Tran v Minister For Immigration & Multicultural & Indigenous Affairs

Melbourne Magistrates' Court Possess Heroin 4 months imprisonment concurrent. 11/04/00 Robbery 8 months imprisonment concurrent. Possess drug of dependence (not named) 6 months imprisonment concurrent. Use drug of dependence (not named) 4 months imprisonment concurrent. Possess regulated weapon 3 months imprisonment concurrent. Fail to answer bail (2) On each charge: 3 months imprisonment concurrent. 16 months imprisonment concurrent. Assault with a weapon With conviction, fined an aggregate of $400. State false name when requested State false address when requested Effective total State term imposed is 1 year 4 months. Non-parole period fixed at 10 months

Events of 6 October 1999 6 Among the matters dealt with at the Melbourne Magistrates' Court on 11 April 2000 were charges arising out of events which occurred on 6 October 1999. They are recorded in the Issues Paper as follows: "10. On 6 October 1999, Mr Tran was in Sunshine at the intersection of Hampshire Road and Hertford Road. A Ford Fairlane driven by Ms Margaret Bower was stationary at a red light in Hertford Road waiting to turn right into Hampshire Road. 11. On seeing Mr Tran approach her vehicle, Ms Bower used her elbow to lock the driver's door. Mr Tran who was holding a syringe in his hand tried to open the driver's door. As he was unable to gain entry, Mr Tran started banging on the driver's window with the palm of the hand in which he held the syringe. While doing this Mr Tran said to Ms Bower the word "money" three or four times. 12. Ms Bower, frightened and in fear for her safety and that of her two year old daughter who was in the backseat of the vehicle, realised that the other doors of the vehicle were unlocked and sped through the red traffic light to get away from Mr Tran. Shortly after Ms Bower telephoned the police and Mr Tran was detained and searched at the Sunshine Railway Station. The search located a syringe, a pocketknife and two small balloons containing heroin. 13. On 1 November 1999, Mr Tran voluntarily took part in a formal identification parade where Ms Bower identified him." At Annexure D of the Issues Paper is a memorandum dated 26 July 2001 from Senior Constable Jaason Wallace of Victoria Police dealing with the events of 6 October 1999. A summary of the facts, substantially to the effect of the passage quoted in [6] above, is attached. The memorandum states, amongst other things: "1. On 11/04/2000 this matter was finalised at the Melbourne Magistrates Court which resulted in imprisonment of TRAN…. 2. The primary charge of attempted armed robbery was withdrawn solely due to the principle [sic] victim in this matter refusing to attend court due to her traumatisation from the incident." Also included in the Issues Paper are certified extracts of convictions of the appellant at the Melbourne Magistrates Court on 11 April 2000, one of which records "Defendant at SUNSHINE on 6/10/1999 did commit a breach of Act 7405.24.2 ASSAULT WITH WEAPON". 7 It was submitted that the allegations concerning the events of 6 October 1999 and made in the Issues Paper were not the subject of any charge and that the summary attached to Senior Constable Wallace's memorandum refers to matters in respect of which the appellant was not convicted. The appellant was not convicted of robbery in respect of the events of 6 October 1999. It was submitted therefore that the Issues Paper was inaccurate and misleading and that irrelevant matters may have been taken into account and relevant matters may not have been taken into account. The Issues Paper may "suffer from imbalance resulting in a failure of natural justice". 8 However it seems clear that the appellant was convicted in relation to the events of 6 October 1999, but on the lesser charge of assault with a weapon. From Senior Constable Wallace's memorandum it appears that the more serious charge of attempted armed robbery was withdrawn because of the non-appearance of the victim. The inference is that the appellant pleaded guilty to the lesser offence. But there is no substance in the argument that the Issues Paper was wrong in stating that the appellant was convicted for his conduct on 6 October 1999. He was also convicted on 11 April 2000 at the Melbourne Magistrates Court of robbery, but this was in respect of an offence committed on 28 May 1999 at Springvale. Sentencing remarks of Judge Anderson 9 The other ground of alleged jurisdictional error is said to arise from the treatment in the Issues Paper of the sentencing remarks of his Honour Judge Anderson in the County Court at Melbourne on 20 June 2002. In par 31 of the Issues Paper it is said: "In his sentencing remarks his Honour Judge Anderson of the County Court said the following with regard to the offences for which Mr Tran was convicted on 20 June 2002:" There then follows a quotation from the