Regina v Quynh Van Tran [2002] NSWCCA 117

New South Wales Court of Criminal Appeal

CITATION : Regina v Quynh Van Tran [2002] NSWCCA 117 FILE NUMBER(S) : CCA 60576/01 HEARING DATE(S) : 22 March 2002 JUDGMENT DATE : 22 March 2002

PARTIES : Regina v Quynh Van Tran JUDGMENT OF : Dunford J at 1; Carruthers AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/0196; 99/21/0087 LOWER COURT JUDICIAL His Honour Judge Black QC OFFICER :

COUNSEL : Crown - W.G. Dawe QC Applicant - A. P. Cook SOLICITORS : Crown - S.E. O'Connor Applicant - D.J. Humphreys CATCHWORDS : Sentence appeal - whether sentencing judge erred in declining to fix a non-parole period. Crimes (Sentencing Procedure) Act 1999, s 9, s 99(1) LEGISLATION CITED : Crimes Act 1900 ss 99(1), 112(1) Crimes (Administration of Sentences) Regulation 2001 DECISION : Appeal upheld. See pars 17 and 18.

IN THE COURT OF CRIMINAL APPEAL 60576/01

DUNFORD J CARRUTHERS AJ

Friday, 22 March 2002 REGINA v Quynh Van TRAN Judgment 1 DUNFORD J: I agree. The orders of the Court will be as proposed by Acting Justice Carruthers. 2 CARRUTHERS AJ: This is an application by Quynh Van Tran for leave to appeal against sentences imposed upon him by his Honour Judge Black QC at the Parramatta District Court on 8 August 2001. 3 There is a somewhat convoluted history to this matter which I shall endeavour to truncate as follows. The applicant, who is of Vietnamese origin, was born on 2 June 1974 and is a welder by occupation. He came to this country in 1991 after, we are told, approximately three years in a refugee camp. Unfortunately, his criminal career in this country started in May 1995 albeit prior to being dealt with for these matters he had only served one short period of imprisonment. 4 On 27 June 2001 the applicant pleaded guilty in the Parramatta District Court to one count of demand property with menaces with intent to steal pursuant to s 99(1) of the Crimes Act 1900, which carries a maximum penalty of ten years imprisonment. 5 He also admitted a breach of a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 to which I shall hereinafter refer as the Act. That bond had been imposed by her Honour Judge Karpin on 31 October 2000 at Parramatta District Court for the offence of break, enter and steal pursuant to s 112(1) of the Crimes Act 1900. 6 The applicant had originally been dealt with by his Honour Judge Howie QC in the District Court at Parramatta on 19 July 1999 for the subject offence of break, enter and steal. His Honour made a community service order of some 350 hours. The applicant failed to complete that community service order due to the fact that he committed further offences and was imprisoned in relation to those offences over the period covered by the community service order. 7 At the time Karpin DCJ dealt with the applicant he was serving a sentence of imprisonment for three months which had been imposed upon him by the Local Court at Parramatta in relation to offences described as shoplifting, goods in custody and two counts of larceny. In respect of those matters he was also fined. The imprisonment was directed to commence on 17 August 2000 and conclude on 16 November 2000. 8 This was said to explain the applicant's failure to comply with the community service order. However, that bond was breached, in summary because of the failure by the applicant to accept the supervision of the Probation and Parole Service and to participate in drug and alcohol counselling subject to their direction. 9 It is convenient now to note the following extract which constitutes most of the remarks on sentence by Black DCJ. "The background is that the prisoner has had an unfortunate start in life, through no fault of his own but it is very clear he has a very supportive family, despite their trials and tribulations and the courts in the past have leant over backwards in my view to assist him. In particular the other matter for which I have to sentence him is breach of a good behaviour bond which replaced a community service order, which was passed in respect of an offence of breaking and entering and stealing from his employer. He has significantly failed to take advantage of any of the assistance offered to him through the court services. In those circumstances it cannot be said, in my view, that there is anything amounting to special circumstances in relation to this matter, that is the section 99 offence, nor indeed to what should happen in relation to the original breaking and entering offence. The only significant point that can be made in his favour is his plea of guilty, which I accept was made early and I do bear in mind that that meant on the charge to which he pleaded guilty that offence could have been dealt with at the lower court, not that it would have been but it could have been and that is fact I bear in mind. So I have to deal with him in respect of this offence of demanding with menaces and breach of orders, one order in substance in respect to a breaking and entering offence. I assess the appropriate penalty as follows: Quynh Van Tran you are convicted of the matters before me and you are sentenced to imprisonment for a period of two years, to date from 3 June this year and expiring on 2 June 2003. I decline to set a non-parole period because of the sentence that it is appropriate to pass in respect of the breach of the bond which was imposed for breach of the community service order. The sentence I pass for that is one of six months imprisonment, to commence on 3 December 2002 and expire on 2 June 2003. In my judgment it is appropriate to make sure the breach of that bond has an impact and is not concurrent with the sentence for the present offence. Accordingly, it is an overall sentence of two years imprisonment, expiring on 2 June 2003". 