Regina v Nguyen [2000] NSWCCA 45

New South Wales Court of Criminal Appeal

CITATION : Regina v Nguyen [2000] NSWCCA 45 FILE NUMBER(S) : CCA 60325/99 HEARING DATE(S) : 16 February 2000 JUDGMENT DATE : 16 February 2000

Regina

PARTIES : v

Minh Hieu Nguyen JUDGMENT OF : Spigelman CJ at 1; Hulme J at 23; Smart AJ at 2

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70015/95 LOWER COURT JUDICIAL McInerney AJ OFFICER :

COUNSEL : A - P Zahra C - P Berman SOLICITORS : A - Trevor Nyman & Co C - S E O'Connor CATCHWORDS : Criminal Law - sentencing - manslaughter - pre-sentence custody - special circumstances - minimum term required DECISION : Leave to appeal against sentence granted; appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60325/99 SPIGELMAN CJ HULME J SMART AJ

WEDNESDAY 16 FEBRUARY 2000 REGINA v MINH HIEU NGUYEN

JUDGMENT

1 SPIGELMAN CJ: I invite Smart AJ to deliver the first judgment. 2 SMART AJ: Minh Hieu Nguyen seeks leave to appeal against the severity of his sentence for manslaughter comprising a minimum term of three years and an additional term of one year. The judge took into account the period of pre-sentence custody of one year eleven months twenty-two days. 3 The applicant was arrested and charged on 15 June 1994 with murder. He and his co-accused were tried for murder in mid-1997. The applicant was convicted. His appeal against conviction was upheld by this court on 1 October 1998 and a new trial was ordered. 4 On 31 May 1999 the applicant was again indicted for murder. He pleaded not guilty to murder but guilty to manslaughter. The Crown accepted his plea to manslaughter in full satisfaction of the indictment. The plea was accepted on the basis of an unlawful and dangerous act, namely, the striking of the deceased by the applicant with a baseball bat around the neck and head. 5 The Crown case was that the applicant was engaged in a common criminal enterprise to assault and attack the deceased. Many of the facts were in dispute. The judge made detailed findings, all of which were open and justified on the evidence. The summary which follows is based on those findings. 6 On the evening of 28 May 1994 some hundreds of people, mostly of Vietnamese origin, attended a concert at Bankstown RSL Club. The judge accepted that this was a legitimate well-conducted evening until the series of events next mentioned occurred. 7 The deceased, a small man weighing only 37 kilos, attended with his de facto wife, two nieces and a group of friends. The applicant was present at some stage with his girlfriend and later in the company of his friends. During the concert, when dancing was being undertaken, someone in the group with which the applicant was associated approached one of the deceased's nieces, then aged fifteen, and asked her to dance, which she did. The deceased, on seeing this, told the young man not to dance with her again and this annoyed the young Vietnamese man. 8 As the concert was ending the deceased was suddenly struck by a chair by one of the audience and this caused him to fall down and bleed. The identity of that person was much in dispute. After the concert the deceased, with the assistance of some friends, entered a nearby carpark. He was attacked by a group of young men who kicked and punched him, and by the applicant, who struck him on the head with the baseball bat. There was an upheaval. Shots were fired, another person was killed, and a third person was wounded. The applicant was not associated with these latter incidents. A short time later a Suzuki Vitara motor vehicle driven by the applicant sped off and drove through a red light. 9 When first spoken to by the police on the morning of 30 May 1994 and on subsequent occasions, the applicant denied that he was present when the shooting occurred and the deceased was assaulted. The investigation and his denials continued. On 15 June 1994 he was escorted to the Bass Hill police station. He conceded that he had a dark jacket with patches. A garment of this description was worn by the attacker. The applicant continued to deny being present when the incident occurred, asserting he had left before it happened. When told by the police there were traces of blood on the driver's side door of the Suzuki vehicle, the applicant said that the man who went to the hospital hit him. He said, "I walking past and he hit me. I want to hit him back but there were too many people." 10 He asserted that he went to the carpark and that he "was looking for the man who hit me. I saw people fighting. I saw them kicking each other." He said that he went looking for something to hit the deceased with and "I found a baseball bat on grass in the street." He said that he grabbed it, went back and hit the deceased. He said, "I hit him once. I kept trying to hit him but I miss. Someone pull me off." He said that he went to the car, drove off with one of his friends, and threw the bat away. On further questioning, he conceded he had obtained the bat from the car, did not throw it away but burned it. He next took part in a record of interview in which he made certain admissions. 11 The judge determined that the applicant's evidence could not be approached "with any great degree of confidence". The judge evaluated the evidence at some length and with care. The account of events which the applicant gave to his forensic psychologist was intriguing. He endeavoured to minimise his criminality. 12 In his evidence the applicant said, "At the time I was drunk and I didn't know anything about what I was doing. I was struck, so I just wanted to get back and hit the guy back." The judge rejected that explanation. The judge said: "I do not accept for a moment that at the time he was drunk he did not know what he was doing. This was ... a very deliberate act and a determined act on his part." 13 The judge was not satisfied that the applicant was responsible for hitting the deceased on the head with a chair, although there was some evidence to that effect. The judge said: "Despite misgivings I am driven to conclude beyond reasonable doubt that I should accept with modifications the version of facts given by the prisoner. I do not accept, as I have said earlier, that he was drunk but I accept that he consumed some alcohol which may have affected him to some extent and caused him to lose his temper. Furthermore and not without some reservation, I accept that something happened to him to lose his cool and I accept for the purposes of sentence that he was struck accidentally as the fight was taking place. For some reason not satisfactorily explained he apparently lost his temper and, I would emphasise, without any real justification in the circumstances even if he was hit in the manner in which he said he was.