sentencing remarks extending for about a page. The sentencing remarks in full appear as Annexure E. They are as follows (those parts which appear in the quotation at par 31 are underlined): "HIS HONOUR: Tran Doi Bui has pleaded guilty to two counts of armed robbery (maximum penalty 25 years' imprisonment) and two counts of intentionally cause injury (maximum penalty ten years' imprisonment). The offences were committed at the high rise flats in Richmond. One of the victims, a schoolboy, lives at the flats. He and three school friends were returning home from school on 4 June 2001 at about 4.00 p.m. They entered the flats. The four boys entered a lift, the offenders followed. The prisoner produced a pair of pliers and asked for money. The offenders included the prisoner, a co-offender, Shane Paul Victor, and another man who has not been identified. Further demands were made for money and a boy's wallet and blazer. The prisoner took $50 from the wallet. He punched one of the boys in the face and elbowed the second boy in the chin. Later, when the prisoner tried to take one of the boy's watch, he punched him in the eye and further punched him. He tried to kick the other boy and punched him in the mouth causing three of his teeth to be slightly pushed in. The counts of armed robbery relate to the taking of the blazers and wallets from each of the boys and the counts of intentionally cause injury relate to the punching of each of the two boys. All of the items were recovered except for $50 cash. The boys' blazers were damaged. The prisoner was arrested. The pliers were found. He admitted they belonged to him. A record of interview was conducted. He said he could not recall the incident that day because of his drug use. The prisoner has a long term drug problem and has a large number of previous convictions for drug offences mainly relating to heroin. I was informed by his counsel, Mr Lavery, that on the day of the offending he had been using a prescription drug, Normison, as a substitute for heroin and the drug was injected by him. It was apparently only the second time he had used the drug and it had a serious effect upon him. I was also informed that at the time of the offending he was upset because a person whom he had lent a significant sum of money had gambled the money away. The co-offender, Shane Paul Victor, pleaded guilty on 4 December 2001 before His Honour Judge R.P.L. Lewis. He faced two counts of robbery relating to the incidents which comprised the first two counts before me and two further counts of theft which related to the theft of a motor vehicle and the contents of the vehicle. In respect of the counts of robbery Victor was sentenced on each count to imprisonment for one year. On the additional theft counts, he was sentenced on each count to three months' imprisonment. In respect of the robbery convictions six months of the second robbery conviction was made cumulative on the first period of imprisonment. In addition the second of the sentences for theft of three months was also made cumulative making a total of 21 months' imprisonment of which nine months was to be served immediately and 12 months was suspended for a period of three years. Each of the victims has filed a Victim Impact Statement. The statements were before His Honour Judge Lewis at the time of the sentencing Shane Victor. Both of the victims indicate that apart from their physical injuries they have also been effected [sic] by the assaults upon them. The boys were aged 13 and 14. The boy who lived at the flats said his friends no longer feel safe to visit him at the flats and he is reluctant to venture out of the flat apart from his attendance at school. Both say they do not feel safe at other times. The prisoner is aged 25. He was born on 12 December 1976 in Vietnam. His father came to Australia before the prisoner was born. He has no memory of his mother. She left him shortly after his birth. When he was aged about 13 or 14, his father returned from Australia and brought him to Australia. He moved in with his father and step-mother who worked as sewing machine operator. He attended language courses and the Brunswick Secondary College to Year 9. I was informed by his counsel, Mr Lavery, that although he was capable of going further he was involved with other young men and had been getting into trouble primarily because of the time he spent on the streets and because of his drug use. He commenced smoking heroin at about the age of 15 or 16. He has an extensive criminal history from about the age of 17 involving 16 appearances in the Magistrates' Court for a total of 57 convictions including 21 convictions for drug matters. On 11 April 2000 he was convicted in the Magistrates' Court at Melbourne of a number of offences including assault with a weapon and robbery. As a result he was sentenced to a total of 16 months imprisonment with a minimum to serve of