R v Donny Minh Tran [2004] NSWCCA 6

New South Wales Court of Criminal Appeal

CITATION : R v Donny Minh Tran [2004] NSWCCA 6 HEARING DATE(S) : 05/02/2004 JUDGMENT DATE : 5 February 2004

JUDGMENT OF : James J at 19; Buddin J at 1 DECISION : Grant leave to appeal. Allow the appeal (in part). Quash the sentence imposed in respect of count 1 in the indictment and in lieu thereof sentence the applicant to a total term of imprisonment of 3½ years consisting of a non-parole period of 18 months to date from 23 August 2004 and to expire on 22 February 2006 with the balance of the term of the sentence to expire on 22 February 2008. (The offences on the Form 1 document have been taken into account in respect of this offence). Dismiss the appeal in respect of count 2.

CATCHWORDS : Offences of aggravated robbery - question of parity with co-offenders dealt with in Children's Court. LEGISLATION CITED : Crimes Act 1900 CASES CITED : R v Boney [2001] NSWCCA 432 R v Henry (1999) 46 NSWLR 346 PARTIES : Regina Donny Minh Tran FILE NUMBER(S) : CCA 60441/03 COUNSEL : D Frearson (Crown) RJ Button (Applicant) SOLICITORS : S Kavanagh (Crown) S O'Connor (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/0400 FILE NUMBER(S) : LOWER COURT Nield DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60441/03

