Tran v The Queen (No 2) - [2012] VSCA 323

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0109

PHILLIP TRAN
	Appellant
v
THE QUEEN	Respondent

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JUDGES	WEINBERG and BONGIORNO JJA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	5 December 2012
DATE OF JUDGMENT	5 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 323
CASE MAY BE CITED AS	Tran v The Queen (No 2)
JUDGMENT APPEALED FROM	R v Tran [2011] VSC 181 (Hollingworth J)

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CRIMINAL LAW – Sentence – Appellant re-sentenced following successful appeal against conviction – Conviction for murder set aside and judgment of conviction of manslaughter entered – Factual basis for sentencing – Youthful offender – Rehabilitative efforts – General and specific deterrence – Offence committed whilst appellant was on bail – Appellant serving sentence for unrelated offences when sentenced below – R v Renzella [1997] 2 VR 88 – Appellant sentenced to eight years’ imprisonment with non-parole period of five years and six months – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Dann	C Marshall & Associates
For the Crown	Mr P Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:
BONGIORNO JA:
T FORREST AJA:

On 23 November 2012, this Court set aside a jury verdict of guilty of murder in respect of the appellant, Phillip Tran, and, pursuant to s 277(1)(c) of the Criminal Procedure Act 2009, entered a judgment of conviction of manslaughter against him.[1] It must now proceed to complete the function conferred upon it by that provision and sentence the appellant in respect of that conviction. To that end, it today heard a plea on the appellant’s behalf.
[1]Tran v The Queen (No 1) [2012] VSCA 283.

The circumstances in which the appellant was complicit in the manslaughter of a 28‑year‑old drug-addicted man in a disused Telstra building in Footscray on 20 December 2008 are fully set out in the Court’s reasons for judgment on his successful appeal. They need not be repeated here. It is sufficient to say that for sentencing purposes this Court will proceed on the footing that the appellant was guilty, not of having struck the blows as a result of which the deceased died, but of being complicit in that assault as an aider and abettor whose role was somewhat less than that of the unknown person who viciously struck the deceased a number of times with a baseball bat or similar instrument.

In a plea made on the appellant’s behalf after his conviction for murder, his counsel conceded that, although he had suffered a severe brain injury in a motor car accident in July 2006, that brain injury did not contribute to his having been involved in the crime for which he is now to be sentenced. Nor was any reliance placed by his counsel on Verdins[2] principles as being applicable to his offending or to his incarceration.
[2]R v Verdins (2007) 16 VR 269 (‘Verdins’).

On that plea, reliance was placed on circumstances…

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 (No 2)

Details

AGLC: Tran v The Queen (No 2) [2012] VSCA 323
Case: [2012] VSCA 323
Decision Date: 5 December 2012

CaseChat Overview and Summary

Tran was convicted of murder but successfully appealed against that conviction, resulting in a judgment of manslaughter being entered. The case before the court was to re-sentence Tran for the manslaughter conviction. The legal issues the court had to decide involved determining the appropriate sentence for manslaughter, considering Tran's age at the time of the offence, his efforts at rehabilitation, and the purposes of sentencing, including general and specific deterrence. The court also had to take into account that the offence was committed while Tran was on bail and that he was serving a sentence for unrelated offences when initially sentenced.

The court considered the principles set out in R v Renzella, which outline the purposes of sentencing, including retribution, deterrence, and rehabilitation. It also noted that Tran was a youthful offender who had made efforts at rehabilitation. The court acknowledged that Tran committed the offence while on bail but also considered that he was already serving a sentence for unrelated offences when he was initially sentenced. Ultimately, the court determined that an appropriate sentence was eight years' imprisonment with a non-parole period of five years and six months, taking into account all relevant factors.

The court held that the sentence imposed was appropriate and did not identify any point of principle that warranted further consideration. The appeal against sentence was dismissed, and the original sentence was upheld. The court did not make any further orders beyond dismissing the appeal against sentence.

Orders