ten months. By the time he was sentenced he had apparently served an extensive period in custody and had been released some months before the present offending. No breach of parole is involved in the present offending. A number of other offences were dealt with on 30 May 2002 in the Magistrates' Court at Melbourne. He was sentenced on that day to six months' imprisonment. He had been in custody from 15 June 2001 until he was sentenced for the other offences. At the end of May he had served 350 days per-sentence detention in respect of the present offences. During the plea I was informed that a young woman in court was a person with whom the prisoner has had a relationship for some time including prior to his incarceration. She has maintained telephone contact whilst he has been in prison although she has not been allowed to visit him. The reason for this is unclear although she apparently has a prior conviction herself. She has a five year old daughter and I was informed that before he went into custody the prisoner had assumed some responsibility for the child during the four or five months he had lived with his partner. Mr Lavery conceded that the sentence imposed on the prisoner must bear some relationship to the sentence imposed on the co-offender by His Honour Judge Lewis. Victor had eight prior appearances before the Magistrates' Court between January 1995 and January 2001 for a total of 17 offences including driving matters and offences involving drugs and dishonesty. Victor had one conviction for making a threat to inflict serious injury for which he was sentenced to three months' imprisonment as part of an aggregate term of imprisonment of six months in September 1998. There are a number of similarities between the two offenders. They both had heroin addictions, they both have prior convictions. There are, however, some differences. The prisoner has pleaded guilty to two counts of armed robbery because he was in possession of a pair of pliers whereas Victor was charged with robbery and it was accepted that Victor was unaware that the prisoner had a pair of pliers. I have referred to the two counts of theft for which Victor was dealt with. The prisoner faces two counts of intentionally causing injury. It appears that during the incident he was the primary aggressor and the person who inflicted injury on both of the victims. One of the victims notes in his police statement that the offender who can be identified as Victor punched him in the face a couple of times. There is no reference in the police statement of the other victim to any offender inflicting any physical violence apart from the prisoner. The pleas were made by Victor on 24 August 2001 at the time of the committal mention whereas the prisoner's pleas were indicated on 17 May 2002. I have referred in general terms to the nature and extent of the prior convictions of each of the offenders. His Honour Judge Lewis heard evidence from Victor's elder brother who runs a business in Portland and with whom Victor had been living and working prior to being sentenced. His Honour, in sentencing Victor, referred to his "relative youth and the compelling evidence of your brother [which] have persuaded me that you do have some prospects of rehabilitation". Mr Lavery submitted that it was an appropriate case to be adjourned so that a pre-sentence report in the form of a psychological or psychiatric assessment could be undertaken. I indicated at the time I considered, in light of the fact that it was inevitable the prisoner would be sentenced to a significant period in gaol, that such an assessment would be inappropriate at this stage. However, in view of the matters raised in the plea, it would be appropriate to ensure that the prison authorities are made aware of those matters so that the maximum advantage can be taken by the prisoner of the time he will inevitable [sic] spend in custody. To that end a copy of my sentencing remarks, when revised, will be sent to both the prison authorities and to the Adult Parole Board. The matters referred to by Mr Lavery were the disrupted upbringing of the prisoner, the fact that he has only one family member in Australia, his father, with whom apparently he lost contact soon after his incarceration; his extensive offending record since shortly after he came to Australia; his limited education; his involvement in the drug sub-culture; the lack of success of all efforts at rehabilitation in the past notwithstanding the fact that on a number of occasions court orders provided opportunities for treatment and rehabilitation. Mr Lavery also informed me that the time the prisoner had spent on remand had been difficult for him because it was the longest period he had spent in gaol. He submitted that the fact his partner had maintained contact during this period indicated there was some substance in the relationship and perhaps provided some hope for