New South Wales Court of Criminal Appeal CITATION : R v Nguyen & Anor [2002] NSWCCA 507 FILE NUMBER(S) : CCA 60282/02; 60345/02 HEARING DATE(S) : 13 December 2002 JUDGMENT DATE : 19 December 2002 Regina PARTIES : Dai Phuc Nguyen Thien Tho Nguyen JUDGMENT OF : Sperling J at 1; Buddin J at 41 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/12/3443 02/21/3002 LOWER COURT JUDICIAL Morgan DCJ OFFICER : Mr W Dawe QC for the Crown COUNSEL : Mr P Strickland for the Applicant in 60282/02 Mr H Dhanji for the Applicant in 60345/02 S E O'Connor for the Director of Public Prosecutions SOLICITORS : D J Humphreys for the Applicant in 60282/02 Voros Lawyers for the Applicant in 60345/02 CATCHWORDS : Criminal Law - sentencing - no question of principle LEGISLATION CITED : Crimes Act 1900, s95, s112 AEM [2002] NSWCCA 58 Blackman v Walters [2001] NSWCCA 121 DAR (Unreported, NSWCCA 1 October 1997 Hammoud (2000) 118 A Crim R 66 CASES CITED: Hearne (2001) 124 A Crim R 451 Li (Unreported, NSWCCA 9 July 1997) Mazzilli [2001] NSWCCA 117 Nichols (1991) 57 A Crim R 391 Pearce (1998) 194 CLR 610 Simpson (2001) 52 NSWLR 704 DECISION : Thien-Tho Nguyen: (1) Grant application for leave to appeal against sentence; (2) Appeal dismissed; Dai Phuc Nguyen: (1) Grant application for leave to appeal against sentence; (2) Appeal allowed; (3) Sentence set aside; (4) Re-sentence the applicant to a term of imprisonment of four years commencing on 22 March 2002, with a non-parole period of two years expiring on 21 March 2004, on which date the applicant is to be released; (5) Order that the sentences be served in a juvenile justice centre. - 14 -IN THE COURT OF CRIMINAL APPEAL 60282/02 60345/02 Sperling J Buddin J Thursday, 19 December 2002 R v Thien Tho Nguyen R v Dai Phuc Nguyen Judgment 1 Sperling J: Thien Tho Nguyen 2 In Simpson (2001) 52 NSWLR 704, Spigelman CJ said, at 720-1: Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: "If it is of the opinion that error has occurred in the sentencing process". That is not the statutory formulation. By s6(3) this Court must form a positive opinion that "some other sentence … is warranted in law and should have been passed". Unless such an opinion is formed, the essential pre-condition for the exercise of the power to "quash the sentence and pass such other sentence in substitution therefor" is not satisfied. 3 I am not satisfied that a lesser sentence was warranted in this case and should have been passed. 4 I find myself so much in agreement with the written submissions provided by the Crown, which are in that vein, that I can best convey my view of the case by substantially adopting what is said there. This judgment accordingly reproduces much of what appears in the Crown's written submissions. 5 The applicant and his co-offender Dai Phuc Nguyen were sentenced by Morgan DCJ in the District Court at Campbelltown on 26 April 2002. The applicant had entered a plea of guilty to a charge, pursuant to s112(2) of the Crimes Act, of aggravated break, enter and commit a serious indictable offence, namely, larceny in circumstances of aggravation. That offence carries a maximum penalty of 20 years imprisonment. He also pleaded guilty to one count of aggravated robbery pursuant to s95(1) of the Act. That offence also carries a maximum penalty of 20 years imprisonment. The applicant had been committed for sentence from the Campbelltown Local Court on 17 December 2001. 6 Her Honour sentenced the applicant in relation to the s112(2) offence to a term of imprisonment for seven years with a non parole period of four years to date from 9 May 2001, the day he went into custody. The non parole period was set to expire on 8 May 2005. On count 2, aggravated robbery, her Honour imposed a sentence of a fixed term of imprisonment for two years to date from the 9 May 2001 which was to be served concurrently with the sentence on the first charge. Her Honour declined to set a non parole period because of the sentence she imposed in relation to the first count. 7 The applicant seeks leave to appeal against the alleged severity of this sentence upon the following grounds: Ground 1: The sentence imposed of seven years with a non parole period of four years was unduly harsh and severe. Ground 2: The sentencing judge erred in imposing a sentence of two years for the offence of aggravated robbery. Ground 3: The sentencing judge erred in failing to give weight or sufficient weight to the lack of planning. Ground 4: The sentencing judge erred in failing to give weight or sufficient weight to the subjective matters. 8 Perusal of her Honour's remarks on sentence discloses a very carefully reasoned judgment. Her Honour recounted the facts concerning the offences to which the applicant pleaded (ROS 1-5). Set out hereunder is that portion of her Honour's remarks on sentence: The date of the commission of these offences was 9 May 2001. At the time of the offences Thien Tho Nguyen was 18 years of age being born on 1 April 1983. The offender Dai Nguyen was 16 and a half at the time of the offence, being born on 10 November 1984. Neither offender has any previous criminal history. The circumstances of the commission of these offences are that at about 7:30 or thereabouts on the evening of Wednesday 9 May 2001 Mr Wladis Plaza the victim of these offences was seated in his downstairs lounge room in his home in Fairfield Road Cabramatta. He was watching television when he became aware of two people entering through the door from his dining room, both were wearing balaclavas and carrying machetes. They screamed at