JUDGES	MAXWELL P, WEINBERG and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 October 2013
DATE OF JUDGMENT	11 November 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 312
JUDGMENT APPEALED FROM	R v Tran, Levchenko and Fucile [2013] VSC 363 (Lasry J)

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CATCHWORDS – Criminal law – Sentencing – Director’s appeal – Respondents employed as security officers at Crown Casino – Melee involving patrons – Common assault – False imprisonment – Intentionally causing injury – Lengthy trial and lack of remorse – Whether fines of $8,000 and $6,000 manifestly inadequate – Whether nothing short of imprisonment sufficient to meet needs of general deterrence – Appeal allowed – Fines increased to $16,000 and $12,000.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G J C Silbert SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent Fucile	Mr O P Holdenson QC with Mr T J Walsh	Tony Hargreaves & Partners
For the Respondent Tran	Mr D A Dann	Tony Hargreaves & Partners

MAXWELL P

WEINBERG JA:

The Director of Public Prosecutions has appealed against what he contends are inadequate sentences imposed upon Jacques Tony Fucile and Quoc Hai Tran arising out of their conduct, as security officers, at Crown Casino.

On 3 July 2011 an altercation took place at the Casino between the respondents and several patrons. As a result of the general fracas that arose, one man died. His death was the subject of criminal proceedings brought against others; the respondents were in no way responsible for that particular tragic event. However, by reason of the respondents’ actions, Matthew Anderson, an innocent patron, sustained significant injuries, while his partner, Olivia Ferguson, suffered considerable pain after being hurled violently to the ground. Both victims were then, while being escorted off the premises, falsely imprisoned.

Both Fucile and Tran were charged with a number of offences. For reasons that do not presently matter, they stood trial before a jury in the Trial Division of this Court. The trial itself was lengthy, and ran for 22 days. Ultimately, Fucile was convicted of having intentionally caused injury to Anderson, and also having falsely imprisoned him. Tran was convicted of having intentionally caused injury to Ferguson, assaulting her, and having falsely imprisoned her. A third security officer, Nicholas Levchenko was convicted of a single charge of having falsely imprisoned Anderson.

On 20 May 2013, Tran was sentenced as follows:

Charge on
Indictment
C1108174B.2 Offence Maximum Sentence

1 Common assault [common law] 5 years [Crimes Act 1958 s 320] $3,500 fine
(with conviction)

4 False Imprisonment [common law] 10 years [Crimes Act 1958 s 320] $2,500 fine
(with conviction)

Charge on
Indictment
C1108174B.2 Offence Maximum Sentence

5 Intentionally cause injury [Crimes Act 1958 s 18] 10 years [

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Fucile and Tran

Details

AGLC: Director of Public Prosecutions v Jacques Tony Fucile [2013] VSCA 312
Case: [2013] VSCA 312
Decision Date: 11 November 2013

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentences imposed on Fucile and Tran, who were convicted of various offences arising from their employment as security officers at Crown Casino. The respondents were found guilty of common assault, false imprisonment, and intentionally causing injury during an altercation with casino patrons. The trial was lengthy, and the respondents displayed a lack of remorse. The Director argued that the fines of $8,000 and $6,000 respectively were manifestly inadequate and that only imprisonment could adequately meet the needs of general deterrence. The court had to decide whether the sentences imposed were manifestly inadequate and if imprisonment was the only suitable response to ensure general deterrence.

The court considered the severity of the offences and the need for general deterrence. It held that the imposition of fines alone would not adequately reflect the seriousness of the crimes, given the length of the trial and the respondents' lack of remorse. The court also found that the nature of the offences, involving the abuse of power by security officers in a public place, warranted a strong message to deter similar conduct in the future. The appeal was allowed, and the fines were increased to $16,000 and $12,000 respectively. The court found that these amounts were more commensurate with the gravity of the offences and the need for general deterrence.

In summary, the court allowed the appeal and increased the fines imposed on the respondents. The decision highlights the importance of ensuring that sentences adequately reflect the seriousness of the offences and serve the purpose of general deterrence, particularly in cases involving the abuse of power by security officers. The new fines were set at $16,000 for Fucile and $12,000 for Tran, reflecting the court's view that the original sentences were manifestly inadequate. This decision serves as a reminder of the need for courts to carefully consider the appropriate balance between punishment and deterrence in sentencing.

Orders