R v Tran

[1996] QCA 195

IN THE COURT OF APPEAL	[1996] QCA 195
SUPREME COURT OF QUEENSLAND

C.A. No. 100 of 1996

Brisbane

BeforeFitzgerald P
Demack J

Williams J

[R. v. Tran]

THE QUEEN

v.

BINH VAN TRAN

(Applicant)

Fitzgerald P
Demack J

Williams J

Judgment delivered 21 June 1996

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

CATCHWORDS:	Criminal - Sentence - Convictions for deprivation of liberty and assault - Community based orders made - Breach - Re-sentenced - Appeal against conviction did not excuse compliance with community based orders - Penalties & Sentences Act, ss. 123(1), 126(4), 134(1)
Counsel:	Binh Van Tran representing self Mrs L.J. Clare for the Respondent
Solicitors:	Binh Van Tran representing self Director of Public Prosecutions for the Respondent

Hearing Date: 4 June 1996

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 June 1996

This is an application for leave to appeal against sentences imposed on the applicant by a District Court Judge on 23 February 1996. A jury found Mr Tran guilty of one charge of deprivation of liberty and one charge of common assault and on 29 May 1995, he was ordered to perform fifty hours unpaid community service and was placed on probation for two years. He appealed against his conviction. That appeal was dismissed by this Court on 9 October 1995.

In the meantime Mr Tran had not performed the unpaid community service and on 22 August 1995 he applied to have that order revoked. This was refused. After some interaction with Community Corrections' officers, he was directed by letter to report for community service on 5 September 1995. He did not comply. A summons was served on him requiring him to appear before the District Court on 2 January 1996 to show cause why he should not be dealt with for this breach of his order.

The matter was adjourned to 29 January 1996, apparently so that the District Court Judge who had presided at the trial and imposed the sentence might deal with the breach. On that day, Mr Tran spoke of intending to seek special leave to appeal to the High Court. He also claimed that since 9 October 1995 his former wife, who had been the complainant at his trial, had "accidentally confessed to the very crime that (he) was convicted of". The District Court Judge adjourned the application until 23 February 1996 to enable him to take steps to pursue an application to the High Court.

On 23 February 1996, Mr Tran said he had spoken to solicitors the day before. It was apparent that that was all that had been done since 27 January 1996. He said he was without money because of his former wife's attitude to a property settlement. The Judge showed some inclination to grant a further adjournment, but was persuaded by the prosecutor that the proper approach was to deal with the breach and to indicate to Mr Tran that he could apply for bail pending the determination of the appeal. This course was followed, he was re-sentenced for the original offences and ordered to serve five months and two months imprisonment.

Mr Tran filed his application for leave to appeal against sentence on 21 March 1996, no application for bail was made, the sentence was served and when the application for leave to appeal against sentence came on for hearing he sought an adjournment because he had no legal representation. He claimed, in effect, that he had fresh evidence that Mrs Tran's evidence was unreliable. He also claimed that he had been told by "the prosecutor" and someone in the Registry that he did not have to perform the community service pending the determination of his appeal to the Court of Appeal. This seemed to raise the possibility of some "reasonable excuse" for not performing the community service order (Penalties & Sentences Act 1992, sub-s. 123(1)). Although the point was not spelt out, it can be taken to be the applicant's contention that he could not be re-sentenced for his original offences (Penalties & Sentences Act, sub-s. 126(4)), unless he had committed an offence against sub-s. 123(1).

Assuming that to be so, once the record is read it becomes clear that there is no merit in the applicant's submissions.

The Trial

Mr Tran was charged with five offences arising out of incidents involving his wife on 17 and 18 September 1994. On 17 September, Mrs Tran found him in her car which she had parked in North Quay. She refused to get into the car until he promised to drive her home. In fact he drove towards the north coast, and there was a struggle before he drove back to Brisbane. These events gave rise to a charge of unlawful use of a motor vehicle with a circumstance of aggravation and a charge of unlawful deprivation of liberty.

