Nguyen v R

Nguyen v R - [2019] NSWCCA 87 - NSWCCA 2019 case summary — Zoe

[5]

Circumstances of the offending

The circumstances of the offending are not in dispute. The following summary is taken from his Honour's findings on sentence, consistent with the jury's verdicts of guilt: R v Isaacs (1997) 41 NSWLR 374 at 377-378; R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [24], [27]; Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [13]-[14].
The applicant and the victim had been married for around 20 years when the offences occurred. They have three children. When the offences occurred, the applicant and the victim had separated but remained living in the same house with separate bedrooms.
On 10 January 2015, the applicant arranged for their children to go to his sister's house. He also arranged for the victim to have some time off work. He said that they needed to spend time together. The victim dropped the children off at the applicant's sister's home. Upon her return home, the applicant dragged the victim into his bedroom. He bound her feet and hands with duct tape and then tied them to either ends of his bed with rope. Her hands were tied so tightly that they were in enormous pain and turned a bluish colour.
After tying her up, he demanded to know with whom she had been sleeping. The victim told him that she had not been sleeping with anyone. The applicant brought a kettle full of boiled water into the room. He asked her again with whom had she been sleeping. She said she had not slept with anyone. The applicant poured the boiling water from the kettle over her bare chest (having already removed her top). This caused the victim enormous pain and she was screaming.
He told her she had to tell him or he would pour more hot water on her. He poured some over her thigh and over her lower back. He then used a heated metal implement to burn her on her right breast. This was very painful and the victim screamed. She then told him she would tell him everything. She made up a story that she had been sleeping with a man whom she knew from work. This was not true; she only told him this so that he would stop hurting her.
The applicant took out his phone to record her answers to his questions. However, she was screaming in pain, which he did not like. He therefore liberated her hands and feet so he could record her a second time, without the screaming.
After making the second recording, the applicant left the room and could be heard speaking on the phone whilst crying. The Crown, in its submissions, treated the moment the applicant left the room as the end of the detention, the subject of count 1. The defence submissions accepted that at this point the victim was "in one sense free to go" but that, realistically, there was an additional period of time where the victim was concerned for her continued safety, and the safety of others. His Honour did not make any specific finding regarding the length of the detention.
The victim stayed in the applicant's bedroom until she fell asleep as she was too scared to go out.
The next morning, 11 January 2015, the victim briefly escaped to the applicant's sister's house while the applicant slept. While she was there, the applicant called her. His sister answered the phone using the speaker phone facility. The applicant screamed at the victim that she had to be home in 10 minutes or otherwise he would hurt her mother and sister. This conduct was the subject of count 2.
The victim asked the applicant's sister to drive her home, which she did. At first, the applicant became a lot calmer. They watched television together during the day. However, during the evening, having told the victim she must lie with him in his bed, the applicant started asking the victim again with whom was she sleeping. The victim became scared and rose to leave the room. The applicant pulled her back, the victim was pulling in the other direction and the applicant pushed her to the floor, hurting her back. This conduct was the subject of count 3.
After falling to the floor, the victim pretended to be more gravely injured than she in fact was in order to convince the applicant to call an ambulance for her. He eventually did this. He told her that if anyone were to ask how she had injured herself, she was to say that she had slipped while cooking hot soup. This is the story she gave the ambulance officers who attended at about 5.27am on 12 January 2015.
The ambulance officers noticed the burn to her chest and administered morphine to the victim. On admission to Liverpool Hospital on 12 January 2015, the victim was found to have suffered the following injuries:

soft tissue injury to lumbar spine with associated tenderness (count 3 injury);
a superficial partial thickness burn to the chest (count 1 injury). At trial, the treating doctor, Dr Peter Maitz, gave evidence that the consequence of this injury is that the epidermis is lost and the dermis is exposed. The burn will heal by itself;
superficial partial thickness burns to the lower back (count 1 injury);
a partial thickness burn to the right breast which was rectangular in shape with sharp borders. This was described in evidence as a "contact burn", being contact with an item heated to a temperature higher than 50 degrees celsius (count 1 injury). The treating doctor was of the opinion that this injury would cause scarring.

