Application by Hoai Vinh Tran pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 394

Supreme Court New South Wales

Medium Neutral Citation: Application by Hoai Vinh Tran pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 394 Hearing dates: On the papers Decision date: 09 April 2014 Before: Bellew J Decision: The application is refused. Catchwords: CRIMINAL LAW - application under s. 78 of the Crimes (Appeal and Review) Act 2001 - whether doubt or question as to a mitigating circumstance - whether sentence imposed by Court of Criminal Appeal infected by Muldrock error - where applicant convicted of murder - error not made out - application refused Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Black v R [2013] NSWCCA 265 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 The Application of Joy Lorraine Knight pursuant to s. 78 Crimes (Appeal and Review) Act [2014] NSWSC 285 The Application of Victor Makarov pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 NSW [2013] NSWSC 1468 Category: Principal judgment Parties: Hoai Vinh Tran - Applicant Attorney-General for NSW - Respondent Representation: Counsel: - Solicitors: Legal Aid New South Wales - Applicant Crown Solicitor for New South Wales - Respondent File Number(s): 2013/215552 Publication restriction: Nil

Judgment

INTRODUCTION 1Hoai Vinh Tran ("the applicant") makes an application pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 ("the Act") for an inquiry into the sentence imposed upon him following his conviction for the murder of Phuoc Dang. 2The applicant was found guilty on 28 October 2009 following a trial before Mathews AJ and a jury. On 18 December 2009 her Honour sentenced the applicant to a non-parole period of 20 years imprisonment commencing on 7 November 2007 and expiring on 6 November 2027, with a balance of term of 6 years, commencing on 7 November 2027 and expiring on 6 November 2033. 3The applicant has submitted that the matter should be referred to the Court of Criminal Appeal as an appeal pursuant to the Criminal Appeal Act 1912. In making the application, the applicant has argued that there is a doubt or question as to a mitigating circumstance, namely that the sentence imposed upon him was infected by error in light of the decision of the High Court in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120. 4The principles which apply to an application such as this are set out in full in The Application of Victor Makarov pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 NSW [2013] NSWSC 1468 at [5]-[6].