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Court of Criminal Appeal 29 April 2019

Nguyen v R

[2019] NSWCCA 87

Assault & violenceDomestic & family violence
CRIMINAL LAW LEAVE TO APPEAL SENTENCING APPEAL WHETHER SENTENCING PROCESS MISCARRIED LEAVE TO APPEAL SENTENCING APPEAL

Citation: Nguyen v R [2019] NSWCCA 87
Court: Court of Criminal Appeal, New South Wales
Date: 29 April 2019
Judges: Gleeson JA (with Wilson J and Ierace J agreeing)

Background

The applicant was convicted by jury of three offences committed against his wife over three days in January 2015: aggravated kidnapping, intimidation, and assault occasioning actual bodily harm. The offending involved restraining the victim with duct tape and rope, pouring boiling water over her body, burning her with a heated metal implement, and threatening harm to her family members. The couple had been married for approximately 20 years and were separated at the time of the offences, though still living in the same house.

In the District Court, Judge Bennett SC imposed an aggregate sentence of 9 years and 6 months imprisonment with a non-parole period of 6 years and 6 months, backdated to 16 September 2015. The sentence was partially accumulated on an existing 16-month sentence for breaching an apprehended violence order against the same victim.

The applicant sought leave to appeal against severity of sentence, also requiring an extension of time. An additional ground based on fresh evidence about his mental health at the time of offending was abandoned before the hearing.

  • Whether the sentencing process miscarried (including a previously raised mental health ground, which was abandoned)
  • Whether the sentencing judge failed to properly mitigate the sentence on the basis of the applicant's otherwise good character
  • Whether the sentencing judge erred in assessing the objective seriousness of the intimidation offence (count 2)
  • Whether the sentencing judge erred in assessing the objective seriousness of the assault occasioning actual bodily harm offence (count 3)
  • Whether the aggregate sentence was manifestly excessive

Decision

The Court of Criminal Appeal rejected all grounds of appeal. On the character ground, the Court found that the sentencing judge had acknowledged the applicant's prior good character but weighed it against significant countervailing factors: a weak subjective case overall, the absence of remorse or contrition, and no meaningful evidence supporting rehabilitation prospects. Good character does not automatically produce a mitigated sentence when those circumstances exist.

On the objective seriousness of counts 2 and 3, the Court noted that the applicant's challenge to those assessments was effectively undermined by his failure to contest related factual findings made by the sentencing judge. The Court found no error in the judge's approach to either count.

On manifest excess, the Court compared the sentence to comparable authorities, including the aggravated kidnapping sentence in Hammond v R [2008] NSWCCA 138. The Court acknowledged the present sentence sat towards the upper end of the available range, but found it remained within the proper exercise of the sentencing discretion. The judge had correctly emphasised general deterrence, denunciation, and specific deterrence, particularly given the domestic context and the applicant's apparent attitude toward the victim.

The Court also noted the limited utility of sentencing statistics and comparable cases as a guide to individual sentences, given the wide variation in factual circumstances and subjective features across such cases.

Orders Made

  • Time for the application for leave to appeal against sentence extended
  • Leave to appeal granted
  • Appeal against sentence dismissed

Key Takeaways

  • A finding of otherwise good character does not compel a reduction in sentence where it is outweighed by factors such as absence of remorse, lack of contrition, and no evidence supporting rehabilitation.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence towards the upper end of the available range may still fall within the sentencing judge's legitimate discretion and will not be disturbed on appeal.
  • Where an applicant fails to challenge underlying factual findings made at sentence, grounds of appeal directed at the objective seriousness of individual offences are significantly weakened.
  • Sentencing statistics and comparable case law carry limited weight in severity appeals involving domestic violence offences, given the diversity of factual circumstances and subjective features across individual matters.
  • Specific deterrence carries particular importance in sentencing for domestic violence offending, especially where the offender's conduct and attitude demonstrate a pattern of coercion and control toward an intimate partner.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 86(2)(b)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 21A(3)(e) and (f), 21A(5AA)

Cases:
- Hammond v R [2008] NSWCCA 138
- R v Isaacs (1997) 41 NSWLR 374
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- Ali v R [2010] NSWCCA 35; Bao v R [2016] NSWCCA 16; Diaz v R [2018] NSWCCA 33; Hazel v R [2015] NSWCCA 26; Hughes v R [2018] NSWCCA 2; JM v The Queen [2014] NSWCCA 297; Kerr v R [2016] NSWCCA 218; Kresovic v R [2018] NSWCCA 37; MLP v R [2014] NSWCCA 183; Owen v R [2017] NSWCCA 54; Salafia v R [2015] NSWCCA 141; Hanania v R [2012] NSWCCA 220; Newell v R [2004] NSWCCA 183; R v Baker [2000] NSWCCA 85