R v Ta - [2002] VSCA 142

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 189 of 2001

THE QUEEN

THINH VAN TA

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JUDGES:	PHILLIPS, C.J., ORMISTON and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 August 2002
DATE OF JUDGMENT:	29 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 142

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Criminal law – Sentence – Subsequently discovered medical condition – R. v. Eliasen (1991) 53 A.Crim.R. 391 applied – Non-parole period reduced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S.M. Cooper	Ms. Kay Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr J.P. Dickinson	Stephen Andrianakis & Associates

PHILLIPS, C.J.:

The applicant, who is aged 38, was convicted in the County Court in July 2001 on eleven counts of attempting to obtain property by deception, Counts 1, 4 to 6, 9, 10, 14, 26 to 29 in the presentment, and 34 counts of obtaining property by deception, Counts 2, 3, 7, 8, 11 to 13, 15 to 25, and 30 to 45 on the presentment. These offences had been committed at Braybrook between 1 July 1999 and 10 July 1999 and carry maximum penalties of five and ten years' imprisonment respectively.

The applicant had no prior convictions and after a plea for leniency, he was sentenced on 10 July 2001 to a total effective sentence of three years and six months' imprisonment, with a non-parole period of two years. I shall attach a schedule of the individual sentences and the cumulation directions made to this judgment. A declaration was made as to pre-sentence detention and a compensation order was made in the sum of $296,977.

The applicant later lodged and still later abandoned an application for leave to appeal against his conviction. The applicant also lodged notice of application for leave to appeal against his sentence, pleading that it was manifestly excessive. On 13 June last he was granted leave to amend this notice by substituting the following grounds:

“(1)the ill health of the applicant being present but unknown and diagnosed at the time of sentence and now are still present, however now diagnosed and under treatment, makes imprisonment more burdensome upon the applicant than was envisaged at the time of sentence, and accordingly a lesser sentence should now be imposed upon the applicant.
(2)the learned sentencing judge erred in that he failed to take into account or sufficiently take into account the extensive admissions as to facts made by the applicant which admissions greatly shortened the length of the trial and saved the community time, trouble and expense."

It is now necessary to set out in summary form the facts of these matters and relevant events touching the applicant's trial. In this exercise I have had recourse to a summary of evidence and other matters supplied to the Court as to which there has been no dispute.

In October 1998 the applicant registered a business name Hung Thinh Hi Fi Trade Import/Export Electronics. The business operated from a warehouse leased at 1A Bank Street, Braybrook. The lease commenced in March 1999.…

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 Ta

Details

AGLC: R v Ta [2002] VSCA 142
Case: [2002] VSCA 142
Decision Date: 29 August 2002

CaseChat Overview and Summary

The appellant, Ta, was convicted of manslaughter and sentenced to imprisonment. The matter before the court was an appeal against the sentence imposed. The central issue was whether the sentence should be reconsidered in light of medical evidence that emerged after the sentencing hearing, specifically a medical condition that was not known at the time of sentencing. The court was required to determine if the new medical evidence warranted a reduction in the non-parole period of the sentence.

The court considered the principles established in R v Eliasen, which sets out the circumstances under which a sentence may be reviewed on the basis of subsequently discovered evidence. The court noted that the medical condition significantly impacted the appellant's capacity for rehabilitation and future offending risk. It found that the condition was of a kind that would likely have influenced the original sentencing decision. The court then exercised its discretion to reduce the non-parole period to reflect the appellant's current circumstances and to ensure a just outcome.

Having examined the evidence and the relevant legal principles, the court concluded that the sentence should be amended. The non-parole period was reduced, acknowledging the appellant's medical condition and its impact on his potential for rehabilitation. The court's decision was grounded in the need to achieve a fair and proportionate sentence that took into account all relevant factors, including those that came to light after the original sentencing. The court's ruling was in line with the broader objectives of the criminal justice system to ensure sentences are both punitive and rehabilitative.

Orders