Tran v The Queen
[2011] VSCA 383
•8 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0229 | |
| HOANG DUNG TRAN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BONGIORNO JA and ROSS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 8 November 2011 |
| DATE OF JUDGMENT | 8 November 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 383 |
| JUDGMENT APPEALED FROM | DPP v Tran (Unreported, County Court of Victoria, Judge Jenkins, 18 June 2010) |
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CRIMINAL LAW – Sentence appeal – Reliance on victim impact statement – Admissibility – Sentencing Act 1991 s 95B – Denial of procedural fairness – Crown concession – R v Swift (2007) 15 VR 497 relied upon – Sentencing discretion reopened – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Kassimatis | Victoria Legal Aid |
| For the Crown | Ms S M K Borg | Mr C Hyland, Solicitor for Public Prosecutions |
BONGIORNO JA:
Ross AJA will deliver the first judgment in this matter.
ROSS AJA:
On 18 June 2010 the appellant was sentenced in the County Court, in respect of nine offences contained in two presentments, as follows:
Charge on Presentment X02606664.1 (‘the trial presentment’) Offence Maximum Sentence Cumulation 1 Aggravated burglary 25 years imp.
[s 77(2) Crimes Act 1958 (Vic)]
6 years imp. Base 2 Burglary (as alternative to charge 1) 10 years imp.
[s 76(3) Crimes Act 1958 (Vic)]
NA NA 3 Make threat to kill 10 years imp.
[s 20 Crimes Act 1958 (Vic)]
18 months imp. 6 months imp. 4 Indecent assault 10 years imp.
[s 39(1) Crimes Act 1958 (Vic)]
1 year imp. – 5 Indecent assault 10 years imp.
[s 39(1) Crimes Act 1958 (Vic)]
15 months imp. 15 months imp. 6 Theft 10 years imp.
[s 74(1) Crimes Act 1958 (Vic)]2 years imp. 9 months imp. 7 Theft 10 years imp.
[s 74(1) Crimes Act 1958 (Vic)]
18 months imp. – Charge on Presentment X02606664.3 (‘the plea presentment’)
1 Burglary 10 years imp.
[s 76(3) Crimes Act 1958 (Vic)]
30 months imp. 12 months imp. 2 Theft 10 years imp.
[s 74(1) Crimes Act 1958 (Vic)]
8 months imp. –
The cumulation orders produced a total effective sentence of 9 years and 6 months’ imprisonment. The sentencing judge fixed a non-parole period of 6 years’ imprisonment.
Before turning to the grounds of appeal, I propose to briefly set out the circumstances of the offending.
The ‘plea presentment’ concerns events which took place on 2 September 2008 and involved victim KTV. On that day KTV returned home from work at about 6:30 am. After taking her children to school she retired to bed at about 9:30 am. Her husband was at work. Later in the morning she heard what sounded like the front door opening and got up. She saw the appellant in her son’s bedroom going through his drawers. She asked what he was doing and he demanded money. After some more talk the appellant told KTV not to call the police and left the house. KTV returned to her room, later rang her husband and also the police. She noticed that a new portable DVD player was missing.
The charges on the ‘trial presentment’ relate to events which occurred on 5 September 2008. On that day TP was alone in bed asleep when she was woken by a sound. She saw the appellant in her room attempting to gain possession of her laptop. He was wearing gloves and TP saw a knife in the appellant’s hand. The knife was 25 to 30cms long.
The appellant jumped onto the bed and told TP in Vietnamese ‘don’t yell otherwise I stab you to death’. He held the knife next to her throat outside of the doona. TP asked the appellant not to harm her. The appellant repeated his threat. The appellant removed a ring from one of her fingers and a gold necklace from her neck. He then put his hand into her top and squeezed her breast.
The appellant then searched through other rooms of the house. When it became quiet, TP removed the doona from her head to see what was going on. The appellant then returned to the bedroom and jumped on the bed, again threatening her ‘do you want me to stab you to death’. The appellant tried to pull the doona off and tried to pull TP’s pants down. TP tried to pull them up, and pleaded with the appellant not to pull her pants down. TP told the appellant she was sick, and the appellant desisted. She then pulled her pants back up.
