R v Tran [2004] NSWCCA 366

New South Wales Court of Criminal Appeal

CITATION : R v Tran [2004] NSWCCA 366 HEARING DATE(S) : 19/10/2004 JUDGMENT DATE : 19 October 2004

JUDGMENT OF : Barr J at 19; Buddin J at 1; M W Campbell AJ at 20 DECISION : Grant leave to appeal. Allow appeal in respect of count 1. Quash the sentence imposed in the District Court and in lieu thereof sentence the applicant to 9 months imprisonment to commence on 20 January 2004 and to expire on 19 October 2004 with the balance of the term to expire on 19 April 2005. Dismiss the appeal in respect of count 2. The applicant is to be released on parole on 19 October 2004.

CATCHWORDS : Criminal law - sentencing - malicious wounding in company - assessment of discount for plea of guilty in light of strong Crown case LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Cameron v The Queen (2002) 209 CLR 339 CASES CITED : R v Sutton [2004] NSWCCA 225 R v Thomson & Houlton (2000) 49 NSWLR 383 PARTIES : Regina Thi Ngoc Tran FILE NUMBER(S) : CCA 2004/2331 COUNSEL : P Miller (Crown) C Davenport SC (Applicant) SOLICITORS : S Kavanagh (Crown) C Calomeris (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/3550 FILE NUMBER(S) : LOWER COURT Maguire DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/2331

