R v Tran - [2017] SASCFC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRAN
[2017] SASCFC 60
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Stanley)
31 May 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - SENTENCE
Application for permission to appeal against two sentences imposed by two different District Court Judges.
On 16 December 2011 the applicant was sentenced for trafficking in a large commercial quantity of a controlled drug. At that time the applicant was already serving a life sentence for murder with a non-parole period of 22 years. The sentencing Judge, Rice DCJ, imposed a head sentence of nine years imprisonment to be served concurrently with the life sentence for murder and extended the non-parole period to 26 years.
On 19 December 2012 the applicant was sentenced for one count of recklessly causing serious harm to imprisonment for six years and 10 months to be served concurrently with the life sentence for murder and the trafficking sentence. The sentencing Judge, Davey DCJ, extended the parole period to 30 years and six months.
The applicant complains that the non-parole period is manifestly excessive and that both sentencing Judges erred in accumulating each of the non-parole periods on the non-parole periods previously imposed. Upon hearing of the application the applicant contended that neither of the sentencing Judges had adequate regard to the principle of totality in sentencing him.
The appeal is out of time by a period exceeding four years. The applicant applies for an extension of time to file the notices of appeal and contends that due to his withdrawal from illicit drugs, he was too depressed and shocked at the time of the original sentences to instruct his lawyers to appeal.
Held per Kelly J (Vanstone and Stanley JJ agreeing) refusing permission to appeal:
1.       The non-parole period of 30 years and six months ultimately imposed is, when all of the circumstances are taken into account, properly proportionate to the criminality of the applicant’s offending as a whole.
2.       Both of the learned sentencing Judges appropriately applied the principle of totality at the respective stages for which they were required to sentence the applicant.
3.       The application for an extension of time within which to file the notices of appeal is refused as the applicant has not proffered any adequate explanation for the delay.
Criminal Law (Sentencing) Act 1988 (SA) s 32A, referred to.
Police v Warren [2000] SASC 285; Postiglione v The Queen (1997) 189 CLR 295; R v Fyfe

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 [2017] SASCFC 60
Case: [2017] SASCFC 60
Decision Date: 31 May 2017

CaseChat Overview and Summary

The applicant sought permission to appeal and an extension of time to file notices of appeal against sentences imposed by two District Court Judges for multiple offences committed between April and June 2008. The offences included trafficking in a controlled drug, murder, trafficking in a large commercial quantity of methylamphetamine, and recklessly causing serious harm. The applicant contended that the sentencing judges failed to properly apply the totality principle, resulting in a manifestly excessive non-parole period, and that a specific comment by one judge indicated error.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judges had erred in their application of the totality principle when imposing cumulative sentences for the multiple offences, and whether this resulted in an excessive non-parole period. The court was also required to consider whether the applicant had provided an adequate explanation for the significant delay in filing his appeal.

The court refused permission to extend time for the appeal. It reasoned that the non-parole period of 30 years and six months was proportionate to the applicant's overall criminality. The court found that both sentencing judges had properly acknowledged and applied the principle of totality, which allows for mitigation of sentences where the cumulative effect becomes crushing, but does not mandate a reduction in every case, particularly where persistent offending warrants greater punishment. The court emphasised that the principle should not lead to a "bulk discount" and that a reduction is only required if the sum of sentences is disproportionate to the overall criminality, which was not the case here. Furthermore, the court noted the applicant had failed to provide an adequate explanation for the delay of over four years in filing his appeal.

