R v Tran - [2019] SASCFC 5

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRAN
[2019] SASCFC 5
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Lovell)
17 January 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
The respondent pleaded guilty to one count of importing tier two goods and one count of intentionally making a false statement on an incoming passenger card. From a starting point of two years and six months imprisonment, and applying a discount for the respondent’s plea, the sentencing Judge imposed a sentence of one year and eight months imprisonment. The sentencing Judge made a recognizance release order which was to take effect after the first ten months of the sentence of imprisonment was served by the respondent. The sentencing Judge further ordered that the ten months not subject to the recognizance order was to be served on home detention as opposed to at a correctional services institution.
The Commonwealth Director of Public Prosecutions seeks permission to appeal on the grounds that:
1. The Crimes Act 1914 (Cth) did not authorise the Judge to order that the respondent serve the sentence of ten months imprisonment before release on the recognizance order on home detention.
2. The sentencing Judge was not authorised to decline to impose any further penalty on the second count.
3. The sentencing Judge erred in making a finding that the respondent was a low risk of re-offending.
Held, per Curiam, granting permission to appeal and allowing the appeal on the first ground:
1. It was not open to the sentencing Judge to order that only a part of the sentence of imprisonment imposed be served on home detention (at [6], [61]-[62]).
2. As a matter of law, the sentencing Judge was not authorised to decline to impose any further penalty on the second count however; a nominal penalty could have been properly imposed and the permission to appeal should be refused on the second ground (at [16]).
3. It was open to the sentencing Judge to find that the respondent posed a low risk of re-offending and permission to appeal should be refused on the third ground (at [18]).
4. Sentence imposed by the Judge set aside. In lieu thereof the respondent is sentenced to imprisonment of 11 months commencing on 17 January 2019 but released forthwith on a recognizance release order for three years pursuant to s 20(1)(b) of the Crimes Act (at [65]).
Customs Act 1901 (Cth) ss 233BAB, 234; Crimes Act 1914 (Cth) ss 20, 20AB, 19AB, 19AC, 16A, 16B, 20A; Criminal Law Sentencing Act 1988 (SA) ss 33BB, 38A, 20AA; Judiciary Act 1904 (Cth) ss 68, 80; Sentencing Act 1991 (Vic) ss 36-48; Correctional Services Act 1983 (SA) s 22; Crimes Regulations 1900 (Cth) Reg 6, Item 6A; Acts Interpretation…

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 Tran

Details

AGLC: R v Tran [2019] SASCFC 5
Case: [2019] SASCFC 5
Decision Date: 17 January 2019

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Blue and Lovell JJ, considered an appeal by the Director of Public Prosecutions against the sentence imposed on Mr Tran. Mr Tran had pleaded guilty to possessing child pornography after arriving in Australia with over 2,000 images on external hard drives, some depicting extreme forms of abuse. The sentencing judge had imposed a home detention order, which the Director argued was not authorised by law.

The central legal issue before the Full Court was whether the sentence imposed by the primary judge was lawful and, if not, how to resentence Mr Tran in a manner that gave effect to the judge's original disposition while complying with the Crimes Act. The court was required to determine the appropriate sentence for Mr Tran, considering his early guilty plea, contrition, and the psychologist's assessment of a low risk of re-offending, balanced against the gravity of the offending.

The Court found that the home detention order was not an authorised sentence under the Crimes Act and therefore had to be set aside. While acknowledging the Director did not contend the original sentence was manifestly inadequate, the Court sought to give effect to the primary judge's intention to impose a community-based sentence with rehabilitative conditions. The Court resentenced Mr Tran to 11 months imprisonment, commencing on 17 January 2019, but ordered his immediate release on a recognizance release order for three years pursuant to s 20(1)(b) of the Crimes Act. This order included stringent conditions, such as supervision by a probation officer, restrictions on social media use and travel, and mandatory participation in assessment and treatment programs for sexual offending.

