DPP v Tran
[2008] VSCA 158
•27 August 2008 (Reasons for Judgment); 7 August 2008 (Orders)
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 334 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS (VIC) |
| v |
| TUAN QUOC TRAN |
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JUDGES: | VINCENT and NETTLE JJA and MANDIE AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 August 2008 | |
DATE OF ORDERS: | 7 August 2008 | |
REASONS FOR JUDGMENT: | 27 August 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 158 | |
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Criminal Law – Sentence – Crown Appeal – Manifest inadequacy – Murder – Whether judge erred in treating respondent as an aider and abetter rather than an actor in concert – Whether respondent sentenced on erroneous foundation – Respondent’s action likened to those of two other co-offenders who were acquitted – Parity between co-offenders tried in separate proceedings and on different evidentiary foundation – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Respondent | Mr M J Croucher With Mr L C Carter | Haines & Polites |
VINCENT JA
NETTLE JA
MANDIE AJA:
This Court, on 7 August 2008, dismissed the appeal by the Director of Public Prosecutions against the sentence of 14 years’ imprisonment, in respect of which a non-parole period of 10 years was fixed, imposed upon the respondent consequent upon his conviction, on 30 August 2006, for the murder of James Huynh on 8 July 2002.
At the time, we indicated that we would hand down our reasons at a later date. The following are the circumstances and considerations that led to the making of that order.
The Director initially contended simply that:
The sentence imposed and the non-parole period are each manifestly inadequate.
Asserting in particulars that –
In imposing the head sentence and in fixing the non-parole period the sentencing judge –
(a)failed to adequately reflect the gravity of the offence generally and in this case in particular;
(b)failed sufficiently to take into account the aspect of general deterrence;
(c)failed sufficiently to take into account the aspect of specific deterrence;
(d)erred in treating the respondent as an aider and abettor rather than as an actor in concert;
(e)erred in drawing a comparison with the sentences imposed upon the co-offenders Linh Van Nguyen and Hoang Tran for the purposes of parity of sentence;
(f)failed to adequately reflect the role played by the respondent in the commission of the offence;
(g)gave too much weight to factors going to mitigation; and
(h)gave insufficient weight to factors going to aggravation.
However, leave was sought at the hearing before us to amend the grounds of appeal by treating particulars (d) and (e) as separate grounds. The Court indicated that we would hear argument as to the merits of the proposed grounds and reserve our decision as to whether leave would be granted.
The principles upon which this Court must act in considering a Crown appeal against sentence are, of course, well known and succinctly set out in the judgment of Charles JA in R v Clarke.[1] They require no recitation or elaboration in this judgment.
[1][1996] 2 VR 520, 522. See also DPP v Johnston (2004) 10 VR 85; DPP v Bulfin [1998] 4 VR 114; and DPP v Bright (2007) 163 A Crim R 538.
We now turn to the circumstances of the offence.
The background
The sentencing judge, who, it must be remembered, presided at the respondent’s trial, arrived at his disposition on the following factual foundation:
…You arrived at the “Salt” Nightclub in the early hours of 8 July with two close friends, Cuong Quoc Lam and Hung Tu Van. Shortly before 3.00am that day, Mr Van was viciously assaulted in the nightclub. The person in whose murder you have been found by the jury to have played a part was involved in the assault. What he then did was unforgivable. It nevertheless could not possibly justify the revenge which was shortly afterwards wreaked upon him. Swords were produced. There is no direct evidence about how they came to be present. I am nevertheless satisfied beyond reasonable doubt that a group, including Mr Van and Mr Lam, confronted the deceased. That group was armed with at least two swords, and you were in such physical proximity to them that you must have noticed – and noted – not only these weapons, but also the threat that they posed to the deceased and his companions.