Orders

Orders of the court

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Background

Background to the litigation

A single Judge referred the question of permission to appeal and the application for an extension of time within which to file the notices of appeal to this Court. Background The four offences in respect of which the applicant was sentenced were committed between April and June 2008. On 1 April 2008 he committed the first offence of trafficking in a controlled drug for which he was ultimately sentenced by David J at the same time as he was sentenced for the murder of Paulo Miranda committed on 3 May 2008. The circumstances relating to the murder are particularly grave. The applicant, together with others, formed a plan to cause Mr Miranda grievous bodily harm which resulted in his death. There was no remorse or contrition shown by any of the participants, including the applicant. David J concluded that the applicant knew where the body of Mr Miranda could be found and gave no assistance to the authorities as to where it may be located. David J found it was a calculated, premeditated and brutal attack on Mr Miranda which led to his death. It was committed in the course of the applicant’s deep involvement with the illicit drug trade at a time when he was heavily involved in both dealing and using drugs. The drugs involved in the trafficking offence on 1 April 2008 were worth between $43,000 and $44,000. The offence of trafficking in a large commercial quantity of methylamphetamine for which the applicant was sentenced by Rice DCJ on 16 December 2011 was committed on 19 June 2008. The sentencing Judge found that the applicant was a leader and organiser toward the top of the scale for offences of trafficking in a large commercial quantity of the drug. The methylamphetamine the subject of this charge was of high quality and worth between $500,000 and $1 million depending on how it was sold. The applicant pleaded guilty to this offence on the first day of his trial. The offence of recklessly causing serious harm was committed on 3 June 2008. The circumstances of this offence were also very grave. It was committed only one month after the murder of Mr Miranda. At that time the applicant was still involved in dealing in drugs and, like Mr Miranda, the victim of the offence was said to have owed a debt to the applicant. The offending against the victim was part of a deliberate exercise in enforcement attached to the business of the illicit drug trafficking in which the applicant was then heavily involved. The victim suffered catastrophic injuries which left him permanently partially paralysed on the right side of his body and with significant brain damage. He requires ongoing care and will never work again. The chronology of court appearances and events occurring after the applicant’s arrest in June 2008 is relevant to his application for an extension of time. The applicant was arrested and taken into custody on 27 June 2008 in relation to the violent offence committed on 3 June 2008. He was then arrested for the murder of Mr Miranda whilst in custody on 9 October 2008 and formally remanded in custody on that matter from the next day, namely 10 October 2008.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Counsel for the applicant contended that as all of the offences committed by the applicant occurred over a relatively short period of time between April and June 2008, the sentencing Judges, when applying the totality principle, should have considered what sentence and non-parole period would have been appropriate had the same judge sentenced the applicant for all of the offences. It was contended that in failing to do so, a total non-parole period has been imposed which is manifestly excessive. Counsel for the applicant also contended that the Judge’s statement in the final sentence of her sentencing remarks – that the circumstances required an extension of the non-parole period – was indicative of error. Consideration In my view there are three reasons why permission to extend the time within which to appeal should be refused in this matter. First, the non-parole period of 30 years and six months ultimately imposed is, when all of the circumstances are taken into account, properly proportionate to the criminality of the applicant’s offending as a whole. Second, on any view of the matter both District Court Judges properly acknowledged and applied what is described as the principle of totality when imposing the respective sentences for the trafficking offence and the offence of recklessly causing serious harm. Finally, the applicant has not proffered any adequate explanation for the delay in filing a notice of appeal for a period of well in excess of four years since the date the last sentence was imposed. The principle of totality I turn now to deal with the complaint that neither District Court Judge properly applied the principle of totality. A succinct and clear explanation of what is commonly referred to as the principle of totality is to be found in the often quoted remarks of King CJ in The Queen v Rossi:[2] There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.[2] (1988) 142 LSJS 451 at 453. It is not a routine step to be followed in every case. However, where an offender is to be sentenced for multiple offences it is sometimes necessary for a court to take a last look at the totality of the sentences to determine if it is, in all of the circumstances, so crushing as to require amelioration. What is required is an evaluation of the overall criminality involved in all of the offending for which the offender is to be sentenced. There must be an appropriate relativity between the totality of the criminality and the totality of the sentences.[3][3] Postiglione v The Queen (1997) 189 CLR 295 per McHugh J at 308. In R v Cramp[4] Kourakis J (as he then was) observed:It does not follow, therefore, that a reduction will always be necessary where cumulative sentences are imposed. In some cases the persistent offending may require greater punishment and for that reason too no downward reduction will be necessary after conducting the overall review. The application of the totality principle cannot be allowed to lead to a position where, in effect, offenders receive a “bulk discount”. All that is required is that the sentencing judge considers whether the sum of the sentences imposed is disproportionate to the criminality of the underlying offences. If the individual sentences have been framed so that the accumulation does not result in any disproportion, there need not be any reduction.[footnote omitted]Finally, as this Court observed in R v Smoker,[5] it follows that the extension of mercy where an overall sentence is not disproportionate to the overall criminality of the conduct, will be a rare occurrence. [4] (2010) 106 SASR 304 at [61].[5] (2016) 126 SASR 201 per Lovell and Hinton JJ at [85].