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 in identical terms. The applicant pleaded not guilty. After empanelment of the jury and some conventional directions to them by his Honour, the trial was adjourned to the following day.
Up to a relevant point the transcript of proceedings on that following day should be set out:
“IN THE ABSENCE OF THE JURY
McSPEDDEN:   Thank you very much for the advantage of that adjournment. I am in a position to say that this matter is now such that it can be resolved by way of a plea to the statutory alternative to the charge on the indictment.
So that I would be asking that when the jury returns that the accused by rearraigned. And of course there is only the one client (sic) on the indictment, she will enter a plea, as I understand, not guilty but guilty of the statutory alternative which is malicious wounding.
HIS HONOUR:   So that is what she will say, even though it is not actually on the indictment, is that right.
CROWN PROSECUTOR:   Yes. Yes or she can say not guilty but guilty to malicious wounding or some suitable formulation. And that will be accepted by the Crown in full discharge of the indictment.
HIS HONOUR:    Your client understands that exactly does she?
McSPEDDEN:   She does your Honour.
HIS HONOUR:   She says not guilty but guilty to malicious wounding.
McSPEDDEN: Yes your Honour.
CROWN PROSECUTOR:   And that will be accepted by the Crown.
IN THE PRESENCE OF THE JURY
HIS HONOUR:   Ms McSpedden, as I understand it you would like your client to be rearraigned.
McSPEDDEN:    Yes your Honour, for the indictment to be again read your Honour.
CHARGE:   For that she on 2 October 2003 at Sydney in the State  of New South Wales did maliciously wound (the victim) with intent to do grievous bodily harm.
PLEA:     Not guilty but guilty to maliciously wounding.
CROWN PROSECUTOR: The Crown accepts the plea of guilty to the statutory alternative in full discharge of the indictment.”
The reference to “statutory alternative” needs to be examined in the context of ss34 and 35 of the Crimes Act 1900:
“34. Where, on the trial of a person for an offence under section 33, the jury are satisfied that the accused is guilty of the wounding, or inflicting grievous bodily harm, mentioned in the indictment, but are not satisfied that the person is guilty of the intent charged therein, they may acquit the person of such intent and find the person guilty of an offence under section 35, and the person shall be liable to punishment accordingly.
35(1)      Whosoever maliciously by any means:
(a)          wounds any person; or
(b)          inflicts grievous bodily harm upon any person, shall be liable to imprisonment for 7 years.
(2)      A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years.”
As the transcript above extracted shows, there was no recorded reference to the circumstance of aggravation of being in company as contemplated by s 35(2) although the facts put before the sentencing judge (Kinchington ADCJ) described the commission of the offence by the applicant in terms of she and AH joining in the attack initiated by Lisa.
In the exercise of criminal jurisdiction, endorsement on the back of the indictment is the formal record of proceedings: R v Carrion 2002 128 A Crim R 29; R v Holton [2004] NSWCCA 214.
The endorsement in relation to what occurred on 16 June 2004 before Armitage DCJ is:
“16 Jun 2004. Plea guilty to statutory alternative. Crown accepts in full satisfaction.”
It is the Crown contention that the applicant stands convicted of malicious wounding in company. There is, to say the least, ambiguity as to whether an offence contrary to s 35(1) or an aggravated offence contrary to s 35(2) was recorded by that endorsement. Had an indictment been presented charging an offence contrary to s 35(2) it would have been necessary to plead the circumstance of aggravation, namely that the offence was committed in company. The Crown does not suggest otherwise.
What the Crown does submit is that it was at all times understood by everybody, that is to say, the Judge and counsel and the applicant through her counsel, that the reference to “statutory alternative” was a reference to the alternative offence available to be charged contrary to s 35(2).
