REGINA v. NGUYEN [2002] NSWCCA 267

FRIDAY 28 JUNE 2002 REGINA v. FREEDOM NGUYEN Judgment 1 GILES, JA: On the conviction appeal, we have reached a concluded view although it is a matter on which we wish to give reserved reasons. We order that the appeal be dismissed and we will give our reasons later. 2 We have also reached a concluded view on the application for leave to appeal against sentence and are in a position to deal with that matter immediately. I would ask Justice Greg James to give the first reasons. 3 GREG JAMES, J: This is an application for leave to appeal against a sentence of imprisonment for three years together with a non parole period of 18 months imposed upon the applicant in the District Court of New South Wales for the offence of robbery in company. 4 The sentence was to date from 28 August 2001 and the trial judge in delivering sentence directed that the prisoner be released to parole at the expiration of the non-parole period. That expiration was fixed as occurring on 27 February 2003. His Honour found special circumstances. I will return to that matter later. 5 The short facts of the offence, of which the applicant was convicted, were that he, in the company of two other Asian boys, at the Bankstown bus station in Bankstown Square at about 8.00 am robbed a 15 year old Year 10 high school student asking him for his money, his wallet and his pin number. 6 The three robbers approached a group of students and then just as the victim was about to join a bus queue, one of them asked for his money and wallet. The boys appeared to the victim to be aged about 16 or 17 years old, that is a couple of years older than he was. He identified the applicant as one of the three boys and the one that grabbed him by the blazer and told him, in Vietnamese, to sit down, pushed him back down into a seat and stepped on his left foot immobilising him. It was the applicant, he said, who demanded his money or wallet. 7 The applicant removed $20 from the wallet. The key card contained in the wallet was identified but the victim gave a false number when asked for the pin number. He was asked if he had money in his key card account and said there was just under $10. The card and wallet were thrown back to him and the boys left. 8 Subsequently he identified the applicant on another occasion some eight days later at Bankstown Plaza. 9 In his remarks on sentence the learned trial judge referred to these things and to the absence of any evidence of planning or premeditation. He was of the view there was no evidence to suggest that this was anything other than an opportunistic crime. He concluded it did not reveal a high degree of planning, that the victim was not in that unusually vulnerable condition of service station proprietors and others, although his Honour did have regard to the vulnerability of a school boy utilising public transport and having in that regard to make use of public facilities. 10 His Honour referred to the guideline judgment in The Queen v. Henry (1999) 46 NSWLR 346 and came to the conclusion, having regard to the objective circumstances of the offences, that the case fell outside the guideline notwithstanding it was an offence of robbery in company, to which offences The Queen v. Murchie (1999) NSW CCA 424, held that the guideline should extend. 11 His Honour concluded that the offender was young and although he had a similar offence on his record (that appears to be a reference to an offence of stealing from a person), for which he had received a community service order, which he had apparently completed without incident; that he should be regarded as a person akin to a first offender, at least, at this level of crime. But his Honour was of the view that he should depart from the range suggested in Henry (supra) because the objective circumstances of the offence were not as serious as those to which that guideline related. 12 The applicant came forward for sentence aged 21 years. His Honour did refer to the other drug related offences the applicant had committed since this offence, but disregarded them in the sentencing process except to the extent that the Probation and Parole Service had, in a report which was before him made reference to them. In that report, the Probation and Parole office suggested that Mr. Nguyen was a young man who appeared to be making a serious effort to lead a stable drug free lifestyle, "he was open in his discussions and co operated with this service in the course of his probation and preparation of this report". 13 He was assessed as suitable for various non custodial alternatives to imprisonment but it was considered that his supervised bond having expired, there would be little benefit to be gained from further supervision from the service. 14 His Honour had regard to the applicant's prior drug usage and, in particular to the favourable report by Mr. Champion, psychologist. 15 The references that were tendered on his behalf attracted favourable consideration from his Honour. When he had been in custody he was apparently assaulted and for some time in his custodial history special measures had to be taken in consequence of that matter. 16 Before us, to be taken into account on the question of re sentencing was an affidavit setting out the circumstances of the offender's present confinement. That affidavit has annexed to it a report by an officer of the Adult Education and Vocational Training Institute at the Oberon Campus. It establishes that the applicant is at the Oberon Young Offender Correctional Centre but was due to return to the John Moroney Correctional Centre on 20 June 2002. 17 The trial judge correctly took the view that it was a serious offence. He correctly took the view that there had to be a full time custodial sentence. He correctly took the view that the sentence had to contain elements of general and personal deterrence. He concluded that although the applicant was still young his youth should not provide a cloak or shield of convenience for the commission of the offence, but he found special circumstances. They were the applicant's youth, that this was his first full-time custodial sentence and the prospects of his rehabilitation, which on the material seemed high. 18 The sentence, however, is excessive. It was a very severe sentence indeed having regard to the objective circumstances of the crime and having regard to the very matters to which his Honour had reference when he found special circumstances. 19 I am of the view that that sentence so far exceeds what was called for in all the circumstances of the offence as to indicate that his Honour had fallen into the kind of error identified in House v. The King (1936) 55 CLR 499, such as to pass a sentence which, having regard to the totality of the circumstances, was unreasonable. 20 In those circumstances, s.6(3) of the Criminal Appeal Act 1912 requires that the court should intervene if some other sentence is warranted in law and should have been passed. In that regard, I would make particular reference to what is contained in the report of Mr. Sibley, the Adult Education and Vocational Training Institute officer, to which I have referred and, in particular, that it appears that the applicant has thoroughly justified the expression of hope in his rehabilitative prospects made by the trial judge, so far, in his achievements whilst in custody. 21 In my view, the application for leave to appeal against sentence should be allowed, the appeal upheld, the sentence passed by the learned trial judge should be quashed, and in lieu thereof the applicant should be sentenced to a period of imprisonment for a period of two years to date from 28 August 2001 and expire on 27 August 2003 with a non-parole period of 12 months fixed in relation to that sentence to expire on 27 August 2002. 22 I note that I share his Honour's views of the applicant's special circumstances and find then accordingly and in addition in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999. I note that the applicant's release on parole at the expiration of the non-parole period should be directed. 23 GILES, JA: I agree. 24 DUNFORD, J: I also agree. 25 GILES, JA: The orders will, therefore be as proposed by Justice Greg James. **********

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