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]. THE APPLICANT'S CONVICTION AND SENTENCE 5The applicant was jointly tried with Chethona Im. The jury found Mr Im not guilty of the charge of murder. 6When sentencing the applicant (see R v Tran [2009] NSWSC 1437) her Honour made a series of factual findings (at [2]-[20]) before proceeding to considering various aggravating and mitigating factors. Her Honour found at [21] that the offence was aggravated because it was committed in company and concluded (at [25]) that the offence fell generally within the middle range of seriousness. 7Her Honour then turned (commencing at [26]) to consider the applicant's personal circumstances before giving consideration (commencing at [36]) to the various factors set out in s. 21A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act"). Her Honour then concluded (at [40]): "Having considered all the evidence I can find no reason to depart from the standard non-parole period for murder, nor from the statutory nexus between the non-parole period and the balance of the sentence." 8Following his sentence, the applicant sought leave to appeal to the Court of Criminal Appeal. In doing so, the applicant advanced two grounds, namely: (i)that her Honour had erred in finding that the offence was aggravated because it was committed in company; and (ii)that it was not open to her Honour to assess the offence as falling within the middle range of objective seriousness. 9The Court of Criminal Appeal (see Tran v R [2011] NSWCCA 116) concluded (at [22]) that the first of those grounds was made out. In those circumstances, it was not necessary to consider the second ground. 10The Court then proceeded to re-sentence the applicant. Hidden J (with whom Whealy JA and Johnson J agreed) undertook a brief review of some earlier decisions of the Court in cases of sentences imposed for murder. Having done so, his Honour said (at [39]): "What emerges from these cases is what one would expect. Whether a killing was premeditated or, in any event, whether it was accompanied by an intention to kill are important questions in an assessment of where a murder lies in the range of objective gravity, but of themselves are not necessarily determinative. Invariably, there will be other circumstances in the particular case bearing on that assessment. " 11Having referred to the judgment of McClellan CJ at CL in Versluys v R [2008] NSWCCA 76 his Honour continued (at [39]): "Of course, the assessment of the objective gravity of an offence is an important aspect of any sentencing exercise, and one which requires careful consideration. For obvious reasons, this is particularly so when sentencing for offences for which a standard non-parole period is prescribed." 12His Honour then concluded (commencing at [41]) that the Court should intervene and re-sentence the applicant. In doing so, his Honour expressly had regard to the applicant's criminal history and personal background which he had earlier summarised (at [13]-[19]) before concluding (at [41]) that the appropriate sentence was a non-parole period of 18 years imprisonment with a balance of term of 6 years imprisonment, a total sentence of 24 years imprisonment. 13In Muldrock (supra) the High Court concluded (at [25]) that it was an error to categorise s. 54B(2) of the Sentencing Act as being framed in mandatory terms which required the court to use the standard non-parole period as the starting point for determining whether an offence was appropriately assessed as being in the middle of the range. The Court concluded (at [26]) that it was a mistake to give primary, let alone determinative, significance to the standard non-parole period, and held that the correct approach was to identify all relevant factors (including any prescribed standard non-parole period) and make a value judgment as to the appropriate sentence. 14Further (at [28]) the Court specifically rejected the adoption of a two-stage approach to sentencing, commencing with an assessment of whether the offence falls in the middle of the range of objective seriousness, followed by an inquiry as to whether there are matters justifying the imposition of a non-parole period which is longer or shorter than that prescribed. 15In arriving at these conclusions, the Court held that R v Way (2004) 60 NSWLR 168 had been wrongly decided. SUBMISSIONS OF THE PARTIES 16It was submitted on behalf of the applicant that Mathews AJ had clearly adopted a two-stage approach to sentencing which gave determinative significance to the standard non-parole period. 17It was further submitted that the observations of Hidden J in the judgment of the Court of Criminal Appeal (at [39]) "suggested an adherence to the two-stage approach and an emphasis on the classification of the objective seriousness of the offence". It was argued that had the Court applied what were submitted to be the correct principles in the determination of the appeal there was "a real probability" that a lesser sentence would have been imposed. 18Counsel for the Attorney-General submitted firstly, that a doubt or question as to any mitigating circumstance could not arise by reference to Muldrock - type error. However, as Johnson J pointed out in The Application of Joy Lorraine Knight pursuant to s. 78 Crimes (Appeal and Review) Act [2014] NSWSC 285 at [17] such a submission cannot be sustained in light of the decision of the Court of Appeal in Sinkovich v Attorney-General of NSW [2013] NSWCA 383. 19Counsel for the Attorney-General further submitted that although it was apparent that an incorrect approach was adopted by Mathews AJ at first instance, this was not so in the case of the Court of Criminal Appeal. Counsel pointed out that in delivering the Court's judgment, Hidden J did not state that the standard non-parole period was mandatory, and submitted that his Honour did not impermissibly confine the exercise of the sentencing discretion. CONSIDERATION AND CONCLUSION 20In my view, there is little doubt that when originally sentencing the applicant, Mathews AJ adopted an approach to sentencing which the High Court in Muldrock subsequently concluded was erroneous. It is evident from paragraph [40] of the judgment that her Honour gave the standard non-parole period primary significance, and engaged in a two-stage approach to sentencing. 21However in my view, the same cannot be said of the Court of Criminal Appeal. Emphasis was placed by the applicant on paragraph [39] of the judgment of Hidden J which was said to suggest an adherence to a two-stage sentencing process, as well as an emphasis on the classification of the objective seriousness of the offence. In my view, there is nothing within that paragraph which conveys any such suggestion. 22It is erroneous to approach the question of whether an error of the kind asserted in the present case is made out by concentrating on an isolated passage of the relevant judgment. The Court of Criminal Appeal has observed on numerous occasions that when considering whether or not a Muldrock-type error has been made out it is necessary to view the reasons for the sentence as a whole, and not confine examination to one particular passage or sentence which is said to reflect error (see for example Black v R [2013] NSWCCA 265 at [41] and the authorities cited therein). 23In my view, when the judgment of the Court of Criminal Appeal is read as a whole, it is evident that the passage highlighted by the applicant came at the end of Hidden J's review of various decisions to which the Court had been referred. His Honour's observations that the assessment of the objective gravity of an offence was an important aspect of any sentencing exercise, and was one which required careful consideration, were perfectly correct. There is no indication whatsoever, be it in that passage or in the judgment as a whole, that his Honour gave primary or determinative significance to the standard non-parole period. On the contrary, it is evident that his Honour considered both the objective seriousness of the offending, and the applicant's subjective case. 24His Honour's consideration of the entirety of those matters tends against a conclusion that primary or determinative significance was given to the standard non-parole period or that a two-stage process of sentencing was adopted. Rather, Hidden J arrived at his conclusions by adopting an approach which was consistent with a process of instinctive synthesis, in which he identified all relevant factors, and reached a value judgment as to the appropriate sentence. CONCLUSION 25For the reasons set out above, I am not persuaded that any Muldrock-type error occurred when the applicant was re-sentenced by the Court of Criminal Appeal. Accordingly, I do not entertain any doubt or question as to the existence of a mitigating circumstance in the applicant's case. 26The application is therefore refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2014