Orders

Orders of the court

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Background

Background to the litigation

However, on the sentencing hearing, the Director did not oppose a primarily rehabilitative sentence. Even though the home detention order must be set aside, it is appropriate to fashion a community based corrections order by imposing restrictive conditions on a recognizance release order made pursuant to s 20(1)(b) of the Crimes Act. That order is set out in [65] below.The facts On 14 May 2017 Mr Tran arrived at the Adelaide International Airport on a flight from Hong Kong. He was returning from Japan where he had worked as an English teacher and had pursued his interest in photography. He falsely answered ‘no’ to a question on an incoming passenger card which asked if he was bringing into Australia illegal pornography. Mr Tran’s luggage was searched and child pornography was found on two external hard drives. In total, the hard drives contained 2,120 images falling within all six of the common form categories by which such material is classified. The child pornography falling with categories 1-5 depicted children as young as 12 months through to mid-teens posing provocatively and being offended against sexually. The worst of the images depicted sadism and bestiality. Category 6 was animated material. The Judge described the material as ‘abhorrent’. Mr Tran is 32 years of age. He has no prior convictions. He has tertiary qualifications in biotechnology. Within a fortnight of his arrest, Mr Tran sought professional help to address his interest in child pornography. The Judge, correctly, placed great weight on what her Honour described as Mr Tran’s almost immediate steps to ‘obtain professional assistance’. The Judge accepted that Mr Tran had the material for his personal use only and did not intend to provide it to others. However, the Judge rejected Mr Tran’s explanation that the images of very young children were on the hard drive because he was too lazy to delete them. Nonetheless, the Judge accepted the opinion of Mr Elmer, the psychologist whom Mr Tran consulted for treatment, that there was a ‘low risk of re-offending’ in Mr Tran’s case. The Judge was confident that Mr Elmer reached that opinion well knowing that Mr Tran had a sexual interest in pre-pubescent girls. Her Honour found that Mr Tran’s decision to seek help reduced, but did not eliminate, the need for personal deterrence. References provided to the Judge spoke of Mr Tran’s otherwise good character and of the remorse that he had expressed to his friends. The Judge indicated that but for his plea of guilty her Honour would have imposed a period of imprisonment of two years and six months. Having regard to Mr Tran’s early guilty plea and contrition, the sentence was reduced to one year and eight months. The Judge determined to make a recognizance release order:I am unable to release you forthwith. I do not consider that such a sentence will be of a severity appropriate in all the circumstances.I have determined that the minimum time justice requires you to serve is 10 months. I have taken into account that you have spent already approximately 30 hours in custody.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows that the sentence imposed by the Judge was not authorised by law. Allowing a sentence of this kind, which is not authorised by law, is fraught. Difficult questions may arise. Can a breach lawfully be enforced? Is the defendant lawfully detained whilst on home detention? It is undesirable to allow an extant, but irregular, sentence to stand in the face of such uncertainty.Conclusion We grant permission to appeal for the purposes of ensuring that the order complies with the provisions of the Crimes Act. On the resentencing of the appellant we record that the Director does not contend that the sentence was manifestly inadequate. We resentence the respondent in a way which best gives effect, to the extent permitted by the Crimes Act, to the disposition which the Judge thought best addressed the circumstances of the offence and the respondent. The respondent has been detained on home detention conditions since 17 April 2018, a period of nine months. We order that the respondent be sentenced to imprisonment for 11 months commencing on 17 January 2019 but that he be released forthwith on a recognizance release order for a period of three years pursuant to s 20(1)(b) of the Crimes Act. The condition of the recognizance will be:1That the respondent be of good behaviour during the term of the Recognizance.2That the respondent be under the supervision of a Probation Officer assigned to him for a period of two years and obey the lawful directions given to him by the Probation Officer to whom he is assigned for the purpose of supervision.3That the respondent not maintain a Snapchat or Instagram account.4That the respondent inform his Probation Officer of any emails or any social media accounts maintained by him and provide all usernames and passwords relating to those accounts so that they may be monitored.5That the respondent present for inspection and examination by an expert any electronic device requested by his Probation Officer and provide any access codes relating to those devices.6That the respondent refrain from travelling interstate or overseas for a period of two years without the written permission of his Probation Officer.7That the respondent attend and complete any assessment, counselling, treatment and therapeutic programs as may be deemed appropriate to effectively case manage his individual needs as directed by the Probation Officer to whom he is assigned.8That the respondent attend for further sexual offending assessment and treatment at either Owenia House or on an individual basis with a suitably qualified and experienced psychologist, as directed by his Probation Officer to whom he is assigned.9That the respondent not be or remain within the vicinity of any kindergarten or preschool in Australia.

Ratio Decidendi

Legal Principle Established

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