R v Tran

[1999] NSWCCA 109

CITATION:	REGINA v TRAN [1999] NSWCCA 109
FILE NUMBER(S):	CCA 60561/98
HEARING DATE(S):	18/03/99-19/03/99
JUDGMENT DATE:	12 May 1999
PARTIES :	Hoai Vinh TRAN
JUDGMENT OF:	Spigelman CJ at 1; Wood CJ at CL at 2; Newman J at 38; Hulme J at 39; Simpson J at 40

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/2020
LOWER COURT JUDICIAL OFFICER:	Sides DCJ

COUNSEL:	P Byrne SC (Tran) P G Berman (Crown)
SOLICITORS:	T A Murphy (Tran) R Gray (Crown)
CATCHWORDS:	CRIMINAL LAW; sentencing; armed robbery; s97(1) Crimes Act 1900; appropriate sentence
ACTS CITED:	Crimes Acft 1900 (NSW) Drug Misuse and Trafficking Act 1985
DECISION:	Appeal allowed; Substitution of sentence of penal servitude of twenty-four months and an additional term of eighteen months to commence from date of judgment.

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IN THE COURT OF
CRIMINAL APPEAL

60561/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J

Wednesday 12 May 1999

REGINA v Hoai Vinh TRAN

JUDGMENT

1 SPIGELMAN CJ: I have read the judgment of Wood CJ at CL. I agree with his Honour’s reasons and the order he proposes.

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IN THE COURT OF
CRIMINAL APPEAL

