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Tran v The Queen

Tran v The Queen

Case [2014] VSCA 85 14 April 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0029
NHAT LUONG TRAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and PRIEST JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	14 April 2014 (Determined on the papers) and 29 April 2014
DATE OF ORDER:	29 April 2014
MEDIAN NEUTRAL CITATION:	[2014] VSCA 85
JUDGMENT APPEALED FROM:	DPP v Tran (Unreported, County Court of Victoria, Judge Lacava, 31 January and 6 February 2013)

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CRIMINAL LAW – Sentencing – One charge of receiving a secret commission – 16 charges of receiving a financial advantage by deception – Whether total effective sentence of two and a half years with a non-parole period of 18 months manifestly excessive – Pre-sentence report sought pursuant to s 37(b) of Sentencing Act 1991 – Applicant re-sentenced to a two year Community Corrections Order with conditions for performance of 300 hours unpaid community work and supervision by Secretary.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich	Michael J Gleeson & Associates
For the Crown	Ms F L Dalziel	Mr Craig Hyland, Solicitor for Public Prosecutions

NETTLE JA:

This is an application for leave to appeal against a total effective sentence of two and a half years' imprisonment with a non-parole period of 18 months imposed on the applicant on pleading guilty to one charge of receiving a secret commission (Charge 1) and 16 charges of obtaining a financial advantage by deception (Charges 2 to 17).

For reasons which I published on 14 April 2014, (copy of which is annexed) I reached the view on the papers that it was sufficiently arguable the aggregate sentence of two and a half years' imprisonment imposed on Charges 2 to 17 was manifestly excessive to warrant referring the application to a court constituted of two judges of appeal of which I am one.

Having now heard argument from counsel for the applicant and counsel for the Crown, and after receiving a presentence report pursuant to s 37(b) of the Sentencing Act 1991 — that the applicant has been assessed as suitable for a Community Corrections order on conditions that he perform unpaid community work and be supervised, monitored and managed as directed by the Secretary to the Department of Justice — I am confirmed in the view that the sentence imposed on Charges 2 to 17 is manifestly excessive.

Counsel for the Crown submitted that, because of the need for general deterrence, the sentence which was imposed, although stern, was not beyond the bounds of the available range. She also submitted that, if it were considered the sentence is excessive, and it was contemplated imposing a Community Corrections Order coupled with a sentence of imprisonment, a sentence of not less than three months’ imprisonment plus the time already served would be required in order to meet the requirements of general deterrence and denunciation. I am not persuaded that is so.

In the course of his submissions, counsel for the applicant referred to the

sentence passed by Dixon…

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 The Queen

Details

AGLC: Tran v The Queen [2014] VSCA 85
Case: [2014] VSCA 85
Decision Date: 14 April 2014

CaseChat Overview and Summary

Tran was convicted of one charge of receiving a secret commission and sixteen charges of receiving a financial advantage by deception. The matter came before the Court of Appeal to determine whether the total effective sentence of two and a half years imprisonment with a non-parole period of 18 months was manifestly excessive. The Court of Appeal was asked to consider the sentencing principles as set out in the Sentencing Act 1991, and whether the sentence was proportionate to the seriousness of the offending. The court was also asked to consider whether the applicant should be re-sentenced in accordance with the provisions of section 37 of the Sentencing Act 1991.

The court began its analysis by examining the nature and circumstances of the offending, and the role played by the applicant. The court noted that the applicant had engaged in dishonest conduct over a significant period of time, and had caused significant financial loss to the victims. The court also considered the applicant's personal circumstances, including his age, background, and prospects for rehabilitation. The court noted that the applicant had no previous criminal history, and had shown remorse for his offending. The court also considered the impact of the sentence on the applicant and his family, including the effect of imprisonment on his young children.

After considering all of the relevant factors, the court determined that the total effective sentence was manifestly excessive. The court noted that the applicant's offending was serious, but that it did not warrant such a lengthy period of imprisonment. The court also noted that the applicant's personal circumstances and prospects for rehabilitation were significant factors in favour of a lesser sentence. The court therefore exercised its discretion under section 37 of the Sentencing Act 1991 to re-sentence the applicant to a two year Community Corrections Order with conditions for performance of 300 hours unpaid community work and supervision by the Secretary. The court noted that this sentence was proportionate to the seriousness of the offending, and provided an opportunity for the applicant to make amends to the community and to rehabilitate himself.

Orders