R v Lam & Tran - [2007] VSCA 246

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 59 of 2007
v
HANH LAM
THE QUEEN	No. 60 of 2007
v
THANH THUAN TRAN

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JUDGES:	BUCHANAN and CHERNOV JJA and CURTAIN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 November 2007
DATE OF JUDGMENT:	1 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 246	1^st revision 12 November 2007

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CRIMINAL LAW – Sentence Appeals – Handling of stolen goods – Dealing with the proceeds of crime – Aggregate sentences imposed not in accordance with principles enunciated in Director of Public Prosecutions v Felton [2007] VSCA 65 – Delay in resolution of the matters not attributable to the appellants – Additional evidence as to circumstances of hardship now before the Court - Mercy – No prior convictions - Appeals allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant Lam	Mr M Dempsey	Theo Magazis & Associates
For the Appellant Tran	Mr T Kassimatis	Theo Magazis & Associates

BUCHANAN JA:

I will invite Curtain AJA to deliver the first judgment.

CURTAIN AJA:

In this matter the Crown concedes that the learned sentencing judge was in error in imposing an aggregate sentence in respect of each of the appellants, Hanh Lam and Thanh Thuan Tran. That is so because his Honour did not approach the sentencing function in accordance with the principles enunciated in Director of Public Prosecutions v Felton[1]. That he did not is no criticism of his Honour, as that case was decided subsequent to the sentences being imposed in the present case. The sentencing discretion therefore is re-opened and it falls to this Court to sentence each of the appellants.
[1][2007] VSCA 65.

Hanh Lam is 37 years old. She is the mother of four children. She and her co-offender, Tran, are divorced, although at the time of the offences they had resumed their relationship and were living in the same house. Ms Lam came to Australia in 1987 and, until she embarked upon these offences, had been in steady employment, principally sewing piece work from home. She has no prior convictions and has not, except for the offending the subject of count 3, offended since.

Ms Lam indicated her intention to plead guilty when the matters first came before the Magistrates' Court in October 2004. The matter was adjourned then for hearing in January 2005, but on that occasion the magistrate, quite properly, in my view, regarded the matter as one to be dealt with in the County Court and accordingly the matter was then set down for a committal mention. It proceeded by way of a hand-up brief and eventually came before the learned sentencing judge for plea in February 2007. In the interim, there had been one application for an adjournment made by the appellants by reason of an interpreter's non-attendance at a consultation required for the purposes of preparing a report.

An affidavit sworn by Ms Huong…

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 Lam & Tran

Details

AGLC: R v Lam and Tran [2007] VSCA 246
Case: [2007] VSCA 246
Decision Date: 1 November 2007

CaseChat Overview and Summary

The appellants, Lam and Tran, were convicted of various offences relating to the handling of stolen goods and dealing with the proceeds of crime. The case came before the Court of Appeal, which was tasked with determining whether the sentences imposed by the trial court were appropriate. The primary issue for the Court was whether the aggregate sentences imposed on the appellants were in line with the principles set forth in the case of Director of Public Prosecutions v Felton. Additionally, the Court had to consider the delay in resolving the matters, the appellants’ lack of prior convictions, and the new evidence presented regarding the appellants’ personal hardships.

The Court of Appeal found that the sentences imposed by the trial court were not in accordance with the principles outlined in Felton. The Court noted that the delay in resolving the matters was not attributable to the appellants, and it took into account the additional evidence presented regarding the appellants’ personal hardships. The Court also considered the appellants’ lack of prior convictions and their potential for rehabilitation. Based on these factors, the Court concluded that mercy should be exercised in the appellants' favour. The Court of Appeal allowed the appeals, resulting in the reduction of the appellants' sentences.

The Court of Appeal, having considered the principles of sentencing, the delay in resolving the matters, and the new evidence regarding the appellants' personal hardships, allowed the appeals. The Court determined that the aggregate sentences imposed on the appellants were not in accordance with the principles enunciated in Felton. The Court also took into account the appellants' lack of prior convictions and their potential for rehabilitation. As a result, the Court reduced the appellants' sentences, reflecting the appropriate exercise of mercy in this case.

Orders