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 several days in May 2006.
The appellant was given a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) and was sentenced to 13 years imprisonment with a non-parole period of 8 years and 6 months. The maximum penalty for aggravated causing harm with intent to cause harm is 13 years imprisonment, for blackmail the maximum penalty is 15 years, and false imprisonment carries a penalty at large. The appellant appeals against his sentence.
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.
Count 6 on the information, the second count of blackmail, related to the victim’s brother. After the unsuccessful attempt to obtain money from the boyfriend, the appellant then made the victim ring her brother. The appellant then spoke to the brother and arranged to meet with him and demanded that he take over the debt from his sister. The brother refused to co-operate with the appellant. The appellant was found guilty of this count of blackmail relating to the victim’s brother.
The final count of blackmail, count 7, related to the victim’s mother. The morning after the victim was detained in the shed and after the appellant was unsuccessful in obtaining money from her boyfriend and her brother, several calls were made to her mother. The appellant threatened that the victim would be hurt if the mother could not come up with the money. The victim’s mother was able to raise approximately $3,000 and a meeting was arranged with her on the afternoon of Thursday 18 May 2006 in a supermarket car park at Salisbury. More money was demanded from the mother at the rendezvous and the victim was taken to a hotel where she was detained until she managed to escape that night. In total, the victim had been held captive for around 30 hours. The appellant was also found guilty of this last count of blackmail relating to the mother.
The Grounds of Appeal
There are seven grounds of appeal. The first ground of appeal is that the judge sentenced the appellant on an incorrect factual basis, namely, that the St Kilda incident and the first part of the Wingfield incident, conduct for which the appellant was either acquitted or not charged, formed part of the basis for the sentence. This was evident, it was said, because these incidents had been mentioned by the judge in his sentencing remarks.
The second ground of appeal is that His Honour failed to have sufficient regard to the psychological condition of the appellant at the time of the offending. Ground 3 is that His Honour did not have sufficient regard to the appellant’s rehabilitation.
Ground 4 is that the judge did not have regard to the principle of concurrent sentences in sentencing for a single course of conduct. However Mr Clarke, counsel for the appellant, abandoned that ground of appeal at the hearing. The fifth ground of appeal is that the judge erred in his application of s 18A of the Sentencing Act in imposing a single sentence for the five offences for which the appellant was convicted.
The sixth ground of appeal is that the judge failed to have adequate regard to the totality of the sentences imposed, namely, the combined effect of the sentence imposed on the accused. Finally, the seventh ground of appeal is that the sentence is manifestly excessive, namely, that it is a high sentence arising out of a single set of circumstances, particularly so because of the positive factors put on the appellant’s behalf in mitigation.
Ground 1
In sentencing the appellant the judge said:
These offences relate to a protracted course of conduct beginning on Monday 15 May 2006 and ending in the evening of Thursday 18 May 2006. You were known to the victim, having met her during your school years. You had some dealings with each other again several years before these offences. You prevailed upon her to act as an intermediary to procure drugs, namely ice. You gave her $20,000 which she used to purchase 10 ounces. The evidence suggests that this was a fairly cheap price. It also appears she kept about half of the drug. You clearly felt short-changed and through her arranged a rendezvous with the dealer involved to either get more drugs or some money back.
Along with your accomplice Le Van Nguyen, you went to the St Kilda beach in the early evening of Tuesday 16 March 2006 as darkness fell. You both stalked the vehicle in which the dealer arrived and made him and your victim captive, forcing her to drive for several hours somewhere to the north before dumping him on an outback road. She was returned to the city.
You arranged to meet her again on Wednesday 17 May at a semi-industrial site in Wingfield in the late afternoon. Once again Nguyen was with you. She arrived with another man who was pushed into a large shed and accused of various things. You demanded money of him. You later left with him and returned with a Mercedes belonging to his family. The above matters are by way of background and I make clear that you are not to be penalised with respect to them.
My emphasis
Mr Clarke submitted that the judge should not have recited the above events in his sentencing remarks, as they formed the factual basis for counts 1 and 2, on which the appellant was acquitted. The judge did make it clear that he mentioned the St Kilda incident and the events leading up to it as background only, essentially to set the scene for the later offences. Mr Clarke argued, however, that these events give a background of the appellant’s relationship with the victim, in which he allegedly coerced her to arrange a drug deal, and were not accepted by the jury. Accordingly, it is his submission that these events could not form the background for the offences for which the appellant was sentenced.
