DPP v Truong - [2004] VSCA 172

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.124 of 2004

THE DIRECTOR OF PUBLIC PROSECUTIONS
	v.
CHINH TUNG TRUONG

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JUDGES:	BATT, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 July 2004
DATE OF JUDGMENT:	24 September 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 172

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CRIMINAL LAW – Sentencing – Crown Appeal – 22 counts of obtaining property by deception – Bank employee accessing customer accounts while on CBO – Some 150 transactions – Similar prior convictions – Gambling addiction – Rehabilitation prospects – 12 months’ imprisonment suspended as to half manifestly inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr. P.G. Priest Q.C. with Mr. P.A. D’Arcy	Moores Legal

BATT, J.A.:

On 29 April 2004 the respondent Chinh Tung Truong, who was born on 9 October 1972, pleaded guilty in the County Court at Melbourne to 22 counts of obtaining property by deception. The offences were committed between 20 February and 19 November 2001. The maximum custodial penalty for this offence is imprisonment for 10 years. The respondent admitted 11 prior convictions, ten of which were for this offence, from two court appearances. On each of those occasions he had been released on a community-based order for a period of 12 months with a special condition to undergo gambling counselling.

After the prosecutor had opened the facts of the case, the sentencing judge proceeded to hear a plea for leniency on behalf of the present respondent. On 6 May 2004 his Honour convicted the respondent on each of the 22 counts and sentenced him to be imprisoned for three months on each. He directed that the sentences on counts 2, 3 and 4 be served cumulatively on the sentence on count 1 and that the sentences on all other counts be served concurrently with the sentence on count 1. Accordingly the total effective sentence was 12 months’ imprisonment. He directed that six months of that sentence be suspended for three years. He ordered that the prisoner pay compensation in the sum of $109,326 to the Commonwealth Bank of Australia.

The Director of Public Prosecutions by notice served on 3 June 2004 has appealed pursuant to s.567A of the Crimes Act 1958 against the sentence on the ground that it is manifestly inadequate. By way of Particulars the notice contends that, in fixing the individual terms of imprisonment, in making the orders with respect to cumulation and concurrency and in ordering that six months of the total effective sentence of 12 months be suspended for three years, his Honour failed adequately to reflect the gravity of the offences generally and in the particular case; failed to take into account or sufficiently into account the aspects of general deterrence and specific deterrence (both of which were mentioned by his Honour as needed); gave too much weight to factors going to mitigation; and gave insufficient weight to the respondent’s relevant prior criminal history and the…

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 Truong

Details

AGLC: Director of Public Prosecutions v Truong [2004] VSCA 172
Case: [2004] VSCA 172
Decision Date: 24 September 2004

CaseChat Overview and Summary

The matter before the court was an appeal by the Director of Public Prosecutions against the sentence imposed on Truong for 22 counts of obtaining property by deception. The appellant argued that the sentence was manifestly inadequate and did not reflect the seriousness of the offending or provide sufficient deterrence or denunciation. Truong, a former bank employee, had accessed customer accounts while on a certified balance order and had engaged in over 150 transactions. The court was required to determine whether the original sentence of 12 months' imprisonment, suspended as to half, was manifestly inadequate.

The court considered the gravity of the offending, noting that it involved serious breaches of trust and abuse of a position of authority. The court observed that the offending was not isolated but part of a pattern of dishonesty, with Truong having similar prior convictions. The court also acknowledged Truong's gambling addiction, which had contributed to the offending, and the potential for rehabilitation. However, the court found that the sentence did not adequately reflect the seriousness of the offending, nor did it provide sufficient deterrence or denunciation. The court noted that the sentence did not account for the cumulative impact of the offending and the breach of trust involved.

The court allowed the appeal and re-sentenced Truong to 18 months’ imprisonment, with 12 months suspended after 6 months. The court emphasised the need for the sentence to reflect the gravity of the offending, provide deterrence and denunciation, and consider the prospects for rehabilitation. The court also noted that the sentence should be proportionate to the offending and should account for the cumulative impact of the offending and the breach of trust involved. The court considered that the revised sentence was more appropriate and would provide adequate deterrence and denunciation. The court also noted that the revised sentence would provide an opportunity for Truong to address his gambling addiction and rehabilitation prospects. The court noted that the revised sentence would also provide adequate protection for the community and reflect the seriousness of the offending.

The final orders of the court included the allowance of the appeal, the re-sentencing of Truong to 18 months' imprisonment with 12 months suspended after 6 months, and the direction that Truong pay a fine of $5,000. The court also noted that the revised sentence would provide an opportunity for Truong to address his gambling addiction and rehabilitation prospects.

Orders