[6]

Subjective matters

The applicant was 41 years of age at the time of the offences, and is now 46. The applicant did not give evidence either at trial or on sentence. The material before the Judge included a report from a forensic psychologist, Mr Jason Borkowski, and two references, one from the principal of a school in Vietnam concerning monetary assistance provided by the applicant and the other from a general practitioner who had known the applicant in his capacity as the applicant's family doctor.
The psychologist's report noted the applicant's family history: he was born in Vietnam and came to Australia in 1989 at the age of 16. He described having a difficult upbringing, a life of poverty in Vietnam, and no real or ongoing relationship with his father, who was absent during his childhood in Vietnam and ultimately separated from his mother shortly after his family came to Australia thereafter ceasing contact with the applicant.
The applicant commenced his relationship with the victim when he was in Year 11 at school. In 1993 they commenced living together; they had three children. He told Mr Borkowski that his wife was unfaithful in 1997 and in 2008. The victim provided a statement denying this allegation and asserted that she had never been unfaithful to the applicant.
After leaving school, the applicant obtained qualifications as a motor mechanic and subsequently commenced a transport business which involved the acquisition of trucks and a number of employees. He stated that he was diagnosed with diabetes in 2009, and his health declined and he became impotent and sought medication to assist with erectile dysfunction.
Under the heading "Mental health history", Mr Borkowski recorded: Mr Nguyen described extended periods of stress, anxiety and depressed moods for over 10 years, which he attributed to trying to maintain all of his business and investment commitments. However, he said he never had time to seek assistance from any mental health professionals. Mr Nguyen did not indicate any previous diagnoses of mental health conditions. Mr Nguyen stated he has applied to see mental health services whilst in custody; however he has not yet been in contact with the services. Mr Nguyen reported experiencing suicidal ideation since the time of the offence, and he stated he attempted to kill himself by backing his head into the wall at the time of the offence. He said he also attempted suicide when first in custody. He denied any recent or current suicidal ideations.
The applicant told Mr Borkowski that in 2014 he was told that crystal methamphetamine would assist his sexual dysfunction, he tried it and found "ice" to be beneficial to increasing his sexual libido and performance. He said he smoked ice for several months before he commenced intravenous use. He stated that he used ice on most weekends from the time that he commenced in 2014 through to when he was placed in custody in January 2015. He said he was under the influence of ice at the time of the offending. In particular, he stated he had smoked ice the day before the offence and had injected ice on the day of the offence.
The applicant also told Mr Borkowski that he had formed a relationship with another woman at the time of the deterioration of the relationship with his wife.
Mr Borkowski expressed the following opinion: It is likely that [the applicant's] behaviours at the time of the offences was a cumulative manifestation of his lack of effective coping skills to manage his negative psychological and affective state, maladaptive coping strategies, and his illicit substance use. All those presenting factors appear to have resulted in poor judgment, irrational decision making, and lack of impulse control, possible increase in paranoia, and a deficit in skills to manage anger, stress and anxiety.
The Judge found: There was nothing uncovered in the investigation that definitely points to the use of methylamphetamine, although one might infer, as a possibility at least, that his behaviour was perhaps influenced by the ingestion of crystal methamphetamine because what he imposed upon this unfortunate victim is consistent with somebody out of control. There were devices consistent with the injection of drugs found at the premises.
With respect to the psychological report, the Judge observed that: … there is no part of the report which acknowledges the offences or provides any insight into why he engaged upon behaviour as he did. The Court is left with the task of making findings of fact with regard to the offender and the reasons why he did what he did.
The Judge proceeded upon the basis, as submitted on the applicant's behalf, that the applicant's "representations" to the psychologist about his wife's infidelity were not true, but were a misperception.

[7]

Some further findings by the Judge

The Judge found that the applicant's conduct was "abhorrent". While the use of methylamphetamine might explain his conduct, his Honour correctly observed that self-induced intoxication did not provide him with mitigation: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA).
The Judge did not make an express finding as to where each of the offences fell within the range of objective seriousness, but found aggravating factors included the use of a weapon - the hot implement and hot water - and that the conduct was committed in the victim's home, albeit both the offender and the victim were entitled to be there. The Judge found some measure of planning, but it was of modest proportion.
The Judge found there was no evidence of remorse or contrition and the prospects for rehabilitation could not be assessed on the material before him. The Judge found special circumstances before concluding as follows: To summarise, it does seem to me that I should view this offender as someone who grew up in difficult years, in Vietnam and in Australia. As he progressed through his adult years to the time when he committed these offences, he was working excessive hours under the burden of debt. For whatever reason, he had the misperception of infidelity on the part of his wife. The extent to which his representations reflect his true state of mind, that is to say whether or not he believes he saw her in such compromising circumstances, or he believed that she had engaged in such activity and has built upon that belief with representations that are not truly held by him is difficult to ascertain. One way or another, as I said earlier, whether she was unfaithful or not, domestic violence of this type is abhorrent, it is deserving of punishment, it raises the need for general deterrence to be given appropriate weight. The circumstances of the offender and his attitude require specific deterrence to be given appropriate weight. His conduct is to be denounced and the harm caused to the victim is to be recognised in the sentence that I am going to impose.

