R v Tran
[2006] VSCA 285
•15 December 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 64 of 2006
| THE QUEEN |
| v. |
| TRIEU HAI TRAN |
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JUDGES: | VINCENT, J.A. and SMITH and KING, A.JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 December 2006 | |
DATE OF JUDGMENT: | 15 December 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 285 | |
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Criminal Law – Sentence appeal – Aggravated burglary, intentionally causing serious injury and injury – Injuries at lower end of relevant ranges – Prior good character – Evidence of rehabilitation – Absence of explanation and evidence of remorse – Manifestly excessive – Appeal allowed and re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr O.P. Holdenson, Q.C. | Haines & Polites |
VINCENT, J.A.:
I agree that this appeal should be allowed and the appellant re-sentenced in the manner proposed and for the reasons advanced by Smith AJA in his judgment.
SMITH A.J.A.:
History of the matter
On 23 February 2006, the appellant, Trieu Hai Tran was found guilty on the following counts contained in presentment C. 0403705.2:
· aggravated burglary (maximum penalty 25 years’ imprisonment);
· intentionally causing serious injury to Phuong Nguyen (maximum penalty 20 years’ imprisonment);
· intentionally causing injury to Van Phat Nguyen (maximum penalty 10 years’ imprisonment).
On 10 March 2006 the appellant was sentenced to the following terms of imprisonment:
· Count 1 -- aggravated burglary -- 3 years and 6 months
· Count 2 -- intentionally cause serious injury --15 months
· Count 3 -- intentionally cause injury -- 6 months
No orders were made for cumulation with the result that a total effective sentence was imposed of three years and six months’ imprisonment. The learned sentencing judge fixed a non-parole period of 20 months and declared that 11 days pre-sentence detention had already been served.
On 27 October 2006 leave was granted to the appellant to appeal against the sentence.
The appellant relies upon the following three grounds of appeal:
“1.The learned sentencing judge erred in the exercise of her discretion in that she imposed sentences on the basis that the applicant had no lesser role than the other men (or any one of the other men) of the four men who entered the unit as trespassers (or intruders) in the early hours of 31 July 2003;
2.The sentence imposed is, in all the circumstances of the case, manifestly excessive;
3.The learned sentencing judge erred in the exercise of her discretion in that she failed to have any, or any sufficient, regard to the sentencing principle of parity.”
The third ground was not pressed.
The circumstances of each offence
Count 1 alleged that the appellant entered 4/27 Stephen Street as a trespasser "with the intent to commit an unlawful assault to a person "and that at the time of entry a person was then present in the building and Tran "knew that a person was present or was reckless as to whether a person was present.” In relation to that count, the facts as put by the Crown were accepted and described by her Honour as follows:
"... in the early hours of 31 July 2003 you and three other men entered a unit 4/27 Stephen Street Yarraville as intruders and at the time of entering you and the others who were acting in concert or aiding and abetting each other, knew that there were people in that unit. The Crown case was that you and the others were seeking a person, Bhin Le, who was the occupier of that unit but was not present at the time you entered. As the time you entered the unit, there were two occupants Phung Nguyen and Van Phat Nguyen, one of whom was asleep and the other was resting."
While her Honour's findings do not expressly refer to the issue of whether there was an intent to commit an unlawful assault, the guilty verdict means that the jury must have been satisfied beyond reasonable doubt that the appellant had such an intent when he entered the building at least.
In relation to count 2, her Honour also accepted the Crown case that upon entering the premises, the men again acting in concert or aiding and abetting, kicked Phung Nguyen to the head and stomach and he ended up head-first through the window at the front of the unit. He believed that he had been hit to the head with a metal bar. He was unable to identify his assailants, but in cross-examination he said that the first man who came through the door was the one who hit him with the iron bar. The other person in the room, Van Phat Nguyen gave evidence that he saw four men hitting Phung Nguyen.
There was an issue at the trial as to whether a serious injury could be proved in relation to the assault on Phung Nguyen. Her Honour accepted the medical evidence that there was:
“...minimal soft tissue swelling from C0 to C3 with light lifting of the ligamentum flavum at C1-C. 2.’
The evidence of Dr Ooi was accepted that this pointed to -
“Probable partial injury to this ligament but no evidence of acute disruption at any level.”
The victim was required to wear a cervical collar to protect his neck. A number of staples were used to close the laceration. The doctor described the injury as "moderately serious". The victim absconded before further opinions could be sought. The learned sentencing judge sentenced the appellant on the basis that the serious injuries caused to Phung Nguyen were at the lower end of injuries which are serious injuries.[1]
[1][8].
