R v Tran - [2006] VSC 352

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1560 of 2005

THE QUEEN

TUAN QUOC TRAN

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	24-28 JULY, 1-4, 7-9, 14-18, 21-25, 28-30 AUGUST 2006, 11 SEPTEMBER 2006 (PLEA)
DATE OF SENTENCE:	22 SEPTEMBER 2006
CASE MAY BE CITED AS:	THE QUEEN v TUAN QUOC TRAN
MEDIUM NEUTRAL CITATION:	[2006] VSC 352

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Sentence – Murder - Offender sentenced on the basis of aiding and abetting - No evidence of offender being affected by alcohol or drugs – Denial of guilt – Absence of remorse – No prior convictions – Relevance of youth of offender and prospects of rehabilitation – Sentenced to a total of 14 and a half years' imprisonment with a minimum of 10 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. McArdle QC with Mr C. Winneke	Angela Cannon, Solicitor for Public Prosecutions
For the Accused	Mr N. Papas	Haines & Polites

HIS HONOUR:

Tuan Quoc Tran, you have been convicted by a jury of a charge that you did on 8 July 2002 at South Yarra murder James Huynh. He was the victim of extreme brutality. At least one of his assailants attacked him with a sword. Others kicked him, and he was perhaps assaulted by other means as well. The savagery of the sword was therefore in his case augmented by the humiliation of being kicked while lying helplessly on the ground. Both his death, and the manner of his dying, were the work of young men operating at the lowest levels to which young men can sink.

The jury have found that you were so much a part of this as to justify a verdict of guilty of murder. You have consistently denied the charge. The undisputed facts nevertheless tell against you. You arrived at the "Salt" Nightclub in the early hours of 8 July with two close friends, Cuong Quoc Lam and Hung Tu Van. Shortly before 3.00 a.m. that day, Mr Van was viciously assaulted in the nightclub. The person in whose murder you have been found by the jury to have played a part was involved in the assault. What he then did was unforgivable. It nevertheless could not possibly justify the revenge which was shortly afterwards wreaked upon him. Swords were produced. There is no direct evidence about how they came to be present. I am nevertheless satisfied beyond reasonable doubt that a group, including Mr Van and Mr Lam, confronted the deceased. That group was armed with at least two swords, and you were in such physical proximity to them that you must have noticed - and noted - not only these weapons, but also the threat that they posed to the deceased and his companions.

James Huynh and those with him quickly became conscious of the danger they faced. They not only saw the swords, which is doubtless what those wielding them intended, but your friend Hung Van, in the…

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 [2006] VSC 352
Case: [2006] VSC 352
Decision Date: 22 September 2006

CaseChat Overview and Summary

In the case of R v Tran, the appellant was convicted of murder and was sentenced on the basis of aiding and abetting. The appellant did not consume alcohol or drugs during the commission of the crime. The appellant denied their guilt and showed no remorse. The appellant did not have any prior convictions. The court had to consider the relevance of the youth of the offender and their prospects of rehabilitation. The court also had to weigh the circumstances of the crime, the appellant's conduct, and the need for deterrence and protection of the community.

The legal issues that the court had to decide were the appropriate sentence for the appellant, taking into account all the relevant factors. The court had to consider the nature and circumstances of the offence, the appellant's age and prospects of rehabilitation, and the need for deterrence and protection of the community. The court also had to consider the appellant's denial of guilt and lack of remorse, as well as their lack of prior convictions.

The court found that the appellant's youth and prospects of rehabilitation were significant factors in determining the appropriate sentence. The court also found that the appellant's denial of guilt and lack of remorse were relevant factors in determining the severity of the sentence. However, the court found that the need for deterrence and protection of the community outweighed these factors. The court sentenced the appellant to a total of 14 and a half years' imprisonment with a minimum of 10 years. This sentence reflects the seriousness of the offence and the need to protect the community.

Orders