[8]

Ground 1: the sentencing process miscarried

Senior counsel for the applicant submitted that the irrational and intense nature of the applicant's actions towards his wife were the product of overwhelming and intense obsessions going beyond mere jealousy or anger and was indicative of some mental illness or disability which "influenced his deviant behaviour". The submission continued that the sentencing judge was required to take the applicant's mental condition into account in his analysis of the applicant's moral culpability when assessing the "objectiveness seriousness" of the offending.
This submission is to be contrasted with the approach taken by the applicant's counsel at the sentencing hearing. There it was submitted that the offence of aggravated kidnapping was "out of character". Support for that view was said to be found in the tendered part of the victim's record of interview with the police. Counsel for the applicant submitted that the victim's answers were to the effect that "he [the applicant] was not himself". Counsel also acknowledged before the Judge that the applicant accepted that "his approach to solving problems that he had was the wrong one".
Senior counsel for the applicant accepted that this ground of appeal is difficult to establish in the absence of fresh or new evidence. That concession was properly made.
First, no evidence of mental illness was put before the Judge and there was no submission by counsel appearing before the Judge that there was a causal relationship between any mental illness and the applicant's offending.
Second, the material before the Judge to which the applicant pointed in this Court, does not establish that the applicant was suffering from a mental illness at the time of the offences. Statements by lay persons, such as the victim and the applicant's sister, to the effect that the applicant was very sick, crazy or mad, and that the applicant, when he called the victim the following morning, was "screaming", "yelling" and "crying", are not probative of the applicant's mental health. Nor are submissions by the applicant's counsel in this Court characterising the applicant's behaviour giving rise to the breach of the AVO as "bizarre", probative of the applicant's mental health.
The Judge did address the explanations for the applicant's misconduct and engaged with the submissions directed to the applicant's misperception of infidelity on the part of his wife: see [28]-[30] above. The Judge referred to the difficulty in making findings of fact as to the reasons for the applicant's conduct, given that this was not addressed in the psychological report.
The Judge also had regard to a possible explanation for the applicant's conduct suggested in the psychological report, namely, that his behaviour was influenced by his use of crystal methylamphetamine the day before and on the day of the offending, given that his conduct was consistent with somebody out of control.
The applicant bore an onus on the balance of probabilities to satisfy the Court of any matters in mitigation of sentence: R v Olbrich at [27]. The applicant did not suggest, let alone attempt to establish, that he was suffering any mental condition at the time of the offending and that there was a causal nexus between his mental health and his offending: see, for example, Hammond v R [2008] NSWCCA 138 at [2] (Spigelman CJ, Price J agreeing) and [33] (McCallum J).
No error has been established.

[9]

Ground 2: mitigation on the grounds of character

The mitigating factors to be taken into account in determining the appropriate sentence for an offence include, among others, that the offender does not have any record (or any significant record) of previous convictions, and that the offender is a person of good character: Crimes (Sentencing Procedure) Act, s 21A(3)(e) and (f).
The applicant submitted that he was generally possessed of good character and had no offences for violence at the time of the commission of the relevant offences. The submission continued that the applicant should have received some mitigation in his sentence on these grounds, but no such mitigation is reflected in the sentence.
Counsel for the applicant pointed to evidence before the Judge that the applicant was a hardworking family man who had built up his own trucking business, bought a house and supported the victim and their three children. Counsel also emphasised that the applicant's prior criminal offences were both historical and relatively minor: an offence of stealing when he was 16, which was dealt with in the Children's Court by dismissal with caution, and charges of public mischief and stealing when he was 18, which was dealt with in the Local Court by way of fines.
The first difficulty with this submission is that the Judge did take into account and accepted that the applicant did not have any significant criminal record. The Judge described the applicant's prior offences when he was young as being: "of little moment and I put them to one side in any event".
The second difficulty is that it is implicit from the remarks on sentence that the Judge understood that the applicant was relying upon good character in mitigation of his offending. This is evident from his Honour's remarks noting the two references tendered on behalf of the applicant and their contents, and his Honour's reference to the applicant's history of working hard and providing for his family, as outlined in the psychologist's report. Although no express finding was made, it may be inferred that his Honour, who is a very experienced Judge, took into account the character evidence to which he had referred in his remarks on sentence.
The weight to be given to a defendant's otherwise good character will vary according to all the circumstances of the case: Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [36] (McHugh J). It is well established that questions of weight in the exercise of discretion are matters for the sentencing judge and that the circumstances in which matters of "weight" will justify intervention by an appellate court are narrowly confined: R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ); Yang v R [2012] NSWCCA 49 at [25] (R A Hulme J, Macfarlan JA and R S Hulme J agreeing).
The applicant has not demonstrated that the Judge failed to take into account the applicant's otherwise good character. Whether this factor was considered sufficiently by the Judge is to be assessed by examining the sentence ultimately imposed: Vaiusu v R [2017] NSWCCA 71 at [29], referring to Hanania v R [2012] NSWCCA 220 at [33] (Button J). That directs attention to the manifest excess ground, which is addressed below.

