R v Nguyen [2000] NSWCCA 44

New South Wales Court of Criminal Appeal

CITATION : R v Nguyen [2000] NSWCCA 44 FILE NUMBER(S) : CCA 60637/98 HEARING DATE(S) : Friday 25 February 2000 JUDGMENT DATE : 25 February 2000

PARTIES : Regina v Kiet Huu Nguyen JUDGMENT OF : Grove J at 1, 19; Smart AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0649 LOWER COURT JUDICIAL Naughton DCJ OFFICER :

COUNSEL : P. G. Berman (Crown) S.R. Norrish QC (Appellant) SOLICITORS : S. E. O'Connor (Crown) T.A. Murphy (Appellant) CATCHWORDS : Criminal Law and Procedure - Demand Money With Menaces - Sentence - Organized Attempt at Extortion from Operators of Brothel - Group of Men Attend to Enforce Demand - Some Armed - Inferences of Knowledge Available to Sentencing Judge DECISION : Leave to Appeal Refused.

IN THE COURT OF CRIMINAL APPEAL

60637/98

GROVE J SMART AJ

Friday 25 February 2000

REGINA v KIET HUU NGUYEN

JUDGMENT

1 GROVE J: I will ask Smart AJ to give the first judgment. 2 SMART AJ: Kiet Huu Nguyen seeks leave to appeal against the severity of a sentence comprising a minimum term of three years six months and an additional term of one year two months for the offence of demanding money with menaces. The applicant was convicted after a six day trial. 3 The judge found the following facts: "At about 9pm on Wednesday 19 February 1997 a receptionist at 'The Wild Orchid' Private Hotel at 429A Pitt Street, Sydney received a telephone call from Nhan Thanh Troung. The receptionist did not know that man. He introduced himself to the receptionist as "Tony". Troung said that he wanted protection money of $500 a week and that he wanted to see the person in charge of 'The Wild Orchid' at 7pm on Friday 21 February 1997. The receptionist told the manager who in turn contacted the police. On Friday afternoon 21 February 1997 undercover police officers set up a video camera in the office of "The Wild Orchid" Private Hotel. Just after 7.15pm undercover police officers posing respectively as the manager of the private hotel and as a bartender saw Minh Han Ly and the prisoner Karauwan enter the reception/bar/lounge room next to the office. Each of them was armed with a loaded .22 calibre semi-automatic pistol. Neither of them had a licence authorising possession of those weapons. The weapons were not produced and were not visible. A short time after the entry of Ly and Karauwan, Troung and Nguyen entered the premises. They were shown into the office by a staff member of the premises. The office was immediately adjacent to the reception/bar/lounge room. The undercover police officer who was posing as the manager said to Troung, 'Who are you?' He said, "My name is Tony." The officer said to Nguyen, 'Who are you?' He said, "I'm Kiet." Troung then said to the officer, 'You know why we are here.' The officer said, "No, why are you here?" Troung said, 'Our brothers were here a couple of nights ago.' The officer said to Nguyen, "What's he talking about?" Nguyen said, 'Our brothers came here two nights ago and asked for money for protection.' The officer said, "What happens if we don't pay?" Troung said, 'If you don't pay tonight you have trouble, but if you pay I guarantee you are safe.' The officer said, "Have you got a phone number I can contact you on?" Troung and Nguyen then engaged in conversation in their own language. Nguyen then said to the officer, 'No phone. We'll be back later, about 9 o'clock.' The officer said, "What's wrong?" Troung said, "We come back 9 o'clock." The officer said, 'I don't want any trouble.' Troung said, "If you pay money, no trouble." Nguyen then nodded his head in agreement. Troung and Nguyen then walked out of the premises. They were followed by Ly and Karauwan. All four were then arrested by police outside the premises. At least three of the four arrested men were part of a joint criminal enterprise to demand with menaces money from the private hotel with intent to steal it. Those three were Troung, Nguyen and Karauwan. Karauwan's possession of a .22 calibre semi-automatic pistol was, to the knowledge of Troung and Nguyen, intended to be used for the purpose of enforcing the demand, if necessary, and/or for self safety purposes if the men got into trouble in attempting to carry out their joint enterprise."