On 18 September, he again approached Mrs Tran where she had parked her car. He held onto her for a time, before running off with her keys and bag. This was observed by some bystanders, one of whom offered to drive her home. While she was being driven home Mr Tran, driving Mrs Tran's car, tried to block the passage of the other car. These events gave rise to a charge of assault, a charge of stealing and a charge of unlawful use of a motor vehicle. There was evidence of some arrangement between the parties about the use of the car and keys, so that there was a basis for a reasonable doubt about the two charges of unlawful use and the stealing charge. The jury found him guilty of deprivation of liberty and common assault.

The verdict was returned on a Friday and the presiding Judge began to offer Mr Tran probation and community service. He responded angrily and the matter was adjourned to Monday, 29 May. The sentencing remarks that day occupy eighteen pages of transcript.

The sentencing Judge told him that the alternatives to probation and community service were a fine, which he thought inadequate, or a gaol term of five or six months. He carefully explained the provisions of both a probation order and a community service order. Mr Tran seemed to pay close attention to what was said as he questioned in some detail the condition about leaving Queensland as he apparently travelled to Melbourne with some frequency. Specifically, in relation to community service he was told:

"You must, within one year, within one year from the making of the order or such further time allows, perform in a satisfactory way 50 hours community service that the authorised Commission officer direct."

The probation order prevented Mr Tran initiating contact with his wife and from contacting members of the jury.

Mr Tran was also told that if he breached the orders in any way he would be brought back to court and dealt with for the offences in the indictment. Near the end of the sentencing remarks he was told to report by 4.30 p.m. the next day to an authorised Commission officer at Brisbane.

The Application on 22 August 1995

Mr Tran sought to have the community service order revoked. The application was heard on 22 August 1995. Mr Tran said that he had to work six days a week to meet his financial commitments and he went to church on Sunday. The Judge said he had ordered only fifty hours community service because of Mr Tran's work commitments and could not reduce the number of hours ordered. He told Mr Tran to discuss the matter with the Community Corrections' officer and if necessary make an application supported by a report from such an officer. Mr Tran's response was:

"It's just that, like, I've asked my probation officer before on community work service, I say, I told him that, you know, I do it but I can't do it at the moment because at the moment there's too much bills to pay and I can't do it yet until - until the house is sold I can't do nothing about it."

He then raised some issue about damage to his eyes, and was told that he could raise that

also. Before making the order dismissing the application the Judge said:
"Well you've got until May anyway, but I would suggest that you start doing a bit now so

that you don't leave it all to the end, but in any event I don't think that I can assist
you today, Mr Tran, all right. Thank you.

According to the report made by J.E. Pepper, Community Corrections Coordinator, on 23

October 1995 the following then occurred:
"Mr Tran reported on 24 August 1995. He stated that he was not prepared to commence

community service until after his appeal had been heard. It was explained to Mr Tran that under Section 134(1) of the Penalties and Sentences Act 1992, he must comply with all requirements or the Orders until such time as the appeal was determined.

It was further explained that this included the performance of community service and that he must commence community service immediately.

Mr Tran was then directed to advise the days he was available for community service and on what date he could commence. He refused to provide this information. He then left the interview room.

A letter was sent directing Mr Tran to report for the Community Service Induction Programme on 29 August 1995. He did not do so.

A letter was sent directing Mr Tran to report for community service on 5 September 1995. He did not comply."

No action was taken on this breach of the order until after the appeal against conviction

had been dismissed.

The Hearing on 29 January 1996

Proceedings were taken against Mr Tran for breach of his community service order. The first hearing was on 29 January 1996. The breach was proved by the prosecutor through the tendering of the report of J.E. Pepper and its associated letters. Mr Tran, in response, raised two issues. First, he said he had been told by the prosecutor in May 1995 that he had twelve months in which to perform the community service and he received similar advice from someone in the Registry. Second, his wife had accidentally confessed to the very crime he was convicted of in proceedings in the Magistrates Court.

