R v Tran

Case [2009] VSCA 252 12 October 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 859 of 2007

THE QUEEN
	v
THANH PHONG TRAN

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JUDGES:	MAXWELL P and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2009
DATE OF JUDGMENT:	12 October 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 252
JUDGMENT APPEALED FROM:	R v Tran (Unreported, County Court of Victoria, Judge Williams, 26 October 2007).

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CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – Knife attack – Physical and psychological injuries –Protection of the community – General deterrence – Youth – Applicable sentencing range – Whether current sentencing practices consistent with maximum penalty – Cancellation of parole – Fresh evidence requiring reconsideration of sentence – Totality – R v Mangelen [2009] VSCA 63 – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Crown	Mr D Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr G Hughan	Robert Stary & Associates

MAXWELL P:

I will invite Coghlan AJA to deliver the first judgment.

COGHLAN AJA:

On 17 October 2007, the appellant pleaded guilty in the County Court at Melbourne to one count of recklessly causing serious injury. He was sentenced to be imprisoned for six years with a non-parole period of four years.

On 21 November 2007, his parole was cancelled and two years, two months and 29 days were added to his sentences.

It was inevitable[1] that leave to appeal be granted, as occurred in the s 582 Crimes Act1958 (Vic) hearing before Neave JA on 30 January 2009.
[1]R v Piacentino (2007) 15 VR 501; R v Alashkar & Tayar (2007) 17 VR 65.

The appeal is on the following grounds:

1. In all the circumstances, the sentence and non-parole period are manifestly excessive.
2.As a result of the order made by the Adult Parole Board on 21 November 2007 cancelling the appellant’s parole, fresh evidence exists which requires reconsideration of the sentence imposed on the appellant in light of the principle of totality.

The maximum term of imprisonment for the offence is 15 years.

I will set out the circumstances of the alleged offending. On the afternoon of 14 September 2009, the victim in this matter, Carlo Ravanello, his partner, Kay Nguyen and their daughter, who was then 16 months old, were walking down Victoria Street in Richmond. The family lived in the nearby Housing Commission high rise estate. The appellant approached the group and they believed that he was trying to sell them drugs. That is denied by the appellant. Mr Ravanello reacted to

him and told him in less than polite language what he thought of the appellant and told him where to go.

The family continued the journey down Victoria Street to do some shopping. When they were returning home, some time between 15 minutes and one hour later, they encountered the appellant at the corner of Elizabeth Street and Lennox Street, Richmond. They walked past the appellant, who shouted ‘Have you got nothing to say…

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] VSCA 252
Case: [2009] VSCA 252
Decision Date: 12 October 2009

CaseChat Overview and Summary

The appellant, Tran, was convicted for recklessly causing serious injury to the victim in a knife attack. The victim suffered both physical and psychological injuries as a result of the attack. Tran was sentenced to imprisonment with a non-parole period of five years. Tran appealed the sentence on the basis that it was excessive and did not adequately reflect the totality of the circumstances. The appeal was heard in the Court of Appeal.

The central legal issue was whether the sentence imposed was manifestly excessive, considering the principles of sentencing and the need for protection of the community and general deterrence. The court also needed to determine whether the sentence was consistent with the maximum penalty for the offence and whether the cancellation of parole eligibility was warranted. Additionally, the court considered whether fresh evidence warranted a reconsideration of the sentence.

The court found that the sentence was not manifestly excessive, as it had taken into account the totality of the circumstances, including the nature and circumstances of the offence, the appellant’s age, and the impact on the victim. The court emphasised the importance of protection of the community and general deterrence in sentencing and concluded that the sentence imposed was appropriate. The court also found that the cancellation of parole eligibility was justified given the seriousness of the offence and the need to protect the community. The appeal was dismissed, and the original sentence was upheld.

The court did not make any further orders in relation to the appeal. The sentence imposed by the lower court remained unchanged.

Orders