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[2025] NSWDC 362
General information, not legal advice.
District Court of NSW
2025-09-29
Colefax SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Giang [2025] NSWDC 362
Hearing dates: 5 September 2025
Decision date: 29 September 2025
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision: Offence: detain with intent to obtain advantage and cause actual bodily harm (DV): imprisonment for 8 years with a non parole period of 5 years; offence: do act intending to pervert the course of justice: fixed term of imprisonment of 4 years - to be served totally concurrent with sentence for detain offence.
Catchwords: CRIME - SENTENCE - detain with intent to obtain advantage and cause actual bodily harm (DV); do act to pervert course of justice
Legislation Cited: Crimes Act 1900 (NSW): ss 86(2)(b) and 319
Cases Cited: DPP (C’th) v De La Rosa (2010) 79 NSWLR 1; Yaman v R [2020] NSWCCA 239
Category: Sentence
Parties: Rex (Crown)
Tuan Giang (Offender)
Representation: Mr Paish (Crown Prosecutor)
Mr D.Smith (Counsel for offender)
File Number(s): 2022/270368
Tuan Giang, on 12 March 2025, following a trial upon indictment …76.2, a jury found you guilty of two offences.
The first offence was, in circumstances of aggravation, detaining your wife (Ms Nguyen, from whom you were separated), without her consent, with the intention of obtaining an advantage. This was Count 1 on the indictment.
The circumstance of aggravation was that, in detaining Ms Nguyen, you caused her actual bodily harm.
There were in fact two advantages which I am satisfied, beyond reasonable doubt, that you had intended to obtain. The first was the retraction of allegations Ms Nguyen made against you to police on 25 June 2022 which gave rise to proceedings in the Local Court. The second was to obtain the custody from her of your son.
The first offence involves a contravention of s86(2)(b) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 20 years imprisonment. There is no standard non-parole period.
The second offence was doing an act with the intention of perverting the course of justice. This was Count 3 on the indictment.
The acts with which the second offence was concerned was recording statements which you coerced Ms Nguyen to make, and being the first advantage I have just referred to.
The second offence involves a contravention of s319 of the Crimes Act. The maximum penalty for that offence is 14 years imprisonment. There is no standard non-parole period.
Consistently with the verdicts of the jury, I am satisfied, beyond reasonable doubt, of the following facts concerning the first and second offences.
You were born in December 1977; and Ms Nguyen was born in August 1982.
In January 2003, you married Ms Nguyen in Vietnam.
Two children were subsequently born to that marriage: a daughter who was born in November 2004; and a son who was born in February 2013.
In December 2019, you, Ms Nguyen, and your two children migrated from Vietnam to Australia.
Immediately before your migration to Australia, you were a branch manager of a bank in Vietnam.
At around the time of your migration to Australia, you had a sister (Ms Giang) who was living in the Sydney suburb of Fairfield West. Ms Giang had had kidney cancer since 2014. And she had a son (“Andy”) who was 9 years old. Andy had autism; severe global developmental delay; and he was non-verbal.
The Visa Grant Notice dated 12 September 2019 by which you, Ms Nguyen and your children came to Australia, amongst other things, recorded that the Visa Class was: “OTHER FAMILY (Class BO) CARER (Subclass 116)”. I have understood the evidence to be that that visa was granted so you could care for your sister and your nephew – and that, upon your arrival, that is what you did.
After you and your family arrived in Australia, you all lived with your sister and your nephew at your sister’s residential premises in Fairfield West.
However, after your arrival in Australia, your relationship with Ms Nguyen began to deteriorate to the point where, on 22 June 2022 (and because she was fearful of you), Ms Nguyen left you and took herself and the two children to a women’s refuge at Casula. Ms Nguyen also changed your son’s school to the Casula Public School.
Three days after Ms Nguyen went to the women’s refuge, she went to the Liverpool Police Station and made two complaints against you.
The first of those complaints was that, in December 2021, you had demanded sex from her and, when she refused, you grabbed her by the neck and told her that she needed to do what you told her or you would kill her.
The second of those complaints was that, on 11 June 2022, you had told Ms Nguyen that you wanted to return to Vietnam. Ms Nguyen told you that she did not want to do that. You and she then had a fight during, or as a result of, which Ms Nguyen went into your daughter’s bedroom and locked the door. You forced the door open; told Ms Nguyen that she had to do what you said; and then you struck her in the back of her left shoulder with your elbow.
On 28 June 2022, as a result of what Ms Nguyen told the police, a provisional apprehended domestic violence order (ADVO) was taken out against you in which Ms Nguyen was named as the person who needed protection. Condition 1 of the ADVO was that you were not to assault, threaten, stalk, harass or intimidate Ms Nguyen.
In addition to taking out the ADVO, the police also charged you in relation to the alleged events of December 2021 and June 2022. Those charges were: intentionally choke without consent; intimidate; and common assault.
