R v Van Tran

[2002] NSWCCA 440

Reported Decision: (2002) 134 A Crim R 577

New South Wales

Court of Criminal Appeal

CITATION:	R v Van Tran [2002] NSWCCA 440
FILE NUMBER(S):	CCA 60124/02; 60125/02
HEARING DATE(S):	29 October 2002
JUDGMENT DATE:	29 October 2002
PARTIES :	Regina (NSW) Christopher Tien Van Tran (Applicant) Hung Van Tran (Applicant)
JUDGMENT OF:	Dunford J at 1; Kirby J at 27

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0898
LOWER COURT JUDICIAL OFFICER :	Shadbolt DCJ

COUNSEL :	PE Barrett - Crown JW Conomos - Applicant
SOLICITORS:	SE O'Connor - Crown Pembroke Solicitors - Applicant
CATCHWORDS:	CRIMINAL LAW - procedure - sentencing - guilty pleas - utilitarian value - discount - specified discounts for other subjective features not required - additional offence taken into account - Form 1 - need for sentence to have regard to gravity of additional offence.
LEGISLATION CITED:	Crimes Act 1900, s 35(1)(b) Crimes (Sentencing Procedure) Act 1999, s 32 Criminal Appeal Act 1912, s 6(3)
CASES CITED:	R v Morgan (1993) 70 A Crim R 368 R v Barton [2001] NSWCCA 63, 121 A Crim R 185 R v Harris [2001] NSWCCA 322, 125 A Crim R 27 R v Bavandra [2000] NSWCCA 292, 115 A Crim R 152 R v Gallagher (1991) 23 NSWLR 220 R v Beavan (unreported - CCA - 22 August 1991) R v Lett (unreported - CCA - 27 March 1995) R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 R v Sharma [2002] NSWCCA 142, 54 NSWLR 300 R v Place [2002] SASC 101 R v Astill (No 2) (1992) 64 A Crim R 289
DECISION:	Leave to appeal granted, appeals dismissed & sentences confirmed.

60124/02
60125/02/

DUNFORD J
KIRBY J

Tuesday, 29 OCTOBER 2002

R v Christopher Tien VAN TRAN

R v Hung VAN TRAN

Judgment

1 DUNFORD J: These are applications for leave to appeal by Christopher Tran and Hung Van Tran against the sentences imposed upon them by his Honour Judge Shadbolt in the District Court at Sydney on 15 February 2002, following their pleas of guilty to a charge of maliciously inflict grievous bodily harm contrary to s 35(1)(b) of the Crimes Act 1900, which offence carries a maximum penalty of seven years imprisonment.

2 Each of the accused also asked that a further offence of maliciously inflict grievous bodily harm be taken into account on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999.

3 His Honour sentenced each of the applicants to imprisonment for four years and fixed a non-parole period of three years.

4 The facts of the matter are that both of the applicants were shot as they drove along the Cumberland Highway on 3 February 2001. They believed that the perpetrator of this attack was a man named Khan Do, although he has always denied this. It was nevertheless the applicants’ firm belief that he was responsible, and they convinced their co-accused of the truth of this incident.

5 In order to avenge themselves, they decided to shoot at Do’s house and to this end they obtained his address, a gun, and men to perform the task. Eleven days later, armed with a number of firearms, namely, two 9 mm Luger pistols, three .A5 ACP calibre and a .22 calibre pistol, a group of men in two cars drove to Sussex Street, Cabramatta and parked on the road.

6 These men including the applicant Hung Van Tran, approached the house. Khan Do and a man called Thanh Van Phan were sitting on the front verandah. Both men were shot and the two cars and the assailants sped away. Twenty-seven cartridges were recovered from the scene, some as close as three metres from the front of the house. It was sheer good fortune that one or both of the persons on the verandah were not killed.

7 Khan Do was shot a number of times, once to the left buttock, which caused a femoral fracture, which required surgery, and one bullet glanced off his forehead. Thanh Van Phan was shot in both knees, and he too underwent surgery.

8 Police intercepted a number of phone calls prior to the commission of the crime, and from these there is no doubt that Christopher Tran and Hung Van Tran procured the others to do the shooting on their behalf. Needless to say, the matter taken into account on the Form 1 was the shooting of Thanh Van Phan.

9 The applicants, therefore, pleaded guilty to a very serious offence, which his Honour stated, correctly in my view, called for sentences towards the top of the range. As his Honour said:

“It was a violent premeditated crime of revenge committed so long after the events which it is claimed gave rise to it as to be without mitigation. Those who use guns to settle disputes must expect to be imprisoned. Those who join others in this regard must expect to go to prison for a long time too.”

10 The same is, of course, also true of those, like the applicants, who instigate and procure the use of guns to exact revenge. This community abhors and detests the use of guns, particularly for the purpose of settling personal disputes, and their use in the community will not be tolerated.

11 It is also to be borne in mind that at the time of these offences, Christopher Tran was subject to a bond for an assault, and, although Hung Van Tran had not been before the criminal courts since 1996, he had, on that occasion, been convicted and sentenced on a charge of possessing a firearm. Moreover, each of the applicants asked the judge to take into account a similar offence on the schedule to the Form 1.