Count 3 concerned the physical attack on Van Phat Nguyen. In his evidence he said he recognised the appellant as one of the men involved. He suffered a bruise to the upper middle line above the left shoulder and a red imprint over the right upper posterior shoulder. The medical evidence was that his injuries would have been worse but for the protection of a doona. Her Honour also found that the injuries caused to Van Phat Nguyen were at “the lower end of injury”.[2]
[2]Ibid.
Ground one –fact finding as to “roles”
Counsel for the appellant submits that the learned sentencing judge sentenced the appellant on the basis that each of the intruders acted equally and had equal “roles”. In particular, her Honour concluded that the appellant had no greater or lesser “role” than any of the other men who entered the unit.
The principal passages relied upon by the appellant from the reasons for sentence are the following:
"11. Upon analysis of the evidence, I accede to the Crown submission that the only reasonable inference to be drawn is that the four intruders acted equally, either in concert or as aiders and betters. Consequently I sentence you as having no greater or no lesser role than the other men who entered the unit in the early hours of 31 July 2003.
19. It has been put on your behalf that I ought to impose a sentence no greater than three years and that any sentence imposed be fully suspended. Counsel referred to a lack of prior convictions, your age and background as well as the principles of parity in relation to the sentence imposed on Ban Phi Li. It was submitted that your role was lesser than that of Li. I have already stated that I sentence you on the basis that you had equal roles. ….”. (emphasis added)
Counsel for the appellant submits that her Honour was not referring to the degree of culpability in her statements about “roles” but referring to their respective actions.
Counsel for the appellant also refers to her Honour’s conclusion that there was "no evidence upon which [she] could be satisfied upon reasonable doubt who had used the bar." She stated that the pre-trial identification procedure was of little weight in identifying the person who entered the unit first and that the evidence overall was equivocal as to who held the iron bar.
Counsel for the appellant submits that her Honour erred in ruling that the evidence overall was equivocal as to who held the iron bar because of the evidence of the victim of count 3, Van Phat Nguyen, that the appellant was one of the two or more men who had hit him and was not the one who had hit him with a metal bar. Counsel submits that the evidence was clear that the appellant was not the person with the iron bar. Counsel submits that her Honour’s conclusion was not open; that the evidence was not equivocal - the person who held the iron bar was a person other than the appellant.
In my view it was open to the learned sentencing judge to conclude that the evidence as to who used the metal bar was equivocal and, accordingly, make no finding as to who did in fact use it. The alleged error is not made out.
Counsel for the appellant argues that in any event the “roles” were not the same and that the learned sentencing judge erred in treating the appellant for sentencing purposes as having the same ”role” as the others. Her Honour should have imposed a sentence on the appellant on the basis that he had a lesser role, it not having been proved that he was the person that used the metal bar. For this reason also, counsel submits that the sentencing discretion had miscarried.
As noted above, the argument advanced assumes that in referring to “roles” her Honour was referring to the precise actions of the participants who were acting in concert. In my view, her Honour did not use the term in that sense but used it to express the view that while each may have done different things, they were all acting in concert or aiding and abetting and were equally responsible and culpable for what occurred. Accepting that analysis, no error is shown.
Ground 2 – sentence manifestly excessive
In sentencing the appellant, her Honour gave due regard to the seriousness of the count 1 offence. She emphasised the fact that neither of the two men who were assaulted had done anything to contribute to the offences and that each of them was entitled to stay overnight in the unit without fear of violent intruders such as the appellant and the others. She gave due regard to the importance of general deterrence to deter other people from entering other's homes in the way they did.
Turning to the appellant, her Honour referred to the fact that the appellant was 24 years of age and committed the offences when he was 21 years of age. She referred to his history including his arrival as a refugee from Vietnam via Indonesia in Australia at the age of four. She referred to his attendance at a catholic school, Chisholm College, and going into a business conducted by his family after leaving school. He then conducted his own business selling telephone accessories for 12 months and then started, with his family, an Internet cafe with which he was still involved. He comes from a family of three. Her Honour noted that he had been living in a de facto relationship with a young lady, Tracey, for five to six years and he intended to marry her. She also considered a number of references tendered on his behalf from young people that he knew as well as teachers from the Victorian School of Languages and his secondary school.
The learned sentencing judge stated that the appellant had no prior convictions and that she sentenced him "as a person of previous good character". She accepted that he had not been in trouble since the incident. She also took into account the delay in the matter of some two and half years and accepted that a prison sentence would weigh more heavily on him that it would a person who had served a term of imprisonment before. She also stated that she sentenced him as a young offender stating that he committed the offences when he was 21 years of age. She went on to state that:
"Sentencing judges must accord more weight to matters of rehabilitation than matters of deterrence and punishment in cases of used for young offenders, and I do."