Mr Clarke agreed that the judge said that he did not impose any penalty for the background events, but maintained that material relating to the relationship between the appellant and the victim and his apparent control over her, infected the judge’s reasoning in arriving at the sentence. Mr Clarke conceded, however, that he could not say how this “infected” reasoning affected the sentence.
In my view the judge did not err in including the earlier conduct in his sentencing remarks. He made it clear in the passage underlined above that the appellant was not to be penalised for it, and that it was mentioned only as background. It was to set the scene for the offences for which the appellant had been convicted and was to be sentenced. The inclusion of events that evidenced the relationship between the appellant and the victim likewise was acceptable in painting the background to the offending, which Mr Clarke conceded was one course of conduct. Omission of these events from the sentencing remarks would have required the judge to sentence the appellant for offences in a context which was incomplete, which may have resulted in a more severe sentence. There is no evidence that the judge’s reasoning was “infected” by the background material and I therefore reject this ground of appeal.
Grounds 2 and 3
Mr Clarke submitted that the judge did not have sufficient regard to the psychological condition of the appellant at the time of the offending, or for his rehabilitation whilst in prison. A psychiatric report by Dr Raeside dated 10 March 2009 stated that “it would appear likely that following the death of his brother he suffered a post-traumatic stress disorder and a major depressive disorder, which he self-medicated with alcohol and amphetamines”. In terms of the appellant’s psychological/psychiatric condition at the time of the offending, Dr Raeside commented that it was likely that the most prominent factors were drugs and alcohol rather than any specific psychiatric disorder, although he suggested that the appellant may have been depressed at the time.
There was also evidence before the judge that the appellant had undertaken various rehabilitation courses whilst in custody. Dr Raeside commented that the appellant seemed to have benefited from them but that he would need to revisit them on his release into the community.
The judge said:
It is fair to say that you had a hard background, coming from Vietnam at the age of nine under difficult circumstances. Things started to go wrong for you in around 2000 with the tragic death of your brother. This led to depression and self-medication with alcohol and drugs. As a consequence, you were diagnosed with post-traumatic stress disorder. This has improved over recent years. To your credit you have put your time whilst in custody to good use by participating in drugs education and anger management programs and you have also had productive work in the prison system.
Mr Clarke submitted that the above factors identified by the judge should have operated to mitigate the sentence. He argued that the judge should have indicated how the psychological factors impacted on, or qualified, the offending and then shown in his sentencing remarks how the psychological factors and the appellant’s efforts at rehabilitation were taken into account in coming to the sentence that he did. His failure to do this, Mr Clarke argued, means that the sentence was based on an unqualified assessment of the offence and not “informed” by factors relevant to the appellant and to the assessment of the offence itself.
Furthermore, Mr Clarke said that if these factors were taken into account, they either were not given sufficient weight, or the starting point for the head sentence was too high. Essentially this argument links in with the seventh ground of appeal, that the sentence is manifestly excessive.
Mr Clarke referred to R v Waugh (2005) 93 SASR 274 and submitted that it is necessary for the judge to provide an adequate explanation for the sentence imposed. However, the principle espoused in White J’s reasons in Waugh refers to the requirement that a judge give some explanation for how a single sentence is reached for multiple offences under s 18A of the Sentencing Act, rather than an explanation of how various factors were taken into account in determining the appropriate sentence. The decision in Waugh may be relevant to a later ground of appeal but not this ground.
It is my view that the judge did adequately take into account the appellant’s psychological condition at the time of the offending and his efforts at rehabilitation whilst in custody. There is no requirement that a sentencing judge explain exactly how much weight certain factors were given, nor is a sentencing judge required to quantify how much certain factors have mitigated a sentence. I would therefore reject both grounds 2 and 3 of the appeal.
Ground 5
The fifth ground of appeal is that the judge erred in his application of s 18A of the Sentencing Act in arriving at a single sentence for multiple offences. Section 18A provides:
18A—Sentencing for multiple offences
If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
The sentencing judge said in his remarks:
Because of the seriousness of these offences and their prolonged nature, nothing short of a significant term of imprisonment is appropriate. It is however appropriate to fix one penalty with respect to all offences because they were motivated by the same underlying cause that dominated your thinking and actions. Each of the three blackmail offences would have merited not less than three years imprisonment but your total course of conduct must be taken into account.
