R v Tran

Case [2008] VSCA 80 23 May 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 346 of 2006

THE QUEEN
	v
NHAT ANH TRAN

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JUDGES:	BUCHANAN and ASHLEY JJA and FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 April 2008
DATE OF JUDGMENT:	23 May 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 80

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CRIMINAL LAW – Appeal against total effective sentence of 21 years’ imprisonment with non-parole period of 16 years for offences of murder and two counts of intentionally causing serious injury – Whether applicant’s mental condition reduced moral culpability for offending – Whether sufficient weight given to mental condition of applicant in reduction of moral culpability – Whether sentence manifestly excessive – Appeal allowed – Appellant re-sentenced to total effective sentence of 18 years and six months’ imprisonment with non-parole period of 14 years.

R v Tsiaras [1996] 1 VR 398 and R v Verdins (2007) 16 VR 269 considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr R F Edney	Andrew George Solicitors

BUCHANAN JA:

While anyone who deliberately takes the life of another commits a most serious crime, the circumstances in which this murder was committed, the applicant’s mental state and antecedents in my view render the sentence passed below manifestly excessive.

This is, I think, a difficult case. In part the difficulty arises from the same circumstances – the sudden frenzy of the attacks, their devastating consequences, the innocence of the victims and their relationship with the applicant – simultaneously exemplifying the horror of the crime and the powerful forces acting upon the applicant’s mind. I consider that the sentencing judge failed to accord due weight to the latter and the consequences, which affected particularly general and specific deterrence.

I would re-sentence the applicant as Ashley JA proposes.

ASHLEY JA:

The Applicant, Nhat Anh Tran, pleaded guilty to the following offences, each of which was committed on 18 December 2004:

·Murder, 1 count (count 1);[1]
·Intentionally causing serious injury, 2 counts (counts 2 and 3).[2]

[1]Crimes Act1958 (Vic), s 3, maximum penalty imprisonment for life.

[2]Crimes Act, s 16, maximum penalty 20 years’ imprisonment.

On 16 October 2006, after an earlier plea, he was sentenced on count 1 to 18 years’ imprisonment, on count 2 to 4 years’ imprisonment and on count 3 to 2 years’ imprisonment. The learned judge cumulated two years of the sentence on count 2 and 1 year of the sentence on count 3 on the sentence imposed on count 1. The total effective sentence was thus 21 years. His Honour fixed a non-parole period of 16 years. He made a declaration in respect of pre-sentence detention.[3]

[3]678 days.

Now the applicant seeks leave to appeal against sentence.[4] His full statement of grounds reads as follows:
[4]On 30 November 2007, Kellam JA referred the application to a court constituted by three judges.

1.The learned sentencing judge failed to give sufficient weight to the appellant’s plea of guilty.
2.The learned…

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 [2008] VSCA 80
Case: [2008] VSCA 80
Decision Date: 23 May 2008

CaseChat Overview and Summary

The case of R v Tran involved the appellant appealing against his sentence of 21 years' imprisonment, with a non-parole period of 16 years, imposed by the County Court of Victoria for the offences of murder and two counts of intentionally causing serious injury. The appellant had been found to be suffering from a mental condition at the time of the offending which had significantly affected his ability to understand the nature and quality of his actions. The Court of Appeal was tasked with determining whether the appellant's mental condition had been adequately considered in the sentencing process, and if the sentence was manifestly excessive.

The central legal issues before the Court of Appeal were whether the trial judge had given sufficient weight to the appellant's mental condition in assessing his moral culpability and whether the sentence imposed was manifestly excessive. The appellant's legal team argued that the trial judge had not appropriately factored in the impact of the appellant's mental condition on his moral culpability, and that the sentence was therefore excessive. The Crown contended that the sentence was appropriate given the severity of the offences.

The Court of Appeal found that the trial judge had not adequately considered the appellant's mental condition in assessing his moral culpability, and that this omission had resulted in an overestimation of his culpability. The court also concluded that the sentence was manifestly excessive, taking into account the mitigating effect of the appellant's mental condition. The appeal was allowed, and the appellant was re-sentenced to a total effective sentence of 18 years and six months' imprisonment, with a non-parole period of 14 years. The court drew on the principles established in R v Tsiaras and R v Verdins to support its decision, emphasising the need for a comprehensive assessment of all mitigating factors, including mental health, in the sentencing process.

Orders