12 This Court, in particular, has recently reaffirmed that, when matters are taken into account in this way, an otherwise appropriate sentence for the foundation offence should not be only slightly increased when the offence to be taken into account is serious in its own right, and a judge sentencing for an offence to which he or she is asked to take into account an additional offence or offences, should give due recognition to the gravity of that offence or those offences: R v Barton [2001] NSWCCA 63, 121 A Crim R 185 at [35]; R v Harris [2001] NSWCCA 322, 125 A Crim R 27 at [23], R v Bavandra [2000] NSWCCA 292, 115 A Crim R 152 at [30-31], R v Morgan (1993) 70 A Crim R 368 at 371-2.

13 The facts of this case indicated that the assailants were not only out to harm Khan Do, but were prepared to do similar harm to anyone else who may have the misfortune to be in the vicinity at the time.

14 The principal submissions made on behalf of the applicants were:

(a) that his Honour did not, in his reasoning, state the prison sentence which he considered to be appropriate in this case, meaning thereby, as I understand it, a starting point from which adjustments were made for various relevant subjective features of each applicant;
(b) that his Honour concluded that the applicants had the possibility of redemption and rehabilitation, but did not indicate how that reflected itself in the sentences imposed; and
(c) that his Honour referred to the pleas of guilty, but did not indicate the extent to which these pleas reflected themselves in the sentences imposed.

15 Whilst it is true that his Honour did not specify a starting point and a specific discount for the pleas of guilty, and each other subjective feature which he considered relevant, it is obvious that he took into account, in particular, the pleas of guilty, because the sentences of four years could not, on any reasoning, be described as “towards the top of the range”, which his Honour correctly said was called for by these offences.

16 His Honour, in effect, adopted a single process, an intuitive approach, sometimes referred to as the “instinctive synthesis approach”, and did not specify particular discounts for particular elements. This was in accordance with the approach taken in cases such as R v Gallagher (1991) 23 NSWLR 220 (except as to assistance to the authorities), R v Beavan (unreported - CCA - 22 August 1991), R v Lett (unreported - CCA - 27 March 1995).

17 However, in R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 at [160], whilst generally approving the instinctive synthesis approach, the Court laid down a number of guidelines in respect of pleas of guilty, including the following:

“(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant – contrition, witness vulnerability and utilitarian value – but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g., assistance to authorities, a single combined quantification will often be appropriate.

(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea …

(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.”

18 However, the Chief Justice had earlier said, at [72]:-

“ ... a guideline which indicates that sentencing judges should, where appropriate, quantify a discount for a plea operates by way of encouragement and not by way of prescription.”

19 In the subsequent case of R v Sharma [2002] NSWCCA 142, 54 NSWLR 300, where R v Thomson was affirmed, the Chief Justice also referred, with approval, to the South Australian case of R v Place [2002] SASC 101, where it was held, inter alia, that failure to identify a specific reduction (for a plea of guilty) is not an error of principle, nor is it, in itself, a ground for interference with the sentence.

20 In reference to the pleas of guilty his Honour said he would extend to each the maximum permitted for their co-operation in pleading guilty at the earliest opportunity, and saving the expense to the State of a long trial, by which I take it he meant that he would afford them a discount of approximately 25 per cent for the utilitarian value of their pleas.

21 Having regard to the maximum penalty of seven years, the seriousness of the offences which his Honour described as calling for a sentence towards the top of the range, and taking into account the additional matter on the Form 1, a sentence of five and a half to six years could not be regarded as unreasonable or disproportionate. Allowing a discount for the pleas of guilty of 25 per cent, that would result in a head sentence of four years one and a half months to four years six months. In those circumstances, I could not regard the head sentence of four years as excessive.

22 Reference was also made to a number of other features to which it is appropriate that I make specific reference. His Honour noted that in his Remarks on Sentence that neither of the applicants is without the possibility of redemption and rehabilitation, and it was submitted that a specified allowance should have been made for this, and another specified allowance for the difficulties they had had in their younger years, and that his Honour should also have specified the amount by which the sentence had been increased on account of the additional matter on the Form 1.

23 However, except in respect of assistance to the authorities (R v Gallagher) and the objective utilitarian value of a plea of guilty (R v Thomson, R v Sharma) it is not necessary, and often undesirable, that additional or reduced periods be specified in respect of each element of the sentencing process, and the instinctive synthesis approach is still generally applicable. The reasons for this are set out in cases such as R v Lett and are just as valid today as when originally pronounced.

24 His Honour referred to these various matters. It can therefore be assumed he took them into account and it was not necessary to make any further detailed specification in respect of them. I might add it is one thing to say that a person standing for sentence is not without the possibility of redemption and rehabilitation, and it is something very different to say that his prospects of rehabilitation are good.

25 In order to succeed in an appeal against a sentence, an applicant must show that the sentence is outside the range of a proper sentencing discretion, and it is only in such a case that this Court is authorised to vary the sentences imposed: Criminal Appeal Act 1912 s 6(3), R v Astill (No 2) (1992) 64 A Crim R 289.

26 In my view these sentences were not outside the range of a proper sentencing discretion. I would, therefore, grant leave to appeal but dismiss the appeals and confirm the sentences.

27 KIRBY J: I agree.

28 DUNFORD J: The orders will therefore be as I have indicated.

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