No.
60561/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J

Wednesday 12 May 1999

Regina v Hoai Vinh TRAN

JUDGMENT

2 WOOD CJ at CL: The respondent pleaded guilty on 28 April 1998 to one count of armed robbery (s97(1) Crimes Act 1900). He asked that an offence of supply prohibited drug (s25(1) Drug Misuse and Trafficking Act 1985) and a further offence of goods in custody (s527C Crimes Act 1900) be taken into account on a Form 1.
3 A conviction was recorded, but pursuant to s 558 of the Crimes Act his Honour Judge Sides QC deferred passing sentence upon condition that the respondent enter into a recognisance, self, in the sum of $500, to be of good behaviour for a period of three years and six months, and to appear for sentence if called upon for any breach occurring during that period. The recognisance was subject to conditions that the respondent accept the supervision and guidance of the New South Wales Probation & Parole Service; that he accept the reasonable direction of that Service in regard to assessment and treatment of his drug addiction and that he pay compensation in the sum of $810 to the victim of the robbery. From that sentence the Crown has appealed under s5D Criminal Appeal Act 1912.
4 The armed robbery occurred on 3 October 1997 when the respondent, and two co-offenders, entered a video shop in Greenfield Park. Each offender was wearing a balaclava. The respondent produced a replica hand gun, pointed it at the attendant, and demanded that he open the till, from which $660 was removed. A further $150 and a visa card, were taken from the attendant’s wallet. The respondent gave evidence during the sentencing proceedings, in which he admitted that the robbery had been planned by the three offenders, their purpose being to obtain money to purchase heroin.
5 The respondent was aged eighteen years at the time of the offence. He had prior convictions for the possession of a shortened firearm and for possession of a prohibited weapon, in respect of which he had been placed on probation for eighteen months from 20 May 1996; and for possession of drugs, in respect of which he had been placed on a recognisance to be of good behaviour for twelve months. That recognisance had been entered only two days before the armed robbery. The present offence occurred during the currency of the probation period and the recognisance.
6 The two offences, taken into account on the Form 1, occurred on 13 June 1997, again during the period of probation. They related to the supply of a cap of heroin by the respondent to another person at Cabramatta Railway station and to the possession of $30 reasonably believed to represent the proceeds of the sale of drugs. He was on bail for those matters.
7 By the time that the respondent appeared for sentence he had acquired further convictions for entry onto enclosed lands (a school in the Canley Vale area), an offence that occurred on the day of, and that led to his arrest for the offence of armed robbery; and for possession of a prohibited drug (cannabis), unlawful possession of a prescribed restricted substance and goods in custody. The three last mentioned offences occurred on 28 October 1997, only weeks after the armed robbery. For these further offences, the respondent was fined. One other matter involving the attempted use of a stolen credit card, in March 1997, was still outstanding at the time that the respondent appeared for sentence in the sense that although he had entered a plea of guilty, the sentencing proceedings were incomplete. By reason of the conviction having been recorded, this offence could not be included in the Form 1.
8 In a comprehensive statement of the reasons for sentence, his Honour made note of the drug problem that the respondent had at the time of the offence, and of his subsequent efforts to rehabilitate himself. His Honour correctly directed himself that absent exceptional circumstances, the seriousness of the offence would have called for a full time custodial sentence. Three matters were, however, identified as constituting exceptional circumstances - the age of the respondent, his desire to rehabilitate himself and the steps he had taken in that direction, and his preparedness to give evidence against his two co-offenders in the event of them being arrested and charged. Absent the offer of assistance his Honour said that he would have dealt with the matter by way of periodic detention. However, because of the concerns he entertained as to the risks attached to the offer of assistance, and as to whether weekend detention would provide “sufficiently structured, supportive and culturally sensitive assistance” to address the respondent’s drug problem, the option of a recognisance was chosen.
9 In coming to that conclusion his Honour made reference to the well known principle that when Courts are required to sentence a young offender, considerations of punishment and general deterrence should in general be regarded as subordinate to the need to foster the offender’s rehabilitation: Wilkie (Court of Criminal Appeal New South Wales 2 July 1992 unreported) XYJ, (Court of Criminal Appeal New South Wales 15 June 1992 unreported). That is a sensible principle to which full effect should be given in appropriate cases. It can have particular relevance where an offender is assessed as being at the crossroads between a life of criminality and a law abiding existence.
