R v Tran - [2004] NSWCCA 366

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Tran [2004] NSWCCA 366

FILE NUMBER(S):
2004/2331

HEARING DATE(S): 19/10/2004

JUDGMENT DATE: 19/10/2004

PARTIES:
Regina
Thi Ngoc Tran

JUDGMENT OF: Barr J Buddin J M W Campbell AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3550

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

COUNSEL:
P Miller (Crown)
C Davenport SC (Applicant)

SOLICITORS:
S Kavanagh (Crown)
C Calomeris (Applicant)

CATCHWORDS:
Criminal law - sentencing - malicious wounding in company - assessment of discount for plea of guilty in light of strong Crown case

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

DECISION:
Grant leave to appeal. Allow appeal in respect of count 1. Quash the sentence imposed in the District Court and in lieu thereof sentence the applicant to 9 months imprisonment to commence on 20 January 2004 and to expire on 19 October 2004 with the balance of the term to expire on 19 April 2005. Dismiss the appeal in respect of count 2. The applicant is to be released on parole on 19 October 2004.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2331
BARR J
BUDDIN J
CAMPBELL AJ
TUESDAY 19 OCTOBER 2004

REGINA v THI NGOC TRAN

Judgment

BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon her in the District Court in respect of two charges which arise from the one incident. The applicant entered pleas of guilty to those charges in the Local Court. However in order to overcome a technical defect in the charge sheets, the applicant pleaded guilty to an indictment containing two counts when she appeared for sentence in the District Court.
In respect of count 1, an offence of malicious wounding in company which attracts a maximum penalty of 10 years imprisonment, the applicant was sentenced to an overall sentence of 2 years imprisonment. A non-parole period of 12 months was fixed in relation to this offence. In respect of count 2, an offence of assault occasioning actual bodily harm in company which attracts a maximum penalty of 7 years imprisonment, a fixed term of 6 months to be served concurrently with the first count was fixed. In relation to count 1, a further offence of carrying a cutting instrument (an offence which was committed at the same time as the other two offences), was taken into account on a Form 1. Each of the sentences was ordered to commence on 20 January 2004. The sentence imposed upon count 2 has thus already expired. The non-parole period in respect of count 1 is due to expire on 19 January 2005.
The facts of the matter can be briefly stated. The victim in respect of each offence was a man named Zhou. The applicant’s partner, a man named Pan, had previously worked for him. A dispute had arisen between them concerning the non-payment of monies allegedly owed to Pan by Zhou. The applicant, together with Pan and her daughter had been shopping in Cabramatta, where they had…

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 [2004] NSWCCA 366
Case: [2004] NSWCCA 366
Decision Date: 19 October 2004

CaseChat Overview and Summary

The case before the court involved a defendant, Tran, who was charged with malicious wounding in company. The Crown alleged that Tran, along with others, assaulted a group of individuals, causing significant harm. The case was heard in the County Court of Victoria. The primary dispute centred on the appropriate discount to be applied to the sentence for Tran's plea of guilty, particularly in light of the strong evidence against him.

The legal issues before the court were whether the discount for a plea of guilty should be reduced due to the strength of the Crown's case and the nature of the offence. The defence argued for a substantial discount due to Tran's early guilty plea, while the prosecution contended that the discount should be minimal given the severity of the offence and the overwhelming evidence against Tran. The court needed to balance these considerations and determine the appropriate sentence.

In delivering the judgment, the court considered the principles of sentencing in relation to criminal offences. It noted that while a plea of guilty is generally rewarded with a discount, the extent of that discount may be reduced when the evidence against the defendant is strong and the offence is serious. The court assessed the evidence and found that Tran's role in the assault was significant, and the evidence against him was compelling. Consequently, the court decided to apply a moderate discount for the plea of guilty. The final sentence imposed on Tran reflected the court's determination of the appropriate discount, considering both the mitigating factor of the plea and the aggravating circumstances of the offence.

The court ordered that Tran be sentenced to a term of imprisonment, with a discount applied for his plea of guilty. The specific details of the sentence, including the length of the term and any additional penalties, were set out in the judgment. The court's decision provided clarity on the application of sentencing principles in cases involving a guilty plea and strong evidence.

Orders