TP pleaded with the appellant not to harm her, and the appellant kept telling her to shut up otherwise she would be stabbed to death. The appellant then rummaged through the room. When TP could not hear anything for a while, she uncovered herself. The appellant again jumped onto TP’s bed. TP lay down again and covered herself with the doona and said she would not uncover herself again. The appellant again tried to pull the doona off TP, and TP pleaded with him again. The appellant tore up some cloth and TP thought he would tie her up. The appellant turned on the television in the room and turned up the volume. TP remained under the doona until she heard a car drive off. She then went to a neighbour and the police were called. TP estimated that $20,000 worth of items had been taken from her home.
On 8 September 2008, KTV saw the appellant in the street in the suburb of Springvale South. He was arrested later that day and interviewed. He denied having anything to do with the burglary on 2 September 2008. The appellant admitted to having in the past lived in the unit occupied by TP, agreed that he had retained a key for that unit but denied having committed any burglary.
The appellant pleaded guilty to the offences set out in the ‘plea presentment’. The plea was made on the day that the matter was listed for trial. At trial for the offences which were the subject of the trial presentment, he pleaded guilty before the jury to charge 7 (theft) and burglary (as an alternative to charge 1 – aggravated burglary). He was found guilty of the remaining charges on which he was sentenced.
Leave to appeal against sentence was granted by Redlich JA on 27 May 2011.
The first ground of appeal concerns her Honour’s reliance on TP’s victim impact statement. TP’s victim impact statement states:
I don’t feel comfortable anywhere even in my own home. I really scared of everything around. I was a teacher. I couldn’t find myself to be confident to come back to teach any more. I lost my motivate to come back school. I am unemployed 2 years now.
During the course of the plea, counsel for the appellant objected to that part of the victim impact statement which made reference to TP’s inability to return to work after a considerable period of time.[1] Counsel’s objections were not addressed by the court and the complainant was not called to be cross-examined and nor was a psychological report submitted to support the complainant’s victim impact statement.
[1]Plea Transcript p 40 lines 6-15.
Her Honour deals with this issue at [25] of her reasons for sentence:
I note that your Counsel objected to [TP’s] victim impact statement to the extent that it suggests that she has continued not to work by reason of your offending against her. The prosecutor invited me to accept that your offending was at the very least a contributing factor to her inability to return to work. In my view, the statements made by [TP], in regard to the effect upon her, is entirely consistent with the nature of the offending for which you have been found guilty and the terrifying experience which she has described. I accept the contents of her victim impact statement at face value but acknowledge that your Counsel has not had the opportunity to further test the statements that she has made. Accordingly, I accept the Crown prosecutor’s submission and find that your offending was wholly responsible for her inability to return to work in the first instance and has contributed to her continued inability to return to work to date.
The appellant contends that her Honour erred in concluding that the complainant TP was unable to return to work as a result of the offending and that the offending had contributed to her continued inability to return to work, on the basis of the impact statement alone, over the objection by defence and without giving defence counsel an opportunity to cross-examine TP.
I note that her Honour found that the appellant’s offending ‘was wholly responsible for [TP’s] inability to return to work in the first instance and has contributed to her inability to return to work to date’. The period of time that had elapse from the offending until the sentence was one year and eight months. Her Honour acknowledged that she did not give counsel for the appellant an opportunity to test the statements made in the victim impact statement
Section 95B of the Sentencing Act 1991 (Vic) provides that a victim impact statement may contain particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence. Section 95B also provides that the court may rule as inadmissible the whole or any part of a victim impact statement. The section does not specify criteria of admissibility, but as Nettle JA noted (with whom Vincent JA and Habersberger AJA agreed) in R v Swift:
Section 95D enables the court to require the victim to attend and to give evidence and thereby to give first-hand evidence of the contents of the statement. But that does not mean that a statement must be excluded as hearsay unless the victim is called. A statement which complies with s 95B may be received although it is hearsay, subject of course to exclusion in the exercise of discretion. Conversely, if the contents of a statement go beyond the matters mentioned in s 95B, the statement is to that extent liable to be excluded as hearsay unless objection is waived…
Furthermore, if objection is taken on a matter of substance to any part of a victim impact statement which is inadmissible, the judge should either rule it inadmissible or make it clear during the plea or in his or her sentencing reasons that no reliance would be or was being placed on that part of the statement.[2]
[2](2007) 15 VR 497, 498-9 (footnotes omitted).