10 What his Honour did not mention, and appears to have overlooked, however, was the qualification to that principle concerning young persons where they conduct themselves in a way that an adult does, and commit a crime that involves violence or is one of considerable gravity. In such a case it is the function of the Court to protect the community, and to appropriately give effect to the retributive and deterrent elements of sentencing: Pham (1991) 55 A Crim R 128; Allam (Court of Criminal Appeal New South Wales 13 April 1993 unreported); DRL (Court of Criminal Appeal New South Wales 16 May 1997), Townsend & Cooper (Court of Criminal Appeal New South Wales 14 February 1995, and SDM (Court of Criminal Appeal New South Wales 4 August 1997).
11 As Lee CJ at CL said in Pham at 135:
“It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society.”
12 Moreover, the proximity of the age of the offender to eighteen years is a factor relevantly to be taken into account: Nguyen (Court of Criminal Appeal New South Wales 14 April 1994). The present respondent had in fact achieved that age and it was appropriate to sentence him accordingly.
13 The offence of armed robbery is a crime of considerable gravity, and save in exceptional circumstances should result in a full time custodial sentence. The present offence was particularly serious. The premises involved were a small video outlet staffed by one person, who was threatened by a weapon which he was entitled to assume was a real pistol, the offence was pre-planned, balaclavas were worn by the offenders, and the respondent was on probation, and on a recognisance, at the time.
14 The nature and circumstances of the offence were accordingly such that the respondent should have been considered as having conducted himself like an adult, with the consequence that relatively little weight should have been given to his age.
15 It also appears that although recognising that the respondent had been on probation, and subject to a recognisance, insufficient significance was given to that circumstance by his Honour. Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent: Vranic (Court of Criminal Appeal New South Wales 7 May 1991, unreported and McMahon Court of Criminal Appeal New South Wales 4 April 1996, unreported.
16 Moreover, the plea of guilty and the offer of assistance were very late, the respondent having done little until the time of that offer and plea to demonstrate any contrition. Indeed, he had initially given a version of events in his ERISP passing the blame entirely to a co-offender, a version which he later admitted to be untrue. Additionally, the pre sentence report recorded an absence of remorse for the offence.
17 The prior record of the respondent was not good, although it does need to be recognised that none of the offences was of sufficient seriousness to warrant prosecution on indictment. They were somewhat typical of a young drug abuser, which the respondent undoubtedly was. It is, however, material, in this regard, to note that his foray into criminal or anti social conduct had predated his use of heroin. The pre sentence report painted him as a somewhat immature and selfish young man who had begun to use marijuana while at school, had been expelled from a private boarding school for unacceptable conduct, and had his subsequent enrolment at a high school terminated because of his poor attendance record. The report also disclosed that the respondent had not been entirely frank with the supervising officer from Juvenile Justice in relation to his use of heroin in 1997.
18 The youth of an armed robbery offender is not of itself sufficient to constitute an exceptional circumstance requiring departure from a full time custodial sentence. Nor necessarily is the statement of a desire of a drug user to attempt rehabilitation, or even the demonstration of an effort to do so. Hunt J (as he then was) observed in Thompson (Court of Criminal Appeal New South Wales 4 April 1991 unreported) in a passage cited by Sully J in Fabian 64 A Crim R 365 at 377:
“Uninstructed by authority, I would have said that the achievement of rehabilitation, however exceptional that fact may be, would not without more amount to an exceptional circumstance warranting other than a custodial order. Where, for example, there is medical evidence that there is a serious risk that the rehabilitation so far achieved would be destroyed by a custodial sentence, that additional fact could in the particular case constitute that rehabilitation an exceptional circumstance. Everything will depend upon the particular case involved.”
Sully J added, at 378:
“In general terms, the principle as Hunt J expresses it, must have of its nature a very limited applicability. The principle contemplates that there will be hard and credible evidence of:

