Tran v The Queen - [2011] VSCA 383

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…

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 383
Case: [2011] VSCA 383
Decision Date: 8 November 2011

CaseChat Overview and Summary

Tran was convicted of drug trafficking and appealed the severity of his sentence. The Court of Appeal heard the appeal and considered whether the trial judge had appropriately taken into account the impact of the crime on the victims. Specifically, the court examined whether the trial judge had breached the principles of procedural fairness by relying on a victim impact statement that was not properly adduced as evidence. The court also considered whether the trial judge had sufficiently exercised his discretion in sentencing Tran.

The court found that the trial judge had indeed relied on the victim impact statement, which was not admissible under the Sentencing Act 1991 s 95B, and that this reliance had breached the principles of procedural fairness. The court noted that the Crown had conceded this point, and that the case of R v Swift (2007) 15 VR 497 had been relied upon to support the contention that the trial judge's error warranted reopening the sentencing discretion. The court concluded that the error was not a mere irregularity, but rather a breach of a fundamental principle of procedural fairness, and that this warranted reopening the sentencing discretion.

Given that the sentencing discretion had been reopened, the court exercised its discretion to impose a sentence of 12 years imprisonment with a non-parole period of 8 years. The court noted that this sentence was lower than the original sentence imposed by the trial judge, but that it was still sufficient to reflect the seriousness of Tran's crime and to provide adequate deterrence and denunciation. The court also noted that it had not found any point of principle in the appeal that warranted the intervention of a full court.

No further orders were made by the court.

Orders