Tran v The Queen - [2011] VSCA 363

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0478 S APCR 2011 0116
SINH TRAN	Appellant
v
THE QUEEN	Respondent

---

JUDGES	NETTLE JA, LASRY and ROSS AJJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 November 2011
DATE OF JUDGMENT	15 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 363
JUDGMENT APPEALED FROM	R v Tran (Unreported, County Court of Victoria, Chief Judge Rozenes)

---

CRIMINAL LAW – Conviction – Plea of guilty to multiple charges including aggravated burglary, armed robbery, reckless conduct endangering serious injury and assault police – Double punishment – Whether Crown relied on same conduct as constituting offences of reckless conduct endangering serious injury and offences of assault police – Whether illusory or artificial to distinguish between conduct constituting offence of reckless conduct endangering serious injury and offences of assault police – R v Sessions [1998] 2 VR 304 distinguished – Appeal dismissed.

CRIMINAL LAW – Sentencing – Cumulation – Double punishment – Whether sentence imposed on charge of reckless conduct endangering serious injury included same punishment for conduct comprising charges of assault police – Cumulation – Whether judge erred in cumulating parts of sentences imposed on charges of assault police on sentence imposed on charge of reckless conduct endangering serious injury – Appeal dismissed.

---

Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Glynn	Andrew George Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

On 8 November 2010, the appellant pleaded guilty before the Chief Judge of the County Court to nine charges and was sentenced for those offences as follows:

Charge

Offence

Max penalty

Ind’l sentence

Cumulation

1. Aggravated burglary 25 years’ imp. 30 months’ imp. 6 months

2. Armed robbery 25 years’ imp. 3 years’ imp. 3 years (Base)

3. Armed robbery 25 years’ imp. 3 years’ imp. 6 months

4. Reckless conduct endangering serious injury 5 years’ imp. 2 years’ imp. 2 years

5. Assault police 5 years’ imp. 1 year’s imp. 3 months

6. Assault police 5 years’ imp. 1 year’s imp. 3 months

7. Traffick amphetamine 15 years’ imp. 1 year’s imp. 6 months

8. Possess heroin 5 years’ imp. 3 months’ imp. 1 month

9. Prohibited person possess unreg firearm 1800 Penalty Units or 15 years’ imp. 2 years’ imp. Nil

TES 7 yrs 1 month

NPP 4 yrs 7 months

The appellant now appeals by leave against conviction and sentence.

Facts of the offending
(i) Charges 1, 2 and 3

The facts of the offending were agreed and set out in the Crown’s written Plea Opening which was tendered and received on the plea as Exhibit A.

In short, on 25 October 2008, the appellant entered premises in Cairnlea with intent to steal (Charge 1, aggravated burglary). At the time, he had with him a pistol. Present at the premises were his cousins, Steven and Dinh Tran, and Judy Yang, wife of Dinh Tran. The appellant was also looking for another member of his family, Hoang…

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 [2011] VSCA 363
Case: [2011] VSCA 363
Decision Date: 15 November 2011

CaseChat Overview and Summary

The case of Tran v The Queen involved the appellant, Tran, who pleaded guilty to multiple charges including aggravated burglary, armed robbery, reckless conduct endangering serious injury, and assault police. The appellant appealed against his conviction and sentence, raising questions about the imposition of double punishment and the cumulation of sentences. The appeal was dismissed by the Court.

The central legal issues were whether the Crown had relied on the same conduct as constituting the offences of reckless conduct endangering serious injury and the offences of assault police, and if it was illusory or artificial to distinguish between the conduct constituting the offence of reckless conduct endangering serious injury and the offences of assault police. Additionally, the court had to determine whether the sentence imposed on the charge of reckless conduct endangering serious injury included the same punishment for the conduct comprising the charges of assault police, and whether the judge had erred in cumulating parts of the sentences imposed on the charges of assault police on the sentence imposed on the charge of reckless conduct endangering serious injury.

In addressing these issues, the court distinguished the case from R v Sessions, noting that the conduct in the current case was sufficiently distinct to warrant separate punishment. The court held that the distinction between the offences of reckless conduct endangering serious injury and assault police was not illusory or artificial, and that the sentences imposed were not double punishment. The court found no error in the cumulation of the sentences and upheld the appeal's dismissal.

The final orders of the court were that the appeal against conviction and sentence was dismissed, and the original conviction and sentence of the appellant stood as determined by the lower court.

Orders