10 It will be noted that his Honour did not specifically follow the procedure set out in s 99(1) of the Act in that he did not specifically revoke the bond as a preliminary step to re-sentencing the applicant in relation to the offence for which the bond was granted, namely break, enter and steal. There is no doubt however that his Honour was sentencing the applicant in respect of the break, enter and steal to which the bond related. It is also clear that his Honour was sentencing the applicant to a sentence of six months imprisonment in relation to that offence together with eighteen months imprisonment in relation to the demand money with menaces with intent to steal under s 99(1) of the Crimes Act, 1900. 11 The thrust of the application before this Court is that his Honour erred in law and in fact by declining to fix a non-parole period. The applicant's submission is simply that the reason advanced by His Honour for declining to set a non-parole period was an erroneous consideration. 12 In the absence of a non-parole period the applicant will serve continuously 27 months imprisonment and then be discharged into the community absent any supervision. It is perfectly true as Mr Dawe QC for the Crown submits that he has manifestly demonstrated an inability or refusal to comply with parole conditions which have been set, or bond conditions which have been set out earlier for him for his benefit. 13 One must give great weight to that submission but in my view however, there was plainly a need for a period of supervised liberty following his release from gaol. It should be borne in mind that he is still a relatively young man at twenty-seven years of age with an ongoing drug problem and in my view the submission by Mr Cook of counsel on behalf of the applicant is one of substance. 14 It would be neither in the applicant's interests nor in the interests of the community that he be released back into society after having served the overall sentences without being subject to at least some period of parole. 15 Full acknowledgment must of course be given to the arguments advanced by Mr Dawe, as I have said, albeit he did acknowledge that there was a substantial reason for granting some non-parole period. Mr Dawe contended however that the maximum parole period should be four months and not the period proposed on behalf of the applicant. 16 This is a difficult problem in view of the applicant's history but material that has been put before us for consideration in the event that the Court is of the view that it should intervene is indeed encouraging and shows, one would think, more than a glimmer of hope that the applicant will come to terms with his drug problem and comply with the laws of the country which provided him with refuge from what unquestionably must have been a very demanding situation prior to coming to this country. 17 There is substance, however, in the view expressed by Mr Dawe. If Mr Dawe's proposal is accepted the applicant would have four months in which further to advance the steps he has already taken in regard to rehabilitation. There are no special circumstances which would require a lesser non-parole period than seventy-five per cent of the sentence and, indeed, I am not satisfied that the applicant would, in the very special situation that exists here, be entitled to any greater reduction than a non-parole period of fourteen months. 18 I would in the circumstances propose that the orders by Black DCJ be quashed and in lieu thereof the following sentences imposed. I would propose that in relation to the break, enter and steal matter the applicant be sentenced to six months imprisonment from 3 June 2001 to 2 December 2001. In relation to the demand of money with menaces with intent to steal that the applicant be sentenced to a head term of eighteen months to commence on 3 December 2001 and to expire on 2 June 2003. 19 I would propose that a non-parole period of fourteen months be fixed to expire on 2 February 2003. On that date the applicant is to be released to parole subject to the provisions of the Crimes (Administration of Sentences) Regulation 2001 and I would propose the additional order that he place himself immediately upon release in the hands of the Probation and Parole Service and that he be required to obey all lawful directions of that Service. **********