Mr Clarke criticised the judge’s approach in identifying the minimum sentence for each of the three blackmail offences. He argued that the judge should have taken one of two approaches: instinctive synthesis, or the method approved of in R v Major (1998) 70 SASR 488 whereby separate sentences for each offence should be considered, as well as whether they should be concurrent or cumulative, and with recognition of the totality principle.
Mr Clarke submitted that the judge had identified sentences for only three of the five offences, and then made what Mr Clarke argued was an unacceptable quantum leap to a single sentence. In this way the judge did not follow the separate sentences approach in R v Major and he submitted that the gap in his reasoning was unacceptable for the instinctive synthesis approach.
Mr Clarke also argued that the blackmail offences were tied up in the same conduct as the false imprisonment and aggravated assault, and so the appellant essentially risked being punished twice for the same conduct. Mr Clarke submitted that once the judge identified some of the separate sentences, namely the three blackmail offences, he should have identified all of the other offences and then expressed how the ultimate sentence would be tailored to ensure there was no overlap in punishment for a single course of conduct. He argued that it would have been preferable for the judge to have taken an approach of instinctive synthesis to arrive at a single sentence and not identify the minimum sentences for the individual blackmail offences.
Section 18A of the Sentencing Act confers a wide discretion on a sentencing judge. Although the High Court has approved the instinctive synthesis approach: see Markarian v The Queen (2005) 228 CLR 357, this Court has generally approved the approach in R v Major in considering individual sentences for each offence in applying a single sentence pursuant to s 18A of the Sentencing Act. However, Doyle CJ in R v Symonds [1999] SASC 217 said at [22]:
[22]… The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. …
White J in R v Waugh, after referring to the above extract from the Chief Justice, went on to say:
[43]Whichever approach is adopted, it is necessary for the sentencing judge to provide an adequate explanation for the sentence imposed. Such an explanation is intrinsic in the approach identified in R v Major. That is one of the advantages of that approach. When a judge goes directly to a single sentence, some explanation of how that single sentence is derived is still necessary. That might be given, for example, by identifying appropriate individual sentences for the more serious offences for which the sentence is imposed, and by identifying whether the judge considers that they should be served cumulatively or concurrently. Alternatively, the explanation may be given by stating a sufficient number of individual sentences so as to indicate that the judge regards any further identification of individual sentences unnecessary. This may be because the imposition of such sentences would be crushing or might lead to a sentence which did not reflect the overall seriousness of the criminality involved.
Footnote omitted

In arriving at a single sentence, the judge in this case has provided some explanation of how that sentence was derived by taking one of the approaches mentioned by White J above, in identifying the minimum sentences for the blackmail offences. The maximum sentence for the aggravated causing harm with intent offence was 13 years, and the sentence for false imprisonment penalty is at large. The further identification of individual sentences for these offences was unnecessary, in my view, because an aggregation of all the individual sentences would clearly be crushing for the appellant.
It is my view that the judge did not err in his application of a single sentence for the offences pursuant to s 18A of the Sentencing Act because he was entitled to arrive at the single sentence without identifying individual sentences for each of the offences for which the appellant had been convicted. I would therefore dismiss this ground of appeal.
Ground 6
In sentencing the appellant, the judge said:
… Due to those considerations and subject to the need to protect the public, the court proposes to fix a non-parole period which does not crush you and gives you hope for the future.
In all the circumstances, the court imposes a non-parole period of eight years and six months.
It is plainly inappropriate to suspend the sentence. Reconsidering the total sentence proposed, the court does not consider this to be crushing.
In his report pursuant to s 12(1) of the Criminal Appeal Rules 1996 dated 19 June 2009, the judge stated that he “had in mind the question of the overall totality of the proposed sentence both during the course of constructing it and afterwards”.
As discussed above, the judge arrived at a single sentence under s 18A of the Sentencing Act by a process of instinctive synthesis, rather than aggregating the sentences of each individual offence. The appellant submitted that the judge erred in considering the totality principle both during that synthesis process, and afterwards. The principle of totality requires a consideration of the total sentence so as to ensure that the total effect is not crushing.