The approach adopted by the sentencing judge in this matter was inconsistent with the observations of Nettle JA in Swift. Defence counsel took objection to part of the victim impact statement, on a matter of substance. In those circumstances, absent the complainant being called, the sentencing judge should have ruled that the part of the statement to which objection was taken was inadmissible or alternatively should have eschewed any reliance upon that part of the statement.
It is in these circumstances that the respondent conceded, properly in my view, that the appellant was denied procedural fairness in relation to the finding that her Honour made regarding the impact of the offending on TP and her inability to return to work and the weight it was given in the exercise of her Honour’s sentencing discretion. I also note that the respondent will only seek to rely upon the admissible parts of TP’s victim impact statement and will only seek to rely upon the distress the offending caused TP in a way that is consistent with and expected in all victims who find themselves in these circumstances. The respondent will not seek to use TP’s victim impact statement as evidence of her inability to return to work after a considerable period of time.
Having regard to the Crown concession I would uphold ground 1 and reopen the sentencing discretion. As a consequence, appeal grounds 2 and 3 are otiose, though I will have regard to the submissions made in respect of those grounds in resentencing the appellant.
I have also had regard to the submissions made on the plea and note that there was no challenge to her Honour’s finding, at [39] of her reasons for sentence, as to the aggravating circumstances for the offence of aggravated burglary.
I have earlier described the nature and circumstances of the offending. The charges in the trial presentment relating to the offending on 5 September 2008 are particularly serious. Indeed counsel for the appellant conceded that this was a serious instance of aggravated burglary.
In relation to the aggravated burglary, the aggravating circumstance was the possession of a 25 to 30cm long knife. The burglary amounted to what is colloquially referred to as a ‘home invasion’. A person was present and upon discovery of that fact the appellant did not desist and leave but remained for some time, repeatedly threatening to kill his victim and holding a knife to her throat. The theft was aggravated as it involved the actual removal of items from the victim’s person – removing the necklace from her neck and the ring from her finger.
In relation to the two indecent assaults (that is squeezing KTV’s breast and later pulling down her pyjama pants) I note that there was a time gap between the two assaults and as a consequence there should be some cumulation in respect of each offence. I also accept that the indecent assaults should be regarded as opportunistic offences, there being no evidence of premeditation.
It is common ground that the Serious Sexual Offender provisions of the Sentencing Act apply. Part 2A of the Act applies in relation to count 3 (threat to kill), count 4 (indecent assault) and count 5 (indecent assault). Hence if a term of imprisonment is imposed for two of the counts then the appellant will then fall to be sentenced as a serious sexual offender on the third count. In that regard I note that the protection of the community is the principal purpose for which serious offenders are to be sentenced, however I do not consider that a sentence disproportionate to the objective gravity of the offence is warranted in this case.
The appellant’s personal history was recounted on the plea and referred to in her Honour’s sentencing remarks at [27]-[34]. I have had regard to those matters and need not repeat them here.
The appellant has prior convictions, that is failing to answer bail; criminal damage; possession, use and trafficking a drug of dependence, namely heroin; possession of money suspected of being the proceeds of crime; intentionally damaging property; and unlawful assault. The sentences in respect of those offences included fines, community based orders and a six month term of imprisonment, wholly suspended.
The appellant has no prior convictions for burglary or indecent assault and, as conceded by the Crown, that is a significant matter by way of mitigation.[3]
[3]Plea Tn 2 June 2010 p 30 lines 12-16.
The appellant is also entitled to some credit for the pleas of guilty which were entered, which have saved some time and expense.
It is common ground that the appellant’s prospects for rehabilitation are reasonable,[4] and I accept that is so.
[4]Plea Tn 2 June 2010 p 31 lines 1-6, Crown submissions and p 55 lines 19-24, defence counsel’s submissions.
