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District Court 30 April 2021

R v Paul Nguyen

[2021] NSWDC 356

Assault & violenceFirearms & weapons

Citation: R v Paul Nguyen [2021] NSWDC 356
Court: District Court of New South Wales
Date: 30 April 2021
Judge: M L Williams SC DCJ

Background

The offender, a 28-year-old man with a lengthy criminal history, appeared for sentencing on multiple violent offences committed across three separate incidents in late December 2019 and on New Year's Day 2020. The offences involved co-offenders and occurred shortly after the offender had been released from prison on parole, just three weeks before the first incident.

The three incidents included: being armed with intent (involving the use of metal chopsticks to cut a victim's cheek); assault occasioning actual bodily harm in company (punching a victim at an RSL Club); and reckless wounding (purchasing scissors from a convenience store and using them to stab a victim celebrating New Year's Eve, causing serious injuries including a hemothorax and laceration to a kidney).

Two co-offenders had been sentenced separately. Jayden Vu was sentenced by a magistrate, and Long Nguyen was sentenced by the same judge in December 2020. The court approached the current sentencing with parity between co-offenders as a key consideration.

  • What aggregate sentence was appropriate given the number, nature, and seriousness of the offences?
  • How should parity with co-offenders be applied where culpability was assessed as equal?
  • What weight should be given to the offender's history of drug addiction, diagnosed mental health conditions, and subjective background?
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and total sentence?
  • What discount applied to each count for the plea of guilty?

Decision

The court accepted that the offender's culpability was relevantly identical to that of his co-offenders across the relevant incidents. This equality of culpability guided the court's approach to parity, and the sentence imposed was designed to sit broadly in line with those already imposed on Jayden Vu and Long Nguyen.

Two significant aggravating factors applied: the offender was on conditional liberty (parole) at the time of all three incidents, and the reckless wounding was committed without regard for public safety, as CCTV footage showed bystanders having to move away from the attack. The offender's history of violence, stretching back to Children's Court appearances in 2011, also deprived him of leniency.

On the subjective side, the court accepted evidence from a psychiatrist that the offender suffered from stimulant use disorder, delusional disorder, and a drug-induced paranoid condition resulting from longstanding addiction. Importantly, the court found that while this did not amount to a mental illness reducing moral culpability, it meant general deterrence was of lesser significance in the sentencing exercise.

The court found special circumstances, citing the offender's relatively young age and the intensive treatment required for substance abuse and anger management. A 10% guilty plea discount applied to the armed-with-intent charge (reflecting a late plea), and 25% applied to the two remaining counts.

Orders Made

  • The offender was convicted of each offence.
  • Indicative sentence for the armed-with-intent offence (with assault occasioning actual bodily harm in company on a Form 1): 18 months, after a 10% guilty plea discount.
  • Indicative sentence for the assault occasioning actual bodily harm in company (26 December incident): 12 months, after a 25% discount.
  • Indicative sentence for the reckless wounding: 27 months, with an indicative non-parole period of 14 months, after a 25% discount.
  • Aggregate sentence of imprisonment: 3 years and 1 month, commencing 15 March 2020.
  • Non-parole period: 2 years and 1 month, expiring 14 April 2022.
  • Special circumstances found.

Key Takeaways

  • The District Court applied the parity principle to align the sentence with those of two co-offenders, having accepted that each offender bore equal culpability across the relevant incidents.
  • Being on parole at the time of offending remained a significant aggravating factor, as did a sustained history of violent offending that the court found deprived the offender of any claim to leniency.
  • A psychiatric diagnosis of stimulant use disorder and drug-induced paranoid condition, while not reducing moral culpability in the manner of a recognised mental illness, was sufficient to diminish the weight given to general deterrence in the sentencing calculus.
  • Special circumstances were established on the basis of the offender's age and the demonstrated need for extensive, structured treatment targeting substance abuse and anger, justifying a longer than usual parole period relative to the total sentence.
  • Where a co-offender's guilty plea was entered on a marginally different factual basis (knife versus metal chopsticks), the court treated the distinction as of very little significance to the objective seriousness of the offence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 3A (purposes of sentencing)
- Crimes Act 1900 (NSW), including s 35(3) (reckless wounding), s 59(2) (assault occasioning actual bodily harm in company), s 115 (being armed with intent)

Cases:
- R v Long Nguyen [2020] NSWDC 891
- Bugmy v The Queen (2013) 249 CLR 571