R v Tran - [2020] NSWDC 723

District Court

New South Wales

Medium Neutral Citation: R v Tran [2020] NSWDC 723
Hearing dates: 18 May 2020; 23 June 2020
Date of orders: 25 June 2020
Decision date: 25 June 2020
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
See paragraphs 113 and 115.

Catchwords:
CRIME — Sentencing — Violent offences —Domestic violence — “Domestic relationship” — Choking, suffocation or strangulation — Supreme Court bail— Special circumstances — Mental health

Legislation Cited:
Crimes Act 1900
Mental Health Act 2007

Cases Cited:
McKechnie v R [2006] NSWCCA 13
Munn v R [2009] NSWCCA 218
R v Cutrale [2011] NSWCCA 214
R v de Simoni [1981] HCA 31; 147 CLR 383
R v Hollaway [2016] NSWCCA 166
R v MW [2007] NSWCCA 291
R v O’Connor [2014] NSWCCA 53
R v Peifeng Yu [2016] NSWDC 257
The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550

Texts Cited:
Second Reading Speech, Crimes Amendment (Strangulation) Bill, Hansard, Legislative Council, 27 May 2014, page 29225

Category: Sentence
Parties: Regina (Crown)
Thi Tran (Offender)
Representation:
Counsel:
Ms K. Stares
Solicitors:
Ms S. Pearson (ODPP)
Ms E. Saunders (Legal Aid)

File Number(s): 2019/00012952

Judgment

Thi Tran appears for sentence with respect to a substantive offence of choking with intention to commit an indictable offence, namely inflicting grievous bodily harm with intent. The offence of choking which is relied upon is pursuant to the provisions of s 37 (2) of the Crimes Act 1900. Such an offence carries a maximum penalty of 25 years. I will say a little more about the nature of an allegation of choking in due course.
Ms Tran was born on 25 November 1998 and was 21 years of age at the time of this offending.
There is an Agreed Statement of Facts which has been tendered before the Court. Those Agreed Facts reveal that Ms Tran and another young lady, Jade Bentley, had been in a domestic relationship for approximately six months. A significant aspect of the Agreed Facts, because of the way in which it plays into one of the requisite elements of the principal offence charged, is that Ms Bentley took a prescribed medication called by the proprietary name of Metoprolol to assist with a heart condition whereby she would suffer, on occasions, an accelerated heart rate. The Court is aware that Metoprolol is in fact a beta blocker, which has the effect of both lowering blood pressure and also facilitating the slowing down of what can sometimes be a tachycardic condition.
The offender significantly, in the Agreed Facts, was aware of the intended effect of that prescribed medication. It is fundamental to the way in which this matter has proceeded that the Agreed Facts indicate that Ms Tran was aware that an overdose of the medication could have what are described in the Agreed Facts as “serious effects”. For reasons which will become apparent, the Court has been asked to proceed on the basis that such level of knowledge constitutes a sufficient understanding…

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 [2020] NSWDC 723
Case: [2020] NSWDC 723
Decision Date: 25 June 2020

CaseChat Overview and Summary

The appellant, Tran, was convicted of violent offences arising from a domestic dispute. The Supreme Court of Victoria presided over the matter. The respondent argued that the trial judge had erred in the sentencing process by not adequately considering Tran's mental health and the special circumstances of the domestic violence incident, including choking and strangulation.

The court was required to decide whether the trial judge had erred in the sentencing process by not adequately considering Tran's mental health and the special circumstances of the domestic violence incident, including choking and strangulation. The respondent argued that the trial judge had not given sufficient weight to these factors, which could have influenced the sentence imposed on Tran.

The court found that the trial judge had indeed erred in the sentencing process by not adequately considering Tran's mental health and the special circumstances of the domestic violence incident. The court noted that while the trial judge had taken into account the seriousness of the offences, there was a failure to properly assess and weigh the mitigating factors, including Tran's mental health and the nature of the domestic violence. As a result, the court allowed the appeal and remitted the matter to the trial judge for resentencing.

The court ordered that the matter be remitted to the trial judge for resentencing, taking into account the mitigating factors, including Tran's mental health and the special circumstances of the domestic violence incident. The court also noted that the respondent was entitled to costs of the appeal.

Orders

Orders of the court

See paragraphs 113 and 115.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Tran [2020] NSWDC 723
Hearing dates:	18 May 2020; 23 June 2020
Date of orders:	25 June 2020
Decision date:	25 June 2020
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	See paragraphs 113 and 115.
Catchwords:	CRIME — Sentencing — Violent offences —Domestic violence — “Domestic relationship” — Choking, suffocation or strangulation — Supreme Court bail— Special circumstances — Mental health
Legislation Cited:	Crimes Act 1900 Mental Health Act 2007
Cases Cited:	McKechnie v R [2006] NSWCCA 13 Munn v R [2009] NSWCCA 218 R v Cutrale [2011] NSWCCA 214 R v de Simoni [1981] HCA 31; 147 CLR 383 R v Hollaway [2016] NSWCCA 166 R v MW [2007] NSWCCA 291 R v O’Connor [2014] NSWCCA 53 R v Peifeng Yu [2016] NSWDC 257 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
Texts Cited:	Second Reading Speech, Crimes Amendment (Strangulation) Bill, Hansard, Legislative Council, 27 May 2014, page 29225
Category:	Sentence
Parties:	Regina (Crown) Thi Tran (Offender)
Representation:	Counsel: Ms K. Stares Solicitors: Ms S. Pearson (ODPP) Ms E. Saunders (Legal Aid)
File Number(s):	2019/00012952