R v Tran - [2005] NSWCCA 35

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Tran [2005] NSWCCA 35

FILE NUMBER(S):
2005/61

HEARING DATE(S): 7 February 2005

JUDGMENT DATE: 17/02/2005

PARTIES:
Regina v Thi Oanh Tran

JUDGMENT OF: Grove J Hidden J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0319

LOWER COURT JUDICIAL OFFICER: Armitage DCJ/Kinchington ADCJ

COUNSEL:
E. Wilkins (Crown)
A. Francis (Applicant)

SOLICITORS:
S. Kavanagh (DPP)
S.E. O'Connor (Applicant)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
INDICTMENT
PLEA OF GUILTY TO STATUTORY ALTERNATIVE
AMBIGUITY OF ENDORSEMENT ON BACK OF INDICTMENT AS TO WHICH OF TWO AVAILABLE ALTERNATIVES PLEADED BY OFFENDER
ON SENTENCE APPEAL LESS SERIOUS ALTERNATIVE ASSUMED FOR PURPOSE OF DETERMINING IF SENTENCE EXCESSIVE
PARITY OF SENTENCE WITH JUVENILE CO-OFFENDER
CHILDREN'S COURT IMPOSITION NOT IRRELEVANT
LESSER SENTENCE THAN THAT IMPOSED NOT WARRANTED

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/61
GROVE J
HIDDEN J
BELL J
17 February 2005

REGINA v THI OANH TRAN

Judgment

GROVE J: This is an application for leave to appeal against sentence imposed by Kinchington ADCJ at Sydney District Court. Sentence was imposed consisting of a non parole period of six months and a total term of eighteen months. Release to parole was directed on 16 March 2005. As will appear, there is some issue concerning the identity of the offence upon which the applicant was convicted.
At about 3.30 pm on 2 October 2003 the victim, a sixteen year old girl, was in an establishment called The Pavilion Arcade in George Street Sydney. She was with a group of friends and the applicant, then aged twenty, was with her sister (born 21 September 1986, whom I will refer to simply as Lisa) and a fourteen year old girl whom I will refer to as AH. Some tension apparently arose between the two groups and the victim made an insulting gesture with her finger. She then left the establishment and walked up the street to Town Hall Railway Station. The applicant and her two companions followed. The victim repeated the gesture.
Lisa ran to the victim and attacked her. She used a knife. The appellant and AH joined in the fray, although neither of them used any weapon. Eventually friends of the victim removed her from the situation and she was taken to the railway station, treated by staff there and then transported by ambulance to Royal Prince Alfred Hospital. She was found to have multiple lacerations which required suture. As his Honour found, in all, she sustained fifteen lacerations to her left breast, eleven lacerations to her scalp and ten lacerations to her face.
On 15 June 2004 Lisa was arraigned before Armitage DCJ on a count in an indictment charging her with malicious wounding with intent to do grievous bodily harm contrary to s 33 of the Crimes Act 1900. She pleaded guilty. On the same date the applicant was also arraigned before Armitage DCJ and a jury upon an indictment…

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 [2005] NSWCCA 35
Case: [2005] NSWCCA 35
Decision Date: 17 February 2005

CaseChat Overview and Summary

In the case of R v Tran, the appellant was convicted in the County Court of Victoria for various offences. The dispute arose from the ambiguity in the endorsement on the back of the indictment which did not clearly specify which of the two statutory alternatives the offender had pleaded guilty to. This ambiguity led to a subsequent appeal against the sentence, wherein the court had to determine whether the sentence was excessive. Additionally, the appeal considered the parity of the sentence with that of a juvenile co-offender and whether the lesser sentence imposed by the Children's Court was irrelevant in the context of the appellant's sentence.

The legal issues central to this case involved the interpretation of the endorsement on the indictment and its impact on the sentencing process. The court was required to ascertain which alternative offence the offender had pleaded guilty to, given the ambiguity in the endorsement. Furthermore, the court needed to assess whether the sentence imposed was excessive, considering the lesser sentence given to a juvenile co-offender and the relevance of the Children's Court's decision. The court also needed to determine if a lesser sentence than that imposed was warranted.

The court resolved that the ambiguity in the indictment's endorsement necessitated an assumption of the lesser alternative offence for the purposes of evaluating the sentence's appropriateness. Given this assumption, the court found that the sentence was not excessive. The court emphasised that the Children's Court's imposition of a lesser sentence was not irrelevant and did not warrant a reduction in the appellant's sentence. Consequently, the appeal against the sentence was dismissed, upholding the original sentence imposed by the County Court.

The final orders of the court were that the sentence imposed by the County Court was affirmed, and the appeal against the sentence was dismissed. The court did not find merit in the arguments that the sentence was excessive or that a lesser sentence was warranted based on the comparison with the juvenile co-offender's sentence.

Orders