James Huynh and those with him quickly became conscious of the danger they faced. They not only saw the swords, which is doubtless what those wielding them intended, but your friend Hung Van, in the words of Justice Redlich,[2] armed himself with one of them and “used that sword to assault James Huynh” who was wounded as a result. James and his companions then ran down Daly Street, turned left into Chapel Street, and continued to flee in a northerly direction towards the Yarra River. The seriousness of their predicament, and their awareness of it, did not decrease as they fled. After the deceased collapsed at the intersection of Chapel Street and Alexandra Avenue, you were – on your own account as given to the police in your record of interview – only a very short distance from him when you heard him repeatedly ask for help and say “Can’t you see I’m dying?”. Meanwhile, his three companions were so frightened that they ran across the intersection and so into the river itself.
…
On your own version of the facts, you were one of those who ran down Chapel Street. Although you deny any intention to pursue, you must have been among those who were as a matter of fact pursuing the deceased and his relatives, because you were one of the first to reach James Huynh after his collapse. You were therefore at the forefront of the chase. By your own account, you were then armed with a knife. I am prepared to accept that you came upon this weapon by chance when the chase began. You then, in company with others, continued to follow the deceased to the point where he died. On the evidence at their disposal, the jury could hardly avoid the conclusion that everyone running down Chapel Street, including you, realised that a chase was on.
…
I have no reasonable doubt that, in the intensely charged atmosphere which then pervaded the scene, all those who had already arrived, or were about to arrive, at the intersection of Chapel Street and Alexandra Avenue were as acutely conscious of the menace of the moment as were its victims. You were one of them. Yet you did nothing to defuse this explosive situation, or even to remove yourself from it. On the contrary, by being armed with a knife, and running with those intent on attack, and then coming to the scene of the murder, you aided and abetted those persons.
You told the police in your record of interview that you ran to Alexandra Avenue because you were frightened, and because you were looking for your friends. You told the psychologist, Mr Joblin, that you did not believe the jury understood the details of what occurred that night. But whatever your belief, the fact is that, after the confrontation in Daly Street when James Huynh was injured, you ran after the deceased and his companions. The jury were entitled to ask how this could be if you were frightened, since you were running with and towards the danger which culminated in the deadly scene at the Alexandra Avenue corner. The jury were also entitled to ask how you could be looking for your friends when those friends, Cuong Lam and Hung Van, were outside “Salt” shortly before the confrontation in Daly Street, when you were also in that vicinity, and when Hung Van was involved in the confrontation, inflicting the initial wound suffered by the deceased. The jury were, in addition, entitled to question how, if you were looking for your friends in Chapel Street, you managed to run past Cuong Lam’s car, which was parked in that street near the “Legends” pool hall. In addition, the jury might have found it difficult to understand how, if you had lost your friends, you could later be in their vicinity when James Huynh suffered his horrific injuries; or how you found your way to a flat in Footscray, where you met with them. On the evidence available to the jury, that meeting occurred not by chance but by arrangement; and the jury were perfectly entitled to infer that that arrangement was made at a time when, according to you, you were searching for those friends.
[2]Redlich J had earlier sentenced a number of other persons who had been found guilty of the murder of the deceased. These verdicts were the subject of appeal and some were overturned. See R v Lam and Ors [2008] VSCA 109.
These findings of fact were clearly consistent with the jury verdict and were not challenged before us. What was contested was his Honour’s conclusion that the respondent should be sentenced on the basis that his participation in the murder of the deceased was that of an aider and abettor rather than a principal who acted in concert with others involved in the fatal attack. His Honour stated in this context –
In your case, the jury found either that you were acting in concert with those intent on assaulting James Huynh, or you aided and abetted that assault. I incline to the latter alternative. It is clear that those carrying swords had armed themselves in this way as part of a joint enterprise. Those who were also wearing white gloves likewise signalled their joint participating with the others similarly accoutred. I am not satisfied that you were in either category, because the relevant film is inconclusive, and the evidence of Mark Ung is unreliable.
