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Trinh v R

Trinh v R

Case [2024] VSCA 61 11 April 2024

Appeal

Sentencing

Criminal Liability

Possession and production of child abuse material

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0185

MARTIN TRINH	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2024
DATE OF JUDGMENT:	11 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 61
JUDGMENT APPEALED FROM:	DPP v Trinh [2022] VCC 1404 (Judge Murphy)

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CRIMINAL LAW – Appeal – Sentence – Possession and production of child abuse material – Use of a carriage service to transmit, solicit and access child abuse material – Use of a carriage service to engage in sexual activity with a person under the age of 16 years – Approach to sentencing offences with statutory minimum terms of imprisonment – Whether sentencing judge erred in approach to assessment of family hardship as sentencing consideration – Whether sentencing judge erred in rejecting Verdins limbs one and three – Whether sentence on using a carriage service to engage in sexual activity with a person under age of 16 years manifestly excessive – Leave to appeal granted – Appeal on manifest excess allowed.

Crimes Act1914 (Cth), ss 16A, 16AAA, 16AAC.

Hurt v The King; Delzotto v The King [2024] HCA 8 followed; R vVerdins (2007) 16 VR 269; Brown v The Queen (2020) 62 VR 491 discussed.

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Counsel
Applicant:		Mr B Overend
Respondent:		Ms K Breckweg with Mr J Manning
Solicitors
Applicant:	Gallant Law
Respondent:	Mr S Bruckard PSM, Solicitor for Public Prosecutions (Cth)

PRIEST JA:

I agree with Taylor JA, whose reasons for judgment I have had the considerable advantage of reading in draft.

TAYLOR JA:

Introduction and overview

On 17 December 2021 the applicant pleaded guilty to 16 charges involving the possession and production of child abuse material and the use of a carriage service to transmit, solicit and access child abuse material as well as to engage in sexual activity with a person under the age of 16 years. A further offence of transmitting indecent material was taken into account.[1]
[1]Pursuant to s 16BA of the Crimes Act 1914 (Cth) (‘Crimes Act’).
Following a plea on 10 June 2022, the applicant was sentenced on 21 July 2022 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation / Commencement
1	Use carriage service to cause child pornography to be transmitted to himself[2]	15 years	6 months	21 July 2022
2	Use carriage service to transmit indecent communication to a person under 16 years of age[3]	7 years[4]	12 months	21 July 2022
3	Use carriage service to solicit child pornography material[5]	15 years	6 months	21 July 2022
4	Use carriage service to solicit child abuse material[6]	15 years	6 months	21 July 2022
5	Use carriage service to solicit child abuse material	15 years	6 months	21 July 2022

[2]Contrary to s 474.19(1) of the Criminal Code as in force prior to 21 September 2019. The Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) repealed this offence provision and replaced it with the offence of using…

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 Trinh v R

Details

AGLC: Trinh v The King [2024] VSCA 61
Case: [2024] VSCA 61
Decision Date: 11 April 2024

CaseChat Overview and Summary

The appellant, Trinh, appealed against his sentence in the County Court of Victoria. He was found guilty of various offences including possession and production of child abuse material, use of a carriage service to transmit, solicit and access such material, and using a carriage service to engage in sexual activity with a person under the age of 16 years. The court was required to decide whether the sentencing judge erred in assessing the family hardship as a consideration, in rejecting Verdins limbs one and three, and whether the sentence for the use of a carriage service to engage in sexual activity with a minor was manifestly excessive.

The court held that the sentencing judge did not err in rejecting Verdins limbs one and three, which pertain to the mitigating factors of the offender’s role in the offence and the extent of their participation. The court found that the judge appropriately considered the nature and gravity of the offences and the need for denunciation and deterrence. The appeal against the family hardship consideration was also dismissed as the judge had adequately assessed the impact on the family and balanced it against the seriousness of the crimes committed. However, the court found that the sentence for the use of a carriage service to engage in sexual activity with a person under the age of 16 years was manifestly excessive. The appeal against this aspect of the sentence was allowed, and the matter was remitted to the County Court for re-sentencing.

The court concluded that the sentence for using a carriage service to engage in sexual activity with a minor was manifestly excessive, given the other sentences imposed and the principles of proportionality. The appeal was granted on this point, and the matter was remitted to the County Court for reconsideration of the sentence in light of the court's findings. The other aspects of the sentence and the convictions were affirmed.

Orders