Mr Plaza to lay down on the floor. Mr Plaza stood up from his seat and picked up a pot plant and threw it at the two men, this did not deter them and they continued to yell at Mr Plaza to lay down on the floor. These two men were the offenders. At the time they appeared in the lounge room the only other person in the house apart from Mr Plaza was his 19 -year-old daughter [this would appear to be an error because in her statement dated 9 May 2001 Nicole describes herself as being 25 years old] Nicole who was in her bedroom upstairs. The shouting alerted Miss Plaza and she crept down the stairs past the doorway to the lounge room, as she did she could see her father standing with his back against a wall with his hands raised into the air just a little above his head, he was facing towards her. She also saw two men in balaclavas facing towards her father and one of those men was holding a machete type knife above his head like a sword. Miss Plaza escaped from the house through the front door and ran to the neighbours across the road where she dialled 000. Meanwhile in the house Mr Plaza was being threatened by the two masked men, the offenders, who were demanding money from him. Mr Plaza's hands were taped with black masking tape which was produced from a bag taken into the premises by one of the offenders. Mr Plaza took them to the kitchen where his wallet was and two $50 notes were removed from it by one of the offenders. A Westpac and ANZ bank card was also removed. At the time the offenders noticed a shooter's license in Mr Plaza's wallet and demanded to know where the guns were. Mr Plaza took the two men out to the garage where a number of rifles were in rifle cases on top of a cupboard. The offenders took possession of those rifle cases and also wanted the bolts, however Mr Plaza was able to distract them from further search of the garage and the three of them went back into the house. Mr Plaza was then taken upstairs by the two men and into the master bedroom where the offenders continued to demanded money and jewellery. Throughout all this time the two men had possession of the machetes and at times Mr Plaza would be threatened that if he did not cooperate they would "Chop him". The two men ransacked the bedrooms upstairs and took possession of a lighter found in Mr Plaza's room. One of the offenders kept demanding the pin number from Mr Plaza and eventually he told them what it was. The man then said he would go to Cabramatta and withdraw money from the account and leave the other man with him. He also threatened to chop Mr Plaza if he had lied about the pin number. Before that man left the house the black tape was again produced from the bag and Mr Plaza's mouth was taped as well as his legs and his already taped hands were taped to the bed frame. The men left the room. The tape over Mr Plaza's mouth did not stick because of his moustache and he was then able to bite the tape off his hands. Whilst he was doing this one of the men returned to the bedroom still holding a machete and he used the machete to cut the tape around Mr Plaza's legs. He then told Mr Plaza to accompany him downstairs and at the time he was holding the machete up to Mr Plaza's throat. Mr Plaza refused to go anywhere until he put the machete down and the man then held it by his side. The two of them walked down the stairs and at the time Mr Plaza could see that there were police officers outside. As a result of the call made by Miss Plaza to 000, police had attended the house and indeed had surrounded it. About 8:30 pm they saw a man walk out the front door of those premises carrying a machete, a dark-coloured balaclava, a backpack and the rifle bag. Police drew their pistols and moved towards him and he was told to lay down on the grass nature strip. That man was the offender Thien Tho Nguyen. When he was later searched, police found a gold coloured Zippo style lighter and an ANZ bank access card in the name of Wladis Plaza. At the time of the arrest police also noticed that the offender was wearing disposable rubber gloves on each hand. Following Thien Tho Nguyen's apprehension police called out that the house was surrounded and to "Come out with your hands in the air". At that time one of the police officers was standing near the front door of the house and he could see reflected in a hall mirror two people walking down the stairwell, one was wearing a balaclava and carrying a machete and the other was Mr Plaza. The man in the balaclava stopped at the front door and the police called on him to drop his machete, he asked where his friend was and when told he had been arrested after some hesitation placed the machete on the floor. The police then moved in and arrested him. That person was the offender Dai Nguyen." 9 Her Honour then addressed the material that had been presented to her on behalf of the applicant (ROS 5-12). Her Honour referred to the lengthy ERISP which the applicant took part in with police. Her Honour noted that the applicant made full admissions as to his involvement in the matter. She referred to the applicant's version of how the place was selected for the crime, and how the co-offenders returned to the applicant's house where the applicant picked up a black bag containing tape which was to be used to tie people up and both of them armed themselves with machetes to scare people in the house. She also set out in that interview how the applicant took with him a pair of gloves and that each wore balaclavas so they would not be recognised. Her Honour then referred at length to the pre-sentence report prepared by the Probation and Parole officer of the Liverpool District Office. Her Honour also referred to the applicant's claim that he was addicted to gambling and allegedly had a substantial debt of several thousand dollars to an associate at one of the clubs he said he frequented. Apparently, the claim of that debt was not substantiated. Her Honour referred to the report of Mr Terry Smith, clinical psychologist. Her Honour also referred to a letter written by the applicant and tendered on his behalf. Her Honour noted that whilst in custody the applicant had undertaken a number of courses of education. 