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Court of Criminal Appeal 19 May 2011

TRAN, Hoai Vinh v R

[2011] NSWCCA 116

Homicide
CRIMINAL LAW MURDER SENTENCE FINDING THAT OFFENCE BELOW MID RANGE

Citation: TRAN, Hoai Vinh v R [2011] NSWCCA 116
Court: NSW Court of Criminal Appeal
Date: 19 May 2011
Judge(s): Whealy JA, Hidden J, Johnson J

Background

The appellant was convicted of the murder of a man who owed money to the appellant's mother and aunt. The killing occurred when the appellant attended the deceased's cafe accompanied by a co-accused, armed with a concealed knife. The sentencing judge found that the appellant had not planned to stab the deceased but had intended to assault him to extract money, taking the knife to frighten him and for use "if the situation called for it."

The deceased retaliated when the appellant initiated a physical confrontation, and the appellant stabbed him multiple times. Three chest wounds proved fatal. The co-accused, who had been brought along as "a form of support" and was unaware of the knife, was acquitted at trial.

Mathews AJ sentenced the appellant to 26 years imprisonment, with a non-parole period of 20 years (the standard non-parole period for murder), having found the offence fell within the middle range of objective seriousness. The appellant sought leave to appeal against that sentence.

  • Whether the sentencing judge erred in treating the offence as having been committed "in company" as a statutory aggravating factor under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999
  • Whether, absent that error, the offence was correctly assessed as falling within the middle range of objective seriousness for murder
  • Whether, on re-sentence, the Court of Criminal Appeal should impose a different sentence

Decision

The Court of Criminal Appeal granted leave to appeal and found error in the original sentence. The sentencing judge had applied the statutory aggravating factor of committing the offence "in company," but the co-accused's presence did not satisfy that criterion in the relevant sense. The co-accused did not know the appellant was armed and had no role in the stabbing, which undermined any basis for treating his participation as elevating the seriousness of the offence in the way the aggravating factor contemplates.

On the question of objective gravity, Hidden J, with whom Whealy JA agreed, reconsidered the matter on re-sentence. His Honour noted the stabbing involved multiple wounds, the appellant had armed himself with a knife before attending the premises, and he had initiated the violence. However, the killing was spontaneous, the appellant did not intend to cause death, and his resort to the knife was consistent with a loss of self-control in an angry state. Weighing these matters, the Court assessed the offence as below the mid-range of objective seriousness, though not far below it.

Johnson J added an observation concerning intention and culpability in murder cases. His Honour noted that while an intention to cause grievous bodily harm will generally reflect lesser culpability than an intention to kill, that is not invariably so. Circumstances can arise where an intention to inflict grievous bodily harm carries similar criminality to an intention to kill, a principle that applies under the standard non-parole period regime as much as before it.

On re-sentence, the Court declined to find special circumstances warranting a departure from the statutory ratio between non-parole period and total sentence. The appellant's criminal history, guarded rehabilitation prospects, and other subjective matters were weighed, resulting in a reduced total sentence of 24 years with an 18-year non-parole period.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Mathews AJ quashed
  • Appellant re-sentenced to imprisonment for 24 years, comprising a non-parole period of 18 years commencing 7 November 2007 and expiring 6 November 2025, and a balance of term of 6 years commencing 7 November 2025 and expiring 6 November 2031

Key Takeaways

  • The aggravating factor of committing an offence "in company" under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 was not established where a co-accused was unaware the appellant was armed and took no part in the fatal stabbing.
  • Absent the erroneous aggravating factor, the Court of Criminal Appeal reassessed objective seriousness and placed this murder below the mid-range, reducing the sentence from the standard non-parole period of 20 years to 18 years.
  • Where a sentencing judge applies a statutory aggravating factor that is not made out on the facts, that constitutes an error capable of founding appellate intervention and re-sentencing.
  • Johnson J confirmed, consistent with both pre- and post-standard non-parole period authorities, that an intention to cause grievous bodily harm does not automatically signal lesser culpability than an intention to kill; the circumstances of the particular case may place the two on a comparable level.
  • No special circumstances were found warranting departure from the statutory non-parole ratio, the Court being satisfied the resulting parole period was substantial.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Crimes Act 1900 (NSW)

Cases:
- R v Tran [1999] NSWCCA 109
- R v Button & Griffen [2002] NSWCCA 159; 54 NSWLR 455
- Huntingdon v Regina [2007] NSWCCA 196
- R v Sullivan [2010] NSWSC 755
- Apps v R [2006] NSWCCA 290
- Yun v R [2008] NSWCCA 114; 185 A Crim R 58
- Nguyen v R [2007] NSWCCA 363; 180 A Crim R 267
- Versluys v R [2008] NSWCCA 76
- Collon v R [2009] NSWCCA 187
- R v Nelson (NSWCCA, 25 June 1996, unreported)
- R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252