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Court of Criminal Appeal 29 October 2002

R v Van Tran

[2002] NSWCCA 440

Also reported as (2002) 134 A Crim R 577
Assault & violence
CRIMINAL LAW PROCEDURE SENTENCING GUILTY PLEAS UTILITARIAN VALUE DISCOUNT

Citation: R v Van Tran [2002] NSWCCA 440
Court: NSW Court of Criminal Appeal
Date: 29 October 2002
Judge(s): Dunford J; Kirby J

Background

Two applicants pleaded guilty in the District Court to maliciously inflicting grievous bodily harm, contrary to s 35(1)(b) of the Crimes Act 1900, an offence carrying a maximum penalty of seven years imprisonment. Each also asked the sentencing judge to take into account a further, similar offence on a Form 1 schedule under s 32 of the Crimes (Sentencing Procedure) Act 1999.

The offences arose from a premeditated revenge attack. The applicants, believing a man named Khan Do had shot them eleven days earlier, organised a group of armed men to attend Do's home in Cabramatta. The attackers fired 27 cartridges at two men sitting on the front verandah, seriously wounding both. The applicants were identified as the instigators and procurers of the attack, rather than the shooters themselves.

Judge Shadbolt in the District Court sentenced each applicant to four years imprisonment with a non-parole period of three years. The applicants sought leave to appeal, arguing that the sentencing judge had failed to articulate his reasoning with sufficient specificity.

  • Whether the sentencing judge was required to state an explicit starting point from which adjustments were made for subjective features such as rehabilitation prospects and personal hardship.
  • Whether the sentencing judge was required to quantify the discount given for the pleas of guilty separately from other sentencing factors.
  • Whether the sentencing judge was required to specify the extent to which the sentence was increased to account for the additional offence taken into account on the Form 1.
  • Whether the sentences imposed fell outside the range of a proper sentencing discretion.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed both appeals and confirmed the sentences imposed below.

On the question of specifying discounts, the Court drew an important distinction. Following R v Thomson and R v Sharma, a sentencing judge is required to explicitly acknowledge a guilty plea and is encouraged to quantify its utilitarian value, with a discount in the range of 10 to 25 per cent being the norm. However, outside of assistance to authorities and the utilitarian value of a guilty plea, the instinctive synthesis approach continues to apply. Courts are not required to assign specific numerical allowances to individual subjective features such as rehabilitation prospects, personal difficulties, or the gravity of a Form 1 offence.

The Court reasoned that because the sentences imposed (four years) were clearly lower than what the offending warranted on its face, it was self-evident that the sentencing judge had applied a discount for the pleas of guilty. Working from a starting point of five and a half to six years, and allowing a 25 per cent discount for the pleas, the resulting head sentence of approximately four to four and a half years was consistent with the four-year sentence actually imposed. The Court confirmed that a judge who refers to relevant subjective matters in their remarks on sentence is presumed to have taken them into account, without needing to specify the weight attributed to each.

The Court also noted that a Form 1 offence of comparable seriousness cannot be treated as warranting only a token increase in sentence. The sentencing judge was obliged to give due recognition to the gravity of the additional offence, and the Court was satisfied that the overall sentence achieved this.

Orders Made

  • Leave to appeal granted.
  • Appeals dismissed.
  • Sentences confirmed.

Key Takeaways

  • The instinctive synthesis approach to sentencing remains valid in NSW, except in respect of two specific matters: assistance to authorities, and the utilitarian value of a guilty plea. Those two elements require explicit acknowledgment and, where possible, quantification.
  • Under the guidelines affirmed in R v Thomson, the utilitarian value of a guilty plea should generally attract a discount in the range of 10 to 25 per cent, but a sentencing court is not required to itemise adjustments for other subjective factors such as rehabilitation prospects or personal background.
  • Where a sentencing judge refers to subjective matters in their remarks on sentence, the Court of Criminal Appeal will generally treat those matters as having been taken into account, even without further elaboration on the weight assigned to them.
  • A Form 1 offence that is serious in its own right must receive genuine recognition in the overall sentence. An otherwise appropriate sentence cannot be only marginally increased when the scheduled offence is of comparable gravity.
  • In dismissing the appeals, the Court of Criminal Appeal reaffirmed that appellate intervention in sentence is only warranted where the sentence falls outside the range of a proper sentencing discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Thomson [2000] NSWCCA 309, 49 NSWLR 383
- R v Sharma [2002] NSWCCA 142, 54 NSWLR 300
- R v Gallagher (1991) 23 NSWLR 220
- R v Barton [2001] NSWCCA 63, 121 A Crim R 185
- R v Harris [2001] NSWCCA 322, 125 A Crim R 27
- R v Bavandra [2000] NSWCCA 292, 115 A Crim R 152
- R v Morgan (1993) 70 A Crim R 368
- R v Astill (No 2) (1992) 64 A Crim R 289
- R v Beavan (unreported, CCA, 22 August 1991)
- R v Lett (unreported, CCA, 27 March 1995)
- R v Place [2002] SASC 101