R v Paul Phuoc Duoc Nguyen [1999] NSWCCA 333

New South Wales Court of Criminal Appeal CITATION : R v Paul Phuoc Duoc Nguyen [1999] NSWCCA 333 revised - 26/06/2000 FILE NUMBER(S) : CCA 60644/97 HEARING DATE(S) : 21 October 1999 JUDGMENT DATE : 21 October 1999

PARTIES : Paul Phuoc Duoc Nguyen (appellant) Regina (respondent) JUDGMENT OF : Sully J at 33,35; Hulme J at 34; Hidden J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/21/0392 LOWER COURT JUDICIAL OFFICER : Johnston DCJ

COUNSEL : Appellant in Person P. Berman (Crown) SOLICITORS : Director of Public Prosecutions (Crown) CATCHWORDS : CRIMINAL LAW - Appeal against conviction - application for leave to appeal against sentence - no question of principle DECISION : Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence dismissed

IN THE COURT OF CRIMINAL APPEAL 60644/97 SULLY J HULME J HIDDEN J

Thursday, 21 October 1999 Regina v Paul Phuoc Duoc Nguyen

JUDGMENT 1 HIDDEN J: I will try and pace this so that the interpreter can interpret, as I give my reasons. 2 The appellant, Paul Phuoc Duoc Nguyen, was tried in the Parramatta District Court before his Honour Judge Johnston, sitting without a jury, upon a charge of manslaughter. He also pleaded guilty to two charges of maliciously discharging a firearm with intent to avoid lawful apprehension, and a charge of detaining for advantage, perhaps more conveniently known as kidnapping. 3 When he came for sentence, he also asked that six further charges of discharging a firearm with intent to avoid lawful apprehension be taken into account on a Form 1. All the charges arise from the same incident. His Honour found the appellant guilty of manslaughter. On that charge, taking into account the matters on the Form 1, he sentenced the appellant to penal servitude for ten years, comprising a minimum term of six years and an additional term of four years. 4 On the other charges to which he had pleaded guilty he sentenced the applicant to penal servitude for fixed terms of four years, to be served concurrently. All sentences were to date from the date of his arrest, 20 March 1996. 5 The applicant appeals against his conviction on the charge of manslaughter and seeks leave to appeal against the sentences. 6 Turning firstly to the manslaughter charge, shortly stated the facts, as his Honour found them, were these. The appellant had been in a relationship with Juliana Chan, the daughter of the deceased. A son was born of that relationship, which terminated in the early 1990s. There had been financial dealings between the appellant, on the one hand, and Juliana Chan and her brother, Andy Chan, on the other. The appellant claimed that Juliana Chan and her brother owed him a substantial amount of money. 7 On the occasion in question, 20 March 1996, the appellant went to a house at Burwood where Juliana Chan lived with her mother. Also living at the home were Andy Chan, and a sister of Andy and Juliana, Atta Chan. His Honour found that the appellant went to the home intending to confront Juliana and Andy Chan in relation to the money said to be owing. He was armed, among other things, with a rifle. He tied up the deceased, Wai Chan, and gagged her. Later, Atta Chan arrived at the house, and he also tied her up. Atta Chan observed that her mother was bound and gagged and was motionless. 8 It is unnecessary to recount in any great detail what it was Atta Chan observed, but her evidence was of considerable significance in the Crown case. She managed to escape and to alert police. 9 Later, when police arrived, there was what his Honour described as a "siege situation", and it was the events at that time which gave rise to the offences to which the appellant pleaded guilty, and the offences on the Form 1. 10 After police gained access to the house, the deceased was attended to by an ambulance officer. It was apparent that she had been dead for some hours. Dr Lawrence, forensic pathologist, later attended the premises. It was Dr Lawrence's opinion that the primary cause of the death of the deceased was asphyxiation. Although no gag was found after police and others gained access to the premises, the doctor's observations were consistent with a gag having been applied. 11 The deceased had also sustained broken ribs. That was consistent with two possible causes. The one which his Honour favoured was that the ribs were broken while the deceased was lying face down and was being bound from behind. The deceased had also sustained a perforated eardrum, and his Honour was satisfied that that was the result of a blow struck by the appellant. 12 In the light of the whole of the evidence and, in particular, the evidence of Atta Chan and Dr Lawrence, his Honour concluded that the deceased had died of asphyxia caused by the gag, and exacerbated by the fractured ribs in the course of her being bound from behind. Accordingly, he concluded that the deceased died as a result of unlawful and dangerous acts perpetrated by the appellant. 13 It is convenient at this stage to outline briefly the facts giving rise to the other charges. It is sufficient to say that there was a siege situation when police arrived but, eventually, police decided to force entry to the house. When they did so there was an exchange of gunfire. One police officer received minor wounds from shell fragments, and the appellant himself was shot in the right arm. 14 Before us the appellant has been unrepresented. He has relied on a number of documents previously filed with the Registry. I should set out what they are. There is a document dated 6 August 1998. There is a further document dated 22 January 1999, which sets out what are said to be grounds of appeal. There is yet another undated document headed "Submission to the Registrar, Court of Criminal Appeal". 15 Today the appellant supplied further documents, by way of submission, together with a number of annexures. Much of the material supplied today relates to the financial dispute between the appellant and Juliana Chan and her brother, and it is sufficient to say that that issue simply has no bearing whatsoever upon anything which his Honour had to decide or which we have to decide. 16 I believe I do the appellant's written material justice by saying that his complaints in this appeal are set out in the document of 22 January 1999, and the other material is repetitive of the matters which he has there set out. That is the document containing a number of paragraphs described as "Grounds of Appeal", and I shall refer to those paragraphs by the numbers which they bear. 17 Several of those grounds relate only to the siege and its aftermath. Paragraph 1 complains of the failure of the appellant's legal representatives at the trial to call a number of police involved in the siege and the arrest, and doctors who treated the appellant at hospital. Paragraph 2 complains of the excessive use of force by the police in the course of the arrest. Paragraph 8(b) asserts that the appellant did not himself shoot at the police, although he concedes having fired the weapon. Paragraph 8(c) complains of the violent manner of the police entry in the house. 18 As to all those matters, it is sufficient to say that they relate to the offences to which the appellant pleaded guilty. Some of them are really complaints about the police in respects which could not bear upon the appellant's guilt; and, indeed, the undated document headed Submission to the Registrar reveals that the appellant has made a complaint to the Ombudsman about the police behaviour that night. To make such a complaint is of course entirely within his right, but that is not a matter with which this Court could deal. 19 Paragraph 8(a) complains of a suggestion in the evidence that the appellant kept his small son hostage at the house. It seems that the son was at the house on the occasion but, as I understand it, there was no suggestion that the boy was being used as a hostage. Certainly there was no charge to that effect, and it is not a finding that his Honour made. That does not appear to me to be a matter of any materiality in the appeal. 20 Paragraph 7, however, is of more significance. It reads as follows: The miss translation in court: The copy of my charges given to me by solicitor differed from the copy which the judge received. Therefore when I was asked to plead on each charge, these did not correspond to my copy. During court proceedings I was not aware of this difference.