R v Do and Tran - [2002] VSC 49

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1422 of 2001

THE QUEEN

CHUYEN HONG DO AND
VUONG VAN TRAN

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October – 2 November, 5 –9, 12-14 and 16 November 2001
DATE OF SENTENCE:	8 March 2002
CASE MAY BE CITED AS:	R v Do and Tran
MEDIUM NEUTRAL CITATION:	[2002] VSC 49

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Criminal law – Sentence – Intentionally cause serious injury – Young offender – 5/3; Attempted murder – Young offender – 8/6.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Kayser Crown Prosecutor	Public Prosecutions
For the Accused Do	Mr. T. Lynch	Access Law
For the Accused Tran	Mr. S. Langslow	Victorian Legal Aid

HIS HONOUR:

On 14 November last year you were each convicted by a jury of serious offences arising out of a knife attack which you perpetrated on Mr Hans Kosterman in Bourke Street on 20 November 2000. You, Tran, were convicted of attempted murder and you, Do, of intentionally causing serious injury. The attack, which involved six stab wounds to Mr Kosterman's back, left him a paraplegic with all the usual consequences that that condition produces. His injuries are permanent. He will never walk again. He suffers from migraine headaches and incontinence. He is barely sufficiently independent to live alone, a situation which, having regard to his injuries, is unlikely to change. His victim impact statement details his disabilities and the effect of them on his capacity to function as a normal human being. It makes chilling reading. His injuries are indeed catastrophic.

On the day in question Mr Kosterman had gone to the city from his then home in South Melbourne. He told the Court that he had done so to try to find his 13 year old son who had not gone to school that day and who he suspected might be involved in stealing and using the proceeds to buy heroin for his mother. Whether this explanation for his being in the city on 20 November was true or whether he was actually there to buy heroin for himself is a matter difficult to determine. On the whole his evidence was very unsatisfactory but, having regard to the large number of eye witnesses to the attack in respect of which you were convicted, this did not, in the end, matter very much at all.

You first encountered Mr Kosterman in an arcade off Bourke Street just east of Swanston Street. He said that he asked you whether you had seen his son. An altercation ensued which was broken up by the intervention of a private security guard. Whether Kosterman’s account of this encounter is true or not it is clear that, for one reason or another, violence occurred between you and him such that you felt it necessary or desirable to arm yourselves with deadly weapons. This you did.

Shortly after your altercation with Mr Kosterman the two of you went…

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 R v Do and Tran

Details

AGLC: R v Do and Tran [2002] VSC 49
Case: [2002] VSC 49
Decision Date: 8 March 2002

CaseChat Overview and Summary

The case of R v Do and Tran involved two defendants who were charged with a range of criminal offences, including intentionally causing serious injury and attempted murder. The matter was heard in the Supreme Court of Victoria. The central issue was the appropriate sentence to be imposed on the defendants, given their ages and the circumstances of the offence.

The court had to consider the principles of sentencing for young offenders, as well as the nature and circumstances of the offence. The defendants were both young at the time of the offence, which was a mitigating factor. However, the court also had to consider the gravity of the offences, which included intentionally causing serious injury and attempted murder. The court needed to balance these factors to determine an appropriate sentence.

The court held that the offences were of a serious nature, but given the young age of the offenders, the sentence needed to reflect this. The court imposed a sentence of 5 years and 3 months imprisonment for intentionally causing serious injury, and 8 years and 6 months imprisonment for attempted murder. The court considered that these sentences reflected the seriousness of the offences, while also taking into account the age of the offenders.

The court ordered that the sentences be served concurrently, with a non-parole period of 3 years and 7 months. The court also ordered that the defendants be subject to good behaviour bonds for a period of 5 years following their release from prison.

Orders