TRAN, Hoai Vinh v R

The application 20Neither the Crown prosecutor in this Court nor counsel for the applicant, Ms Rigg, had appeared before Mathews AJ. Ms Rigg argued the application on two grounds: (1) Her Honour erred in finding that the offence was aggravated because it was committed in company. (3) It was not open to her Honour to assess the offence as falling within the middle range of objective seriousness. Aggravating factor 21Before her Honour it was contended by the Crown, and accepted by defence counsel, that the offence was aggravated by its having been committed by the applicant in the company of Mr Im. Her Honour was not referred to relevant authority which establishes that for an offence to be committed in company the offenders must share a common criminal purpose. So much is apparent from this Court's examination of the offence of aggravated sexual assault under s 61J of the Crimes Act 1900, where the circumstance of aggravation alleged was that the offender was in the company of another person or persons, in R v Button & Griffen [2002] NSWCCA 159, 54 NSWLR 455: see the judgment of Kirby J, with whom Heydon JA and Greg James J agreed, especially at [120]. His Honour's analysis was applied to s 21A(2)(e) of the Crimes (Sentencing Procedure) Act in Huntingdon v Regina [2007] NSWCCA 196: per Hislop J, with whom Giles JA and James J agreed, at [9] ff. 22While Mr Im was present when the applicant stabbed the deceased, he was in no way complicit in that act. This follows from his acquittal by the jury, from which it must be concluded that Mr Im's physical involvement in the incident was to separate the applicant and the deceased and was not part of a joint criminal enterprise with the applicant to attack the deceased. As noted above, this was her Honour's conclusion in determining the facts for the purpose of sentence. The Crown prosecutor in this Court conceded that this ground is made out. 23That said, Ms Rigg for her part acknowledged that the applicant's purpose in having Mr Im with him must have been to add greater weight to his demands upon the deceased, and may well have increased the fear the deceased experienced in the course of the applicant's attack. As I have said, her Honour found that the applicant had Mr Im with him as a form of support. Ms Rigg also conceded another factor aggravating the offence to which her Honour did not refer, that is, the use of a weapon: s 21A(2)(c). However, the Crown prosecutor acknowledged the significance which her Honour obviously placed upon the fact that the applicant had taken a knife with him to the premises and had resort to it after only a brief encounter with the deceased. 24In the result, it appears to me that her Honour gave the applicant's use of the knife the weight it deserved in assessing his criminality, even though she did not expressly refer to the relevant provision in s 21A. On the other hand, there is some force in the Crown prosecutor's submission that the presence of Mr Im did not play as important a role in her Honour's assessment. Nevertheless, her Honour's finding that the offence was committed in company was clearly relevant. As error in that respect has been established, it is open to this Court to intervene and, in determining whether it should do so, to make its own assessment of the objective gravity of the offence. Objective gravity 25That being so, it was not necessary for Ms Rigg to pursue the second ground of the application, that is, that it was not open to her Honour to assess the offence as falling within the middle range of objective seriousness. However, the Crown prosecutor submitted that we should arrive at the same assessment. 26In written submissions, the Crown prosecutor set out a series of features of the case which, he argued, would lead us to that conclusion. Ms Rigg accepted that all of them were relevant factors, but argued that they pointed to an assessment of objective gravity below the mid-range. They were: