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[2011] NSWCCA 116
Court of Criminal Appeal (NSW)
2011-02-21
Whealy JA, Hidden J, Johnson J, Mathews AJ
Original judgment source is linked above.
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:
Re-sentence 41I am satisfied that this Court should intervene and re-sentence the applicant. In so doing, it is necessary to have regard to his criminal history and personal background, which I have summarised. I would respectfully share her Honour's somewhat guarded assessment of his prospects of rehabilitation. Like her Honour, I would not find special circumstances because the application of the statutory ratio to the sentence which I propose would produce a substantial period of parole eligibility. In my view, the appropriate sentence is imprisonment for 24 years with a non-parole period of 18 years. 42I would grant leave to appeal and allow the appeal. I would quash the sentence passed by Mathews AJ, and would re-sentence the applicant to a non-parole period of 18 years, commencing on 7 November 2007 and expiring on 6 November 2025, and a balance of term of 6 years, commencing on 7 November 2025 and expiring on 6 November 2031. 43JOHNSON J : I agree with the orders proposed by Hidden J and with his Honour's reasons, but would add one further observation. 44Although it will generally be the case that an intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill in a case of murder, that is not always so and there may be circumstances where an intention to inflict grievous bodily harm could reflect similar criminality to other cases involving an intention to kill: R v Nelson (NSWCCA, 25 June 1996, unreported); R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252 at 258 [16]. 45These statements have been made in decisions of the Court of Criminal Appeal which predate the standard non-parole period system ( R v Nelson ) and which postdate that system ( R v Hillsley ). The statements are pertinent to the determination of objective seriousness of a crime of murder under the standard non-parole period system and, in my view, should be kept in mind in conjunction with the authorities and principles referred to in the judgment of Hidden J.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 May 2011
TRAN, Hoai Vinh
R
Subjective Case 13The applicant was 26 years old at the time of the offence and 30 at the time of sentence. He is now 31. He had been in custody in respect of this matter since his arrest on 7 November 2007, and her Honour backdated the sentence to that day. 14He has a lengthy criminal history, commencing in 1996, when he was 16 years old, and extending over the following 10 years. It records convictions (or findings of guilt) mainly for drug offences, offences of dishonesty and driving offences. There is one conviction for assault, imposed in a Local Court in 2001. In 1998 he was given the benefit of a recognisance for armed robbery but, following a successful Crown appeal in the following year, he was sentenced to imprisonment for 3 years with a non-parole period of 2 years: R v Tran [1999] NSWCCA 109. On several occasions thereafter he was sentenced to lesser terms of imprisonment for the assault, and for supplying prohibited drugs, offences of dishonesty and some driving offences. 15He was born in Australia, the son of Vietnamese refugees. His parents separated when he was an infant, and for the next few years his mother brought him up. She then remarried, and had two daughters. The applicant's stepfather treated him badly, apparently resenting his presence in the home, and on occasions inflicted violence on him. The situation became so bad that his mother sent him to a country boarding school in year 10 to get him away from his stepfather. In the event, he left school before finishing year 12. His mother and stepfather divorced in 2000. 16Unfortunately, from the age of 15 he embarked upon an escalating pattern of drug abuse, which continued until well after the murder. Her Honour saw his difficult childhood and youth, largely caused "by his domineering and aggressive stepfather", as one of the major causes of his taking to illicit drugs at an early age. 17During an earlier period of imprisonment in 2006, he came into contact with Dr Bruce Westmore, forensic psychiatrist. Dr Westmore thought that he was of high average intelligence. He diagnosed him as suffering from drug induced schizophrenia, a condition which could be controlled by medication. Dr Westmore reported that his mental illness was relatively unstable and that further psychotic episodes could not be excluded if there was poor compliance with a regime of medication, a return to abuse of illicit drugs, or exposure to significant psychological stress. 18Her Honour noted that there was nothing to suggest that his mental condition had any causal connection to the murder, and was of the view that his mental health was not such as to render him an inappropriate vehicle for general deterrence. She found him not to be remorseful, in the light of his behaviour after the murder. She noted that immediately after the stabbing he took Mr Dang's wallet and he and Mr Im spent the money that was in it, despite the fact that his stated reason for going to the deceased's caf was to recover money owing to his mother and his aunt. Moreover, both prior to and at his trial he sought to shift the blame for the stabbing onto Mr Im, who was innocent. 19Her Honour found that it was "not possible to say that he has good prospects of rehabilitation or that he is unlikely to re-offend." Nevertheless, she noted that he had "the intellectual capacity to lead a constructive and purposeful life." She saw his inability to do so in his life thus far to be "plainly the product of his drug taking." She recognised the benefit of a lengthy period of parole eligibility, but declined to find special circumstances because the application of the statutory proportion between sentence and non-parole period to the sentence she proposed would provide that opportunity.