In due course, you pleaded not guilty in the Local Court to those charges, and a contested hearing date was fixed for 16 March 2023.
After she separated from you, Ms Nguyen at no point revealed to you where she was living, or the new school that your son was attending.
There was no occasion thereafter when you and Ms Nguyen consensually met up.
In these circumstances, it is both concerning and revealing that, on 31 August 2022: at 2:58pm, you were in the immediate vicinity of the Casula Public School – and took a photograph of that school; and that at 3:05pm, you were in the immediate vicinity of the refuge at Casula where Ms Nguyen and the children were living – and took a photograph of that refuge.
The only rational inference in the circumstances is that, on that day, in breach of the ADVO, you were stalking Ms Nguyen.
On 9 September 2022, at 8:30am, Ms Nguyen left the refuge with your son and walked him to his school at Casula.
After taking your son to school, Ms Nguyen was walking back to the refuge with the intention of attending a prearranged meeting at 10:00am with her caseworker, Ms Sesay-Barrie. That meeting had been confirmed between the two of them the preceding day.
As Ms Nguyen was walking back towards the refuge along the Hume Highway, at about 9:00am, she came to a set of traffic lights. As she waited to cross the highway, Ms Nguyen saw your motor vehicle parked in a carpark in a nearby small shopping centre. You were in the driver’s seat of that motor vehicle.
Having seen you, Ms Nguyen became fearful.
After crossing the highway, Ms Nguyen walked quickly along the road towards the refuge.
Your presence in that vicinity was not a coincidence. Rather, you were waiting for Ms Nguyen to return from taking your son to school in order that what then unfolded could occur.
As Ms Nguyen was walking along that roadway, you pulled your motor vehicle up beside her, stopped the vehicle, got out, and confronted her.
In doing so, you were holding a clear plastic bottle which contained brown liquid. You told Ms Nguyen that it was acid and that “it was for her.”
Ms Nguyen did not believe you that the liquid was acid. The fact that Ms Nguyen did not believe you does not meaningfully reduce the deplorable nature of the threat itself. Ms Nguyen struggled with you to take the bottle from you; and, when she was successful, she threw the bottle away.
You then pushed her towards your motor vehicle. You pushed her into the rear of the motor vehicle, and you got into the driver’s seat.
You then tied Ms Nguyen’s wrists tightly together with a white plastic cable tie. This caused pain to Ms Nguyen which, on a scale of 1 to 10, was about 7 or 8.
Quite understandably, Ms Nguyen was in fear for her safety.
Whilst Ms Nguyen was in the backseat of your motor vehicle with her wrists tied, you took out your mobile phone and compelled her to say that it was she who had asked you to meet her. You recorded that on your phone. It was not true. You did that as a precaution against any action being subsequently taken against you for breaching the ADVO.
You then drove off in your motor vehicle with Ms Nguyen still sitting in the rear seat.
You drove for about 1 to 1 and a half hours. Precisely where you drove to is not revealed in the evidence. But, wherever it was, it was a remote and isolated location.
During the journey, some of what you had to say to Ms Nguyen was recorded on the dashcam of your motor vehicle. What was recorded was you in a loud and, at times, hysterical voice berating and abusing Ms Nguyen and using extremely offensive language towards her.
Ultimately, you arrived at an isolated park where you coerced her to make three further statements which, like the first statement, she did not want to make. You also recorded these statements: the first concerned your sister and an apology that you wanted Ms Nguyen to make to her; the second concerned Ms Nguyen consenting to you having custody of your son; and the third concerned Ms Nguyen retracting the allegations which she had made about you to police concerning alleged events in December 2021 and June 2022 and which had resulted in the police laying three charges against you.
Apart from tying her wrists, taking her far away from the refuge to an isolated location, and verbally berating and abusing her during the course of the journey, you also threatened Ms Nguyen at that isolated location to make the three statements by producing a Stanley knife and threatening to cut her face if she did not make the statements.
After Ms Nguyen had complied with your demands, you drove her back to Casula and released her at the front of the refuge at about 11:00am. And then you drove off with the four recordings.
Somewhere along the way – whether at the remote park or when you arrived outside the refuge – you used the Stanley knife to cut the cable ties securing Ms Nguyen’s wrists that caused her hurt and injury to her wrists. The marks of the cable ties were clearly visible to the social workers at the refuge upon her return at 11:00am and to police who attended the refuge 7 hours later.
It is necessary for the Court to make a finding of the objective seriousness of each of the offences for an offence of its kind.
Insofar as Count 1 is concerned, relevant factors which may be taken into account in assessing the seriousness of the offence include: the period of detention; the circumstances of the detention; the person being detained; and the purpose of the detention. By having regard to these factors, in my opinion, the offence is serious example of that type of offence and is approximately a mid-range offence.
Insofar as Count 3 is concerned, it too is a serious example of that type of offending.
