R v Tran

The Supreme Court of South Australia, constituted by Kourakis CJ, Blue and Lovell JJ, considered an appeal by the Director of Public Prosecutions against the sentence imposed on Mr Tran. Mr Tran had pleaded guilty to possessing child pornography after arriving in Australia with over 2,000 images on external hard drives, some depicting extreme forms of abuse. The sentencing judge had imposed a home detention order, which the Director argued was not authorised by law.

The central legal issue before the Full Court was whether the sentence imposed by the primary judge was lawful and, if not, how to resentence Mr Tran in a manner that gave effect to the judge's original disposition while complying with the Crimes Act. The court was required to determine the appropriate sentence for Mr Tran, considering his early guilty plea, contrition, and the psychologist's assessment of a low risk of re-offending, balanced against the gravity of the offending.

The Court found that the home detention order was not an authorised sentence under the Crimes Act and therefore had to be set aside. While acknowledging the Director did not contend the original sentence was manifestly inadequate, the Court sought to give effect to the primary judge's intention to impose a community-based sentence with rehabilitative conditions. The Court resentenced Mr Tran to 11 months imprisonment, commencing on 17 January 2019, but ordered his immediate release on a recognizance release order for three years pursuant to s 20(1)(b) of the Crimes Act. This order included stringent conditions, such as supervision by a probation officer, restrictions on social media use and travel, and mandatory participation in assessment and treatment programs for sexual offending.