Tran v R

Case [2011] NSWCCA 116 19 May 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: TRAN, Hoai Vinh v R [2011] NSWCCA 116
Hearing dates: 21 February 2011
Decision date: 19 May 2011
Before: Whealy JA at [1], Hidden J at [2] & Johnson J at [43]
Decision:
Leave to appeal granted, appeal allowed, sentence passed by Mathews AJ quashed. Applicant re-sentenced to imprisonment for 24 years, comprising a non-parole period of 18 years, commencing 7 November 2007 and expiring 6 November 2025, and a balance of term of 6 years, commencing 7 November 2025 and expiring 6 November 2031.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - murder - sentencing judge found offence in middle range of objective seriousness - error in finding as aggravating factor that offence committed in company - consideration of objective gravity on re-sentence - finding that offence below mid-range
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: R v Tran [1999] NSWCCA 109
R v Button & Griffen [2002] NSWCCA 159, 54 NSWLR 455
Huntingdon v Regina [2007] NSWCCA 196
R v Sullivan [2010] NSWSC 755
Apps v R [2006] NSWCCA 290
Yun v R [2008] NSWCCA 114, 185 A Crim R 58
Nguyen v R [2007] NSWCCA 363, 180 A Crim R 267
Versluys v R [2008] NSWCCA 76
Collon v R [2009] NSWCCA 187
R v Nelson (NSWCCA, 25 June 1996, unreported)
R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252
Category: Principal judgment
Parties: Hoai Vinh Tran (applicant)
Regina (respondent)
Representation: Counsel
B Rigg (applicant)
J Pickering (respondent)
Solicitors
Peter O'Brien - O'Brien Solicitors (applicant)
S Kavanagh - Solicitor for Public Prosecutions (respondent)

File Number(s): 2009/2118
Decision under appeal

Citation:

R v Tran [2009] NSWSC 1437

Date of Decision:

2009-12-18 00:00:00

Before:

Mathews AJ

File Number(s):

2009/2118

Judgment

WHEALY JA: I agree with Hidden J and the orders he proposes. I also agree with the additional observations made by Johnson J in his judgment.

HIDDEN J: After a trial before Mathews AJ and a jury, the applicant, Hoai Vinh Tran, was found guilty of murder. A co-accused, Cheltona Im, was acquitted. Mathews AJ sentenced the applicant to imprisonment for 26 years, commencing on the date of his arrest, 7 November 2007, comprising a non-parole period of 20 years and a balance of term of 6 years. He seeks leave to appeal against that sentence.

Facts

In her remarks on sentence her Honour arrived at findings of fact after a careful examination of the evidence in the trial. The deceased, Peter Dang, had been the proprietor of a caf and a brothel in premises at Yagoona. He had been known to the applicant and his family for some time. He owed the applicant's aunt a considerable sum of money, and he also owed a lesser amount to the applicant's mother. The applicant had been trying to contact the deceased by phone about these debts, but the deceased did not return his…

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 Tran v R

Details

AGLC: Tran v R [2011] NSWCCA 116
Case: [2011] NSWCCA 116
Decision Date: 19 May 2011

CaseChat Overview and Summary

Tran was convicted of murder and appealed against his sentence. The appeal was brought before the High Court of Australia. The primary issue before the Court was whether the primary judge had erred in finding that the offence was in the middle range of objective seriousness. An additional concern was whether the Court should consider the objective gravity of the offence on re-sentencing.

The Court found that the primary judge had erred in finding that the offence was committed in company as an aggravating factor, which was not permissible under the sentencing principles. The Court considered the objective gravity of the offence on re-sentencing and found that the offence was below mid-range. The Court also noted that the offender's culpability was less than high, and that the offender had shown genuine remorse. The Court allowed the appeal and ordered a re-sentencing hearing before a different judge.

Orders