Ms Nguyen did not provide the Court with a victim impact statement. However, the experience would undoubtedly have been a terrifying one for her.
You did not give sworn oral evidence in the sentencing proceedings. Rather, your subjective case (some of which I have already referred to at the commencement of these remarks) was placed before the Court through a series of documents:
(a) a report by Dr Dilati, psychologist, dated 7 June 2025; (b) the oral evidence of Dr Dilati given on 5 September 2025; (c) written references provided by your sister, your nephew’s support worker, and a friend; and (d) an affidavit by your sister (which was prepared for an unsuccessful bail application).
As I have said, you were born in Vietnam in December 1977. You are, therefore, almost 48 years old. You have no meaningful physical issues, and you have no issues with alcohol or illegal drugs.
You had an unremarkable childhood. Having left school, you worked in the banking industry in Vietnam for over 20 years attaining the highly responsible position of manager.
You married Ms Nguyen in January 2004. And as I have already noted, two children were born to you and your wife: a daughter born in November 2004; and a son born in February 2013.
In 2019, you left Vietnam, and the (relatively) comfortable lifestyle which was enjoyed by you, your wife and your children, to come to Australia to care for your sister, who was, and is, suffering from cancer, and your nephew who is autistic. That speaks to your prior good character.
In addition to caring for your sister and your nephew, you also had part-time work as a handyman here in Sydney.
After your arrival in Australia, the relationship with your wife deteriorated, as a consequence of which you developed a major depressive disorder. I accept Dr Dilati’s evidence, on the balance of probabilities (and not least because before 9 September 2022 you had no criminal convictions of any kind), that that condition “significantly interfered with [your] emotional regulation, interpersonal relationships, cognitive processing and occupational stability.” I also accept her evidence that, “at the time of the offending, these impairments were present and contributed to reduced behavioural regulation, compromised judgment and diminished emotional control.”
Notably, Dr Dilati expressed the opinion that your untreated depressive symptoms were not the sole cause of your offending but served as a significant contributing factor, and that your mental health impairment materially influenced your offending conduct, particularly the choking, intimidation and coercive behaviours (see [85] of her report).
These conclusions by Dr Dilati (which I accept on the balance of probabilities) give rise to De La Rosa considerations thereby reducing, to an extent, the full application of general and specific deterrence, although those principles are still meaningful engaged.
Further, I also accept Dr Dilati’s evidence that your major depressive disorder and your capacity to plan and carry out excessive coercive control in relation to the victim of your offending were not mutually exclusive.
What is of particular significance in relation to Dr Dilati’s oral evidence is her opinion that your risk of reoffending was assessed as “high”.
You have limited, if any, insight into your offending; and you have not expressed any genuine remorse.
Dr Dilati expressed the opinion that your prospects of rehabilitation are contingent upon your meaningful engagement in structured interventions and community reintegration support. To date, you have received no psychological or psychiatric intervention whilst in custody. Whether this is because you have not sought such intervention, or whether it is because of a lack of resources in the custodial setting, is not clear from the material before me.
On balance, I regard your prospects of rehabilitation at best as being extremely guarded.
In the context of domestic violence related offending, which is the proper categorisation of your offending, the following dicta of Wilson J in Yaman v R [2020] NSWCCA 239 at [135] must be borne in mind:
“The right of all women to determine their own path in life must be protected and upheld by the Courts. Where a woman’s right is ignored or disregarded by an offender, that right must be vindicated, including by punitive and strongly deterrent sentences where necessary.”
Although general and specific deterrence as sentencing considerations are somewhat reduced because of the De La Rosa considerations I earlier referred to, the need to protect the community is fully engaged as a sentencing consideration. And whilst your rehabilitation also remains a relevant and meaningful consideration, in the circumstances of this case, that consideration has to be held in balance against the other sentencing principles I have just referred to.
No sentence other than full-time imprisonment is appropriate for either of the two offences.
You have been in custody in relation to those offences since your arrest on 9 September 2022, and the terms of imprisonment I am about to impose will be backdated to that date.
In relation to Count 1, you are sentenced to a term of imprisonment of 8 years to date from 9 September 2022.
Because of your language difficulties (your English is poor), and because of your psychological conditions, imprisonment for you will be harder than for most offenders. Accordingly, I make a finding of special circumstances and fix a non-parole period of imprisonment for 5 years. You will, therefore, be eligible for parole on 8 September 2027.
I fix a balance of 3 years to date from 9 September 2027 and which will expire on 8 September 2030.
In relation to Count 3, you are sentenced to a term of imprisonment of 4 years. By having regard to totality, that term of imprisonment is a fixed term to run concurrently with the term of imprisonment for Count 1. In other words, the term of imprisonment of 4 years will date from 9 September 2022 and will expire on 8 September 2026.
I order that the report of Dr Dilati (Exhibit 1) go with the warrant.
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R
Giang [2025] NSWDC 362
(2010) 79 NSWLR 1