1) real rather than feigned rehabilitation; and
2) ‘serious risk’ to that rehabilitation; and
3) something which provides a logical link between the demonstrated progress of real rehabilitation and the suggested ‘serious risk’.”

19 The evidence before his Honour in the present case did not take it into the category where a custodial sentence posed a serious risk to the rehabilitation of the respondent.
20 In Eastway (Court of Criminal Appeal New South Wales 19 May 1992 unreported) Hunt CJ at CL made reference to the category of case where rehabilitation was not merely under way but complete to the extent that the offender is successfully cured. As his Honour observed, rehabilitation of a unique and special nature should attract mercy rather than adherence to rigid standards of punishment. I agree with that approach, but again the present case did not reach this status.
21 Depending on the circumstances the provision of assistance may qualify as an exceptional circumstance but the case would need to be compelling, and the assistance substantial, before that would occur. The present case is not one, where on my assessment, exceptional circumstances were shown sufficient to justify the periodic detention option that his Honour considered appropriate but for that factor of assistance. Although his Honour did not disclose the sentence he had in mind, before adjustment on account of such factor, (a matter that would have been of assistance for any resentencing exercise under S 5DA Criminal Appeal Act 1912, had the respondent reneged on the offer), I am of the view that the ultimate sentencing order was manifestly lenient.
22 It led to a sentence that was “unreasonably disproportionate to the nature and circumstances of the case” contrary to s 442B(2) of the Crimes Act 1900; and see also Gallagher (1991) 23 NSWLR 220 at 232, where this Court made it clear that the “ultimate sentencing result that is produced (must not be one) that is so far out of touch with the circumstances of the particular offence and the particular offender that … it constitutes an affront to community standards”
23 The failure of his Honour to make express reference to the matters specified in s 442B(3) of the Crimes Act 1900 also leaves me unsatisfied in relation to this aspect of the case, namely as to whether the several matters there mentioned were considered, as the sub section requires, and if so what weight if any was given to them.
24 In all those circumstances I am of the view that the appeal should be allowed and the respondent resentenced. That permits the Court to have regard to the evidence tendered concerning his progress and conduct post sentence.
25 It shows that, since being sentenced the respondent has continued to work as a waiter, on a casual basis, at restaurants owned by his mother and aunt, and that he has been taking naltrexone tablets, the cost of which has been borne by his mother. For this purpose he joined the naltrexone program of the Rapid Detox Centre at Liverpool in November 1998.
26 That his rehabilitation was not complete when he appeared for sentence is confirmed by his entry into that program and by his acknowledgment, in an affidavit placed before the Court, that he had used heroin after being sentenced. He also acknowledged that on 11 March 1999 he had been sentenced to six months imprisonment to be served by way of periodic detention for offences of making a false instrument and goods in custody, each referable to a train concession card on which he had without authority placed his name and other details. These offences were committed in September 1998. The sentence for that offence was specified to commence on 26 March 1999.
27 Dr. Otter, who has been partly responsible for the follow up of the respondent, in relation to his naltrexone programme, reported that he had been co-operative, had “progressed relatively well”, and that his urine analysis had been clean. He also advised that as naltrexone was currently unregistered in New South Wales, it would not be available to the respondent within a Corrective Services environment. The evidence, however, still falls short of establishing that such rehabilitation as has been achieved so far would risk being destroyed by a custodial sentence.
28 I do take into account, as his Honour did, the circumstance that a measure of contrition was demonstrated by the plea of guilty and that it was of substantial assistance to the Crown, which might otherwise have had some difficulty in proving its case. (R v Ellis (1986) 6 NSWLR 603 at 604; White (Court of Criminal Appeal New South Wales 29 May 1998).
29 These considerations still do not qualify the case as one possessing exceptional circumstances sufficient to justify a non custodial sentence. Particularly is that so having regard to the doubt which the respondent’s post sentence performance, at least until entering the naltrexone program, throws on the assurances given by him to the sentencing judge that he was “clean of drugs”.
30 In my view a full time custodial sentence is called for, although in fixing that sentence it will be appropriate to make an allowance for the element of double jeopardy that is involved.
31 The age of the respondent, the interest of encouraging his rehabilitation through an extended period of post release supervision, and the fact that he may need to spend a period of his sentence on protection because of his offer of assistance, constitute special circumstances justifying a departure from the usual proportion between the minimum and additional terms.
32 The appropriate sentence, taking into account all of the circumstances outlined, is in my view one involving a minimum term of penal servitude for twenty-four months and an additional term of eighteen months. In arriving at that result, I am of the view that an allowance in the order of 35% is appropriate for the offer of assistance. An allowance of this kind for an offer that may potentially, although not necessarily, be taken up and prove productive, appears to accord with the approach taken by this Court in Cartwright (1989) 17 NSWLR 243 and Chu (Court of Criminal Appeal New South Wales, 16 October 1998 unreported).
33 In arriving at this conclusion, I have also taken into account the matters specified in s 442B of the Crimes Act. No evidence was called as to any ongoing consequence of the offence upon the victim, although it may be taken at the very least, to have been a frightening occasion to him, as the respondent conceded in his ERISP. In this regard I take into account in the respondent’s favour that he has complied with the condition of the recognisance that he give restitution for the victim.
34 The usefulness of the offer of assistance is limited by the circumstance that the evidence that the respondent could give against the co-offenders is that of a participant in the criminality, and it would seem has not yet been taken advantage of. The offer was late, the earlier version supplied in the ERISP was, on his later account, untrue.
35 It is only if he actually gives evidence, or if his offer of assistance is known, that he will suffer harsher custodial conditions. There is no reason to assume that any danger or risk of injury to his family arises by reason of this factor.
36 The likelihood of his reoffending after release is uncertain. It depends entirely on his commitment to refrain from drug use, a matter in respect of which his resolve has to date been at best ambiguous.
37 Finally, to give effect to the principles of totality I take the view that the sentence should be specified so as to commence from today. In order to give effect to that outcome, it should be directed to be served cumulatively upon so much of the sentence of periodic detention, imposed on 11 March last, as has been performed to the date on which this Court announces its orders. Otherwise, it should be served concurrently with that sentence.

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IN THE COURT OF

CRIMINAL APPEAL

60561/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J

Wednesday 12 May 1999

REGINA v Hoai Vinh TRAN

JUDGMENT

38 NEWMAN J: I have had the advantage of reading, in draft, the reasons and orders proposed by Wood CJ at CL and I agree with them.

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IN THE COURT OF
CRIMINAL APPEAL

No 60561 of 1998

SPIGELMAN CJ
WOOD CJ AT CL

NEWMAN J
HULME J

SIMPSON J
Wednesday 12 May 1999

REGINA -v- Hoai Vinh TRAN
JUDGMENT

39. HULME J: In this matter, I agree with the orders proposed by Wood CJ at CL at with His Honour’s Reasons.

IN THE COURT OF
CRIMINAL APPEAL

60561/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J

Wednesday 12 May 1999

REGINA Hoai Vinh TRAN

Judgment

SIMPSON J:
40 I agree with the orders of Wood CJ at CL and with his reasons therefor.

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