the rehabilitation of the prisoner in the future. The prosecutor, Mr Robinson, submitted the respective roles of the offenders were different primarily because of the more serious offences of armed robbery the prisoner faced and further charges of intentionally causing injury. The prisoner has a worse criminal history and because of these differences and the early plea by Shane Victor, it is appropriate and indeed necessary that the prisoner receive a more severe sentence. The prosecutor also referred to the fact that the offences were committed on 13 or 14 year old boys, and money was demanded with threats in a public place. A weapon was used and each of the boys was physically assaulted and injury resulted. The offending is very disturbing. It occurred at the high rise flats in Richmond where large numbers of people live in reasonably close proximity. They are entitled, as are their visitors, to feel that they are secure in their own homes and the environs. The offending was no doubt a result of the drug addiction of the offenders. Whilst this provides an explanation, it provides no excuse. The prisoner has a long and extensive history of criminal behaviour including many drug and dishonesty offences. There is the previous conviction I have referred to for robbery and assault with a weapon. It is appropriate that the sentence I impose reflect the demands of both general deterrence, specific deterrence and appropriate punishment in all the circumstances including the sentence imposed on the offender by His Honour Judge Lewis. Stand up please, Mr Tran: on Count 1 you will be convicted and sentenced to two years' imprisonment. On Count 2 convicted and sentenced to two years' imprisonment. Count 3 convicted and sentenced to six months' imprisonment. Count 4 convicted and sentenced to six months' imprisonment. Nine months of the term of imprisonment on Count 2 and three months of the term of imprisonment on Count 3 are to be served cumulatively upon the term of imprisonment imposed on Count 1. The total effective sentence s three years' imprisonment and I direct that you serve 21 months before you become eligible for release on parole. So that is a head sentence of three years and a minimum sentence of 21 months. I make a declaration in relation to 350 days pre-sentence detention. I make a disposal order in relation to the pliers. An order was sought by the prosecutor pursuant to s.464ZF of the Crimes Act, directing that the prisoner undergo a forensic procedure for the taking of an intimate sample from his body limited to a saliva sample, which order was not opposed. I will make the order in relation to the prisoner and I will publish separate reasons for that decision. I am required to inform you that to enable the forensic procedure to be conducted a member of the police force may use reasonable force for that purpose. Be seated please. Do you have copies of those orders? MR ROBINSON: Yes I do, Your Honour, there is [sic] three copies of each order, one for the record and then to be returned --- HIS HONOUR: Are there any other matters, Mr Robinson? MR ROBINSON: I don't think so, Your Honour. If I could just perhaps indicate, Your Honour, my learned friend just raised the question of whether the sentence would be automatically concurrent with the sentence he received on 30 May and I have just checked the Sentencing Act. That does appear to be the case and that is probably what Your Honour intended as well. HIS HONOUR: Yes: I think it is necessary that I specifically relate the non-parole period that I have imposed. I must say that that is a matter I had overlooked. It is necessary for me to - is it necessary for me to set a non-parole period? MR ROBINSON: No, Your Honour: it is s.16(1) of the Sentencing Act indicates that unless otherwise directed a sentence will be served concurrently with any uncompleted sentence so that this sentence will just be served concurrently with that Magistrates' Court sentence and that appears to me to be a reasonable outcome. HIS HONOUR: Thank you, Mr Robinson. That is certainly the effect so that the sentence I impose will by operation of the Sentencing Act be served concurrently with the sentence imposed on 30 May and he will be eligible to be released on parole in 21 months taking into account the period of pre-sentence detention. MR ROBINSON: If Your Honour pleases. HIS HONOUR: Mr Tan [sic] can be taken down." 10 In general the complaint of the appellant was similar to that made in Re Minister for Immigration and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 at [16] where it was said that the prosecutor (ie the person seeking constitutional writs) "had not the opportunity to see how the authors of the submission had 'distilled' the relevant material and commented on it". 