Citation: R v Nguyen, Tuan and Baverstock, Daniel [2010] NSWDC 87
Court: District Court of New South Wales
Date: 26 February 2010
Judge(s): Nicholson SC DCJ
Background
Two young men, aged nineteen and twenty at the time of sentencing, pleaded guilty to charges arising from an unprovoked attack on an overseas tourist travelling by train between Strathfield and Redfern at approximately 12:30am on 25 October 2008. The victim was punched repeatedly to the face and head by both offenders, who demanded cash and later an ATM card and PIN. The attack left him with seven distinct sites of injury, including a haematoma to the forehead, a laceration to the elbow, and a broken pair of glasses.
Both offenders were heavily intoxicated at the time. Their motive, as found by the court, was to obtain money to continue drinking. After the victim escaped to another carriage, security officers located the offenders in the rear carriage. One offender subsequently fled into the Everleigh railway yards and was discovered hiding in a wall cavity before being arrested.
The charge was aggravated assault with intent to rob, the aggravating circumstance being that each offender intentionally or recklessly inflicted actual bodily harm on the victim. One offender also had a further charge taken into account on a Form 1 document. The Crown supported a deferred sentencing arrangement under section 11 of the Crimes (Sentencing Procedure) Act 1999.
Legal Issues
- What was the objective seriousness of the offending, measured against comparable offences of this kind?
- What weight should be given to each offender's personal circumstances, including background, drug and alcohol history, and rehabilitation prospects?
- What sentence was appropriate, having regard to deterrence, parity between the co-offenders, and community protection?
- Whether section 11 bail was an appropriate mechanism to defer sentencing and provide a structured opportunity for rehabilitation, with Crown support for that course.
Decision
His Honour assessed the objective criminality of the offence as serious. The attack was predatory, carried out at night on a lone passenger, involved sustained and repeated closed-fist punches by both offenders, and was accompanied by threats and demands. The victim sustained multiple injuries. The presence of a glass beer bottle, which one offender held during the assault, added to the intimidating nature of the attack.
The court noted several mitigating personal factors for each offender, including troubled childhoods and significant drug and alcohol histories. His Honour also observed, with some interest, that both offenders were second-generation offenders whose fathers had served custodial sentences. The judgment flagged a potential link between heavy participation in violent video games and the conduct of the offenders, though this was noted as a matter for consideration rather than a settled finding.
His Honour found that rehabilitation prospects for both offenders were uncertain. Despite that cloud, the court determined that a deferred sentencing approach under section 11 offered the better path, supported by the Crown. The court indicated that if both offenders met the bail conditions over the 12-month period, the sentences it had in contemplation would be suspended, leaving them on a good behaviour bond for a further approximate two years.
Orders Made
- Daniel Baverstock: convicted.
- Both offenders granted bail pursuant to section 11 of the Crimes (Sentencing Procedure) Act 1999 for a period of 12 months.
- Bail conditions included:
- Abstention from alcohol for the first six months, followed by responsible drinking in consultation with Probation and Parole.
- Abstention from illicit drugs throughout.
- Submission to random urine and breath screening; refusal or positive results deemed a breach.
- Counselling from a qualified counsellor, psychologist, or psychiatrist, in consultation with Probation and Parole.
- Nguyen to maintain employment; Baverstock to engage with Centrelink or a similar agency for support.
- Minimum three hours per week of community engagement.
- Attendance at court on specified dates: 21 May, 20 August, and 19 November, with a finalisation date of 18 February the following year.
- Failure to attend Probation and Parole meetings or provide proof of participation deemed a breach.
Key Takeaways
- The District Court confirmed that even where agreed facts are tendered by the parties, the sentencing judge retains an independent fact-finding responsibility and is not bound by the agreed account if the evidence does not support it.
- A section 11 bail arrangement can be used to defer the imposition of a custodial sentence, providing a structured period in which offenders must demonstrate rehabilitation, with Crown support for that course being a relevant consideration.
- Objective seriousness remains the primary starting point in sentencing for aggravated assault with intent to rob, with the circumstances of the attack, the nature and number of injuries, and the vulnerability of the victim all bearing on that assessment.
- Personal circumstances, including troubled upbringings, drug and alcohol dependency, and family histories of offending, are taken into account in sentencing but do not diminish the court's primary focus on community protection.
- The judgment flags, without resolving, a potential connection between heavy engagement with violent video games and violent offending, reflecting a willingness to consider emerging social factors in the sentencing context.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
Cases:
- Gladue v The Queen [1999] 1 SCR 688 (Supreme Court of Canada, cited at [80] of the judgment in the context of competing sentencing tensions)