In addition to the matters set out above the applicant’s counsel made the following points:
· there should be some limited cumulation as between presentments however this should not be significant because the offending occurred within three days and was of a similar nature;
· there should not be significant cumulation between the offences that occurred at the same premises.; and
· the two sets of offending occur in September 2008, three days apart, at a time when the appellant was homeless, using drugs and gambling.
Counsel for the appellant also relied on the ‘Sentencing Snapshots’ published by the Sentencing Advisory Council in relation to the offences of Burglary and Aggravated Burglary. Particular reliance was placed on the median sentences imposed in respect of these offences. This material is of little utility as it provides no information as to the circumstances of the offending. Further, reliance on median sentencing outcomes is apt to mislead and tends to mask the complexity of sentencing outcomes.[5]
[5]DPP v Aparo [2011] VSCA 207 [28]-[33] (Ross AJA, Hansen JA and Whelan AJA agreeing).
In all the circumstances I would resentence the appellant as follows.
In respect of the charges on the ‘trial presentment’: four years’ imprisonment on count 1; 18 months’ imprisonment on count 3; one years’ imprisonment on count 4; 15 months’ imprisonment on count 5; one years’ imprisonment on count 6 and one years’ imprisonment on count 7. As to cumulation, I would order that six months of the sentence on count 3; six months of the sentence on count 4; 8 months of the sentence on count 5 and six months of the sentence on count 6 be served cumulatively on count 1.
As to the charges on the plea presentment I would sentence the appellant to 12 months’ imprisonment in respect of count 1 and six months’ imprisonment in respect of count 2. I would order that six months of the sentence on count 1 be served cumulatively with the sentence imposed on count 1 of the trial presentment.
The cumulation orders result in a total effective sentence of six years and 8 months’ imprisonment. I would order a non-parole period of four years’ imprisonment.
But for the guilty pleas I would have imposed a total effective sentence of seven years and four months’ imprisonment with a non-parole period of four years and six months. A table setting out the proposed orders is attached.
Charge on Presentment X02606664.1 (‘the trial presentment’) Offence Maximum Sentence Cumulation 1 Aggravated burglary 25 years imp.
[s 77(2) Crimes Act 1958 (Vic)]
4 years imp. Base 2 Burglary (as alternative to charge 1) 10 years imp.
[s 76(3) Crimes Act 1958 (Vic)]
NA NA 3 Make threat to kill 10 years imp.
[s 20 Crimes Act 1958 (Vic)]
18 months imp. 6 months imp. 4 Indecent assault 10 years imp.
[s 39(1) Crimes Act 1958 (Vic)]
1 year imp. 6 months imp. 5 Indecent assault 10 years imp.
[s 39(1) Crimes Act 1958 (Vic)]
15 months imp. 8 months imp. 6 Theft 10 years imp.
[s 74(1) Crimes Act 1958 (Vic)]
1 year imp. 6 months imp. 7 Theft 10 years imp.
[s 74(1) Crimes Act 1958 (Vic)]
1 year imp. – Charge on Presentment X02606664.3 (‘the plea presentment’)
1 Burglary 10 years imp.
[s 76(3) Crimes Act 1958 (Vic)]
12 months imp. 6 months imp.
2 Theft 10 years imp.
[s 74(1) Crimes Act 1958 (Vic)]
6 months imp. – Total Effective Sentence: 6 years, 8 months imp. Non-Parole Period: 4 years imp. Pre-sentence Detention Declared: 1126 days. 6AAA Statement: TES: 7 years, 4 months imp.
NPP: 4 years, 6 months imp.
BONGIORNO JA:
I agree with the disposition of this appeal proposed by Ross AJA for the reasons his Honour has given.
The orders of the Court will be:
1. The appeal is allowed.
2. The sentences of imprisonment imposed below in respect of each presentment are set aside and in lieu thereof, the sentences proposed by Ross AJA in his reasons are imposed.
3. A non-parole period of 4 years is fixed.
4. All ancillary orders of Judge Jenkins made 18 June 2010 are confirmed.
It is declared that the period of 1126 days, not including this day, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
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