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District Court 11 December 2020

R v Nguyen

[2020] NSWDC 891

Assault & violenceTheft & propertyPublic order & justice offences

Citation: R v Nguyen [2020] NSWDC 891
Court: District Court of New South Wales
Date: 11 December 2020
Judge: M L Williams SC DCJ

Background

In the early hours of 1 January 2020, Long Nguyen (then aged 26) participated in a series of violent offences in the Sydney CBD alongside three co-offenders. The offending began when the group encountered a man celebrating New Year's Eve on the street. Two members of the group, including the offender, used scissors purchased from a nearby convenience store to attack the victim, causing serious stab wounds including a laceration to the right kidney and a haemothorax (blood in the chest cavity).

Hours later, the same group attacked two further victims outside a Korean barbecue restaurant in Goulburn Street. The offender struck one victim with his fist while holding scissors, causing facial lacerations, and also punched a bystander who attempted to intervene. The offending culminated in an attempted robbery when the offender grabbed a handbag from one of the victims, breaking its chain.

The offender had been released on parole only seven days before this offending, having previously been sentenced for an earlier reckless wounding in company offence in 2017. He conceded at the sentencing hearing that full-time custody was appropriate.

  • What was the appropriate sentence across four counts of serious violence, applying the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999?
  • What weight should be given to the offender's guilty pleas, warranting a 25% discount?
  • How should the offender's drug addiction and deprived background affect moral culpability and sentence?
  • How should the sentence reflect the principle of totality given that three separate victims were involved?
  • Did special circumstances exist to justify a variation of the standard non-parole period ratio?
  • How should the sentence interact with the pre-existing parole term being served?

Decision

His Honour found that the two reckless wounding offences fell in the low to mid range of objective seriousness, while the assault occasioning actual bodily harm and the assault with intent to rob were at the low end. Standard non-parole periods, where applicable, were noted as having limited significance given those findings, consistent with the approach in KG [2012] NSWCCA 10.

The court accepted that the offender's drug addiction and deprived upbringing provided a modest basis for mitigation, drawing on R v Bugmy (2013) 249 CLR 517 and R v Fernando (1992) 76 A Crim R 58. However, his Honour declined to treat voluntary intoxication as substantially reducing moral culpability. The offender had deliberately consumed a combination of alcohol, cocaine, ice, Xanax and ecstasy before going out, knowing that drug use had previously contributed to his violent offending, and had been given a prior sentencing opportunity to address his addiction.

The fact that the offender was on parole at the time, released only one week before the offending, was an aggravating factor. His Honour also noted the absence of any genuine rehabilitation to date. The 25% guilty plea discount was applied, and the sentences were structured as an aggregate term to reflect totality. Given the accumulation required across three victims, the court found special circumstances justifying a longer parole period relative to the non-parole period.

The aggregate sentence commenced on 1 June 2020 to account for the period the offender had already spent in custody following arrest on 1 January 2020.

Orders Made

  • Convicted of all four offences.
  • Indicative sentences (after 25% guilty plea discount):
  • Reckless wounding in company (victim Wikaira): 27 months, non-parole period of 18 months
  • Reckless wounding in company (victim Oh): 23 months, non-parole period of 15 months
  • Assault occasioning actual bodily harm in company (victim Park): 9 months
  • Assault with intent to rob (victim Oh): 7 months
  • Aggregate sentence of 3 years imprisonment, commencing 1 June 2020.
  • Non-parole period of 2 years, expiring 31 May 2022.
  • Special circumstances found.

Key Takeaways

  • Voluntary intoxication does not automatically reduce moral culpability where the offender had prior knowledge that drug use contributed to violent behaviour and nonetheless chose to consume multiple substances before going out.
  • A deprived upbringing and drug addiction can provide a modest mitigating basis under Bugmy and Fernando, but those principles interact with, and may be limited by, the nature and circumstances of the drug use itself.
  • Where offending spans three separate victims, the principle of totality still requires some degree of accumulation in the final sentence, even when an aggregate order is imposed.
  • Release on parole only days before reoffending was treated as a significant aggravating factor, reflecting the statutory aggravation of breaching conditional liberty.
  • Standard non-parole periods carry reduced significance as yardsticks where the offending is assessed to fall at the lower end of the range of objective seriousness for the relevant offences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(3), 59(2), 94A, 115
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Imbornone v R [2017] NSWCCA 144
- KG [2012] NSWCCA 10
- R v Bugmy (2013) 249 CLR 517
- R v Fernando (1992) 76 A Crim R 58
- R v Henry [1999] NSWCCA 111
- R v Qutami (2001) 127 A Crim R 369
- R v Thomas [2007] NSWCCA 269