Citation: Dong v R, Tran v R, Nguyen v R [2010] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 14 May 2010
Judge(s): McClellan CJ at CL, Howie J, Rothman J
Background
Three appellants were convicted after a jury trial in the District Court of detaining a person without consent, in company, with intent to obtain a financial advantage, while occasioning actual bodily harm. The offence is contrary to s 86(3) of the Crimes Act 1900 and carries a maximum penalty of 25 years imprisonment. The victim was a mobile cheque casher carrying approximately $10,000 when he was attacked in a car park at the Penrith Panthers Club on 5 March 2008.
The Crown case was that two of the appellants physically attacked the victim in the car park while one remained inside the Club as the instigator. During the attack a firearm was discharged, the victim was punched and kicked, and a roll of masking tape was found at the scene. DNA matching one of the appellants was recovered from that tape at a frequency of fewer than one in ten billion in the general population.
The first appellant (Dong) challenged his conviction, arguing he received an unfair trial due to the admission of allegedly inadmissible evidence. All three appellants also sought leave to appeal against their sentences, which ranged from 8 years to 10 years and 10 months imprisonment.
Legal Issues
- Whether Dong received an unfair trial because of the use of purportedly inadmissible evidence, including DNA evidence and police interview material
- Whether the sentencing judge erred in treating "committed in company with actual use of violence" and prior convictions as aggravating factors when sentencing Tran
- Whether any error in Tran's sentence infected Nguyen's sentence so as to require it to be reconsidered
- Whether the sentencing judge should have made a finding of special circumstances in Dong's case to extend his parole period for rehabilitation purposes
Decision
Conviction appeal (Dong). The Court of Criminal Appeal dismissed Dong's conviction appeal. The DNA evidence connecting him to the masking tape found at the scene was highly probative. During cross-examination of the forensic biologist, Dong's counsel had interrupted the witness mid-explanation and did not return to the topic. The Court found no unfair trial had resulted from the evidence admitted or the way it was presented.
Sentence appeals (Tran and Nguyen). The Court rejected the argument that the sentencing judge erred in treating the offence as aggravated by being committed in company with actual violence and by reference to the appellant's prior convictions. These were findings properly open on the evidence. Because no error was established in Tran's sentence, the linked argument that Nguyen's sentence had miscarried as a consequence also failed.
Sentence appeal (Dong, special circumstances). Dong submitted that his youth (aged 26 at sentencing), drug addiction, and rehabilitation needs warranted a finding of special circumstances, which would have extended his parole period relative to his head sentence. The Court was not persuaded that the sentencing judge had erred in her discretion on this point. The Court noted that Dong had previously been given opportunities to address his offending and drug use, including a bond for possessing stolen goods that was still in force at the time of the offence, and had not taken those opportunities.
Orders Made
- Appeal by Dong against his conviction dismissed
- Leave to appeal against sentence granted to Tran, Nguyen, and Dong, but each sentence appeal dismissed
Key Takeaways
- All three appeals, including both a conviction appeal and three sentence appeals, were dismissed by the Court of Criminal Appeal, confirming the sentences imposed in the District Court.
- DNA evidence recovered from an item found at a crime scene, particularly where the match frequency is fewer than one in ten billion, can constitute compelling circumstantial evidence linking an accused to the offence.
- Where defence counsel interrupts a witness's explanation during cross-examination and does not return to the subject, the court is unlikely to find that the resulting state of the evidence rendered the trial unfair.
- A finding of special circumstances to extend a parole period for rehabilitation is a discretionary sentencing decision; a history of failing to take advantage of prior opportunities to reform is a relevant consideration weighing against such a finding.
- No error in a co-accused's sentence was established, so the derivative argument that a third appellant's sentence had miscarried as a result could not succeed.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 86(3) (detention for advantage occasioning actual bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Clarke v R [2009] NSWCCA 49
- R v Cramp [2004] NSWCCA 264
- R v Fidow [2004] NSWCCA 172
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566