R v Duong - [2000] VSCA 213

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 28 of 2000

THE QUEEN

TAM MINH DUONG

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JUDGES:	PHILLIPS, C.J., BROOKING and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 October 2000
DATE OF JUDGMENT:	31 October 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 213

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Criminal law – Sentence – Causing serious injury intentionally – Whether offences arose out of one transaction – Partial cumulation directed – Whether concurrency called for – Five years’ imprisonment not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. R.E. Carlin	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. R.J. Bourke	Haines & Polites

PHILLIPS, C.J.:

I shall ask my brother Chernov to give the first judgment in this matter.

CHERNOV, J.A.:

On 3 February 2000 the appellant, who was aged 25 at the time he committed the offences (to which I will refer later) and who is now aged 27, pleaded guilty in the County Court at Melbourne to three counts of intentionally causing serious injury. He admitted 14 prior convictions from three court appearances between August 1994 and April 1996. None of those convictions are for offences involving violence. On 11 February 2000 the appellant was sentenced to three years' imprisonment on count 3, two years' imprisonment on count 4 and three years' imprisonment on count 5. The learned sentencing judge ordered that the sentences on counts 3 and 5 be served concurrently and cumulatively on count 4, making a total effective sentence of five years' imprisonment. His Honour fixed a non-parole period of two-and-a-half years. The maximum penalty for the offence of intentionally causing serious injury is 20 years' imprisonment. I note that probably the most serious count was count 3 and the least serious count was count 4. I also note that his Honour misdescribed the three counts in his sentencing remarks as counts 1, 2 and 3 respectively, but obviously nothing turns on that.

On 20 June 2000 the appellant was granted leave to appeal against sentence pursuant to s.582 of the Crimes Act 1958 and on 26 October 2000 the Registrar ordered that the grounds of appeal be amended by substituting the following grounds:

1.The learned sentencing judge erred in ordering that the sentence imposed on counts 3 and 5 be served cumulatively upon the sentence imposed on count 4.

2. The sentence was in all the circumstances manifestly excessive.

Before I consider each of these grounds, I will summarise briefly the circumstances which formed the basis of the three counts. On the evening of Saturday, 31 July 1999 the appellant and his co-offender, Tho Le ("Le"), attended a birthday party in Yarraville. Each of the three victims also attended the party. In the course of the evening, an argument arose about the behaviour of one of Le's friends, Giang. Eventually, Le and Giang left the party. The appellant was not involved in this interaction and it seems that he also left the party, albeit separately, at or about that stage.…

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 Duong

Details

AGLC: R v Duong [2000] VSCA 213
Case: [2000] VSCA 213
Decision Date: 31 October 2000

CaseChat Overview and Summary

The case of R v Duong involved the defendant, Duong, who was convicted of causing serious injury by intentionally stabbing a man, resulting in significant injuries. The case was heard by the court of appeal, which reviewed the sentencing imposed by the lower court. The primary dispute was whether the sentence imposed was appropriate in light of the severity of the injuries caused and the nature of the offences.

The legal issues before the court were whether the offences arose out of a single transaction and, if so, whether partial cumulation was appropriate or if the sentences should run concurrently. Additionally, the court had to determine whether the five-year imprisonment term imposed was manifestly excessive.

The court of appeal considered the principle that where multiple offences arise out of a single transaction, partial cumulation of sentences may be appropriate. However, the court also recognised the need to consider whether concurrency was warranted due to the severity of the injuries and the nature of the offences. After reviewing the evidence and the submissions made, the court concluded that the five-year imprisonment term was not manifestly excessive and that the lower court had correctly applied the principles of sentencing in this case.

The court of appeal upheld the sentence imposed by the lower court, affirming that the term of imprisonment was not manifestly excessive and that the appropriate principles of sentencing had been applied. The appeal was dismissed, and the original sentence was maintained.

Orders