R v Tran - [2009] SASC 341

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRAN
[2009] SASC 341
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Anderson and The Honourable Justice White)
5 November 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
Appellant found guilty of false imprisonment, aggravated causing harm with intent to cause harm and three counts of blackmail - acquitted of one count of false imprisonment and one count of aggravated assault - sentenced to 13 years imprisonment with 8 years and 6 months non-parole - appeal against sentence - judge mentioned in sentencing remarks events for which appellant had not been charged or convicted - whether appellant sentenced on an incorrect factual basis - whether sentencing judge failed to have sufficient regard for the psychological condition of the appellant at the time of offending and his rehabilitation - whether sentencing judge erred in applicatin of s 18A of Criminal Law (Sentencing) Act 1988 - whether sentencing judge erred in application of the totality principle - whether sentence manifestly excessive.
Held: Events mentioned in sentencing remarks for which appellant was not charged or convicted were relevant to background of offending for which he was sentenced - appellant not sentenced on an incorrect factual basis - sentencing judge had sufficient regard for appellant's psychological condition at the time of the offending and his rehabilitation - no error in application of s 18A of Criminal Law (Sentencing) Act 1988 - no error in application of the totality principle - sentence was in the range open to the judge - sentence not manifestly excessive - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 18A; Criminal Appeal Rules 1996 r 12(1), referred to.
R v Bennet [2005] SASC 55; R v B, RWK (2005) 91 SASR 200; R v M, REM [2008] SASC 348; R v Abbott (2007) 170 A Crim R 306, applied.
R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Waugh (2005) 93 SASR 274, discussed.
Markarian v The Queen (2005) 228 CLR 357, considered.

R v TRAN
[2009] SASC 341
Court of Criminal Appeal: Bleby, Anderson and White JJ

BLEBY J. In my opinion the appeal should be dismissed. I agree with the reasons of Anderson J and have nothing to add.
ANDERSON J.
Introduction
The appellant was found guilty by a jury in the District Court of false imprisonment, aggravated causing harm with intent to cause harm and three counts of blackmail. The appellant was acquitted of another count of false imprisonment and one count of aggravated assault. These offences related to a course of conduct that spanned…

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 [2009] SASC 341
Case: [2009] SASC 341
Decision Date: 5 November 2009

CaseChat Overview and Summary

In the case of R v Tran, the appellant was convicted of false imprisonment, aggravated causing harm with intent, and three counts of blackmail. The appellant was acquitted of one count of false imprisonment and one count of aggravated assault. He was sentenced to 13 years imprisonment, with a non-parole period of 8 years and 6 months. The appellant appealed against the sentence, arguing that the judge had sentenced him on an incorrect factual basis, had not given sufficient regard to his psychological condition and prospects for rehabilitation, and had erred in applying the provisions of section 18A of the Criminal Law (Sentencing) Act 1988 and the totality principle.

The court considered whether the sentencing judge had included events in the sentencing remarks for which the appellant had not been charged or convicted. The court held that these events were relevant to the background of the offending for which the appellant was sentenced. The court also examined whether the sentencing judge had sufficient regard for the appellant's psychological condition at the time of the offending and his rehabilitation. The court concluded that the judge had taken into account the appellant's personal circumstances, including his psychological condition, self-medication with drugs and alcohol, and prospects of rehabilitation, and had given due consideration to the appellant's difficult past, including his immigration from Vietnam and the death of his brother. The court also noted that the appellant was currently in a stable relationship and had a young child.

The court found that the sentence imposed was in the range of sentences open to the judge, and that the judge had given due consideration to the appellant's personal circumstances. The court concluded that the sentence was not manifestly excessive and dismissed the appeal. The court agreed with the reasons of Anderson J and found that the sentence imposed on the appellant of 13 years imprisonment with a non-parole period of 8 years and 6 months was appropriate in the circumstances. The court considered the appellant's past record for crimes of violence, and the fact that previous sentences of imprisonment did not deter his violent conduct on this occasion. The court also found that the judge had sufficient regard for the appellant's psychological condition at the time of the offending and for the appellant's prospects of rehabilitation. The court held that the judge did not err in his application of s 18A of the Sentencing Act and had more than adequate regard for the principle of totality.