There is another reason why it seems to me that I should deal with you as an aider and abettor. It was on that basis that another offender, Linh Van (Johnny) Nguyen was sentenced by Justice Redlich. It was Mr Nguyen who drove the red Toyota Starlet to the scene after receiving a telephone call at the “Commercial Lounge” nightclub in Prahran. After arriving in South Yarra, he drove David Nguyen and Hung Van into Alexandra Avenue from where they assaulted James Huynh. In these circumstances, Justice Redlich rightly observed that much of Johnny Nguyen’s conduct supported the hypothesis that he was acting in concert with the principals of the first degree. His Honour nevertheless felt constrained to deal with Mr Nguyen as an aider and abettor “because the prosecution disavowed any intent to rely upon these circumstances as establishing that [he] acted in concert.” It would be unfair, it seems to me, were you not treated likewise. I note in this context that Johnny Nguyen was sentenced to 16 years’ imprisonment, of which he must serve a minimum of twelve and a half years before being eligible for parole. I also note that this sentence was predicated on the proposition that Mr Nguyen’s conduct was “more culpable than that of any of the other co-offenders who were convicted as aiders and abettors.”
The seriousness of your complicity in the murder of James Huyhn must also remain firmly in my mind. It is true that you had yourself been injured in the fight inside the nightclub, and were consequently bleeding profusely from the nose and the region around the nose. I accept that, as a result, you were not thinking as clearly as otherwise you might, and had reason to be angry with your assailants. But, in chasing after those who you must have known were running for their lives, in being armed – although without premeditation – and in being thereafter within the vicinity of those who then inflicted fearsome injuries upon the deceased, you aided and abetted James Huynh’s murder.
Proposed added ground 1
Counsel appearing on behalf of the Director submitted that, contrary to his Honour’s view of the appropriate approach to be adopted with respect to the jury verdict and his own fact finding responsibility in the sentencing process, the only reasonable inference open in the circumstances was that the respondent was party to an agreement entered into with Cuong Quoc Lam and Hung Tu Van in Daly Street to inflict, at least, really serious injury to the deceased. Accordingly, the argument was advanced, he had been sentenced on a fundamentally erroneous foundation. Counsel accepted that there was no direct evidence of any such agreement, but contended that this was the only finding that was reasonably open.
There are, in our opinion, five major obstacles lying in the path of the acceptance of this submission:
· First, it was not adopted by the prosecutor at the trial, who argued his case against the respondent before the jury on the alternative bases of concert and aiding and abetting.
· Secondly, and consistent with this approach, no objection was taken by him to the judge’s charge on this aspect.
· Thirdly, it is, at least, distinctly possible that the jury verdict rested upon acceptance of the role of the respondent as an aider and abettor.
· Fourthly, the prosecutor certainly did not suggest to his Honour in the course of the plea hearing that the only reasonable inference open was that the liability of the respondent arose from his participation as a principal acting in concert. He put the Crown position in the primary submission that the distinction was ultimately of little significance and that the respondent should be sentenced on the basis of what he did rather than what designation was given to the conduct. The prosecutor submitted –
... so far as making findings concerning the part played – if it be said, Your Honour, we of course haven’t heard our learned friend’s plea, but if it be said that Your Honour should be satisfied only that aiding and abetting is what occurred here rather than acting in concert, and as a result it might also be said that aiding and abetting is less serious than acting in concert.
If that line of reasoning is pursued, we say that that’s of not (sic) particular assistance to Your Honour and there are two authorities to which reference is made in the course of Justice Redlich’s sentencing remarks. They are sentencing remarks made by himself in R v Guthrie & Watt [2003] VSC 323. I’ll hand you a copy of that, and just direct Your Honour’s attention to paragraph 31 of those sentencing remarks.
The other matter that we thought it appropriate to direct Your Honour’s attention, is a case which we think is still unreported, that’s the DPP v SJK & GAS [2002] VSCA 131, [47] of that which I’ll hand to Your Honour as well. It is opened at that paragraph. That says, Your Honour, “Further, the notion that as a general proposition an aider and abetter would be expected to receive a lesser penalty is one which must be approached with considerable circumspection,” et cetera.
