R v Tran; ex parte - [2002] QCA 21

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tran; ex parte A-G [2002] QCA 21

PARTIES:

R
v
TRAN, Cuong Ba
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 283 of 2001
DC No 254 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

12 February 2002

DELIVERED AT:

Brisbane

HEARING DATE:

30 January 2002

JUDGES:

McMurdo P, Thomas JA, Douglas J
Joint reasons for judgment of McMurdo P and Douglas J, separate reasons of Thomas JA, each concurring as to the order made.

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where 12 month intensive correction order and compensation order imposed –where complainant consulted in the determination of the sentencing outcome – where restorative justice approach discussed – where need to avoid risk that offenders "buy" justice discussed - whether sentence manifestly inadequate - whether sentencing discretion should be exercised afresh and custodial sentence imposed

Criminal Offence Victims Act 1995 (Qld), ss 6-18
Juvenile Justice Act 1992 (Qld), ss 18A-18J
Penalties and Sentences Act 1992 (Qld), s 111, s 114, s 126(4), s 127(1)

Attorney –General (Tasmania) v Saunders [2000] TASSC 22, considered
Everett v The Queen (1994) 181 CLR 295, considered
Griffiths v The Queen (1977) 137 CLR 293, considered
R v Bazley; ex parte Attorney General [1977] QCA 235, CA No 220 of 1997, 5 August 1997, considered
R v Anders CA No 571 of 1996, 25 July 1997, considered
R v Cuff [2001] QCA 351, CA No 151 of 2001, 22 August 2001, considered
R v Hoffman; ex parte Attorney General (1997) 98 ACrimR 177, considered
R v Melano; ex parte Attorney General [1995] 2 QdR 186, considered
R v Mickelberg (1984) 13 ACrimR 365, considered

R v Skinner; ex parte Attorney General [2001] 1 QdR 322, considered

COUNSEL:

C W Heaton for the appellant
D R Kent for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Terry Fisher & Co for the respondent

McMURDO P and DOUGLAS J: The Attorney-General of Queensland appeals against the sentence imposed upon the respondent for the offence of armed robbery with personal violence. On 14 September 2001, the respondent was sentenced to a 12 month intensive correction order and was also ordered to pay $15,000 compensation within one month, in default 12 months imprisonment.

On 3 May 2001, the complainant, a 67 year old pensioner, left the Treasury Casino at about 9 pm and drove to his home in Laidley. As he opened the door to his house, the respondent, who was unknown to him, tackled him to the ground. A struggle ensued during which the respondent put his fingers into the complainant's mouth and demanded money. The complainant bit down on the respondent's fingers and…

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; ex parte

Details

AGLC: R v Tran; ex parte [2002] QCA 21
Case: [2002] QCA 21
Decision Date: 12 February 2002

CaseChat Overview and Summary

In the matter of Tran, the respondent was convicted of aggravated assault causing bodily harm. The Attorney General sought to appeal against the sentence imposed by the primary judge, arguing it was manifestly inadequate. The Full Court of the Supreme Court of South Australia was called upon to determine whether the sentence should be altered and whether a custodial sentence should be imposed.

The court considered the severity of the crime, the need to avoid the perception that offenders can "buy" justice, and the importance of consulting the complainant in the sentencing process. The appeal hinged on whether the sentence was manifestly inadequate and if the sentencing discretion should be exercised afresh. The court examined the primary judge's consideration of a restorative justice approach and the overall sentencing principles that should guide the decision.

The court found that the primary judge had given appropriate consideration to the principles of sentencing and the factors relevant to the case, including the severity of the crime and the need for deterrence. The court held that the sentence imposed, consisting of a 12-month intensive correction order and a compensation order, was not manifestly inadequate. The Full Court was not satisfied that the primary judge had erred in the exercise of the discretion to sentence the respondent.

Accordingly, the appeal was dismissed. The Full Court affirmed the sentence imposed by the primary judge, finding it to be appropriate and in line with the relevant sentencing principles.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Tran; ex parte A-G [2002] QCA 21
PARTIES:	R v TRAN, Cuong Ba (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 283 of 2001 DC No 254 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	12 February 2002
DELIVERED AT:	Brisbane
HEARING DATE:	30 January 2002
JUDGES:	McMurdo P, Thomas JA, Douglas J Joint reasons for judgment of McMurdo P and Douglas J, separate reasons of Thomas JA, each concurring as to the order made.
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where 12 month intensive correction order and compensation order imposed –where complainant consulted in the determination of the sentencing outcome – where restorative justice approach discussed – where need to avoid risk that offenders "buy" justice discussed - whether sentence manifestly inadequate - whether sentencing discretion should be exercised afresh and custodial sentence imposed Criminal Offence Victims Act 1995 (Qld), ss 6-18 Juvenile Justice Act 1992 (Qld), ss 18A-18J Penalties and Sentences Act 1992 (Qld), s 111, s 114, s 126(4), s 127(1) Attorney –General (Tasmania) v Saunders [2000] TASSC 22, considered Everett v The Queen (1994) 181 CLR 295, considered Griffiths v The Queen (1977) 137 CLR 293, considered R v Bazley; ex parte Attorney General [1977] QCA 235, CA No 220 of 1997, 5 August 1997, considered R v Anders CA No 571 of 1996, 25 July 1997, considered R v Cuff [2001] QCA 351, CA No 151 of 2001, 22 August 2001, considered R v Hoffman; ex parte Attorney General (1997) 98 ACrimR 177, considered R v Melano; ex parte Attorney General [1995] 2 QdR 186, considered R v Mickelberg (1984) 13 ACrimR 365, considered R v Skinner; ex parte Attorney General [2001] 1 QdR 322, considered
COUNSEL:	C W Heaton for the appellant D R Kent for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Terry Fisher & Co for the respondent