Although specification that the offence was committed “in company” was absent from the applicant’s response to arraignment, in a submission referring to a sentence imposed upon AH in the Children’s Court her counsel said:
“McSPEDDEN: Your Honour I wasn’t about to suggest that your Honour have regard to that for parity but to indicate to your Honour the community service I certainly wouldn’t say that she should receive 75 hours of community service but she is an older person, there are differences but the charge was the same, malicious wounding. There is the subsection 2 effect and that is because it is in company the maximum goes from seven years to ten years maximum and certainly the legislator (sic) contemplates full time custody. In the circumstances of this case your Honour without it going to the subjective matters but looking at the objective facts, in my respectful submission this would not be a matter where your Honour would find that the offence was anywhere near the higher end of the scale of seriousness for malicious wounding, in fact I would be frankly submitting it is at the lower end of the scale.”
Later his Honour asked about prescribed maximum penalty and was informed by counsel for Lisa that it was “twenty five years for the one my client” and referring to Katherine (as the applicant was at times called) the Crown Prosecutor said, “ten”.
It seems clear that it is correct that all present at the first instance hearing proceeded on the basis that the “statutory alternative” referred to s 35(2). There was no dispute that the applicant was in fact in company at the time of offending.
In his remarks on sentence Kinchington ADCJ recapitulated that “the maximum penalty for the offence of malicious wounding is ten years imprisonment”. Throughout his remarks whenever referring to the offence his Honour expressed it simply as “malicious wounding” without adding reference to the circumstance of aggravation that the offence was committed in company. The Crown submits that his expression should simply be treated as a “shorthand” way of expressing the aggravated form of offence.
Before this Court is an application for leave to appeal against severity of sentence. There has been no proceeding either in the District Court or here seeking to remove any ambiguity from the endorsement on the back of the indictment. In its present state, I am of opinion that the ambiguity has to be resolved in favour of the applicant in that the endorsement records only the conviction of the applicant of malicious wounding simpliciter which is in accord with her response to rearraignment which I repeat was:
“Not guilty but guilty to maliciously wounding”.
If a sentencing judge was required to impose sentence for an offence of malicious wounding contrary to s 35(1), there would be an inhibition upon treating a circumstance that the offence was committed in company because to do so would amount to sentencing for the more serious offence specified in s 35(2): The Queen v De Simoni 1981 147 CLR 383. That precaution will need to be borne in mind when the sentence is examined by this Court.
Despite the apparent common acceptance by those at first instance that what was involved was an offence contrary to s 35(2) carrying a maximum sentence of ten years imprisonment, I consider that this court is obliged to examine the matter in accordance with the formal record endorsed on the indictment and that that endorsement must be construed to record a conviction in terms of the applicant’s plea to the arraignment and the Crown’s acceptance of it. That plea did not acknowledge the circumstance of aggravation.
On that aspect, the issue can be stated as, whether the sentence imposed is excessive for a conviction of malicious wounding contrary to s 35(1). Whether the sentence is excessive needs to be assessed in the light of the facts and there is no dispute that the applicant’s participation in the offence in fact took place while she was in the company of the other two females but what is forbidden by authority is taking the circumstance that she was so in company as a feature elevating the seriousness of her offence.
There is a discrete matter, however, raised by the applicant. She contends that she has a justifiable sense of grievance by reason of contrast between the sentence received by her and that received by her co-offender AH. Lisa, who pleaded guilty to an offence with an intentional element, was sentenced to imprisonment consisting of a non parole period of five years and a total term of seven and half years. As mentioned above, the Children’s Court imposed a sentence of 75 hours community service upon AH.
The learned sentencing judge was conscious of how AH had been dealt with in the Children’s Court. He noted in his remarks on sentence that she was dealt with on “a charge of malicious wounding”. He expressed some views about the desirability of all co-offenders, if practicable, being dealt with in the same court, but I do not perceive that those comments (which his Honour was entitled to express) have intruded in the assessment of sentence. There is no indication that they did.
However, his Honour did observe that “a sentence of 75 hours community service, to my mind, is completely inadequate, and almost laughable if this were not a serious occasion”. To a submission that there should be parity between the applicant and AH he stated:
“To my mind the sentence imposed in the Children’s Court was so inadequate that the concept(s) of parity really do not apply to your situation.”
