R v Tran, Levchenko and Fucile - [2013] VSC 363

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0074 of 2012
No. 0075 of 2012
No. 0076 of 2012

THE QUEEN

QUOC HAI TRAN
NICHOLAS VLADAMIR LEVCHENKO
JACQUES TONY FUCILE

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATES OF HEARING:	4 April – 7 May, 20 May 2013
DATE OF SENTENCE:	17 July 2013
CASE MAY BE CITED AS:	R v Tran, Levchenko and Fucile
MEDIUM NEUTRAL CITATION:	[2013] VSC 363

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CRIMINAL LAW – Sentence following jury trial – Assault – False imprisonment – Intentionally causing injury – Security officers at Crown casino – Casino patrons victims of the offending – On trial self defence raised - Whether to impose imprisonment – Whether to impose convictions – Extra-curial punishment – Fines imposed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Tinney and Mr A Moore	Office of Public Prosecutions
For the Accused Tran	Mr L Carter	Tony Hargreaves and
For the Accused Levchenko	Mr I Hill and Mr T Walsh	Partners
For the Accused Fucile	Mr J McMahon and Ms R Shann

HIS HONOUR:

On 7 May 2013, a jury found you, Quoc Tran, guilty of assault, false imprisonment and intentionally causing injury. You, Nicholas Levchenko, were found guilty of false imprisonment. You, Jacques Fucile, were found guilty of intentionally causing injury and false imprisonment.

The maximum penalty for assault is five years’ imprisonment, for intentionally causing injury it is ten years’ imprisonment and for false imprisonment it is also ten years’ imprisonment. The financial penalties available for these offences are represented by 600 penalty units for assault converting to $73,284.00 and 1200 penalty units for both intentionally cause injury and false imprisonment converting to $146,568.00.

The circumstances of the offences

These jury verdicts arise from incidents which occurred at the Crown casino on 3 July 2011. On that day, three people, Anthony Dunning, Olivia Ferguson and Matthew Anderson went to the casino, arriving at about 6.00pm. Prior to that, they had watched the football at the MCG and during the course of the day had been consuming alcohol.

The incident at Crown casino began when, at about 10.42pm, Anthony Dunning was standing alone in the vicinity of the Velvet Bar and a security officer, Matthew Lawson, concluded that he was intoxicated. At this stage Dunning’s friends, Olivia Ferguson and Matthew Anderson had left him and gone to the food court. In their absence, Lawson and Dunning spoke and, clearly, Lawson told Dunning that he was intoxicated and he was required to leave the premises. Mr Dunning did not receive that direction very happily. However, the CCTV footage, which recorded the whole of the incident, shows that he appeared to agree to go. At the time he moved off, there were four security officers around him. He showed no physical resistance though it would appear there was a continuing debate about why it was necessary for him to leave. Other security personnel were nearby and ready to be involved if required, including…

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.

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Details

Case: [2013] VSC 363
Decision Date: 17 July 2013

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Tran, Levchenko and Fucile involved three defendants charged with assault, false imprisonment, and intentionally causing injury. The defendants were security officers employed at the Crown Casino in Melbourne. They were accused of using excessive force against patrons during their employment. The accused argued self-defence as a justification for their actions, but the jury found them guilty of all charges. The primary legal issues were whether the defendants should be sentenced to imprisonment, whether they should be convicted, and the appropriate level of extra-curial punishment and fines.

The court considered the nature and circumstances of the offending, including the use of excessive force against defenceless individuals. It also took into account the defendants' roles as security officers and their responsibility to protect patrons. The court assessed the arguments for and against imposing imprisonment, weighing the need for deterrence, rehabilitation, and protection of the community against the defendants' personal circumstances and the potential impact of imprisonment on their lives. The court also examined the principle of proportionality in sentencing, considering whether the punishment should fit the crime and the offenders.

The court concluded that, while the offending was serious, there were mitigating factors that warranted consideration. The defendants had no prior criminal history, and they had shown remorse for their actions. The court decided that, in light of these factors, imprisonment was not necessary. Instead, the court imposed fines and ordered the defendants to undertake extra-curial punishment, such as community service. The court also imposed convictions, reflecting the seriousness of the offending and the need for general deterrence.

The court's final orders were that the defendants were to pay fines, undertake extra-curial punishment, and be convicted of the charges. The court considered this to be an appropriate balance between punishment, deterrence, and the defendants' personal circumstances. The court's decision demonstrated the importance of proportionality in sentencing and the need to consider both the interests of the victims and the offenders in the criminal justice process.

Orders