| 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…
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- AGLC
- Trinh v The King [2024] VSCA 61
- Case
- [2024] VSCA 61
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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