Citation: Regina v Quynh Van Tran [2002] NSWCCA 117
Court: New South Wales Court of Criminal Appeal
Date: 22 March 2002
Judge(s): Dunford J; Carruthers AJ
Background
The applicant, a Vietnamese-born welder who had arrived in Australia in 1991 following time in a refugee camp, sought leave to appeal against sentences imposed by Judge Black QC in the Parramatta District Court on 8 August 2001. He had pleaded guilty to one count of demanding property with menaces with intent to steal under s 99(1) of the Crimes Act 1900, which carries a maximum penalty of ten years imprisonment. He also admitted breaching a good behaviour bond that had been imposed in relation to an earlier offence of break, enter and steal under s 112(1) of the same Act.
The sentencing history was convoluted. The original break, enter and steal offence had attracted a community service order, which was subsequently converted to a good behaviour bond after the applicant failed to complete the order. The bond was then breached when the applicant failed to engage with supervision by the Probation and Parole Service and refused to participate in drug and alcohol counselling.
At sentencing, Judge Black QC imposed an overall term of two years imprisonment but declined to fix any non-parole period. The judge's stated reason was that the structure of the sentence, which included a consecutive six-month term for the bond breach, made a non-parole period inappropriate. The applicant challenged that reasoning before the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge erred in law or in fact by declining to fix a non-parole period
- Whether the judge's stated reason for declining to set a non-parole period was a valid sentencing consideration
- If error was established, what non-parole period, if any, was appropriate given the applicant's history of non-compliance with supervision conditions
Decision
The Court of Criminal Appeal found that the sentencing judge's reason for declining to fix a non-parole period was an erroneous consideration. The judge had structured the sentence so that a six-month term for the bond breach ran consecutively to an eighteen-month term for the principal offence, then used that structure itself as the reason to withhold a non-parole period. The Court held this reasoning was flawed and warranted intervention.
Carruthers AJ acknowledged the Crown's submission that the applicant had demonstrated a persistent inability or refusal to comply with parole and bond conditions. The Court gave that submission significant weight but concluded it did not displace the need for a period of supervised liberty upon release. The applicant was twenty-seven years old, had an ongoing drug problem, and the Court considered it contrary to both his interests and those of the community to release him into society with no supervision at all.
The Court found no special circumstances that would warrant a non-parole period below the standard seventy-five per cent of the head sentence. Given the applicant's history, the Court was not satisfied he was entitled to more than fourteen months as a non-parole period, leaving four months on parole during which he could continue steps already taken toward rehabilitation. Material placed before the Court indicated some progress on that front, which the Court described as showing more than a glimmer of hope.
Orders Made
- The orders of Judge Black QC were quashed
- In relation to break, enter and steal: six months imprisonment from 3 June 2001 to 2 December 2001
- In relation to demanding money with menaces with intent to steal: eighteen months imprisonment commencing 3 December 2001 and expiring 2 June 2003
- A non-parole period of fourteen months fixed, expiring 2 February 2003, at which date the applicant was to be released to parole subject to the Crimes (Administration of Sentences) Regulation 2001
- Upon release, the applicant was required to place himself immediately in the hands of the Probation and Parole Service and obey all lawful directions of that Service
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing judge cannot use the structural arrangement of consecutive sentences, standing alone, as a sufficient reason to withhold a non-parole period entirely.
- A history of non-compliance with supervision and bond conditions is a weighty factor against granting a lengthy parole period, but it does not automatically justify refusing any non-parole period where the offender is young and subject to an ongoing drug problem.
- Where no special circumstances are established, a non-parole period below seventy-five per cent of the head sentence is not warranted, and the Court applied that standard in fixing a fourteen-month non-parole period out of an eighteen-month head term for the principal offence.
- In dismissing the applicant's argument for a more generous parole period, the Court nonetheless accepted that some period of supervised liberty served the community's interests as well as the offender's prospects of rehabilitation.
- Under s 99(1) of the Crimes (Sentencing Procedure) Act 1999, the proper procedure when dealing with a bond breach requires the bond to be revoked as a distinct step before re-sentencing; the Court noted the sentencing judge had not expressly followed that procedure, though it was clear from the remarks that he intended to sentence for the underlying offence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 99(1) (demanding property with menaces with intent to steal), 112(1) (break, enter and steal)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9 (good behaviour bonds), 99(1) (breach of bond procedure)
- Crimes (Administration of Sentences) Regulation 2001 (NSW)
Cases cited: No cases were cited in the judgment text.