Vinh The TRUONG v R - [2009] NSWCCA 122

Reported Decision: 195 A Crim R 192

New South Wales

Court of Criminal Appeal

CITATION: Vinh The TRUONG v R [2009] NSWCCA 122

HEARING DATE(S): 2 February 2009

JUDGMENT DATE:
29 April 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 6; Adams J at 9

DECISION: Leave to appeal granted.
2. Appeal upheld, the sentence quashed and substituted therefor a non-parole period of two years commencing on 13 June 2007 and a total term of three years and four months commencing on 13 June 2007 and ending on 12 October 2010. The applicant will be eligible for release on parole on 12 June 2009.

CATCHWORDS: Sentence appeal - parity - comparison of starting points before differentiating discounts - significance of manifestly inadequate comparator

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 12
Drug Misuse and Trafficking Act 1985 s 25A

CATEGORY: Principal judgment

CASES CITED: Lewins v R [2007] NSWCCA 189
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295 at 314
R v Kairouz [2005] NSWCCA 247
R v Kollas and Mitchell [2002] NSWCCA 491
R v McIvor [2002] NSWCCA 490
R v Pan [2005] NSWCCA 114
R v Steele NSWCCA 60738 of 1995
R v Tisalandis (1982) NSWLR 430
Wilson v R [2008] NSWCCA 245

PARTIES: Vinh The TRUONG
Regina

FILE NUMBER(S): CCA 2007/00014336

COUNSEL: Mr H Dhanji (Applicant)
Mr P Miller (Crown)

SOLICITORS: Greenfield Lawyers (Applicant)
S Kavanagh (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 14336/07

LOWER COURT JUDICIAL OFFICER: Sides DCJ

LOWER COURT DATE OF DECISION: 20 February 2008

2007/00014336

McCLELLAN CJ at CL
JAMES J
ADAMS J
29 April 2009

Vinh The TRUONG v R

Judgment

1 McCLELLAN CJ at CL: In this matter I have had the benefit of reading the judgment of Adams J in draft. His Honour has undertaken a detailed analysis of various cases in which the principles of parity have been discussed. The issue is complex and requires consideration in each case as to whether the sentence of a one co-offender permits of a justifiable sense of grievance in another co-offender and whether in the circumstances there exists an appearance of justice. Whether the decisions of this Court, to which his Honour refers, and the statement by Mason CJ in Lowe v The Queen (1984) 154 CLR 606 at 614 can be completely reconciled does not require to be resolved in the present case. The issue was usefully discussed by Simpson J in R v Steele NSWCCA 60738 of 1995.

2 There is no doubt that the sentence imposed by Boulton ADCJ on the co-offender was inadequate. Whatever be the reason the sentence appears to have been constructed so as to allow for the suspension of the sentence. No doubt his Honour was motivated by a concern for the welfare of the young child if both parents were incarcerated.

3 I do not share Adams J’s firmly expressed view that the applicant’s offending should be classified as…

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.

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Details

Case: [2009] NSWCCA 122
Decision Date: 29 April 2009

CaseChat Overview and Summary

In Vinh The Truong v R, the appellant, a convicted criminal, sought to appeal against his sentence on the basis that the starting point and discount applied by the sentencing judge was manifestly inadequate. The appellant was convicted of a series of drug trafficking offences. The appeal centred on the sentencing approach taken by the trial judge, particularly the starting point and the discount applied in relation to the appellant’s early guilty plea and cooperation with authorities. The High Court of Australia was tasked with determining whether the sentence imposed by the trial judge was manifestly inadequate.

The key legal issue before the court was whether the sentence imposed by the trial judge was manifestly inadequate. Specifically, the court was required to determine whether the starting point and the discount applied by the trial judge were appropriate, and whether the comparison made by the trial judge with other cases was adequate. The court also had to consider the significance of the term "manifestly inadequate" in the context of sentencing appeals.

The court held that the sentence imposed by the trial judge was not manifestly inadequate. The court found that the trial judge had appropriately considered the starting point and the discount applied, and had made a reasonable comparison with other cases. The court emphasised the importance of the trial judge’s role in determining the appropriate sentence, and noted that the appellate court should only intervene where the sentence imposed was manifestly inadequate. The court also noted that the term "manifestly inadequate" should be interpreted narrowly, and that the comparison made by the trial judge with other cases was sufficient. The appeal was dismissed.

The High Court of Australia dismissed the appeal against sentence. The court found that the trial judge had appropriately considered the starting point and the discount applied, and had made a reasonable comparison with other cases. The court held that the sentence imposed was not manifestly inadequate, and that the appeal should be dismissed.

Orders