What we say again, we’d like to return to this after hearing our learned friend’s plea and any submissions he makes concerning the parties client (indistinct). We would say that really Your Honour should make findings from the circumstances of the offence rather than the nature of the offending, whether it’s a primary or access (indistinct) liability.
…
Your Honour, we would say therefore that rather than being at the Hoang Tran end of the spectrum, he’s really closer to the other end of the spectrum. If it be the case that he’s acting in concert, and if his interview is to be rejected, then you might think there’s not much between him and Quong (sic) Lam and Hong (sic) Van, the other two friends.
Just finally, Your Honour, if I haven’t made the point, the explanation that he himself offers in relation to the matter puts him at the scene very early on. He would have to have clearly be at the scene aiding and abetting or acting in concert. We would say the latter is probably more likely, at the time of the initial attacks.
· And, finally, we do not accept that any such finding by either the jury or the judge when sentencing could be dismissed as inherently unreasonable in any event.
Proposed ground 2
It was necessary for his Honour to have regard to the sentences handed down by Redlich J upon the other persons found to be involved in the death of the deceased and to the respective roles and personal circumstances relevant to them.
His Honour’s determination of the appropriate sentence to be handed down in the respondent’s case, of course, had to be made in the context of the evidence adduced and submissions advanced in the proceeding before him, having regard, of course, to the fact that, in separate proceedings and on a different evidentiary foundation, Redlich J had sentenced other persons who his Honour had to treat as co-offenders.
The sentencing by different judges of persons found to be involved in the same offence regularly presents difficulties, particularly in cases where questions arise as to the respective roles and levels of culpability of various participants. Of necessity, the sentencing judge must focus on the material before him or her, but take into account what transpired in other related proceedings. Counsel appearing for the respondent at the hearing was alive to this problem, as he submitted to his Honour –
If I could use the hierarchy that His Honour in the other matter found and in a sense it’s a dangerous exercise because it’s different facts, and Your Honour’s obviously got to deal with the fact in this case, and Your Honour may have formed a view of the conduct of individuals as per the evidence in this case which could possibly be different to the view of the fact His Honour found in the other case.
Any significant dispute concerning the factual foundation upon which the judge should act is to be resolved by the calling of evidence. This applies as much with respect to issues of parity as it does in relation to any other disputed consideration. The approach adopted by his Honour in the present case was conventional and appropriate. It was certainly not suggested to him that he should not take into account the respective roles, personal circumstances and levels of responsibility of any of the other persons involved, including Linh Van (Johnny) Nguyen and Hoang Tran or have regard to the sentences imposed by Redlich J. We note, in this context, that in the course of the hearing, the following exchange occurred –
PROSECUTOR: Your Honour, so far as parity is concerned, I’ve done a little chart in relation to their ages. Cuong Quoc Lam was born in 1979 and his occupation at the time of these events was a university student. Hung Van was born in 1976 and he was a factory worker with General Motors Holden at the time. Johnny Nguyen was born on 20 November 1978. He was a factory worker building pallets and there is reference to his prior convictions at paragraph 68 of His Honour’s sentencing reasons. David Nguyen was born on 26 October 1979. He was engaged in a family business and at the time of the events, as we understand it, there was a proposal that he go into a business of his own. His priors are referred to at paragraph 86 of His Honour’s sentencing remarks. It would appear that through a good part of his life he suffered a serious drug addiction. Linh Tran was born on 9 May 1982. He worked at a restaurant and was to start his tertiary studies in 2003. Hong Bui was born on 17 December 1981 and was a university student.
Hoang Tran was born on 6 August 1982. He was working, I think, at a supermarket, and he was a deferred student, as I understand the situation. Would it assist you if I was to go through the penalties imposed upon each of those?
HIS HONOUR: I’ve made a note of those.
PROSECUTOR: Very well, Your Honour.
His Honour, on the basis of his own knowledge gained as the presiding judge in the respondent’s trial and the information to which it was accepted he could refer, made an assessment of the relative situations of Hoang Tran and the respondent. It was appropriate for him to do so and the view that he adopted was reasonably open to him.