In response to the first matter His Honour said:

"Look, he might have told you that but you were getting letters from the community correctional officers that you were to commence your work and the order is that you do it in accordance with the way they say you should do it. The terms of the section are set out in that regard and I would have explained that to you at the time when I imposed those orders and would have gone into in some detail about it and you had legal representation on that occasion by Mr Culpan.

PRISONER:I was representing myself, Your Honour.
HIS HONOUR: No, Mr Culpan appeared for you at the time of your sentence.
PRISONER: Oh, yes."

In response to the second matter he was asked if he intended to appeal, and he gave unresponsive answers. The presiding Judge indicated a willingness to adjourn the application to allow him to pursue an appeal. Although twenty-eight days was mentioned as the length of the adjournment, after considering his calendar the Judge adjourned the application until 23 February 1996. His Honour concluded:

"Friday, 23 February, 9.30 a.m. it will be, Mr Tran, and please have regard to the law list as to where the case will be on; what Court it will be on at and I'll have another look at the whole matter then and I'll be very interested to see what you have been doing in relation to these appeals and I'll want to know all about what you're doing with the High Court and with the Court of Appeal and I will expect documentation to be put before me in that regard to verify what you say is the position, and if nothing has transpired in relation to these matters, I don't see why - this Court can't wait forever, obviously, for you to do things but where the verdicts are under attack it will pause for the time being and to see what you intend to do. Do you think you understand everything?

PRISONER: Yes, Your Honour."

The Hearing on 23 February 1996

On 23 February 1996, Mr Tran produced letters he had received from the High Court Registry in November 1995. He said he had consulted solicitors on 22 February 1996 and had not done so earlier because he was waiting to receive money from the sale of the former matrimonial home. There was considerable discussion between the presiding Judge and Mr Tran and it appeared that the Judge would grant another adjournment.

The prosecutor submitted the matter should be disposed of and, if Mr Tran was sentenced

to imprisonment, he could apply for bail. When called on to reply, Mr Tran said:
"Your Honour, I absolutely disagree with what the Crown Prosecutor said. I have lodged

an application to Legal Aid but because I refused them before I guess that's one reason why they don't want to represent me about this case. Not only that, at the moment I'm attending school, improving and my life and my education and I guess the main purpose of probation and this condition is to protect one from another but, as you can see, Your Honour, this person is very evil. She wished to kill her own baby just to hide the truth. And not only that, even after these persons have signed document agreeing that half will be in my name, she purposely do this so that I would financially - so that she would cripple me financially. Your Honour.

And as far as the probation is concerned, Your Honour, this person many time have tried to like trick me into - which because they all say that I was not allowed to contact her in which many times she's tried to contact me and then she called police and say that I contact her and try to get me into trouble. I suppose the main purpose of this [indistinct] being in this order thing is to protect one from another but again this is a very evil person. I don't know what she will do next, Your Honour, and I totally disagree what he has to say at all.

And not only that, not because I did not do the community work service, Your Honour, but at the time the Prosecutor has said I can do this community work service as long as it's within the year period. Not only that, the Deputy Registrar downstairs they told me [indistinct] information and I don't think that is fair, only just for a prosecutor to tell me one thing and then later on another Prosecutor trying to convict me of something in which another Prosecutor told me I am allowed to do that."

It should be noted that Mr Tran conducted his own defence, but after he became distressed following the verdict, counsel appeared to make submissions on his behalf. The presiding Judge referred to counsel as a friend of the court.

The presiding Judge began sentencing remarks but Mr Tran indicated he wished to speak again, and raised the fact that he had been told on 29 January by the presiding Judge that he would grant an adjournment for twenty-eight days, but in fact he was required to appear on 23 February. He then said his solicitor, "says he is going to tell me who is going to represent me on Monday". In view of the concluding remarks on 29 January which have been quoted this seems to be nothing more than a deliberate distortion of fact. It suggests that Mr Tran has a very good understanding of English when he wants to use it to his advantage.

