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Court of Criminal Appeal 18 June 2021

Nguyen v R

[2021] NSWCCA 118

Fraud & dishonestyTheft & propertyDomestic & family violence
CRIMINAL LAW SENTENCING FINDING OF SPECIAL CIRCUMSTANCES SENTENCING RATIO DISCRETION OF SENTENCING JUDGE SENTENCING

Citation: Nguyen v R [2021] NSWCCA 118
Court: Court of Criminal Appeal, New South Wales
Date: 18 June 2021
Judge(s): Basten JA, Walton J, Button J (all in agreement)

Background

The applicant pleaded guilty in the Local Court to three principal offences: aggravated entry with intent to steal (knowing a person was present), stealing property from a dwelling house, and intimidation under domestic violence legislation. Two further offences (property damage and contravention of an apprehended violence order) were placed on a Form 1, and two counts of dishonestly obtaining a financial advantage by deception were included on a s 166 Certificate.

The offences arose from a pattern of conduct against the applicant's former partner in August and September 2019. The conduct included breaking into her home in the early hours of the morning while she was at hospital giving birth, stealing her laptop, sending threatening messages, and later using her stolen laptop to fraudulently lodge tax returns in her name and redirect her tax refunds into his own account.

On 24 July 2020, the applicant was sentenced in the Sydney District Court by Judge Abadee to an aggregate sentence of seven years' imprisonment with a non-parole period of four years and eleven months. The sentence was backdated to 4 November 2019. The applicant sought leave to appeal to the Court of Criminal Appeal.

  • Whether the sentencing judge failed to give proper practical effect to a finding of special circumstances (which ordinarily allows an extended parole period, altering the standard ratio between the non-parole period and the head sentence)
  • Whether the sentencing judge erred by referring to an incorrect offence when addressing the second matter on the Form 1
  • Whether the aggregate sentence was manifestly excessive

Decision

Ground 1: Special circumstances. The Court rejected the argument that the sentencing judge had failed to give proper practical effect to the finding of special circumstances. The sentencing judge had already applied an adjustment to the standard sentencing ratio; the degree of adjustment remained a matter of judicial discretion. The Court found no error in the approach taken.

Ground 2: Incorrect Form 1 reference. The sentencing judge had incorrectly identified the provision under which one of the Form 1 offences (contravene AVO) was charged. The Court acknowledged this as an error, but characterised it as a slip rather than a material error that infected the sentencing exercise. The contravene AVO offence was properly included on the Form 1 and was taken into account when increasing the penalty for the principal offence (sequence 6). No re-sentencing was warranted.

Ground 3: Manifest excess. The applicant argued that statistical sentencing data from the Judicial Information Research System (JIRS) supported a finding of manifest excess. The Court rejected this contention. It accepted the Crown's submission that the JIRS statistics did not adequately account for the aggregate nature of the sentence, which encompassed five principal offences and two Form 1 matters of varying seriousness involving multiple complainants. The sentencing judge had been explicit about the need to avoid double counting, and the Court found no basis to disturb the exercise of discretion.

The Court granted leave to appeal, principally in light of the Form 1 error raised in ground 2, but dismissed the appeal in full.

Orders Made

  • Leave to appeal is granted
  • The appeal is dismissed

Key Takeaways

  • A finding of special circumstances does not mandate a particular degree of adjustment to the sentencing ratio; the extent of any adjustment remains within the sentencing judge's discretion, provided the finding is given some practical effect.
  • Where a sentencing judge makes an incorrect statutory reference to a Form 1 offence, the Court of Criminal Appeal will not automatically treat this as a vitiating error. The relevant question is whether the error materially affected the sentencing exercise.
  • Aggregate sentences involving multiple offences of different types and varying gravity are not straightforwardly comparable to JIRS statistics, which may not capture the full complexity of the offending.
  • In dismissing the appeal, the Court affirmed that an explicit acknowledgment by a sentencing judge of the need to avoid double counting is a relevant consideration when assessing whether the resulting sentence is infected by error.
  • Sentencing for Form 1 offences involves increasing the penalty for the principal offence to reflect additional criminality; the Court confirmed this approach was correctly applied here in relation to the property damage and AVO contravention matters.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111, 148, 192E
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 166
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- House v The King (1936) 55 CLR 499
- Markarian v The Queen (2005) 228 CLR 357
- R v McNaughton (2006) 66 NSWLR 566
- R v Simpson (2001) 53 NSWLR 704
- R v Ponfield (1999) 48 NSWLR 327
- Obeid v R (2017) 96 NSWLR 155
- Ahmad v R [2019] NSWCCA 198
- Burr v R [2020] NSWCCA 282
- JM v R (2014) 246 A Crim R 528
- R v Speechley (2012) 221 A Crim R 175
- Casey v R [2015] NSWCCA 142
- Clarke v R [2009] NSWCCA 49
- Hughes v R [2018] NSWCCA 2
- Caristo v R [2011] NSWCCA 7
- Langbein v R [2013] NSWCCA 88
- Marshall v R [2007] NSWCCA 24
- R v Cramp [2004] NSWCCA 264
- R v Fidow [2004] NSWCCA 172
- R v Sutton [2004] NSWCCA 225
- R v Woods [2019] NSWDC 401