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Tran v The Queen

Tran v The Queen

Case [2012] VSCA 110 22 May 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0312

CHIEN TRONG TRAN
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and NEAVE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 May 2012
DATE OF JUDGMENT:	22 May 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 110
JUDGMENT APPEALED FROM:	R v Tran (Unreported, County Court of Victoria, Chief Judge Rozenes, 28 October 2011)

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CRIMINAL LAW – Appeal – Sentence – Cultivation of narcotic plants and theft of electricity – Acquired brain injury and depressive illness – Reliance only on Verdins 5 and 6 on plea – No reliance on Verdins 1 or 3 despite evidentiary foundation – Whether causal connection between offending and mental condition required to mitigate general deterrence or moral culpability – Whether Verdins altered by Muldrock v The Queen (2011) 244 CLR 120 – No inconsistency between Verdins and Muldrock – Principles unaltered – Leave to appeal granted but appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Theo Magazis & Associates
For the Crown	Mr T Gyorffy SC	Mr Craig Hyland, Solicitor for Public Prosecutions

MAXWELL P
NEAVE JA:

On 12 July last year the applicant, now aged 47, pleaded guilty to two charges of cultivation of narcotic plants and two charges of theft. He was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Cultivation of narcotic plants 15y 12m Base

2 Theft 10y 3m 1m

3 Cultivation of narcotic plants 15y 9m 3m

4 Theft 10y 2m 14 days

Total Effective Sentence: 16m 2 weeks

Non-Parole Period: 9m

Section 6AAA Statement: 24m with a non-parole period of 18m

The applicant’s ex-wife and co‑offender pleaded guilty to one charge of possession of equipment for the purposes of trafficking and was sentenced to nine months’ imprisonment, suspended for two years.

The applicant seeks leave to appeal against sentence on the following ground:

The sentencing judge erred by:
(a)failing to properly or adequately mitigate the Applicant’s offending as a consequence of his brain injury;
(b)confining his mitigation of the Applicant’s sentence for his brain injury to the issues of whether gaol would weigh more heavily upon him or cause further decline in his mental health.

We note, as counsel pointed out, that no manifest excess ground is raised. Rather, this is said to be specific error.

Because of the applicant’s earliest possible release date of 27 July 2012, this matter has been referred to this Bench for determination of the leave application (without the ordinary process of a single judge considering the leave application) so that, if leave were granted, the appeal could be heard instanter. That is a process much to be commended. It reflects the Court of Appeal Registry’s policy of ensuring that, where non‑parole periods are to expire within a short time, the application or appeal, as the case may be, is brought on as quickly as possible.

There is before the Court an application for an extension of time within which to make the application…

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 [2012] VSCA 110
Case: [2012] VSCA 110
Decision Date: 22 May 2012

CaseChat Overview and Summary

The case of Tran v The Queen involved an appellant who was convicted of cultivating narcotic plants and stealing electricity. The appellant appealed against the sentence imposed by the lower court, arguing that his acquired brain injury and depressive illness should have been taken into account as mitigating factors. The High Court of Australia was tasked with determining whether the lower court had erred in failing to consider these conditions as mitigating factors in sentencing.

The primary legal issue before the court was whether the appellant's acquired brain injury and depressive illness should have been considered as mitigating factors in sentencing, and if so, whether the court had erred in failing to do so. The court was also required to determine whether there was a causal connection between the offending and the mental condition required to mitigate general deterrence or moral culpability, and whether the principles set out in Verdins had been altered by the decision in Muldrock v The Queen.

The court held that while the appellant's acquired brain injury and depressive illness were relevant to his moral culpability, there was no causal connection between these conditions and the offending behaviour. The court found that the principles set out in Verdins remained unaltered by the decision in Muldrock v The Queen, and that there was no inconsistency between the two. The court held that the lower court had not erred in failing to consider the appellant's conditions as mitigating factors in sentencing, and that the appeal was accordingly dismissed. However, leave to appeal was granted.

Orders