BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Criminal Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Nguyen, R. v [2016] EWCA Crim 448 (23 March 2016) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/448.html Cite as: [2016] EWCA Crim 448, [2016] 2 Cr App R (S) 18, [2016] 4 WLR 99 |
[New search] [Printable RTF version] [Help]
CRIMINAL DIVISION
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY GENERAL'S REFERENCE NO 79 OF 2015
Strand London, WC2 |
||
B e f o r e :
President of the Queen's Bench Division
MR JUSTICE SWEENEY
HIS HONOUR JUDGE GRIFFITH-JONES
(Sitting as a Judge of the Court of Appeal Criminal Division)
____________________
R E G I N A | ||
-v- | ||
NGUYEN |
____________________
Wordwave International Limited
Trading as DTI Global
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS D HEER appeared on behalf of the Crown
____________________
Crown Copyright ©
Procedure
The Jurisdiction of this Court
"(1) If it appears to the Attorney General -
(a) that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient; and
(b) that the case is one to which this Part of this Act applies,
he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person; and on such a reference the Court of Appeal may -
(i) quash any sentence passed on him in the proceeding; and
(ii) in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him."
"The material which is now before this court points strongly in the direction of an indeterminate sentence being appropriate. But it is not this court's function under Section 36 of the Criminal Justice Act 1988 to substitute in the light of new material our view as to what the sentence ought now to be. Our task under Section 36 is to decide whether the judge's sentence in the light of the material before him can properly be characterised as having been unduly lenient.
For the reasons which we have sought to explain, the judge was alert to the matters in relation to the possibility of imposing a discretionary life sentence to which he ought to have been alert and he reached a conclusion on the material before him which he had been entitled to reach. That, in our judgment, does not give rise to a sentence which can properly be characterised as unduly lenient."
"We take the view that we do have the power to take into account matters adverse to the defendant when deciding what is the appropriate sentence."
He observed that the point had not been fully argued. The proposition, however, has now been the subject of argument before us and, in our judgment, turns upon the proper construction of Section 36 (1) (b) (ii) of the 1998 Act.
The Facts
The offender, who had no previous convictions or cautions, had the benefit of a pre-sentence report and a psychiatric report. The former noted that he had enrolled at the Open University to undertake a course at Birkbeck University. However since August 2014 he had been homeless and supporting himself by way of his student loan. The offence was explained on the basis that as this money was depleted, the offender said he became desperate and decided to commit robberies for financial gain.
This account was received with some scepticism by the author of the report since there was no evidence that the offender had tried to search the victim or tried to take her property. The offender said that during the incident he had panicked and strangled her to stop her screaming and alerting others. He then ran away without stealing anything for fear of being caught. He admitted that he had purchased the burka the week before the offence to use as a disguise. Therefore, the offence was clearly premeditated.
"I have come to the conclusion, based particularly on the circumstances of these two offences, that there is a significant risk of you committing further specified offences and in doing so causing serious physical or psychological harm to others. You do, therefore, fall into the category of a dangerous offender."
"He was a little vague in his description though appeared to acknowledge the possibility he had returned to see Ms W. 'I thought of so many things. Maybe I should scare her. I was ashamed of so many things I've done in my past, I'd felt I was attacking my past then [when I attacked her]'."
" ..... the question why [the offender] acted so violently towards Ms W was likely to be complex and layered. It is unlikely to be so straightforward as rejected love or a simple grudge."
He recommended that the sentence plan required thinking skills work and psychological work.