In R v Bennett [2005] SASC 55 at [15] Doyle CJ said:
[15]The appellant invokes the principle of totality. In my opinion that has no part to play in this case. It cannot be said that the sentence arrived at is a crushing sentence, and of a kind that requires a further reduction on account of the totality principle. The totality principle cannot be invoked, as it sometimes is by counsel, as a routine basis for reducing an otherwise appropriate sentence. The concept of totality has little or no part to play when a sentence is imposed, exercising the powers conferred by s 18A and the judge considers it appropriate to determine that sentence without attributing a notional sentence to each offence and considering whether such sentences should be cumulative or concurrent: cf R v Major (1998) 20 SASR 488; R v Place [2002] SASC 101, (2002) 81 SASR 395 at [114].
His Honour continued at [16]:
[16]In arriving at a sentence without determining the sentence that each offence will attract separately, the judge will necessarily have regard to the total period of imprisonment that is appropriate. No further reduction under the totality principles should usually be called for.
In R v B, RWK (2005) 91 SASR 200 Doyle CJ, with whom Duggan J agreed, said at [16]:
[16]In the course of submissions counsel for the appellant invoked the totality principle. There is no substance at all in that submission. The sentence in question cannot be regarded as a crushing sentence. That is often an indicator that a sentence should be reduced by applying the totality principle. The totality principle cannot be invoked, as there is a tendency to do, as a routine argument for a further reduction in what is otherwise an appropriate sentence. The totality principle is one that will apply in relatively infrequent circumstances.
Vanstone J in R v B said at [24]:
[24]… The judge chose not to ascribe certain sentences, often referred to as "notional sentences", to each of the individual offences under consideration. … In my view it is implicit in the selection by the judge of a sentence of seven years imprisonment that he took into account the notion of totality. After all, it is the accumulation of separate sentences which can give rise to the vice to which the totality principle is directed. When such a process is not followed and specific punishments are not "totted up to make a total", the "synthesis" of factors should result in an appropriate sentence.
White J, with whom Anderson and Kelly JJ agreed, in R v M, REM [2008] SASC 348 at [32] applied the reasoning in R v B and said:
[32]… The totality principle has no part to play when a judge imposes a single sentence under s 18A, which single sentence is derived without the attribution of a notional sentence for each offence for which the sentence is being imposed. …
These authorities indicate that generally there is no need for totality to be considered once a single sentence has been arrived at pursuant to s 18A, without an aggregation of the notional sentences for each individual offence.
In this case, the judge, after fixing the head sentence and imposing the non-parole period, did refer to a reconsideration of the total sentence in the passage set out earlier at [35].
The judge then apparently reviewed the matter again. In my view, it was unnecessary for the judge to consider the totality concept twice in applying s 18A of the Sentencing Act. No further reduction was made in the process of looking back at the sentence and considering whether it was crushing. Double consideration of the totality principle could only favour the appellant. I consider that the sentencing judge did not err in failing to have adequate regard to the totality of the sentence imposed, and in fact gave the totality principle more consideration than was necessary. I would therefore reject this ground of appeal.
Ground 7
The appellant lastly argued that the sentence imposed was manifestly excessive. This has in part been dealt with in grounds 2 and 3 of the appeal above but, in addition, the sentence imposed must not be outside the range of a reasonable sentence open to the judge: R v Abbott (2007) 170 A Crim R 306. Regard must also be had to the maximum sentences prescribed by law, the seriousness of the offending and the personal circumstances of the appellant.
In this case, the appellant received a head sentence of 13 years with 8 years 6 months non-parole for five offences, for which the maximum sentences ranged from penalty at large to 13 years imprisonment. Although the offending arose from a single course of conduct, this conduct lasted in excess of 30 hours and was serious and violent in nature. The need for general and specific deterrence is an important consideration, particularly given the appellant’s antecedent offending, and the concerns of the public regarding drug related violent crime. Furthermore, the appellant was not entitled to a reduction of his sentence for a guilty plea, and there has been an ongoing lack of co-operation, remorse and contrition on his part.
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.
WHITE J. I agree that the appeal should be dismissed. I agree with the reasons of Anderson J.