Citation: Dung Truong v Regina [2006] NSWCCA 71
Court: NSW Court of Criminal Appeal
Date: 30 March 2006 (corrected order: 6 April 2006)
Judge(s): Beazley JA, Adams J, Howie J
Background
The applicant, a 21-year-old man at the time of the offences, committed a series of violent armed robberies targeting taxi drivers across south-western Sydney in early 2003. The offences were committed with a co-offender and involved knives and metal poles. During one robbery, a threatened taxi driver panicked, lost control of his vehicle, and suffered serious injuries including a compound fracture to the knee and a hip fracture.
Following his arrest, the applicant made admissions to police while still hospitalised, identified his co-offender, and ultimately pleaded guilty to all charges in the District Court. He was sentenced by Judge Knight DCJ to an effective total sentence of eight years and nine months, with a minimum period of five years and nine months to be served before parole eligibility.
The applicant sought leave to appeal against sentence, relying primarily on new evidence about the extent of his assistance to police and the conditions under which he had been held in custody, including a period of 17 months spent on protection.
Legal Issues
- Whether new evidence about the applicant's assistance to police and his time spent on protection in custody warranted a reduction in sentence
- Whether there was an unjustifiable disparity between the applicant's sentence and the shorter sentence imposed on his co-offender, giving the applicant a justifiable sense of grievance
Decision
On the question of new evidence, Howie J (with whom Beazley JA and Adams J agreed) accepted that the applicant had provided genuine assistance to police and had served approximately 17 months on protection. After that period, he was moved to a minimum-security area with no restrictions on access to services or classification prospects. The court treated the relevant period warranting consideration as those 17 months on protection.
On the parity ground, the court found that the co-offender's sentence was itself lenient, and that a meaningful difference between the two sentences was justified. The applicant's offending was more serious: he faced additional charges (including the robbery with wounding), and he had been on conditional liberty at the time. The court found no appellable error in the overall sentencing approach.
However, the court accepted that a modest adjustment was warranted to recognise the combination of the assistance provided and the time served on protection. Howie J proposed a six-month reduction to the sentence for the third count, which related to the armed robbery with wounding.
After judgment was delivered, the court identified a clerical disconformity in the balance of term originally stated and issued a corrected order on 6 April 2006.
Orders Made
- Leave to appeal granted in respect of the sentence for the third count only
- The sentence for the third count was quashed
- In lieu, the applicant was sentenced to a non-parole period of 3 years and 6 months from 4 December 2004, expiring on 3 June 2008, with a balance of term of 3 years from 4 June 2008
- The applicant became eligible for release to parole on 3 June 2008
- All other sentences remained undisturbed
Key Takeaways
- New evidence on a sentence appeal, specifically about an offender's assistance to police and conditions of custody such as time spent on protection, can justify a modest reduction even where the original sentence was not otherwise shown to be in error.
- A period on protection is a recognised factor in sentence adjustment, but its weight depends on duration and the conditions actually experienced. Here, only the 17-month protection period carried weight, as the applicant was subsequently held in minimum security without restrictions.
- Parity between co-offenders does not require identical sentences. Where an applicant's offending is more serious and additional charges apply, a longer sentence than that imposed on a co-offender may be justified even if the co-offender's own sentence was lenient.
- The Court of Criminal Appeal confirmed that it will correct a disconformity between the sentence as intended and the sentence as pronounced, even after judgment is delivered.
- Under ss 97(1) and 98 of the Crimes Act 1900, armed robbery and robbery with wounding carry maximum penalties of 20 and 25 years respectively. The court treated these as serious offences warranting significant sentences even for an offender who cooperated with police and pleaded guilty.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases: No specific cases were cited in the portion of the judgment provided.