly inadequate. The s 47 offence was treated as one of high objective seriousness: a planned, two-person attack involving a knife, disguises, and acid, carried out against a defenceless woman who was held to the ground while the corrosive substance was sprayed on her. The attack was witnessed by children and involved deliberate concealment measures, including foil taped over the vehicle's number plates.
The Court considered whether discretionary grounds justified declining to resentence, including the Crown's approach in the District Court. It concluded that no such grounds existed and that proceeding to resentence was appropriate in the interests of justice.
On resentencing, the Court addressed the relationship between the new sentence and the pre-existing suspended sentence, which the respondent had been serving conditional liberty under at the time of the acid attack. The Court held that the fact the offence was committed while the respondent was subject to conditional liberty for drug supply required a very substantial degree of accumulation between the two sentences.
The Court applied totality principles to ensure the aggregate sentence was a just reflection of the respondent's total criminality, without inadvertently discounting the overall punishment. It structured the sentence so that the total effective non-parole period represented 73% of the total effective head sentence across all offences, ensuring a sufficient period of parole supervision remained.
Orders Made
- Leave granted to amend the notice of appeal by adding additional grounds
- Crown appeal allowed
- Sentence imposed in the Sydney District Court on 27 August 2009 quashed
- In substitution, the respondent sentenced to imprisonment comprising a non-parole period of four years commencing 14 January 2010 and expiring 13 January 2014, with a balance of term of two years commencing 14 January 2014 and expiring 13 January 2016
- Earliest eligible parole date: 13 January 2014
Key Takeaways
- A planned acid attack involving two offenders, weapons, disguises, and deliberate steps to conceal the vehicle's identity was assessed as carrying a high degree of objective seriousness under s 47 of the Crimes Act 1900.
- Where an offender commits a serious offence while already subject to conditional liberty (such as a suspended sentence), the sentencing court must impose a very substantial measure of accumulation between the pre-existing sentence and the new sentence.
- Totality principles require that the aggregate of all sentences represents a just and proportionate measure of the offender's total criminality, and courts must guard against any outcome that effectively operates as a discount for multiple offences.
- In dismissing the discretionary grounds argument, the Court of Criminal Appeal confirmed that the Crown's conduct in the lower court does not automatically preclude resentencing on appeal where a sentence is manifestly inadequate.
- Under the resentencing framework applied here, the Court calibrated the ratio of non-parole period to total head sentence across all offences to ensure both adequate punishment and a meaningful period of post-release supervision on parole.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 47 (applying corrosive fluid with intent to burn)
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeal on sentence)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes (Life Sentences) Amendment Act 1989 (NSW)
Key Cases
- R v JW [2010] NSWCCA 49
- Ibbs v The Queen [1987] HCA 46; 163 CLR 447
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- GAS v The Queen [2004] HCA 22; 217 CLR 198
- Power v The Queen [1974] HCA 26; 131 CLR 623
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- R v MAK [2006] NSWCCA 381; 167 A Crim R 159
- Edwards v R [2009] NSWCCA 199
- Hejazi v R [2009] NSWCCA 282
- Han v R [2009] NSWCCA 300
- Van Haltren v R [2008] NSWCCA 274; 191 A Crim R 53
- R v Tan [2007] NSWSC 684
- Attorney General's Application Under S.37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146