[10]

Ground 3: assessment of objective seriousness of count 2

The applicant submitted that it can be inferred that the Judge accepted the Crown's submission that the applicant's offending on count 2 was at the middle of the range, and sentenced him accordingly.
The applicant submitted that this was an error because none of the aggravating factors referred to in s 21A of the Crimes (Sentencing Procedure) Act are made out on the findings by his Honour. The submission continued that the objective seriousness of this offence should have been assessed "if not at the bottom of the range at least in that vicinity".
The approach of this Court to a complaint about a sentencing judge's assessment of the objective gravity of an offence is well established. In Ali v R [2010] NSWCCA 35, this Court (McClellan CJ at CL, R S Hulme J and Johnson J) said at [33]: This Court has emphasised that characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing inferences from those facts: Mulato v R [2006] NSWCCA 282 at [37], [46]. This Court is slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion, and the question must be whether the particular characterisation was open: Mulato v R at [37], [46]-[47].
In Salafia v R [2015] NSWCCA 141, Wilson J (Hoeben CJ at CL and Hall J agreeing), after referring to Ali v R, observed at [90]: A ground of appeal asserting error in the assessment of objective seriousness should be advanced only where specific error of the sort referred to in House v The King can be identified rather than, as seems to be commonly the case, a complaint routinely made. Assessment of gravity by a first instance judge is a process involving the application of principle to facts established by the evidence. It is a discretionary process that relies upon a judicial officer considering all relevant features, and making what in many regards is a value judgment. The conclusion reached is a discretionary one in a process where there is no definitively "correct" answer. Opinions can reasonably differ, but the availability of other differing assessments is not a basis upon which to discern error. There will be appealable error only where there has been a failure in the proper application of principle in making the assessment.
Relevantly in this case, his Honour accepted that the threats upon which the intimidation offence was based should be assessed within the context of the overall offending. No complaint is made in relation to that finding. Contrary to the applicant's submission, if a finding of objective seriousness in the middle of the range for such offences had been made by the Judge, such a finding is not dependent upon a further finding of any of the aggravating factors referred to in s 21A of the Crimes (Sentencing Procedure) Act.
The applicant did not dispute before the Judge the Crown's submission that a finding of objective gravity in the middle of the range was appropriate for count 2. No sufficient reason has been advanced as to why this Court should entertain a new argument on appeal, when it was not advanced before the sentencing judge: Zreika v R [2012] NSWCCA 44 at [81] (Johnson J, McClellan CJ at CL agreeing).
No error of the House v The King type has been established.

[12]