10 Her Honour then considered the very serious nature of the offences and noted the premeditated invasion of a person's home at night whilst wearing balaclavas and armed, knowing that someone was in the house. Her Honour noted that the victims must have been truly terrified during the three-quarters of an hour that the offenders were in the house. Mr Plaza was subjected to continued threats of violence. His house was ransacked and he was bound hand and foot and ultimately bound to his bed. Her Honour went on to say: Although the offenders may now protest their stupidity at their actions and express remorse and contrition for the offence it remains that the psychological damage to Mr Plaza and his family will be likely to remain with them for the rest of their lives. It is my view that sentences must be imposed not only to punish the offenders but to also send a message to those who might be tempted to become involved in home invasion offences. That message will be that they will receive severe and condign punishment from the Court for such type of offences. 11 Her Honour referred to what was said by Abadee J in Li (Unreported, NSWCCA 9 July 1997). The public must be protected and the community standards reflected in the penalty imposed by Parliament in this type of offence, and in the circumstances with which the court is presently concerned and this must be reflected in the appropriate sentence. 12 It was Parliament's concern at the rise in the incidence of home invasion type offences which bought about the amendments to the Crimes Act in 1994 and 1999. 13 Her Honour accepted that the applicant played the lead role in the offence, although her Honour was of the opinion that there was not very much difference between the two offenders in the criminality exhibited on that occasion. 14 Her Honour said (ROS 20): Dealing with Thien Nguyen, in deciding the appropriate sentence to impose upon the offender Thien Tho Nguyen I take into account his early plea of guilty which evidences a willingness to facilitate the course of justice. I have regard to the guideline judgment of Thompson and Houlton and I consider that a discount in the order of 25% would be appropriate in this case. I also have regard to his expressions of remorse and contrition, and the steps he has taken in his own rehabilitation as evidenced, by the reports from Mr Smith and his conduct whilst he has been in custody. Having regard to the recommendations in Mr Smith's report I consider that the offender would be well served by receiving extensive counselling, and it would be appropriate that he receive extended supervision upon his release from custody. I also have regard to his age and that this is his first custodial sentence. I accordingly find special circumstances in his case. Having regard to the principles enunciated in Pearce's case I consider that the appropriate sentence to impose upon a charge under section 112 (2) would be one of seven years, and the sentence to be imposed on the second charge of robbery would be one of two years. I consider in all of the circumstances of this case that it would be appropriate for those sentences to be served concurrently. 15 Her Honour then imposed the sentences the subject of this application. Although her Honour referred specifically to authorities concerned with the interrelationship of general deterrence and the youth of an offender in her judgment relating to the sentence she was imposing on the applicant's co-offender, it is apparent that these principles were well to the fore in her Honour's mind at the time of imposing sentence upon the applicant. Her Honour considered the following authorities. AEM [2002] NSWCCA 58, where it was said It is well accepted that in the case of youth general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment and rehabilitation. Her Honour also referred to the decision of this Court in DAR (Unreported, NSWCCA 1 October 1997) and Mazzilli [2001] NSWCCA 117, and then concluded: However important that principle is it cannot defeat the primary purpose of punishment nor in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society. Her Honour then referred to what was said by Lee AJ in Nichols (1991) 57 A Crim R 391. Her Honour said, Lee A.J. commented on this in Nichols at page 395 and said True it is however that the courts consistently point out the need to give young offenders a chance and to refrain from sending them to gaol or dealing heavily with them if that course can be avoided. ... However, there is point at which the seriousness of the crime committed by a man of 19, even though a young man, is of such a nature, is so great, that that principle must be in the public interest, give way. In the case of Pham (1991) 55 A Crim R 128, which was a case involving a home invasion by number of young men, Lee C.J. at C. L. said at 135 It is true the Courts must refrain from sending young persons to prison unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind, otherwise the protective aspect of the criminal courts' function will cease to operate. In short deterrence and retribution do not cease to be significant merely because persons in their late teens are the person committing grave crimes, particularly crimes involving physical violence to persons in their own home. 16 Her Honour was referred to the decision of this Court in Blackman v Walters [2001] NSWCCA 121 and at page 24 distinguished that case from the present. I agree with her Honour's basis for distinguishing that decision. 