Phuong Van Tran v The Queen
[2012] VSCA 330
•16 November 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S ACPR 2012 0166
| PHUONG VAN TRAN | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | REDLICH and WEINBERG JJA and FERGUSON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 16 November 2012 |
| DATE OF JUDGMENT | 16 November 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 330 |
| JUDGMENT APPEALED FROM | DPP v Tran (Unreported, County Court of Victoria, Judge Hampel, 2 July 2012) |
---
CRIMINAL LAW — Application for leave to appeal against conviction — Applicant pleaded guilty to failing to comply with conditions of community-based order (‘CBO’) without reasonable excuse — Amendments to Sentencing Act 1991 entered into force in January 2012 repealing CBO provisions and enacting community-correction order regime — Contravention occurred prior to statutory amendment — Charge laid after amendment — Whether sentencing judge had power to impose penalty for breach of CBO following repeal of CBO provisions — Whether any operative provision under which applicant could be charged — Amending Act did not abrogate power of sentencing court to punish offender for breach of CBO which occurred prior to statutory amendment — Transitional provisions — Breach to be dealt with under relevant pre-amendment provision — Whether charge sheet defective — Whether any error in charge sheet immaterial — Application refused — Sentencing Amendment (Community Correction Reform) Act 2011.
CRIMINAL LAW — Application for leave to appeal against sentence — Sentencing error occurred as both counsel wrongly assumed that relevant clause under new regime sole repository of powers available to judge for contravention of old CBO — Parties and Judge proceed on erroneous basis as to available sentencing options – Imposition of more onerous conditions on CBO open — Applicant refrained from submitting on the plea that conditions of CBO should be varied — Sentencing discretion re-opened — Difficult personal circumstances — Small percentage of community work performed — Prior convictions for similar offences — Limited prospects of rehabilitation — Whether original sentence inadequate — Application refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A McMonnies | Mr A McMonnies |
| For the Crown | Mr P Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
On 17 June 2010, the applicant pleaded guilty in the County Court to one count of trafficking in a commercial quantity of abalone.[1] On 21 October 2010 he was sentenced to be released on a community-based order (‘CBO’) for a period of two years, commencing on that date. The CBO included the conditions that he perform 250 hours of unpaid community work over a period of two years and that he be under the supervision of a Community Corrections officer.
[1]Pursuant to s 111A(1) of the Fisheries Act 1995.
On 2 July 2012, the applicant pleaded guilty to failing to comply with the conditions of his CBO without reasonable excuse.[2] The applicant had failed to report as directed on six occasions between November 2010 and August 2011. He had also failed to attend to perform community work as directed on 10 occasions between December 2010 and August 2011. On 2 July 2012, he was sentenced to be imprisoned on the original count to a period of six months’ imprisonment, with no non-parole period.[3]
[2]Section 47(1) of the Sentencing Act 1991, version No. 140, incorporating amendments as at 1 August 2010.
[3]DPP v Tran (Unreported, County Court of Victoria, Melbourne, 2 July 2012, Judge Hampel) (‘Sentencing reasons’).
The applicant now seeks leave to appeal against conviction on the following ground:
1.The sentencing judge erred in finding that the charge was made out when the legislation empowering such a charge was repealed as from 16 January 2012.
The applicant also seeks leave to appeal against sentence on the following grounds:
1.The sentence imposed was manifestly excessive in that it did not adequately reflect the matters stated to be taken into account and those that ought to have been taken into account.
2.The sentence imposed did not take into account the extent to which the applicant complied with the CBO.
Leave to appeal against conviction
The Sentencing Act 1991 (‘the Sentencing Act’) was amended by the Sentencing Amendment (Community Correction Reform) Act 2011 (‘the Amending Act’) to provide for a new community correction sentencing regime. The purpose of the Amending Act was to repeal the old community based sentences, namely combined custody and treatment orders (‘CCTOs’), intensive correction orders (‘ICOs’) and CBOs, and to replace these sentences with community correction orders (‘CCOs’).[4]
[4]Section 1 of the Sentencing Amendment (Community Correction Reform) Act 2011.
The new CCO regime under the Sentencing Act which as I have said came into operation on 16 January 2012.[5] The Proclamation of Commencement dated 21 December 2011 fixed 16 January 2012 as the day on which Part 2 (other than s 49), s 68, Part 5 (other than ss 96 and 101 to 106), Part 6 and Part 7 of that Act and the Schedule to that Act came into operation. It repealed the old community based sentences and substituted a new Schedule 3 of the Sentencing Act.
[5]See s 21 of Amending Act which, inter alia, introduced new ss 36-48Q into the Act; Government Gazette (s 423, 21 December 2011).
The applicant submits that the sentencing judge had no power to impose a sentence upon the applicant for breach of his CBO as Division 3 of Part 3 of the Sentencing Act which contained the provisions relating to CBO’s had been repealed at the time the charge that he had failed to comply with the conditions of the CBO was laid on 26 March 2012. As all of the applicant’s contraventions of the CBO occurred before the date of commencement of the new regime, 16 January 2012, it was submitted that there was no operative provision under which the applicant could be charged.
The applicant contends that because cl 10(2) provides that cl 10(1) does not apply in circumstances where the breach of the old CBO occurred prior to the repeal of s 47, as was the case here, there was no operative provision under which the sentencing judge was entitled to punish the applicant for breach of his CBO.
Clause 10 of Schedule 3 relevantly provides:
10 Contravention—Old community-based orders
(1) An offender who is subject to an old community-based order must not, unless that person has a reasonable excuse, contravene that order.
Penalty: 3 months imprisonment.
(1A) An offender who is subject to an old community-based order (fines) must not, unless that person has a reasonable excuse, contravene that order.
Penalty: Level 10 fine.
(2) Subclause (1) does not apply to a contravention of an old community-based order that occurs before the commencement of section 21 of the Sentencing Amendment (Community Correction Reform) Act 2011.
(2A) Subclause (1A) does not apply to a contravention of an old community-based order (fines) that occurs before the commencement of section 70 of the Courts and Sentencing Legislation Amendment Act 2012.
(4)If in a proceeding for an offence under subclause (1) or (1A) for a contravention of an old community-based order, the court finds the person guilty of the offence the court must (in addition to sentencing the offender for the offence)—
(a)whether or not the order has expired, confirm the order that was contravened and if necessary to enable the offender to perform the remaining period and conditions of the order, vary the duration and dates of the order; or
(b)cancel the order (if it is still in force) and, whether or not it is still in force, deal with the offender for the offence or offences with respect to which the order was made as if the court has just found him or her guilty of that offence or those offences.
The applicant’s submission is predicated on a misconstruction of Schedule 3. Clause 10 of Schedule 3 is not to be read in isolation. By cl 4 of Schedule 3,[6] the old community based sentencing regime, including s 47, continues to apply in respect of sentencing offenders for contraventions of their CBO that occurred prior to the repeal of the old regime. The Amending Act did not abrogate the power of a sentencing court to punish an offender for a breach of a CBO that occurred prior to 16 January 2012.
[6] Community-based orders
A breach of an old CBO is therefore governed by s 47 of the Sentencing Act, which relevantly provided:
47 Breach of community-based order
(1) If at any time while a community-based order is in force the offender fails without reasonable excuse to comply with any condition of it or with any requirement of the regulations made for the purposes of this Subdivision, the offender is guilty of an offence for which he or she may be proceeded against on a charge-sheet filed by a prescribed person or a member of a prescribed class of persons.
(3A) If on the hearing of a charge under subsection (1) the court finds the offender guilty of the offence, it may impose a level 10 fine and in addition may—
(a) vary the community-based order; or
(b) confirm the order originally made; or
(c) cancel the order (if it is still in force) and, whether or not it is still in force, subject to subsection (4), deal with the offender for the offence or offences with respect to which the order was made in any manner in which the court could deal with the offender if it had just found him or her guilty of that offence or those offences.
(4)In determining how to deal with an offender following the cancellation by it of a community-based order, a court must take into account the extent to which the offender had complied with the order before its cancellation.
However, there are significant differences between the old regime (s 47) and the new regime (cl 10 of new Schedule 3):
·In relation to the penalty for a proven breach of a CBO, a breach under s 47(3A) is punishable by a fine only, whereas under cl 10(1) of Schedule 3, a breach is punishable by a term of imprisonment (3 months).
·Under s 47(3A) the sentencing judge had power to vary, confirm or cancel the CBO whereas under cl 10 of Schedule 3, the sentencing judge only has power to confirm or cancel the CBO (there being no power to vary).
·Under both regimes the sentencing judge, in determining how to deal with the offender following cancellation, must take into account the extent to which the offender complied with the order before its cancellation (s 47(4) and cl 10(5)(a) respectively). However, under the new regime the Court must also have regard to the conditions of the old CBO (cl 10(5)(b)).
·Under both regimes, the sentencing judge has power to cancel the CBO and then deal with the offender as if he/she had just been found guilty of the original offence.[7]
[7]See s 47(3A)(c) and cl 10(4)(b) respectively.
The applicant further argued that her Honour had wrongly sentenced him as though cl 10 applied. Notwithstanding the discussion between counsel and the sentencing judge, there is nothing in her Honour’s sentencing remarks to indicate that she considered she was sentencing the applicant by reference to the powers under cl 10. During the plea, the prosecutor directed her Honour to s 47(1)(c) as the provision regulating the grant of bail. Also, the prosecutor directed her Honour to the fact that she had the option of imposing a fine for the breach. Under s 47(3A), a breach of CBO is punishable by a fine, whereas under cl 10(1), a breach is punishable by a term of imprisonment only. Her Honour stated that she was not going to fine the applicant although she found the breach proven.[8] Had her Honour been exercising the powers under cl 10 rather than s 47, her Honour would not have considered a fine as that would not have been open.
[8]Sentencing reasons, [11].
In oral argument the applicant advanced a further argument to support the submission that the charge had been laid pursuant to s 47. While the schedule to the charge sheet listed the charge as an offence under s 47(1) of the Sentencing Act, on the face of the charge sheet filed on 26 March 2012,[9] the offence was said to be laid pursuant to s 116A and cl 10 of Schedule 3 of the Sentencing Act.
[9]Pursuant to s 6 of the Criminal Procedure Act 2009.
Under cl 1 of Schedule 1 of the Criminal Procedure Act 2009, a charge filed pursuant to a charge sheet must state the offence that the accused is alleged to have committed and contain the particulars that are necessary to give reasonable information as to the nature of the charge. On one view there is no disconformity between the two as the effect of cl 10 is to retain s 47 as the relevant provision where the contraventions of the CBO all occur before 16 January 2012.
If there be a relevant disconformity such that it might have been thought that the charge was laid pursuant to s 47, the error was immaterial. Cases such as R v McEwen,[10] R v Graham,[11] and R v DD[12], show that it should be viewed at worst as a technical error of no substantive consequence. No question of uncertainty or duplicity arises. No prejudice in the form of misinformation, lack of information or embarrassment in the presentation of the defence accrued as a result of the endorsement on the schedule. During the course of oral argument counsel for the applicant conceded that this was so.
[10][2005] VSCA 202.
[11][2007] VSCA 252.
[12](2002) 5 VR 243.
Accordingly, there is no merit in the application for leave to appeal against conviction. I would refuse leave to appeal.
Leave to appeal against sentence
I turn to the application for leave to appeal against sentence. At the outset it should be stated that even if there be an error of the technical nature referred to, that does not of itself provide a basis to ignore the sentencing discretion.[13]
[13]Kanakaris v The Queen [2010] VSCA 120, [86].
In its written submission the respondent accepted that a question arose as to whether the sentencing judge had sentenced the applicant under the old sentencing regime, pursuant to s 47, or the new regime, pursuant to cl 10. The question arose, partly because of the inconsistency of description of the offence on the charge sheet and schedule, and partly because the parties had wrongly informed her Honour that she had no power to vary the conditions of the CBO. The power to do so existed under s 47. The error arose because it appears that both counsel assumed that cl 10 was the sole repository of the powers available to the sentencing judge for a contravention of an old CBO. The sentencing judge was required to utilise the powers conferred under s 47 of the Sentencing Act, which included the power to vary conditions pursuant to s 47(3A)(a). The applicant’s counsel made plain that were he not constrained by the operation of the cl 10, he would have pressed her Honour to vary the order.
Her Honour did state in her sentencing remarks that –
I consider that it is appropriate to cancel the order and to re-sentence you for the original offence. I consider that the only sentencing option now available to me is one of imprisonment immediately served.[14]
[14]Sentencing reasons, [9], [11].
The reference to sentencing options had been alluded to during the plea her Honour observing that a court must not impose a custodial sentence unless it considers that the purpose for which the sentence is imposed cannot be achieved by a sentence of another kind.[15] I take the sentencing remark to be a reference to this obligation under the Sentencing Act. Her Honour made no reference in her sentencing remarks to the absence of a power to vary the conditions of the order. That is not surprising having regard to the view which her Honour expressed about his repetitive breaches of the order and her conclusion that imprisonment was the appropriate sentencing option. Her Honour was also told that if she cancelled the order she had the power to impose a term of imprisonment for the original offence.
[15]Sentencing Act 1991 s 5(4); T 24:9.
Senior counsel for the Director with his customary fairness accepted that counsel for the applicant had refrained from making a submission to vary the conditions based upon his erroneous view that under the new regime the powers under s 47 were no longer available. Having regard to the sentencing remarks and her Honour’s observations during the plea, I consider it most unlikely that her Honour may have been persuaded not to impose an immediate custodial sentence, but the possibility cannot be excluded that had she received submissions in support of an application to vary the applicant’s CBO and impose more onerous conditions, she may have done so.
Where the parties and the sentencing judge proceed upon an erroneous basis as to the sentencing options which are available and it is not in dispute that counsel for the accused would have preferred to advance a different argument had there been no such error, the justice of the case may sometimes require that this Court treat the sentencing process as flawed.
Drawing upon analogy with procedural fairness, unless it can be demonstrated that the outcome would inevitably have been the same, the applicant should have the opportunity to now advance argument as to why imposing more onerous conditions was not a more appropriate sentencing option than imprisonment. This Court’s supervisory role in the sentencing process is not so inflexible as to preclude it in the present circumstances from finding error in the sentencing process.
It is unnecessary to therefore consider whether either of the grounds of the sentence appeal have been made out as I accept sentencing error has been established. I would reopen the sentencing discretion if persuaded that a different and less severe sentence should be passed. The choice is between completion of his term of imprisonment or a CBO with onerous terms.
In making that assessment one must have regard to the nature of the original offence and the role of the applicant. Her Honour sentenced the applicant on the basis that he was one of five people found in possession of and actively engaged in taking the abalone. The offence to which the applicant pleaded guilty was a serious offence carrying with it a maximum of ten years’ imprisonment. He had two prior convictions for such offending but had not previously been imprisoned. On any view a CBO was a lenient sentence.
The applicant relies upon the sentences imposed on the co-offenders each of whom received a CBO although one was also sentenced to 3 months’ imprisonment. Her Honour could see no reason to differentiate between the offenders roles. But parity reasoning has much reduced scope in the re-sentencing of a co-offender following a breach of the terms of his previous sentence. As the applicant failed to comply with his original sentence, the penalties initially received by his co-offenders for the original offence has limited relevance.
The applicant was aged 24 at the time of the original offence and 27 at the time of the sentence for breach. It may be readily accepted that since the imposition of the CBO, the applicant has endured difficult personal circumstances. He has had to cope with a number of family bereavements, a relationship breakdown and difficulty in seeing his two young children, aged two and three, and the loss of his work as a result of a back injury. Unfortunately, these circumstances do little to justify or explain his intransigence and non-compliance with the CBO.
The applicant contends that we, unlike her Honour, should take account of the extent to which the applicant complied with the CBO. Section 47(4) provides that in determining how to deal with an offender for breach of a CBO, a court must take into account the extent to which the offender complied with the order. As the applicant explained, he had performed 17.5 percent of the community work ordered.
A sentencing judge imposing a sentence under s 47 invariably weighs the extent of compliance as against the instances of non-compliance with the order. There is nothing in the sentencing remarks to suggest that her Honour did not do so but it is hardly surprising that her Honour did not make specific reference to the minimal extent to which his obligation had been discharged.
The applicant submitted that this Court should take account of the reasons for non-compliance. He placed significant weight upon the medical evidence tendered at the plea. The applicant relied on medical certificates dated 2 and 15 June and 15 July 2011 to show he had a back injury and a respiratory tract infection that prevented him from complying with his obligations under the CBO to report and perform community service work. These reasons for non-compliance were and remain wholly unsatisfactory. The medical certificates could not explain either the numerous breaches that occurred prior to 2 June 2011 or the breaches that occurred after 15 July 2011. Moreover, the applicant’s community work duties were adjusted to account for his back injury, but he still failed to attend. Like the sentencing judge I consider this explanation for non-compliance warrants little weight.
The applicant submits further that adequate attention must be given to his prospects of rehabilitation, his struggles with depression and his ‘limited prior history.’ The applicant’s prior history can hardly be said to be ‘limited’. He has convictions for drug offences, dishonesty offences and two previous convictions for taking excessive amounts of abalone in February and November 2003. Her Honour correctly observed that the applicant had a ‘troubling criminal history’.[16] In respect of the applicant’s putative struggle with depression, no medical evidence was put before her Honour or this Court to support this assertion, beyond a submission from counsel at the plea that after 13 July 2011, the applicant got himself into a depressed state. The sentencing judge originally placed the applicant on a CBO rather than sentence him to a term of imprisonment ‘to encourage his rehabilitation.’[17] Her Honour concluded that the applicant’s persistent failure to comply with the CBO indicated his limited prospects of rehabilitation. Nothing was added before us which suggests that these matters should now be afforded more weight.
[16]DPP v Tran [2010] VCC 1543, [29].
[17]DPP v Tran [2010] VCC 1543, [25].
The applicant relies upon the fact that he has not been assessed by Corrections since September 2011, some 10 months before sentence. He further relies upon what is said to be a greater willingness to now comply with the CBO. The sentencing judge did not accept that contention. No evidence was placed before us to support
the contention that his attitude has changed. At best counsel now submitted that he should be given a further opportunity to demonstrate that this is so. However, a promise to comply in the future is an inadequate means of demonstrating a new attitude. When pressed in this Court as to what the applicant had done since the assessment of September 2011 that might encourage a view that there had been a change in attitude, nothing of any significance was identified.
The applicant further submits that her Honour failed to adequately consider the fact that the applicant’s breach of the CBO did not involve any further offending, but was merely a matter of ‘failing to comply with the conditions’. The contravention of a CBO is itself an offence under s 47. The provision would have little work to do if a sentencing judge was to approach such contraventions as trivial or technical. Here the applicant evinced a persistent unwillingness to comply with a sentence, where the offence would have justified a more severe punishment. We must approach an evaluation of the appropriate sentence on the basis that the original sentence has proved to be inadequate. Viewed in this light I am unable to conclude that a less severe sentence should be imposed.
I would refuse leave to appeal against sentence.
WEINBERG JA:
I agree for the reasons given by the learned presiding judge that leave to appeal should be refused.
FERGUSON AJA:
I too agree with the learned presiding judge.
- - - -
Subject to clause 10 and despite the commencement of section 21 of the Sentencing Amendment (Community Correction Reform) Act 2011, an old community-based order is taken to continue in force on and from that commencement as if this Act, as in force before that commencement, continued to apply to it.
11
4
0