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R v Truong

R v Truong

Case [1999] QCA 21 19 February 1999

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IN THE COURT OF APPEAL [1999] QCA 021
SUPREME COURT OF QUEENSLAND
C.A. No. 438 of 1998
Brisbane
[R v Truong]
THE QUEEN
v.
TONY DAT TRUONG

(Applicant) Appellant
de Jersey CJ
Thomas JA
Mackenzie J

Judgment delivered 19 February 1999.
Judgment of the Court.
APPLICATION FOR LEAVE TO APPEAL GRANTED, APPEAL ALLOWED. SENTENCE ON GRIEVOUS BODILY HARM COUNT SET ASIDE AND REPLACED WITH 18 MONTHS IMPRISONMENT SUSPENDED AFTER THREE MONTHS WITH AN OPERATIONAL PERIOD OF THREE YEARS. SENTENCE ON AGGRAVATED ASSAULT COUNT SET ASIDE AND REPLACED WITH ONE YEAR IMPRISONMENT, SUSPENDED AFTER THREE MONTHS WITH AN OPERATIONAL PERIOD OF THREE YEARS. SENTENCE ON WILFUL DESTRUCTION COUNT AFFIRMED, BUT ORDERED TO BE SUSPENDED AFTER THREE MONTHS WITH AN OPERATIONAL PERIOD OF THREE YEARS.
CATCHWORDS: CRIMINAL LAW - Sentence - applicable sentencing law - difference between sentencing principles at time of commission of offence and at time of sentencing - s9 Penalties and Sentences Act 1992 (Qld) - appropriate sentence - parity - degree of involvement of accused.
S9 Penalties and Sentences Act 1992 (Qld)
Penalties and Sentences (Serious Violent Offences)
Amendment Act 1997 (Qld)

Counsel: Mr PJ Callaghan for the applicant/appellant.
Mr AW Moynihan for the respondent.
Solicitors: Legal Aid Queensland for the applicant/appellant.
Director of Public Prosecutions (Queensland) for the
respondent.
Hearing Date: 4 February 1999
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 19 February 1999

The applicant pleaded guilty to offences of grievous bodily harm, assault occasioning bodily harm whilst armed and in company, and wilful destruction. He was sentenced to three years imprisonment on the first mentioned matter and to two years imprisonment on the others, with all sentences suspended after serving four months imprisonment, with an operational period of three years.
The applicant was 17 years of age at the time of the offences and had no prior criminal history.
The complainants were one Huynh and his son-in-law Doan. They had developed a hostile attitude towards one Nam Nguyen (one of the co-offenders) with whose family the applicant had a friendly association. The hostility apparently arose because Doan's employment had been terminated and he blamed Nam Nguyen who had been his supervisor. He commenced a campaign of harassment against Nam Nguyen and was joined in this by his father-in-law Huynh, who made a number of aggressive telephone calls to Nam Nguyen's mother. This campaign assumed serious proportions when on 20 July 1996 (the date of the offences) Huynh and Doan assembled four car loads of men and went searching for Nam Nguyen. Nam Nguyen and his associates (including the applicant) then gathered at his mother's home. Whilst there, Huynh made a further phone call to the residence and spoke to Nam Nguyen. The conversation was heated and Huynh challenged Nam Nguyen to come around to his house. Nam Nguyen and his associates including the applicant responded to the challenge. What followed eventually amounted to what is sometimes called a "home invasion" in the course of which Huynh was struck on the head with a sword…

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 Truong

Details

AGLC: R v Truong [1999] QCA 21
Case: [1999] QCA 21
Decision Date: 19/02/1999

CaseChat Overview and Summary

The case of R v Truong involved the applicant, Tony Dat Truong, who was appealing against his sentences for grievous bodily harm, assault occasioning actual bodily harm whilst armed and in company, and wilful destruction. The applicant had no prior criminal history and was 17 years old at the time of the offences. The offences stemmed from a "home invasion" where the applicant and his associates confronted and assaulted two individuals who had previously engaged in a campaign of harassment against one of the applicant's co-offenders. The applicant's direct involvement was limited, as he did not enter the house and did not participate in the physical assaults.

The legal issues in this case revolved around the applicable sentencing law and whether the applicant should have been sentenced according to the principles set out in s9 of the Penalties and Sentences Act 1992 (Qld) as it stood at the time of commission of the offence or as it stood at the time when he was sentenced. The court also considered whether sufficient allowance was made for the limited role played by the applicant and whether sufficient distinction was drawn in the sentences imposed on the applicant and the more directly involved offender, Nam Nguyen.

The court held that s9 of the Penalties and Sentences Act was a procedural provision and that the 1997 amendment to the Act applied to the applicant's sentencing. The court also found that the sentences imposed on the applicant were excessive, given his limited role in the offences, and that insufficient distinction was drawn between the sentences imposed on the applicant and Nam Nguyen. As a result, the sentences on the grievous bodily harm count and the aggravated assault count were set aside and replaced with 18 months and one year imprisonment, respectively, both suspended after three months with an operational period of three years. The sentence on the wilful destruction count was affirmed but ordered to be suspended after three months with an operational period of three years.

In conclusion, the court allowed the appeal, set aside the sentences on the grievous bodily harm and aggravated assault counts, and replaced them with the specified suspended sentences. The sentence on the wilful destruction count was affirmed but also ordered to be suspended as per the new sentences.

Orders