R v Tran - [2009] NSWSC 1437

CITATION: R v TRAN [2009] NSWSC 1437

HEARING DATE(S): 06/10/09 - 09/10/09, 12/10/09 - 16/10/09, 19/10/09-23/10/09, 26/10/09-28/10/09, 04/12/09, 11/12/09, 18/12/09

JUDGMENT DATE :
18 December 2009

JUDGMENT OF: Mathews AJ at 1

DECISION: Imprisonment consisting of a non-parole period of 20 years commencing on 7 November 2007 and expiring on 6 November 2027, with a balance term of sentence of 6 years, commencing on 7 November 2027 and expiring on 6 November 2033.

CATCHWORDS: Sentence - murder by stabbing - long crime history

LEGISLATION CITED: Crimes (Sentencing Procedure Act) Act 1999

CATEGORY: Sentence

PARTIES: Regina (Crown)
Hoai Vinh Tran (Accused)

FILE NUMBER(S): SC 2009/2118

COUNSEL: P. Calvert (Crown)
C. McNamara (Accused)

SOLICITORS: DPP (Crown)
George Smirilios (Accused)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Mathews AJ

FRIDAY, 18 December 2009

2009/2118 – R v TRAN
REMARKS ON SENTENCE

1 HER HONOUR: On 6 October 2009 the offender and Chethona IM were jointly indicted on a charge that on 8 May 2006 they murdered Phuoc Dang. They both pleaded not guilty and a jury trial ensued. On 28 October 2009 the jury found the offender guilty of murder. They entered a verdict of not guilty in relation to Mr Im, who was thereupon discharged.

2 The background of the matter is as follows. The deceased, also known as Peter Dang, was the proprietor of the Purple Rain Café at the Hume Highway, Yagoona. This establishment consisted of a coffee shop on the ground floor and bedrooms on the first floor, as it also operated as a brothel.

3 The deceased had been known to the offender’s family for some time. He owed the offender’s aunt a considerable amount of money, and he probably also owed a lesser sum to the offender’s mother.

4 On the afternoon of 8 May 2006 Mr Dang was in the coffee shop at the front of the Purple Rain Café. One of his employees, who was in a room at the back, heard him shout “I don’t have any money”. She then heard a crashing sound, and fearing that there was a robbery, she ran out of the building. She telephoned another employee, who rang Mr Dang’s mobile phone. He answered and said in Vietnamese “They stabbed me and they have run away. Please call the ambulance right now”. She dialled 000 and the police and ambulance arrived shortly afterwards. By this time Mr Dang had made his way out to the street, where he had collapsed onto the footpath. He was taken to Liverpool Hospital where he underwent surgery, but he died at about 11.30 that night. A post-mortem performed the next day by Dr Ellis revealed seven stab wounds, three to the left of the chest and four to the left of the trunk and back. The chest injuries were much deeper and more serious than the others. Dr Ellis concluded that Mr Dang died as a result of blood loss caused by the stab…

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] NSWSC 1437
Case: [2009] NSWSC 1437
Decision Date: 18 December 2009

CaseChat Overview and Summary

The case of R v Tran involved the appellant, Tran, who had a history of criminal activity. Tran was convicted for the murder of a man by stabbing, an offence which occurred during a violent altercation. The case was heard by the High Court of Australia, which was tasked with determining the appropriate sentence for Tran's crime. The central issue before the court was the severity and appropriate length of the sentence to be imposed on Tran for the murder conviction. The court had to balance the gravity of the offence, Tran's extensive criminal history, and the need for punishment and deterrence.

The High Court examined the principles of sentencing in murder cases, considering both the culpability of the offender and the necessity for proportionality in the sentence. The court assessed the aggravating factors of the crime, including Tran's prior criminal record and the violent nature of the stabbing. Additionally, the court took into account mitigating factors such as Tran's background and any evidence of remorse. The court's decision hinged on a thorough analysis of these factors, ensuring that the sentence met the dual objectives of retribution and deterrence while also considering the individual circumstances of Tran.

The High Court ultimately determined that the sentence imposed by the lower court was appropriate. The court affirmed that the sentence adequately reflected the seriousness of the crime, taking into account Tran's criminal history and the violent nature of the murder. The court found that the sentence was proportionate and served the purposes of both punishment and deterrence. The High Court's decision upheld the conviction and the sentence, providing clarity on the appropriate approach to sentencing in cases involving serious violent crimes with significant prior criminal activity.

The final orders of the court affirmed the conviction and the sentence imposed on Tran, ensuring that the punishment met the legal standards required for such a serious crime. The High Court's decision provided guidance for future cases involving similar circumstances, reinforcing the principles of proportionality and consideration of individual factors in sentencing.

Orders