JAMES J BUDDIN J

THURSDAY 5 FEBRUARY 2004 REGINA v DONNY MINH TRAN Judgment 1 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court in consequence of his pleas of guilty to an indictment containing two counts, the first count being an offence of robbery with corporal violence and the second count being an offence of attempted robbery with corporal violence. These offences are forms of aggravated robbery pursuant to s 95 of the Crimes Act. Two further matters of robbery in company and attempted robbery in company respectively were taken into account on a Form 1. 2 In respect of count 2, the applicant was sentenced to a fixed term of imprisonment of 2 years and 8 months to commence on 23 August 2002 and to expire on 22 April 2005. In respect of count 1, and taking into account the Form 1 matters, the applicant was sentenced to 4 years' imprisonment to commence on 23 August 2004 and to expire on 22 August 2008 with a non-parole period of 2 years to expire on 22 August 2006. The total effective sentence was thus one of 6 years' imprisonment with a non-parole period of 4 years. Each of the four offences attracts a maximum penalty of 20 years' imprisonment. 3 Three of the offences, being the robbery with corporal violence and the two Form 1 matters, were committed during the period between 3 pm and 4.15 pm on 13 August 2002 by the applicant whilst he was in the company of three juveniles whom I shall refer to as JW, RP and AC respectively. The final offence, the attempted robbery with corporal violence which was committed by the applicant acting alone, occurred on 23 August 2002. 4 The victims were all aged 14 or 15 at the time. The victim of the first offence in time (which gave rise to one of the Form 1 matters) was a schoolboy whom I shall refer to as DC. He was accosted by a group of young men which included the applicant. The applicant grabbed the victim around the neck. At the same time one of the co-offenders made a demand that he hand over his mobile phone. When he refused to do so he was punched as a result of which he fell to the ground. Whilst he was on the ground he was kicked. His schoolbag was taken from him although he recovered it and its contents. 5 The victim of the second offence in time (which gave rise to count 1) was accosted by the same group of offenders. A demand was made for his mobile phone. When he replied that he did not have one, a demand was made for his wallet. When he did not hand it over, he was punched by one of the applicant's co-offenders. When an elderly man arrived on the scene, the victim fled. However he was followed and knocked to the ground. Whilst he lay there, he was kicked a number of times by various of the offenders and his wallet and schoolbag were taken. Although he recovered his bag, he never recovered his wallet or its contents. The applicant shared in the proceeds of the offence which amounted to $60. 6 The victim of the third offence on 13 August (the other Form 1 offence) was also accosted by the same group of offenders. A demand was made of him for his wallet and telephone. He handed over his wallet which contained $20 in cash but not his telephone. He was then searched and a telephone which was located in his pocket was taken from him. Another offender located a second telephone in his schoolbag and it was also taken. The victim was then punched a number of times by a number of the offenders. The phone was sold for $150 and the applicant received $50 from the proceeds of that sale. 7 The offence giving rise to count 2 occurred, as I have said, on 23 August. The victim was the same victim (DC) as was involved in the first of the offences committed on 13 August. The applicant confronted DC and threatened to hit him with a bottle which he was holding. He demanded that the victim hand over his mobile phone. The victim said that he did not have one. The applicant then demanded that the victim hand over a necklace which he was wearing. When the victim refused, the applicant attempted to forcibly remove it. The victim was pushed to the ground by the applicant who then started to kick him. A violent struggle ensued which was broken up by a police officer who arrived on the scene. The applicant was then arrested. When he was interviewed by police, he made full admissions to his involvement in all of the offences. 8 The applicant was just under 20 years of age at the time of these offences. He was born in 1982, following his family's arrival from Vietnam in Australia in 1978. There was evidence that he had been subjected to a strict upbringing by his father which included the infliction of violence by him. The applicant had been dependent upon heroin for some time and the offences were committed against that background. 9 The sentencing judge took into account various matters of a subjective nature. In particular his Honour had regard to the applicant's age and to his pleas of guilty for which he allowed a discount of 20%. He also found that the applicant had demonstrated contrition and that he had provided police with information in relation to other offences in which he was not involved. His Honour made a finding of "special circumstances" on account of the applicant's age. His Honour then structured the sentences in such a way as to reflect the principles of totality. 10 The applicant contends that the sentences imposed were, in their overall effect, manifestly excessive. It was submitted that given the applicant's subjective features and in particular his youth and pleas of guilty, the sentencing judge's starting point, before making due allowance for those features of the case, was too high. It was also submitted that the offences themselves were unprofessional and opportunistic rather than planned. 11 I do not accept that submission. These offences were brazen and were committed upon vulnerable young victims. Each of the victims was injured albeit not seriously. The sentencing judge remarked that "[t]he last offence [in time] was committed by the offender acting alone. The sheer audacity of the offence shows the boldness of the offender and the fear that the first offence instilled in the victim". There were four offences in all, albeit that two were on a Form 1. The applicant had a number of prior convictions and had previously spent time in gaol. Of particular significance is the fact that he had prior convictions for offences of armed robbery. Moreover he was on parole for such offences at the time of the commission of these offences. That was a significant matter of aggravation. In my view, the sentences imposed were well within the range indicated by this Court in R v Henry (1999) 46 NSWLR 346. 12 Complaint is also made that the sentencing judge failed to appropriately take into account various matters in the applicant's background. In my view there is no substance in this submission particularly in light of the conclusion which I have just expressed about what is asserted to be the manifestly excessive sentences. 13 Finally, the applicant submits that he entertains a justifiable sense of grievance by reason of the sentences imposed upon his three co-offenders in whose company he committed the offences on 13 August. For that purpose the Court has been provided with information in relation to the circumstances surrounding the sentences imposed upon the co-offenders which supplements in important respects the material which was placed before the sentencing judge. The offender, JW, was aged 17 years 10 months at the time of these offences. He had some prior criminal record. He was dealt with in the Children's Court and was sentenced to a control order of 15 months with a non-parole period of 6 months both in respect of the offences which were committed in common with the applicant as well as for a number of other offences of a similar nature. RP was aged 16 years and 11 months at the time. He was dealt with in the Youth Drug Court and was placed on probation for a period of two years. He was also sentenced in respect of offences other than those committed in company with the applicant. At the time of sentence he had only a minor criminal record, although he was in breach of a bond imposed in the Children's Court for an offence of take and drive a conveyance. He subsequently breached the probation orders and was sentenced to a control order of 8 months of which he was to serve 4 months in custody. The charges against AL, who was aged 15 at the time, were dismissed. 14 The submission was formulated in the following fashion: [E]ven allowing for the different ages, and the different regimes pursuant to which the applicant and the co-offenders were sentenced, the difference between the three results is too pronounced.… The applicant does not submit that he should have received the same as or less than the co-offenders. Rather, the applicant submits that his sentence of four years on count one is so much heavier as to constitute error. 15 In R v Boney [2001] NSWCCA 432 this Court set out the relevant principles to be applied in a case such as the present. Wood CJ at CL, with whom Grove J agreed, said that: there is no longer an inflexible rule that there is no utility in comparing sentences imposed upon co-offenders who are separately dealt with: one in the Children's Court and the other as an adult. See R v Govinden 106 A Crim R 314 and R v Colgan (1999) NSW CCA 292 . Whilst it is true that there are different sentencing objectives and considerations applicable in the Children's Court, which do limit the worth of any such comparison, it would have been appropriate for his Honour to have paid some regard to that sentence. (at para 14) 16 A little later his Honour made the following additional observations: Two further matters of sentencing principle do arise for consideration and application in this case. Firstly, where there is a degree of disparity as to invite a reduction in the sentence imposed, it is not necessary for this Court to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved. In that regard, Simpson J said in Regina v. Steel NSW CCA 17 April 1997: "The frequently cited passage from the judgment of Mason J ( Lowe ) is not authority for the proposition that, in any case where such disparity is shown, a Court of Criminal Appeal must reduce a co-offender's sentence to one which is inadequate. It is authority for the proposition that, in an appropriate case, taking into account all of the circumstances, including the existence of a justifiable sense of grievance in the more heavily sentenced co - offender, the appellate court has a discretion to do so." The second relevant principle is that a stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one. See the observations to that effect by Hunt CJ at CL in Regina v. Diamond NSW CCA 18 February 1993. Further, as was made plain, for example, in Hopper NSW CCA 19 November 1998: "Where a co-accused has received a comparatively more lenient sentence than the applicant a Court may exercise its discretion by declining to interfere because it does not wish to duplicate what seems to have been gross error in the sentencing of the applicant's co-offender." (at para 15-16) 17 I have come to the view that the applicant has made good his submission in relation to this ground and that the Court should proceed to resentence him at least in relation to the three offences which he committed in company with his co-offenders (namely count 1 together with the matters on the Form 1). Nevertheless I am of the view that any adjustment should be relatively modest particularly having regard to the matters to which this Court adverted in Boney. In proceeding to resentence the applicant I have had regard to the additional material which has been placed before the Court which demonstrates that he made excellent progress whilst he has been in custody. 18 I propose the following orders: