Phuong Van Tran v The Queen - [2012] VSCA 330

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S ACPR 2012 0166

PHUONG VAN TRAN	Applicant
	v
THE QUEEN	Respondent

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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)

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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.

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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…

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 Phuong Van Tran v The Queen

Details

AGLC: Phuong Van Tran v The Queen [2012] VSCA 330
Case: [2012] VSCA 330
Decision Date: 16 November 2012

CaseChat Overview and Summary

The case of Phuong Van Tran v The Queen involves the applicant seeking leave to appeal against both his conviction and sentence. Tran had pleaded guilty to breaching the conditions of a community-based order without a reasonable excuse. The relevant legislation, the Sentencing Act 1991, was amended in January 2012, replacing the community-based order provisions with a community-correction order regime. The breach in question occurred before the amendment, but the charge was laid post-amendment. The central legal issues revolved around whether the sentencing judge had the authority to impose a penalty for the breach of the community-based order following the repeal of the community-based order provisions, and if the charge sheet was defective due to the absence of an operative provision under which Tran could be charged.

The Court examined whether the amending act had abrogated the power of the sentencing court to punish offenders for breaches of community-based orders occurring before the statutory amendment. It was determined that the amending act did not eliminate the sentencing court's power to address such breaches under the relevant pre-amendment provisions. Additionally, the Court considered the transitional provisions and concluded that the breach should be managed under the provisions in effect before the amendment. The Court found that any error in the charge sheet was immaterial and dismissed the application concerning the conviction. Regarding the sentencing, the Court found that the sentencing error arose from a mutual misunderstanding by both counsel and the judge about the available powers under the new regime. Despite this, the sentencing discretion was reopened due to the applicant's failure to argue for variation of the community-based order conditions. The Court also took into account Tran's difficult personal circumstances, minimal completion of community work, prior convictions, and limited prospects of rehabilitation, ultimately deciding that the original sentence was not inadequate.

The Court refused both applications for leave to appeal. In doing so, it clarified the applicability of transitional provisions in the context of sentencing for breaches of community-based orders that occurred prior to legislative amendments. The Court's decision provided guidance on how to handle such cases in light of statutory changes, emphasizing the importance of understanding the relevant legal framework when imposing sentences.

Orders