Tuesday, 29 OCTOBER 2002
R v Christopher Tien VAN TRAN
R v Hung VAN TRAN
Judgment
1 DUNFORD J: These are applications for leave to appeal by Christopher Tran and Hung Van Tran against the sentences imposed upon them by his Honour Judge Shadbolt in the District Court at Sydney on 15 February 2002, following their pleas of guilty to a charge of maliciously inflict grievous bodily harm contrary to s 35(1)(b) of the Crimes Act 1900, which offence carries a maximum penalty of seven years imprisonment.
2 Each of the accused also asked that a further offence of maliciously inflict grievous bodily harm be taken into account on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999.
3 His Honour sentenced each of the applicants to imprisonment for four years and fixed a non-parole period of three years.
4 The facts of the matter are that both of the applicants were shot as they drove along the Cumberland Highway on 3 February 2001. They believed that the perpetrator of this attack was a man named Khan Do, although he has always denied this. It was nevertheless the applicants' firm belief that he was responsible, and they convinced their co-accused of the truth of this incident.
5 In order to avenge themselves, they decided to shoot at Do's house and to this end they obtained his address, a gun, and men to perform the task. Eleven days later, armed with a number of firearms, namely, two 9 mm Luger pistols, three .A5 ACP calibre and a .22 calibre pistol, a group of men in two cars drove to Sussex Street, Cabramatta and parked on the road.
6 These men including the applicant Hung Van Tran, approached the house. Khan Do and a man called Thanh Van Phan were sitting on the front verandah. Both men were shot and the two cars and the assailants sped away. Twenty-seven cartridges were recovered from the scene, some as close as three metres from the front of the house. It was sheer good fortune that one or both of the persons on the verandah were not killed.
7 Khan Do was shot a number of times, once to the left buttock, which caused a femoral fracture, which required surgery, and one bullet glanced off his forehead. Thanh Van Phan was shot in both knees, and he too underwent surgery.
8 Police intercepted a number of phone calls prior to the commission of the crime, and from these there is no doubt that Christopher Tran and Hung Van Tran procured the others to do the shooting on their behalf. Needless to say, the matter taken into account on the Form 1 was the shooting of Thanh Van Phan.
9 The applicants, therefore, pleaded guilty to a very serious offence, which his Honour stated, correctly in my view, called for sentences towards the top of the range. As his Honour said:
"It was a violent premeditated crime of revenge committed so long after the events which it is claimed gave rise to it as to be without mitigation. Those who use guns to settle disputes must expect to be imprisoned. Those who join others in this regard must expect to go to prison for a long time too."
10 The same is, of course, also true of those, like the applicants, who instigate and procure the use of guns to exact revenge. This community abhors and detests the use of guns, particularly for the purpose of settling personal disputes, and their use in the community will not be tolerated.
11 It is also to be borne in mind that at the time of these offences, Christopher Tran was subject to a bond for an assault, and, although Hung Van Tran had not been before the criminal courts since 1996, he had, on that occasion, been convicted and sentenced on a charge of possessing a firearm. Moreover, each of the applicants asked the judge to take into account a similar offence on the schedule to the Form 1.
12 This Court, in particular, has recently reaffirmed that, when matters are taken into account in this way, an otherwise appropriate sentence for the foundation offence should not be only slightly increased when the offence to be taken into account is serious in its own right, and a judge sentencing for an offence to which he or she is asked to take into account an additional offence or offences, should give due recognition to the gravity of that offence or those offences: R v Barton [2001] NSWCCA 63, 121 A Crim R 185 at [35]; R v Harris [2001] NSWCCA 322, 125 A Crim R 27 at [23], R v Bavandra [2000] NSWCCA 292, 115 A Crim R 152 at [30-31], R v Morgan (1993) 70 A Crim R 368 at 371-2.
13 The facts of this case indicated that the assailants were not only out to harm Khan Do, but were prepared to do similar harm to anyone else who may have the misfortune to be in the vicinity at the time.
14 The principal submissions made on behalf of the applicants were:
(a) that his Honour did not, in his reasoning, state the prison sentence which he considered to be appropriate in this case, meaning thereby, as I understand it, a starting point from which adjustments were made for various relevant subjective features of each applicant;
(b) that his Honour concluded that the applicants had the possibility of redemption and rehabilitation, but did not indicate how that reflected itself in the sentences imposed; and
(c) that his Honour referred to the pleas of guilty, but did not indicate the extent to which these pleas reflected themselves in the sentences imposed.
15 Whilst it is true that his Honour did not specify a starting point and a specific discount for the pleas of guilty, and each other subjective feature which he considered relevant, it is obvious that he took into account, in particular, the pleas of guilty, because the sentences of four years could not, on any reasoning, be described as "towards the top of the range", which his Honour correctly said was called for by these offences.
16 His Honour, in effect, adopted a single process, an intuitive approach, sometimes referred to as the "instinctive synthesis approach", and did not specify particular discounts for particular elements. This was in accordance with the approach taken in cases such as R v Gallagher (1991) 23 NSWLR 220 (except as to assistance to the authorities), R v Beavan (unreported - CCA - 22 August 1991), R v Lett (unreported - CCA - 27 March 1995).
17 However, in R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 at [160], whilst generally approving the instinctive synthesis approach, the Court laid down a number of guidelines in respect of pleas of guilty, including the following:
"(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.