Ground 5: manifest excess

The question raised by ground 5 is whether the aggregate sentenced imposed was unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40; Hughes v R [2018] NSWCCA 2 at [86]. Consideration of this question is significantly dependent upon whether his Honour's indicative sentence of 9 years for the aggravated kidnapping offence was excessive, taking into account all circumstances of the offending and of the offender, and the guidepost of the maximum penalty of 20 years.
Nevertheless, it is also important to keep in mind that the appeal to this Court is against the aggregate sentence, not the indicative sentences: Kresovic v R [2018] NSWCCA 37 at [42]. As explained by R A Hulme J (with whom Hoeben CJ at CL and Adamson J agreed) in JM v The Queen [2014] NSWCCA 297 at [40(13)], the principal focus in the case of an aggregate sentence is whether the sentence reflects the total criminality. While the indicative sentences are not themselves amenable to appeal, they may be a guide to whether error is established in relation to the aggregate sentence. The fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive. See Kerr v R [2016] NSWCCA 218 at [114].
Insofar as the applicant cited statistics from the Judicial Commission for such offences, the applicant's senior counsel conceded that this Court has repeatedly said that statistics are of limited utility: MLP v R [2014] NSWCCA 183; Owen v R [2017] NSWCCA 54 at [72]. That concession was properly made given that "statistics show a range of sentences actually imposed in the past, not the correctness of that range, nor its applicability to a given case": Bao v R [2016] NSWCCA 16 at [73] (Hoeben CJ at CL, Bathurst CJ and R S Hulme AJ agreeing) citing Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [59].
Insofar as the applicant cited comparative cases, the Crown pointed to several authorities as being generally factually similar to the present and submitted that an indicative sentence of 9 years for aggravated kidnapping, absent any discount for an early guilty plea, is not remarkable.
The cases cited provide only limited assistance given the variety of different factual circumstances and subjective features, and some of the sentences included additional matters on a Form 1. The range of sentences imposed were: Newell v R [2004] NSWCCA 183 - head sentence of imprisonment for 8 years, non-parole period 5 years (20 per cent discount for plea of guilty); Hammond v R [2008] NSWCCA 138 - head sentence of imprisonment for 7 years, non-parole period 5 years (25 per cent discount for guilty plea); Kerr v R [2008] NSWCCA 201 - head sentence of imprisonment for 11 years, non-parole period 8 years taking into account two matters on a Form 1 (20 per cent discount for guilty plea); Hazel v R [2015] NSWCCA 26 - head sentence of imprisonment for 6 years, non-parole period 4 years (25 per cent discount for guilty plea); Diaz v R [2018] NSWCCA 33 - head sentence of imprisonment for 7 years/6 months, non-parole period 4 years/3 months taking into account four matters on a Form 1 (25 per cent discount for guilty plea).
In oral argument, the Crown submitted that Hammond v R was quite factually similar to the present offending, as it involved a brief period of detention in the context of domestic violence.

[13]

Hammond v R

In Hammond, the offender and his wife had previously been in a domestic relationship for 20 years, but they had been separated for about three years at the time of his offending. She had permitted him to stay with her following his release from prison in 2006. On the day of the offence, the offender had consumed six large bottles of beer, most of a large bottle of Bourbon Whiskey and had also smoked a quarter of an ounce of marijuana, at the time he was taking prescribed antidepressant medication. After an evening out with his wife where they had visited one of their adult daughters, the offender and his wife returned home, and an argument developed apparently as a result of the offender's perception that his wife had not defended him when he had been arguing with his daughter. The offender punched his wife, grabbed her hair with both hands, dragged her onto the floor, uttered abuse, dragged her across the floor to a lounge where he sat down and put his foot on the back of her head pushing her face into the carpet and keeping her in the position for about ten minutes. He later punched her again and kicked her several times; he then held her head in his lap and squeezed her throat until she blacked out.
The notional head sentence in Hammond before the 25 per cent discount for the guilty plea was 10 years imprisonment. An appeal on the ground of manifest excess was unsuccessful. Whilst there is a general similarity between the facts in Hammond and the present case, the actual bodily harm was greater in Hammond and this was reflected in the higher notional head sentence of 10 years imprisonment.
In the present case the offending was serious. The applicant had a weak subjective case, except for his otherwise prior good character. There were aggravating factors - the use of a hot implement and boiling water and that the conduct was committed in the victim's home. There was a lack of remorse or contrition; and there was an absence of evidence supporting any finding on prospects of rehabilitation. The Judge was correct to give particular weight to the sentencing purposes of general deterrence and denunciation.
In addition, as acknowledged by the Judge, specific deterrence was an important sentencing consideration given that the offending occurred in a domestic situation and the attitude of the applicant towards the victim. It was important that the sentence imposed on the applicant be such as to serve the purpose of specific deterrence by teaching the applicant that conduct of the kind that he engaged in will not be tolerated.
The applicant has failed to demonstrate that the sentence was manifestly excessive. Whilst the sentence was towards the upper end of the range, as the Crown acknowledged in oral argument, it was a sentence which was within the sentencing discretion of the Judge.

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