17 Her Honour had regard to the offender's age which was 18 at the time of the commission of these offences. Her Honour noted that he was a person without prior criminal convictions. 18 Her Honour referred to the principles of sentencing which related to this particular matter. 19 Both offences were aggravated offences. The circumstances constituting aggravation in relation to the s112(2) offence were that the applicant was armed with an offensive weapon and was in company. The circumstance constituting aggravation in relation to the second offence was depriving Mr Plaza of his liberty by holding him against his will. So each of the offences included an element different from and additional to the elements in the other. Accordingly, the applicant was properly charged with the two offences. However, they were part of the same episode and did not warrant the same punishment as would have been appropriate had they been committed on separate occasions. 20 There was error in the way the sentences imposed were structured. Her Honour took into account the criminal conduct involved in the whole episode when fixing a sentence for the s112(2) offence. That is apparent from the sentence for aggravated robbery being made wholly concurrent. This approach was contrary to Pearce (1998) 194 CLR 610 at [45-48], as explained by Simpson J in Hammoud (2000) 118 A Crim R 66 at [7-10]. A sentence should have been determined for each offence separately, being an appropriate sentence for each offence in isolation. The principle of totality should then have been implemented by the degree of cumulation or concurrence introduced as between the sentences. In this case, the sentence for the s112(2) offence would have been less than that imposed and the two sentences would, I expect, have overlapped. I do not doubt, however, that if this had been done the overall effective sentence would have been no different from the overall effective sentence which was imposed. Accordingly, notwithstanding the error, no prejudice has been suffered by the applicant in consequence. 21 I return then to what was said in Simpson (see earlier). An appeal against sentence is not automatically allowed for error. If the appellate court is not of the opinion that a less severe effective sentence was warranted and should have been passed, the appeal must be dismissed. 22 This was a very bad crime. It was planned. It was in company. There was the threat of violence with machetes. The victim was held against his will. He was bound, gagged and terrorised. His victim's impact statement shows that the effect of the experience has been serious and lasting. Mr Plaza's daughter was also, no doubt, put in fear, although she managed to escape undetected. 23 Having regard to the objective seriousness of the applicant's conduct, I would not re-sentence the applicant to an effective sentence for both offences that was any less severe than the effective sentence imposed below. 24 I would, accordingly, grant leave to appeal and dismiss the appeal. Dai Phuc Nguyen 25 The applicant, Dai Phuc Nguyen, was sentenced on 26 April 2002, on the same occasion as his co-offender Thien Tho Nguyen. Morgan DCJ's remarks on sentence of that date relate to both offenders. The objective circumstances of the case were summarised by her Honour in a way that related to both offenders (see above). 26 The present applicant was charged with a single count, pursuant to s112(2) of the Crimes Act 1900, of aggravated break, enter and commit a serious indictable offence, namely, larceny in circumstances of aggravation (maximum penalty, 20 years imprisonment). As in the case of his co-offender, the present applicant pleaded guilty at the earliest possible time. 27 Her Honour sentenced the present applicant to a term of imprisonment for six years with a non-parole period of three years, the sentence to be served in a juvenile justice centre. 28 This appellant also seeks leave to appeal against the severity of sentence. The grounds of appeal are specified as failing to give sufficient weight to the applicant's youth and giving too much emphasis to general deterrence; and that the sentence was manifestly excessive. 29 The present applicant was born on 10 November 1984. He was 16 and a half years old at the time of the offence. His co-offender had turned 18 at the time of the offence. The age difference between them was one year and seven months. 30 Concerning the roles of the two offenders, her Honour said (ROS 19): I do not think that there is very much difference between the two offenders in the criminality exhibited that night, however Mr Plaza stated that the offender wearing the surgical gloves and who demanded jewellery, money and his pin number appeared to be in charge. The offender to whom he was referring was Thien Tho Nguyen. That evidence would appear to support what Dai Nguyen told Mr Champion which was he had played a secondary role in the offence. 