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:

1. 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.

1. 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.

1. 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’).

1. On that plea, reliance was placed on circumstances personal to the appellant, including his age and his refugee background, and also upon reports from psychologists Mr David Ball and Associate Professor Warrick Brewer.  His drug history, which was significant, and his criminal history, which was also significant, were other matters taken into account by Hollingworth J that are still of significance here.

1. In this Court, counsel for the appellant sought to demonstrate that the appellant had continued on a path of rehabilitation which had commenced before he was convicted before Hollingworth J, who concluded that he had ‘some prospects of rehabilitation, if [he was] able to overcome [his] drug addiction’.[3]  With respect to that matter, counsel tendered clean urine screens taken throughout the appellant’s time in gaol ― a result which may have been produced or at least assisted by his having undertaken an intensive drug program in late 2009 whilst on remand.  Counsel also emphasised the appellant’s youth and pointed to other steps he had taken to enhance his chances of rehabilitation, including the pursuit of educational opportunities.

   [3]R v Tran [2011] VSC 181, [47].

1. The Crown submitted that the appellant should be sentenced on the basis that he was complicit in a bashing which involved the use of a baseball bat or similar object over a prolonged period.  He intended harm to the deceased and the bashing carried with it a high risk of serious injury.  There was no provocation and no question of self‑defence.  It was a serious example of manslaughter, the Crown argued.  The sentencing principles of general and specific deterrence and denunciation of such conduct should be emphasised in the sentence imposed.

1. Neither counsel referred to the sentencing consequences of the appellant‘s having committed this offence whilst on bail in respect of armed robbery offences, a situation to which s 16(3C) of the Sentencing Act1991 applies to impose a presumption of total cumulation as regards the sentence now to be imposed and the sentences imposed in respect of those offences.  The appellant was sentenced to a total effective sentence of four years’ imprisonment with a non‑parole period of two years and two months on 17 November 2009 in respect of the armed robbery offences and was serving that sentence when he was sentenced by Hollingworth J on 6 May 2011.  Her Honour ordered that the sentence she imposed upon the appellant be served concurrently with the armed robbery sentence, thereby negating the presumption in this case.  This Court should take the same course.  It will take the fact that the appellant had already served approximately two years and two months of the armed robbery sentence (time in custody which was ‘doubly warranted’) before being sentenced by Hollingworth J into account in fixing the sentence it will now impose.

1. Counsel for the appellant argued that because the appellant was not entitled to credit for any pre‑sentence detention because of the armed robbery sentence he is still undergoing, this Court should ‘backdate’ its sentence to the date of Hollingworth J’s sentence, in effect, to give him credit for some period already served. Whatever may be the legality of backdating a sentence having regard to s 17(1) of the Sentencing Act1991, which appears to require that generally sentences commence on the day they are imposed, it is not appropriate in this case.  A Renzella[4] consideration will be applied to the sentence now to be imposed to ensure that the principle of totality is not infringed.

   [4]R v Renzella [1997] 2 VR 88 (‘Renzella’).

1. The appellant will now be sentenced to eight years’ imprisonment for the manslaughter of Aaron Nidea with a non‑parole period of five years and six months, such sentence to be served concurrently with the sentence he is presently undergoing.  For the avoidance of doubt, it is intended that both the head sentence and the non‑parole period operate from today’s date and there is no pre-sentence detention.

1. The orders of the Court will be as follows:

1.        The appellant be sentenced on the charge of manslaughter to eight years’ imprisonment.

2.        A non‑parole period of five years and six months be fixed.

3.        The sentence imposed be served concurrently with any other sentence that the appellant is currently undergoing.

4.        Any ancillary orders made by Hollingworth J be affirmed.

1. Under ‘Other Matters’, it will be noted, for the avoidance of doubt, that no pre‑sentence detention is declared in respect of this sentence and that the sentence is to commence this day.

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