BARR J BUDDIN J CAMPBELL AJ

TUESDAY 19 OCTOBER 2004 REGINA v THI NGOC TRAN Judgment 1 BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon her in the District Court in respect of two charges which arise from the one incident. The applicant entered pleas of guilty to those charges in the Local Court. However in order to overcome a technical defect in the charge sheets, the applicant pleaded guilty to an indictment containing two counts when she appeared for sentence in the District Court. 2 In respect of count 1, an offence of malicious wounding in company which attracts a maximum penalty of 10 years imprisonment, the applicant was sentenced to an overall sentence of 2 years imprisonment. A non-parole period of 12 months was fixed in relation to this offence. In respect of count 2, an offence of assault occasioning actual bodily harm in company which attracts a maximum penalty of 7 years imprisonment, a fixed term of 6 months to be served concurrently with the first count was fixed. In relation to count 1, a further offence of carrying a cutting instrument (an offence which was committed at the same time as the other two offences), was taken into account on a Form 1. Each of the sentences was ordered to commence on 20 January 2004. The sentence imposed upon count 2 has thus already expired. The non-parole period in respect of count 1 is due to expire on 19 January 2005. 3 The facts of the matter can be briefly stated. The victim in respect of each offence was a man named Zhou. The applicant's partner, a man named Pan, had previously worked for him. A dispute had arisen between them concerning the non-payment of monies allegedly owed to Pan by Zhou. The applicant, together with Pan and her daughter had been shopping in Cabramatta, where they had a chance encounter with Zhou at a bus stop. An argument ensued between the two men. Zhou pushed Pan and as a result the two men became involved in a fistfight. The applicant joined the fight and struck Zhou with a pencil which she was carrying at the time. Zhou grabbed the applicant by the hair in an effort to prevent her from striking him. As a result of this attack Zhou sustained lacerations to his head and scratches to his neck, face and chest. It was these events which gave rise to count 2. 4 Shortly thereafter the applicant went to a nearby shop and purchased a knife. Zhou, who had remained in the vicinity, then saw Pan and the applicant approaching with what he believed to be a knife. He then took out a multi-tool from his pocket. He opened the two knife blades which were contained in it and held it behind his back. The applicant then took out the knife and ran across the road at Zhou. Although Zhou then retreated, Pan and the applicant followed him. The applicant lunged at Zhou with the knife. Thereafter there was a verbal exchange, following which Zhou folded up the blades in his multi-tool. Eventually Zhou grabbed the blade of the knife and all three fell to the ground in a struggle. It was during the course of this incident that Zhou received multiple stab wounds. Two lacerations to his left hand and one to his head required sutures. It was these events which gave rise to count 1. 5 The sentencing judge described the incident in the following terms: It is clear that the offender having failed to do any serious damage with the pencil, returns to the scene of the affray having armed herself with a more potent weapon. She then proceeds to attack her victim with greater resolve and vigour. Whilst he backs away from her over a considerable distance, it is clear that she never takes a backward step. She is advantaged by the presence of her accomplice. 6 The applicant fully admitted her involvement in the incident when interviewed by police. She told them that she had become involved because Zhou had attacked her boyfriend and that she had gone to his assistance. She said that he had also pulled her hair and had hit her. She said that she had also been concerned to protect her young daughter. 7 The applicant, who was aged 24 at the time of sentencing, had no prior convictions of any kind. She came to Australia from Vietnam in 1988 after having spent some time with her family in a refugee camp in Thailand. She lived for an extended period with her maternal grandmother because there was considerable friction in the household between her parents, each of whom has had mental health problems. 8 The applicant left school at the age of 13 after having acquired only the most rudimentary education. However prior to her incarceration she commenced a reading and writing course at a local community college. Her childhood was significantly disrupted and for a period of time she lived on the streets. She now has two children, the elder having been born when she was but 15 years of age. She has worked intermittently and then only in fairly menial labouring jobs. 9 The applicant's grandmother, to whom she was very close, died in 2000. In early 2001, the father of her children died in a car accident in which she and the children were also travelling. The applicant experienced considerable problems in coming to terms with his death and began taking anti-depressant medication to alleviate the symptoms caused by her reaction to his death. She also reported not eating or sleeping properly. It is in that context that part of her explanation for involving herself in this incident, namely her belief that it was necessary to intervene in order "to avoid losing another significant person in her life", is to be viewed. 10 The author of the presentence report observed that the applicant stated "that she was not sorry for her role in the offences and claimed that anyone would have done the same given the circumstances". To a psychologist, who also prepared a report on her behalf, the applicant said "she was surprised at the intensity of her own reactions and expressed considerable remorse over her behaviour". The applicant gave evidence in which she sought to explain the apparent inconsistency in her answers. It is unnecessary to refer to that evidence in any detail. Suffice it to say that the sentencing judge was not persuaded, in light of all the material which was in evidence, that the applicant was contrite. His Honour concluded, in relation to the first count at least, that "she was seeking vengeance and that she regarded that as being her right. I also find that she does not regret her actions." That finding has not been challenged in this court. 11 The sentencing judge concluded that no sentence other than one involving full-time custody could be contemplated. Nevertheless his Honour concluded that the applicant would benefit from an extended period of supervision whilst on parole. Accordingly, his Honour made a finding of "special circumstances" which was reflected in the manner in which the sentence imposed in respect of count 1 was structured. 12 The principal contention advanced on behalf of the applicant is that the sentences imposed were manifestly excessive. Because, as I have observed, the sentence in respect of count 2 has already expired, the focus of the submissions has been confined to the sentence which the applicant is currently serving. 13 The main thrust of the complaint is directed to the following passage from the sentencing judge's Remarks on Sentence. His Honour said: I have taken into account on the question of sentence the pleas of guilty entered. However, I pay little regard to them in view of the overwhelming strength of the Crown case, the offences from beginning to end having been recorded on quite clear coloured television. 14 The sentencing judge did not otherwise refer to the question of what discount (if any) was to be extended to the applicant on account of her pleas of guilty. 15 This Court made it apparent in R v Thomson & Houlton (2000) 49 NSWLR 383 that, whilst the strength of the Crown case may be a relevant consideration in an assessment of whether or not a particular offender is contrite and thus entitled to a discount on that basis, it has nothing to do with an assessment of the utilitarian value of the plea of guilty. To treat the strength of the Crown case as bearing upon this latter consideration has been held in a succession of cases since Thomson & Houlton to reveal error. See R v Sutton [2004] NSWCCA 225 at para 12. I am persuaded that the sentencing judge in the present case has fallen into error of that kind. There can be no suggestion that the sentencing judge was referring, in the passage to which I have just referred, to the strength of the Crown case in the context of assessing how it bore upon the question of the applicant's remorse, because his Honour had already found that she was not remorseful. 16 It is common ground that the applicant made full admissions to police and then entered pleas of guilty at the first available opportunity. Moreover, the fact that the applicant pleaded guilty spared the victim (and indeed other witnesses) from the ordeal of having to give evidence. In the circumstances, it is plainly apparent that the applicant has "facilitated the course of justice". See Cameron v The Queen (2002) 209 CLR 339. 17 The applicant was, in my view, entitled to a discount for her pleas of guilty at or towards the top of the range of 10% - 25% identified in Thomson v Houlton (supra). I am accordingly of the view that this Ground of Appeal has been made out and that the court should intervene and proceed to resentence the applicant. In doing so, I have had regard to those matters in s 21A of the Crimes (Sentencing Procedure) Act 1999 as seem to me to bear relevantly upon the sentencing exercise. I would also, as the sentencing judge did, find "special circumstances" for the reasons identified by his Honour. 18 I propose the following orders.