31 In my view, this passage does not sufficiently acknowledge the difference between the roles of the two offenders in the episode. The applicant's co-offender drove the car to the area where the crime was committed and where the victim's house was cased. He then drove the car to his own home where tape, machetes and balaclavas were placed in a bag. He drove the car back to the victim's house. The following is an extract from Mr Plaza's record of interview. (It was the applicant's co-offender who was wearing gloves.) The bloke without the surgical gloves appeared to be younger than the fellow with the surgical gloves on. The one with the surgical gloves was the one that seems to be in charge, the one that kept asking me the pin number, where the jewellery is, where the money is, where, where anything is, where everything is, he's the one that kept saying where's this, where's that, where's your pistols, where's your guns he was the one that kept saying it the young one, the other fellow I didn't know he was the younger one at this stage, the other fellow just sort of stood there and he kept telling, get him lay down lay down he didn't say too much. It was the co-offender who took money and bank cards from Mr Plaza's wallet and who was later found in possession of one of the bank cards and a lighter taken from Mr Plaza's bedroom cupboard. It was the co-offender who threatened to "chop" Mr Plaza if he did not co-operate with him. It was also the co-offender who persistently demanded Mr Plaza's pin number and again threatened to "chop" him if he lied about it. The present applicant was in another room when those particular demands and threats were made. 32 It further appears that the present applicant demonstrated some compassion towards the victim. The following is an extract from what Mr Plaza told the police: The other fellow when I told him I had a heart problem, the one with the surgical gloves didn't bother too much, the other bloke said 'what's the matter?' so I showed him me heart thing. I said look I am going to bloody have a heart attack here this is bullshit. I said I need a drink I need a drink. 'What do you want to drink?' he said 'what do you want to drink?' So he went to the fridge and got me the drink and that. 33 On the other hand, it is to be acknowledged that both offenders were active in taping Mr Plaza's hands and taping him to the bed frame. It is also to be acknowledged that, when challenged by the police to give himself up, the present applicant led Mr Plaza outside with a machete held to Mr Plaza's throat, dropping the machete only when twice ordered to do so by the police. 34 Her Honour was aware of the importance of taking account of the applicant's youth. She said (at ROS 24-25): In deciding the appropriate sentence I do of course have regard to the offender's age, being only 16 and a half at the time of the commission of this very serious offence. She carefully reviewed the law on that topic. 35 The authorities include Hearne (2001) 124 A Crim R 451 where the following was said, at [25]: However it is, we think, appropriate to look beyond the simple difference in facts and to address the principle which is involved. It lies in at least part of the rationale for making any allowance for youth, i.e. the immaturity which is usually involved. Where that immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years. 36 There was evidence before her Honour that the applicant's immaturity had contributed to his involvement in the offence. The psychologist, Dr Champion, emphasised that the applicant was immature and lacked sophistication. The applicant told Mr Champion that he trailed the co-offender about in the house, following his directions. That is confirmed by Mr Plaza, as I have mentioned. It was only when the applicant's co-offender had left the applicant alone in the house with Mr Plaza and after the applicant had been challenged by the police to give himself up that the applicant engaged in threatening behaviour, holding a machete to Mr Plaza's throat. That was an unplanned act of desperation, serious though it was. 37 The evidence strongly indicates that the applicant's co-offender had the dominant role in the episode and that the applicant was very much under his influence. 38 The remarks on sentence in this case are a model of care and clarity. However, I am of the opinion that the significance of the applicant's youth and of his lesser role in the episode were not sufficiently taken into account by her Honour. 39 I would set aside the sentence imposed. I would find special circumstances by reason of the applicant's youth and this being his first time in custody. I would re-sentence the applicant to a term of imprisonment of four years commencing on 22 March 2002 with a non-parole period of two years expiring on 21 March 2004, on which date the applicant is to be released, the sentence to be served in a juvenile justice centre. Orders 40 I propose the following orders: Thien Tho Nguyen (1) Grant application for leave to appeal against sentence. (2) Appeal dismissed. Dai Phuc Nguyen (1) Grant application for leave to appeal against sentence. (2) Appeal allowed. (3) Sentence set aside. (4) Re-sentence the applicant to a term of imprisonment of four years commencing on 22 March 2002, with a non-parole period of two years expiring on 21 March 2004, on which date the applicant is to be released. (5) Order that the sentence be served in a juvenile justice centre. 41 Buddin J: I agree with Sperling J. -o0o- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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