After further complaint by Mr Tran, the presiding Judge continued his sentencing remarks

which included,
"The whole history of the matter so far as the offender is concerned is not a good one and

the proper course, at this stage, in my view is to proceed and if a custodial sentence is pronounced which it will be he can then apply for bail and that in the Crown's submission is the appropriate thing and in the end I agree with that submission."

After being sentenced to five months' imprisonment Mr Tran asserted the Judge had gone back on his word in respect of the length of the adjournment. This again illustrates the selective approach to the spoken word which Mr Tran uses.

The Application for Leave to Appeal against Sentence

When the application for leave to appeal was called on, Mr Tran sought an adjournment on the basis that he was unrepresented. This was not granted and Mr Tran was asked what was wrong with his sentence if he was properly convicted. He replied:

"Everything is wrong with it, Your Honour. At the time when I was in District Court Judge Noud - Justice Noud said as long as I'm in the process of appealing the case then I'll be all right because when I was convicted back in May 16 of 1995 he ordered me to 50 hours community work service and in the order he said that I have to comply with my community work service officer and because, at the time, I'm still disputing my original conviction and so I've- I've asked - I went through the Registry office in the District Court and I asked them about it - and they told me that as long as I do this community work service within a year then no charges or anything like that would lay against me and to make sure of that I also asked the prosecutor - one of the prosecutors as well and he told me the same thing. That if I - would you do this 50 hour community work service and finish off within a year then it would be all right but then later on my community work service officer turn around and he say I in breach of community work service and so that's why I was given this five month in gaol. I mean just for 50 hour community work service."

In the course of discussion of these issues the following occurred:

"APPLICANT: On the order it say that I have to comply - - - -

THE PRESIDENT: Never mind the order. The community corrections officer made it quite clear that you had to do the community service when you were directed. That's correct, isn't it?

APPLICANT: Yes, Your Honour."

And later the following occurred:

"APPLICANT:  But there was no conviction recorded and when they put me in

for a breach of community work service they brought me back to original charges

and that's - - - -

THE PRESIDENT: Yes, because you didn't do what you had been ordered to do.
APPLICANT: Like I said before Your Honour it's a technical breach in which I was

given the wrong information because I wasn't legally represented therefore I
wouldn't know what you do.

THE PRESIDENT: You were well aware after your appeal against conviction to this Court was dismissed that you were required to carry out the orders for - the order for community service, weren't you?

APPLICANT: Yes, Your Honour, but at the time I was also stressed out and I had to quit my old job because of it as well because I was just too stressed out to do just anything."

Under the provisions of the Penalties and Sentences Act both probation orders and community service orders are "community based orders" (s.4). If an offender appeals against a community based order the order has effect and the requirements of the order are to be complied with until the appeal is finally determined (s.134(1)). The appeal to this Court which was heard on 9 October 1995 was only in respect of his convictions. If a broad view is taken of the effect of s.134 so that an appeal against a conviction which has resulted in a community based order is treated as an appeal against a community based order, this leaves the requirements of the community based order in place.

It may be, as the learned District Court Judge said on 29 January 1996, that where verdicts are under attack the court will pause for the time being. That does not relieve a person sentenced to a community-based order from the obligations expressed in that order. Here there is no doubt that the order to perform community service was well understood by Mr Tran, as his application to revoke it showed. At that time, the appeal against conviction had been lodged, but was not referred to as a reason for not performing community service. After the application to revoke the order was dismissed, the appeal point was raised with the Community Corrections' Officer, it was explained that it had no validity and Mr Tran refused to comply with the direction given to him.

There is thus no basis on the recorded material upon which it can be asserted that Mr Tran had some reasonable excuse for not performing the community service order. Rather on each occasion that he has appeared either before a Court or before the Community Corrections' officer he has seized upon an issue or remark taken out of context and attempted to raise it as an excuse. Since 29 May 1995 he has known that his conviction carried either the prospect of five or six months' imprisonment or community service. He declined to perform the community service, was sentenced to five months' imprisonment and has served that sentence. No error has been demonstrated, so that the application for leave to appeal against sentence should be refused.