11 The majority, Gleeson CJ, Gummow and Heydon JJ (with whom on this point McHugh J agreed at [59] and the dissentient Kirby J at [131]-[132] did not disagree), seemed to doubt the conceptual basis of this argument. Their Honours said at [21]: "Further, it does not readily appear how the principles of procedural fairness could be engaged in a manner contended for by the prosecutor. It may be accepted, as the prosecutor submitted, that his entitlement extended to the rebuttal, and comment by way of submission of, adverse material received by the decision maker from other sources. That stops short of supporting a complaint of the nature essentially involved here of the 'pitch' or 'balance' in the statement of relevant considerations in the submission." 12 To my mind, the concept of natural justice, at least in the context of an allegation of jurisdictional error, does not require the court to engage in a kind of sub-editing process whereby a person affected can argue that material submitted to the decision-maker (being material of which the person is aware) could have been arranged more persuasively for his or her benefit. 13 In the present case it was said that the presentation of the trial judge's sentencing remarks at par 31 would lead to the belief that full substance of the sentencing remarks were set out in that paragraph with some small excision after the reference to the victim impact statement. 14 I see no reason to assume that the Minister would ignore the full text of the sentencing remarks set out at Annexure E. I do not read Naidu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 184 as laying down any rule or presumption that this would have been the case. 15 It is apparent at a glance that par 31 does not purport to set out the whole of the sentencing remarks. It is inherently unlikely that a judge's sentencing remarks would commence "The four boys entered a lift, the offenders followed". At four places in the body of the Issues Paper (pars 22, 32, 39 and 82) it is stated that the transcript of the County Court proceedings are in Annexure E. In any event, the parts quoted at par 31 give a fair indication of the nature of the offence and the view his Honour took of it. 16 It was said at par 32 of the Issues Paper: "His Honour Judge Anderson sentenced Mr Tran to a term of imprisonment of 3 years with a non parole period of 21 months. In a separate trial, His Honour Judge Lewis sentenced Mr Tran's co-offender, Mr Shane Victor to a term of imprisonment of 21 months but suspended 12 months for a period of 3 years." 17 It was submitted that no mention is made of the fact that the term of the imprisonment imposed had regard to parity in sentencing. But as already indicated, his Honour's remarks relating to parity are fully set out in Annexure E. In any event, the relevance for present purposes of this issue may be doubted. It might be conceivably relevant if a person facing visa cancellation had received a heavier sentence than might have been expected because a co-offender had earlier received a heavy sentence. This might ground the comment that the sentence imposed, viewed in isolation, exaggerated the sentencing court's assessment of the person's criminality. However, in the present case the appellant's role in the crime was more serious than that of his co-offender, he had a worse criminal history and his plea of guilty was entered later. All these were logical reasons why he should receive a more severe sentence. 18 It was said that no mention was made of the fact that the sentences imposed in the County Court would be served concurrently with the sentences earlier imposed in the Magistrates Court. His Honour noted that pursuant to s 16(1) of the Sentencing Act 1991 (Vic), the sentence would be served concurrently with the earlier sentences. I do not see how this was of any relevance to the discretion the Minister had to exercise and in any event is apparent in Annexure E. 19 It was said that Annexure E did not contain the substance of the plea made by counsel on the appellant's behalf before Judge Anderson. But his Honour did summarise matters put on the appellant's behalf by his counsel and in any case the body of the Issues Paper contains a detailed account of the appellant's education, difficult home life, financial problems, addiction to heroin and other mitigating factors. 20 There is no statement in the Issues Paper that the influence of the drug Normison seemed to have been accepted by the trial judge. Again, his Honour makes reference to the use of Normison and certainly does not indicate that this material was rejected. There is no substance to the argument that the material in litigation was presented "not as an objective fact" but in terms of what the appellant had stated. Conclusion 21 The application will be dismissed with costs. I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate: Dated: 29 October 2004 Counsel for the Appellant: P G Nash QC and N Karapanagiotidis

Solicitor for the Respondent: Australian Government Solicitor