In this situation, there being no merit in either of the grounds sought to be added, the application for amendment is refused. We add that we put to one side a number of questions raised by counsel for the respondent concerning the principles to be adopted by the Court with respect to an application made by the Director for amendment of the grounds of appeal after the expiration of the period within which the proceeding had to be constituted.
The contention of manifest inadequacy
With respect to the various particulars upon which reliance has been placed in support of the contention that the sentence was manifestly inadequate to such an extent that the intervention of this Court was required, similarly the Court did not consider that any possessed substance. His Honour directly addressed each of the matters raised and fell into no error of omission or commission in his remarks concerning them.
Regarding (a), his Honour stated (inter alia) –
Tuan Quoc Tran, you have been convicted by a jury of a charge that you did on 8 July 2002 at South Yarra murder James Huynh. He was the victim of extreme brutality. At least one of his assailants attacked him with a sword. Others kicked him, and he was perhaps assaulted by other means as well. The savagery of the sword was therefore in his case augmented by the humiliation of being kicked while lying helplessly on the ground. Both his death, and the manner of his dying, were the work of young men operating at the lowest levels to which young men can sink.
…
It is true that you had yourself been injured in the fight inside the nightclub, and were consequently bleeding profusely from the nose and the region around the nose. I accept that, as a result, you were not thinking as clearly as otherwise you might, and had reason to be angry with your assailants. But, in chasing after those who you must have known were running for their lives, in being armed – although without premeditation – and in being thereafter within the vicinity of those who then inflicted fearsome injuries upon the deceased, you aided and abetted James Huynh’s murder.
These statements were made against the background of the frank acceptance by the respondent’s counsel that –
… Your Honour of course when sentencing will apply appropriate weight to the fact that this is the most serious verdict a jury can bring in, in the criminal calendar. What worse can a person be found to have done than to have taken another life.
It is evident from these and other remarks of his Honour and from the sentence itself that the sentencing judge well appreciated the seriousness of the offence and the respondent’s role in it.
Concerning (b) and (c), his Honour made clear that he was mindful that –
… The sentence which I impose upon you and must manifest the Court’s denunciation of your conduct, and make adequate allowance for both special and general deterrence.
There is no need to address (d).
With respect to (e), some of the persons to whose sentencing his Honour had regard were subsequently acquitted by order of this Court. Accepting that the respondent may have benefited to some extent by reference to the application of the principle of parity with them, we are far from persuaded when regard is had to the sentence handed down, the nature and extent of the respondent’s role as found by the sentencing judge, the sentences still standing on other co-offenders and the personal circumstances of the respondent, that those comparisons has had the effect of producing a significantly lower sentence that might otherwise have been imposed or, much more importantly, a manifestly inadequate sentence.
Finally, it is apparent from his thoughtful and carefully crafted sentencing remarks that his Honour was concerned to attribute proper weight to all of the matters to be taken into account in the determination of an appropriate sentence and to arrive at a disposition that could be seen to reflect an appropriate synthesis of them.
There is no need to say anything further in relation to the circumstances of the offence which involved appalling savagery and the death of a young man, the respondent’s role in what took place, the victim impact statements before the court or to emphasise the extreme seriousness with which the terrible events of that night must be regarded. All of these considerations were directly and appropriately addressed by his Honour. He also took into account, as he was required to do, the respondent’s personal background as a refugee, his age at the time of the commission of the offence (21 years), the absence of any prior convictions, the four years that he had spent in custody prior to trial, his good work history, the presence of strong family support and his ‘very good’ prospects of rehabilitation.
It has not been suggested that his Honour failed to have regard to any relevant factor or applicable principles militating in favour of aggravation or mitigation in this case. The Crown argument rested essentially upon the respective weightings that his Honour attributed to them. We have been able to detect no specific error in his Honour’s remarks and, rather than being of the view that the sentence imposed was such as to shock the public conscience, we considered that it was one that was available in the proper exercise of sentencing discretion.
Accordingly, the appeal was dismissed.