It might be noted that his Honour in referring to the submission said:
“The other young girl (AH) who was dealt with on a similar charge to that which you face in these proceedings”
and when referring to AH’s offence he simply described it as “malicious wounding”. Nevertheless the transcript of the Children’s Court proceedings was produced and it is headed “CHARGE Maliciously Wound in Company”. That transcript is the only documentation from the Children’s Court made available to this Court.
It was argued on behalf of the applicant that the sentencing judge had fallen into error in treating the sentence imposed on AH in the Children’s Court as “irrelevant” to any question of parity. Whether that submission accurately analyses his Honour’s approach depends upon what meaning is attributed to his expressions which I have set out above. To say that something does not apply is not necessarily the same thing as saying that it is irrelevant. A sentence received in the Children’s Court is not irrelevant to consideration of the situation of an adult co-offender: R v Govinden 1999 106 A Crim R 314; R v Colgan [1999] NSWCCA 292. Once relevance is accepted, it remains however to determine what effect comparison should produce in a given case. In R v Diamond CCA unreported 18 February 1993 Hunt CJ at CL (Newman J agreeing) said:
“…. There is, in my view, a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one”.
In this instance his Honour’s expressions “completely inadequate, and almost laughable” and “do not apply” can, and in my view should, be understood as denying the availability of a sense of grievance on the part of the applicant concerning the sentence received by her as compared to AH which can be classified as justifiable.
It was acknowledged in written submissions that “no complaint is made concerning his Honour’s recitation of the facts”. There was however a dispute at the hearing of the appeal concerning a Crown submission that the applicant and AH restrained the victim whilst Lisa was stabbing her. The events of the incident were, to an extent, recorded on a closed circuit television security camera and the tape therefrom was an exhibit in the proceedings. The parties invited viewing of the video and it was shown at the hearing and, as further invited, I have since repeated that viewing.
As is common with such surveillance equipment the recording is not continuous but frames are exposed and images captured at short intervals. Counsel contested whether the applicant can be seen restraining the victim as stated but it was not disputed that she joined in what was variously termed as “wrestling” or “struggling” (with the victim). I do not think that it is necessary to go beyond his Honour’s unchallenged findings that the applicant was the last to join in the assault but, when she did so, she played a meaningful part therein. He also accepted that her initial entry was to protect her sister “however you did more than protect her, you helped her in the assault upon this young girl by holding her as she was assaulted by your sister”. The assault was perpetrated by use of the knife.
The Crown Prosecutor submitted that his Honour erroneously understood the Crown to concede that of the three females charged, the culpability of the applicant was the least and that the Crown’s stance was that the culpability of the applicant and AH was equal.
Whether derived in whole or in part from a misapprehension as to Crown concession, I see no reason to approach the matter other than upon his Honour’s estimate that the least culpability rested on the applicant. It appears that the three females in the applicant’s group were sharing a handbag or carry bag and that it was AH who drew Lisa’s attention to the availability of a knife therein. That circumstance would support the conclusion concerning the applicant’s lesser responsibility.
At the sentence hearing, the Crown Prosecutor did say that fulltime custody was not the only sentencing option but there is no error in his Honour making a conclusion for himself and I see none in the conclusion that a fulltime custodial sentence ought be imposed in these circumstances.
Intervention by this Court requires a conclusion that a more lenient sentence than that imposed at first instance is warranted, s 6(3) Criminal Appeal Act 1912; R v Cocking [1999] NSWCCA 311; R v Astill No 2 1992 62 A Crim R 289.
Giving full weight to subjective matters in favour of the applicant in amelioration of the objective seriousness of her offence, viewing it as contrary to s 35(1) and gauging it against a prescribed statutory maximum of seven years imprisonment, I do not consider that any lesser sentence than imprisonment consisting of six months non parole period and eighteen months total term was warranted.
I would grant leave to appeal against sentence but dismiss the appeal.
HIDDEN J: I agree with Grove J.
BELL J: I agree with Grove J.

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LAST UPDATED: 17/02/2005