R v Phillip Tran - [2011] VSC 181

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1669 of 2009

THE QUEEN

PHILLIP TRAN

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	18-20, 23-27, 30-31 August, 1-3 September 2010 (trial) 25 February 2011 (plea)
DATE OF SENTENCE:	6 May 2011
CASE MAY BE CITED AS:	R v Phillip Tran
MEDIUM NEUTRAL CITATION:	[2011] VSC 181

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CRIMINAL LAW – sentence – murder – acting with others – brutal attack with baseball bat – no premeditation – youthful offender – drug addiction – no remorse – currently serving sentence for other offences – total sentence of 18 years’ imprisonment for murder, to be served concurrently with current sentence – new single non-parole period of 13 years from today.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Horgan SC	Solicitor for Public Prosecutions
For the Accused	Ms C Randazzo SC	C Marshall & Associates

HER HONOUR:

Phillip Tran, you have been found guilty by a jury of the murder of Aaron Nidea on 22 December 2008. It is now my duty to sentence you for that crime.

Aaron Nidea was 28 when he died. Born in the Philippines, his family had migrated to Australia when he was a child. At some stage, he started using illegal drugs, including heroin. You started using illegal drugs when you were about 14, and were a regular user at the time of the offending. It is not clear how or when you and Mr Nidea first met, but it may well have been through your mutual drug use.

Around the middle of the day on 20 December 2008, you and Aaron Nidea arranged by telephone to meet up and travel to Footscray. Mobile phone records show that you had also been in frequent telephone contact with each other over the previous few days.

Mr Nidea borrowed his father’s car late that morning, ostensibly to do some Christmas shopping. Closed circuit television footage from the Footscray railway station showed that car entering the station carpark, shortly before 1.10 pm. Two people can be seen leaving the car and walking away from the camera, in the direction of a nearby disused Telstra building, a place used as some sort of squat by drug users.

Three men - Luke Morgan, Robert Tasevski and Bruce Smith - entered the Telstra building after you, to have a hit of heroin. In the large common room in the building, they saw Aaron Nidea swinging a baseball bat around, hitting objects that were strewn on the ground, while you were “mulling up” heroin at or near an overturned water-cooler.

Messrs Smith, Tasevski and Morgan gave evidence that they departed some 5 to 10 minutes later, after at least some of them had used heroin, leaving you and Mr Nidea apparently alone in the building.

Some time within the next hour, Mr Nidea was brutally assaulted with a weapon, which has never been found.

Robert Pocknee, who was sitting in a nearby park with…

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 Phillip Tran

Details

AGLC: R v Phillip Tran [2011] VSC 181
Case: [2011] VSC 181
Decision Date: 6 May 2011

CaseChat Overview and Summary

Phillip Tran was convicted of murder for his involvement in a brutal attack on another person, which resulted in the victim's death. The attack was carried out with a baseball bat, and although there was no premeditation, the brutality of the attack led to the victim's death. The court was tasked with determining an appropriate sentence for Tran, considering his age at the time of the offence, his drug addiction, and the fact that he showed no remorse for his actions. Tran was also currently serving a sentence for other offences.

The central legal issue before the court was to determine the appropriate sentence for Tran, considering various factors such as his age, drug addiction, and lack of remorse. The court had to balance these factors against the severity of the offence and the need for deterrence and retribution. Additionally, the court had to consider the impact of Tran's current sentence on the overall sentence to be imposed.

The court considered the factors mentioned above and decided that an appropriate sentence for Tran would be 18 years’ imprisonment for the murder charge. The court also determined that this sentence should be served concurrently with Tran's current sentence for other offences. The court set a new single non-parole period of 13 years, which would commence from the date of the sentencing decision. The court's decision took into account the seriousness of the offence, Tran's age and drug addiction, and the need to provide a sentence that would serve the interests of justice.

Orders