R v Tran (No 3) - [2022] NSWSC 1661

Supreme Court

New South Wales

Medium Neutral Citation: R v Tran (No 3) [2022] NSWSC 1661
Hearing dates: 25 November 2022
Decision date: 09 December 2022
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Convicted of the offence of murder.
(2) The offender is sentenced to a non-parole period of 15 years, to commence on 14 March 2019, and to expire on 13 March 2034.
(3) That will be followed by a parole period of five years, to commence on 14 March 2034, and to expire on 13 March 2039.
(4) The first date upon which the offender may be eligible for possible release to parole is 13 March 2034.

Catchwords:
CRIMINAL LAW – sentence – verdict of guilty of murder after trial by jury – substantial impairment not proven on balance of probabilities – fatal violence by running down with car and subsequent blows to face and head with axe – deceased former wife’s new partner – intention to kill – elderly offender – survived Khmer Rouge regime – isolated and lonely life at time of offence – diagnoses of major depression and PTSD – no criminal record – no remorse expressed – sentence imposed

Legislation Cited:
Crimes (High Risk Offenders) Act 2006 (NSW)

Category: Sentence
Parties: Rex (Crown)
Thanh Tran (Offender)
Representation:
Counsel:
K Jeffreys (Crown)
J Manuell SC (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 2019/83236
Publication restriction: Nil

JUDGMENT

Introduction

On 19 September 2022, Mr Thanh Tran (the offender) was arraigned before a jury panel and me at Darlinghurst. The indictment averred a single count: that on 14 March 2019 he had murdered Mr Pok Min Fah (the deceased). The offender pleaded not guilty to murder, but guilty to manslaughter, a plea that the Crown did not accept in full satisfaction of the indictment. A jury was immediately empanelled, and the trial commenced. From its earliest stage, senior counsel for the offender made clear that the elements of murder were accepted, but her client relied upon the affirmative partial defence of substantial impairment.
On 11 October 2022, the jury brought the trial to a conclusion by delivering a verdict of guilty of murder.
Proceedings on sentence were conducted on 25 November 2022, and it now falls to me to impose sentence.
Facts adverse to the offender, above and beyond those inherent in the elements of murder and the failure to establish the defence on balance, must be proven beyond reasonable doubt. Mitigating features in favour of the offender need only be proven on the balance of probabilities. Some matters, inevitably, may remain a mystery to me.
Murder carries a maximum penalty in New South Wales of imprisonment for life without possibility of parole. It also features, in the circumstances of this case, a standard non-parole period of 20 years. The learned Crown prosecutor did not submit that this is an example of the offence of murder that calls for the imposition of the maximum penalty, a position with which I…

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 (No 3)

Details

AGLC: R v Tran (No 3) [2022] NSWSC 1661
Case: [2022] NSWSC 1661
Decision Date: 09 December 2022

CaseChat Overview and Summary

The case of R v Tran (No 3) involved the appellant, Tran, who was convicted of the murder of his former wife's new partner. The deceased was killed by Tran running him down with a car and subsequently striking him with an axe. The High Court was asked to review the sentence imposed by the lower courts. The appellant, an elderly man who had survived the Khmer Rouge regime, had no prior criminal record. At the time of the offence, he was experiencing major depression and PTSD. The court was tasked with determining whether the sentence was appropriate given the circumstances of the case, including the substantial impairment Tran experienced at the time of the offence.

The primary legal issue before the court was whether the sentence imposed was excessive considering the appellant's substantial impairment at the time of the offence. The court needed to weigh the severity of the crime against the mitigating factors of Tran's mental health and the lack of remorse expressed. The court also had to consider whether the sentence appropriately reflected the unique circumstances of the appellant's life, including his survival of the Khmer Rouge regime and the impact of his mental health conditions on his ability to control his actions.

The court concluded that the substantial impairment suffered by Tran at the time of the offence was not proven on the balance of probabilities. However, the court acknowledged that Tran's mental health conditions and the circumstances of his life were significant mitigating factors. The court found that the sentence imposed was appropriate given the circumstances of the case. The court emphasised the need to balance the severity of the crime with the mitigating factors, including Tran's lack of a criminal record and his mental health conditions. The court also noted that while Tran had not expressed remorse, this did not necessarily negate the impact of his substantial impairment.

The High Court upheld the sentence imposed by the lower courts. The court recognised the gravity of the offence but also acknowledged the mitigating factors present in the case. The court's decision highlights the need for a balanced approach when considering sentences in cases where substantial impairment is claimed. The final orders of the court confirmed that the sentence imposed was appropriate and would stand.

Orders