Orders

Orders of the court

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Background

Background to the litigation

At the time of sentencing, the appellant was 30 years of age. He has an unfortunate criminal record and has been imprisoned on three previous occasions for crimes of violence. The last of these was in 2004.Background The victim of the false imprisonment and aggravated causing harm with intent offences knew the appellant through her brother. The appellant arranged for the victim to procure the drug ice for him from her dealer. He gave the victim $20,000 with which to do this and she later provided him with a quantity of ice. The appellant apparently thought that the he had been “short-changed” with either the dealer or the victim keeping some of the drug for themselves, or that they had swindled him in some way. He arranged to meet the victim with her drug dealer at St Kilda (“the St Kilda incident”). The victim, the appellant and his co-accused Le Van Nguyen (“Nguyen”) met with the victim’s drug dealer Tam Nguyen (“Tam”) and an unknown male in the car park of the St Kilda hotel on Monday 15 May 2006. During the course of the meeting, Tam was taken captive, and the victim was forced to drive away with Nguyen, the appellant and Tam. The victim was forced to drive for hours, during which time the appellant and Nguyen demanded that Tam give them drugs and/or money. Tam was allegedly assaulted, and told the appellant and Nguyen that he had given all of the ice to the victim. He was eventually left on a roadside. As a result of these alleged events, the appellant and Nguyen were jointly charged with false imprisonment and aggravated assault (counts 1 and 2). They were found not guilty of these offences. The appellant and his co-accused seem to have then formed the view that it was the victim who had deprived them of the full quantity of ice for which the appellant had paid. They arranged to meet her at a semi-industrial site in Wingfield on Wednesday 17 May 2006. The victim arrived with a male friend Long Hi Tran (“Long”). The appellant and Nguyen demanded money of Long and assaulted him. The appellant then drove off with Long, whilst the victim was detained in a shed with Nguyen. The appellant then returned an hour or so later without Long. This alleged incident (“the Wingfield incident”), involving the detention and beating of Long, was not the subject of any charges. Whilst they were still at the Wingfield shed, the appellant and Nguyen demanded either the remainder of the drugs from the victim or the $20,000 he had paid for them. When the victim said that she did not have either, the appellant accused her of lying and proceeded to hit her. He then dragged her to the floor and kicked her. The victim suffered facial injuries as a result. This conduct was the subject of count 4, the offence of aggravated causing harm with intent to cause harm. The victim was also held in the shed overnight, and this formed the basis for count 3, the false imprisonment. The appellant was found guilty of both counts 3 and 4. In the course of beating the victim, the appellant forced her to ring her boyfriend to see if she could obtain money from him. The appellant also spoke to the victim’s boyfriend and demanded money but he refused to co-operate. This conduct constituted count 5 on the information, that is, the first count of blackmail, and relates to the victim. The appellant was found guilty of this first count of blackmail.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLEBY J ANDERSON J WHITE J (dissent)

The judge took into account, as discussed above, the appellant’s personal circumstances, including his psychological condition at the time of the offending, his self-medication with drugs and alcohol and his prospects of rehabilitation. The judge also took into account the appellant’s difficult past, including his immigration from Vietnam and the death of his brother. His Honour also gave some consideration to the fact that the appellant is currently in a stable relationship and now has a young child with that woman. I consider that the sentence imposed was in the range of sentences open to the judge, and that he has given due consideration to the appellant’s personal circumstances. I therefore conclude that the sentence was not manifestly excessive and would reject this ground of appeal.Conclusion In my view the sentence imposed on the appellant of 13 years imprisonment with a non-parole period of 8 years and 6 months was appropriate in the circumstances. Of some significance, in my view, is the past record of the appellant for crimes of violence. Previous sentences of imprisonment did not deter his violent conduct on this occasion. The judge did have sufficient regard for the appellant’s psychological condition at the time of the offending and for the appellant’s prospects of rehabilitation. The judge did not err in his application of s 18A of the Sentencing Act and he had more than adequate regard for the principle of totality. I find that the sentence imposed was within the appropriate range and was not manifestly excessive. For these reasons I would dismiss the appeal. I agree that the appeal should be dismissed. I agree with the reasons of Anderson J.

Ratio Decidendi

Legal Principle Established

Established by: BLEBY J, ANDERSON J,

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