She then qualified that remark by stating that she had, however,
"Accorded weight to specific deterrence in this case as I have no reason given for your commission of these offences. Clearly, there is no evidence of remorse before me"
After discussing and comparing the sentence imposed upon Ban Phi Li and the submissions of counsel for the appellant on that matter, she expressed the conclusion that it was not appropriate to impose the same or a similar sentence on Tran noting in particular that Ban Phi Li had pleaded guilty and suffered from a serious mental illness which had required the matters in Tsiaras's case to be taken into account. Her Honour stated that in this case there was no issue that Tran was an appropriate vehicle for general and specific deterrence and that no sentence other than a sentence of imprisonment was appropriate. She rejected counsel’s submission that any sentence be suspended. Her Honour stated:
“… taking into account the seriousness of the Crown case, the matters put on your behalf and applying the relevant sentencing principles, I sentence you on the basis that an immediate custodial sentence is appropriate.”
She then emphasised that any sentence imposed needed to reflect the seriousness of the offences and the need for sentences proportionate to the criminality involved. Her Honour then explained her decision that there should be no cumulation. She referred to matters of rehabilitation stating:
"I sentence you on the basis that your chances of rehabilitation are reasonably good and I have ordered that you serve a minimum term which is lower than usual to reflect this. I refer in particular to your age, your lack of prior convictions and the fact that you have not been involved in any further offending."
Counsel for the appellant submits that each of the individual sentences was manifestly excessive. In relation to each offence, counsel referred to the following matters which had been accepted by the learned sentencing judge:
· the appellant was a person of "previous good character";
· there had been a delay of two and a half years;
· a term of imprisonment "would weigh more heavily on [the appellant] that it would person who had served a term of imprisonment before;
· the appellant was "a young offender" who had committed the offences for which he fell to be sentenced when he was 21 years of age;
· the appellant was in a de facto relationship with young lady whom he intended to marry;
· the appellant was involved in a business conducted by his family;
· the appellant had particularly good prospects of rehabilitation.
The latter point challenges one of her Honour’s conclusions, namely, that the appellant's "chances of rehabilitation" were "reasonably good". It is not clear why her Honour was so cautious about the rehabilitation prospects that she described then as “chances” and only “reasonably good” ones. Obviously the full story had not been told and, in particular, as noted by her Honour, the appellant had given no reason why he committed the offences and was unable to provide evidence of remorse. But, whatever the reasons for her Honour's caution, the evidence pointed to a person of previous good character who had, since the events in question, apparently lived a law-abiding life and had been engaged in work in the family Internet cafe business. The evidence suggested that whatever rehabilitation was required had occurred. At the very least he had good prospects of long-term rehabilitation.
In relation to counts 2 and 3, counsel referred to the learned judge's conclusion that the injuries sustained were at the "lower ends" of the relevant ranges of injury.
Looking at the circumstances of the offences and the circumstances of the offender, I consider that the individual sentences and the total effective sentence were manifestly excessive. The matters highlighted by counsel for the appellant required significantly lower sentences and suspension of them, wholly or partially. My conclusion is strengthened by the view I have formed that there was an undervaluation of the rehabilitation prospects, an issue very important when dealing with an offender of the age of the appellant. I refer to my comments above about her Honour's assessment of those prospects. Reference should also be made to the fact that in fixing the minimum term, her Honour recognised the need to fix a minimum term lower than what would be usual to reflect those prospects but fixed a minimum term of 20 months which was only one month less than half the total effective sentence - a term, in my view, not lower than usual. My view that the sentence is manifestly excessive is also supported by the importance attached by her Honour to specific deterrence when, on the evidence, it was not, in my judgment, properly a major concern and a suspended sentence would address that sentencing objective in any event.
Conclusion
The exercise of the sentencing discretion having been successfully challenged, it is necessary to re‑sentence the appellant.
The gravity of the offences, particularly count 1, required that terms of imprisonment be imposed. But for the reasons discussed, the terms should be less than those originally imposed and they should be suspended.
I, therefore, propose the following sentences:
· Count 1 - two years and six months’ imprisonment;
· Count 2 - 12 months’ imprisonment; and
· Count 3 - four months’ imprisonment.
I also propose that the sentences should be served concurrently because, as her Honour held, "the offences were committed within a short time and were part of the one incident". The total effective sentence will therefore be two years and six months’ imprisonment. Save for the period of incarceration already served, that sentence should be suspended for a period of two years from today.
KING A.J.A.:
I agree that this appeal should be allowed and the appellant re-sentenced in the manner proposed and for the reasons advanced by Smith AJA in his judgment.
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