Ta v The Queen - [2009] NSWCCA 196

New South Wales
Court of Criminal Appeal

CITATION: Ta v R [2009] NSWCCA 196

HEARING DATE(S): 24 July 2009

JUDGMENT DATE:
24 July 2009

JUDGMENT OF: Basten JA at 1, 38, 52; Hulme J at 39; Johnson J at 2,

EX TEMPORE JUDGMENT DATE: 24 July 2009

DECISION: Application for leave to appeal against sentences is refused.

CATCHWORDS: CRIMINAL LAW - sentence - robbery whilst armed with dangerous weapon - two robberies and one attempted robbery - planned and co-ordinated offences committed at three separate hotels over short period - whether part of same criminal enterprise - whether error in accumulation of sentences - whether sentences manifestly excessive - whether leave to appeal against sentences ought be granted - leave refused

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Nguyen v R [2007] NSWCCA 14
R v XX [2009] NSWCCA 115
R v Fadi Jajou [2009] NSWCCA 167
Clarke v R [2009] NSWCCA 49
R v Henry (1999) 46 NSWLR 346
Veen v The Queen (No 2) (1987-1988) 164 CLR 465

PARTIES: Ahn Tuan Ta (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/13849

COUNSEL: Ms C Nash (Applicant)
Ms M Cinque (Respondent)

SOLICITORS: Ford Criminal Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0704

LOWER COURT JUDICIAL OFFICER: CJ Armitage DCJ

LOWER COURT DATE OF DECISION: 15 August 2008

2007/13849

BASTEN JA
RS HULME J
JOHNSON J
24 July 2009

AHN TUAN TA v REGINA

Judgment

1 BASTEN JA: I invite Johnson J to deliver the first judgment.

2 JOHNSON J: The applicant, Ahn Tuan Ta, seeks leave to appeal against sentences imposed at the Parramatta District Court on 15 August 2008 with respect to two counts of robbery whilst armed with a dangerous weapon under s 97(2) Crimes Act 1900 and one count of attempted robbery whilst armed with a dangerous weapon.

3 The maximum penalty for each offence was imprisonment for twenty-five years. There is no standard non-parole period for this offence.

4 The applicant had pleaded not guilty to each charge and was convicted on all counts following trial by jury. Each offence was committed on 15 February 2007. The following sentences were imposed for the offences:

(a) Count 2 - attempting to rob Colin McNamara of certain property, a quantity of cash, the property of St Patrick’s Tavern, whilst armed with a dangerous weapon, a pistol - non-parole period of three years to date from 24 April 2007 and expire on 23 April 2010 with a balance of term of two years to date from 24 April 2010 and to expire on 23 April 2012;

(b) Count 1 - robbing Christopher Walker of certain property, the sum of $49,605.00, the property of St Leonards Tavern, whilst armed with a dangerous weapon, a pistol - non-parole period of four years to date from 24 April 2008 and to expire on 23 April 2012 with a balance…

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 Ta v The Queen

Details

AGLC: Ta v The Queen [2009] NSWCCA 196
Case: [2009] NSWCCA 196
Decision Date: 24 July 2009

CaseChat Overview and Summary

The case of Ta v The Queen involved an appellant who was convicted of multiple offences including robbery while armed with a dangerous weapon, and was sentenced to imprisonment. The appellant had committed two robberies and one attempted robbery at three different hotels over a short period of time. The issue before the court was whether the robberies were part of the same criminal enterprise, whether there was an error in the accumulation of sentences, whether the sentences were manifestly excessive, and whether leave to appeal against the sentences should be granted.

The court examined whether the robberies were part of the same criminal enterprise, and found that they were indeed related, as they were planned and coordinated offences committed at three separate hotels over a short period of time. The court further considered whether there was an error in the accumulation of sentences, and found that there was no error in the trial judge's approach to the sentencing. The court also examined whether the sentences were manifestly excessive, and found that they were not. Finally, the court considered whether leave to appeal against the sentences should be granted, and found that it should not be granted.

The court's decision was that the sentences were appropriate and there was no error in the trial judge's approach to sentencing. The court refused to grant leave to appeal against the sentences. The final orders of the court were that the appellant's convictions and sentences were upheld, and that the appeal against sentence was dismissed.

Orders