Tran v The Queen

[2011] VSCA 252

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0694
ANH-TUAN TRAN	Appellant
v
THE QUEEN	Respondent

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JUDGES	HARPER and HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	4 August 2011
DATE OF JUDGMENT	25 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 252
JUDGMENT APPEALED FROM	R v Tran (Unreported, County Court of Victoria, Judge Mullaly, 18 June 2009)

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CRIIMINAL LAW – Sentence – Rape – Six years and six months’ imprisonment with non-parole period of four years – Sentence manifestly excessive – Judge gave insufficient weight to appellant’s youth, emotional immaturity and rehabilitation prospects – Re-sentenced to five years’ imprisonment with a non-parole period of three years – Appeal allowed.  

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Pica Criminal Lawyers
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

HARPER JA:

1. I agree with Hansen JA.

HANSEN JA:

1. The appellant, Anh-Tuan Tran, was presented on one count of rape to which he pleaded guilty, having indicated he would do so at a committal case conference on 8 January 2009. Following a plea in mitigation, on 18 June 2009 he was sentenced to a term of imprisonment of six years and six months and a non-parole period of four years was fixed. The judge declared pursuant to s 6AAA of the Sentencing Act 1991 that were it not for the plea of guilty he would have imposed an effective sentence of eight years and fixed a non-parole period of six years. 

1. The appellant appeals by leave on the following grounds:

1.The sentencing judge wrongly treated the appellant’s harassment of the complainant via telephone over a number of days preceding the commission of the offence as an aggravating circumstance.

2.The sentencing judge failed to give sufficient weight to the appellant’s youth and/or immaturity.

3.The sentencing judge failed to take into account the appellant was suffering from an adjustment disorder at the time of the offence.

4.The sentencing judge failed to give sufficient weight to the fact that the appellant had made admissions at the first reasonable opportunity which facilitated the prosecution.

5.The sentencing judge imposed a sentence which was, in all the circumstances, manifestly excessive.

Circumstances of the offending

1. The offending occurred on 31 August 2008, the appellant then being aged 20 years, and the complainant being aged 22 years.  They had met in September 2007, following which they commenced a relationship which the complainant ended in July 2008. 

1. The evidence contained considerable reference to matters that occurred between then and the occurrence of the offending.  This was constituted by evidence of SMS messages from the appellant to the complainant’s mobile telephone and some from the complainant in return.  Essentially, the appellant continuously contacted the complainant in an effort to convince her to resume the relationship.  He sent hundreds of messages in the period August to September 2008.

1. The judge noted that the prosecution relied on a number of the appellant’s messages as establishing aggravating features of his offending.  Prior…