Tran v The Queen [2011] VSCA 363 (15 November 2011)

CRIMINAL LAW – Conviction – Plea of guilty to multiple charges including aggravated burglary, armed robbery, reckless conduct endangering serious injury and assault police – Double punishment – Whether Crown relied on same conduct as constituting offences of reckless conduct endangering serious injury and offences of assault police – Whether illusory or artificial to distinguish between conduct constituting offence of reckless conduct endangering serious injury and offences of assault police – R v Sessions [1998] 2 VR 304 distinguished – Appeal dismissed.

CRIMINAL LAW – Sentencing – Cumulation – Double punishment – Whether sentence imposed on charge of reckless conduct endangering serious injury included same punishment for conduct comprising charges of assault police – Cumulation – Whether judge erred in cumulating parts of sentences imposed on charges of assault police on sentence imposed on charge of reckless conduct endangering serious injury – Appeal dismissed.

1 On 8 November 2010, the appellant pleaded guilty before the Chief Judge of the County Court to nine charges and was sentenced for those offences as follows:

Charge	Offence	Max penalty	Ind’l sentence	Cumulation
1.	Aggravated burglary	25 years’ imp.	30 months’ imp.	6 months
2.	Armed robbery	25 years’ imp.	3 years’ imp.	3 years (Base)
3.	Armed robbery	25 years’ imp.	3 years’ imp.	6 months
4.	Reckless conduct endangering serious injury	5 years’ imp.	2 years’ imp.	2 years
5.	Assault police	5 years’ imp.	1 year’s imp.	3 months
6.	Assault police	5 years’ imp.	1 year’s imp.	3 months
7.	Traffick amphetamine	15 years’ imp.	1 year’s imp.	6 months
8.	Possess heroin	5 years’ imp.	3 months’ imp.	1 month
9.	Prohibited person possess unreg firearm	1800 Penalty Units or 15 years’ imp.	2 years’ imp.	Nil
TES				7 yrs 1 month
NPP				4 yrs 7 months

3 The facts of the offending were agreed and set out in the Crown’s written Plea Opening which was tendered and received on the plea as Exhibit A.

4 In short, on 25 October 2008, the appellant entered premises in Cairnlea with intent to steal (Charge 1, aggravated burglary). At the time, he had with him a pistol. Present at the premises were his cousins, Steven and Dinh Tran, and Judy Yang, wife of Dinh Tran. The appellant was also looking for another member of his family, Hoang Tran who stayed there periodically but was not present on that occasion.

5 The appellant entered the premises via Steven Tran’s bedroom window. Steven Tran was asleep and woke to find the appellant armed with a gun. A conversation ensued as to the whereabouts of Hoang and the appellant stated that, unless Hoang showed, he would take items. Steven Tran described the appellant as swinging the gun although not threatening him with it. The appellant then took the items listed in Charge 2 (being two laptops, a mobile phone, a palm pilot and a bankcard and related PIN) which Steven Tran felt compelled to provide because of the appellant’s tone and the presence of the weapon. Then the appellant left with the items via the window and placed them in his car (Charge 2, armed robbery).

6 The appellant next went to Dinh Tran’s bedroom window and requested entry, which was granted. A conversation followed as to the whereabouts of Hoang. Dinh observed that the appellant held a handgun at his side. At the appellant’s request, Dinh telephoned Hoang and enquired when he would be coming home. Hoang hung up during the conversation. The appellant then proceeded to pull apart Dinh’s computer, telling Dinh that he would shoot him in the leg if he did not assist in placing the computer in a bag. As that was occurring, the appellant re-loaded the weapon in Dinh Tran’s presence and, having amassed the property listed in Charge 3 (being a laptop, diamond ring, two cameras, a bag of coins, a pair of earrings and an iPod) he stated that he was going to hold Dinh Tran’s items until Hoang arrived home. Then he left the premises via the back door and placed the property in his car (Charge 3, armed robbery).

7 The appellant was under surveillance by the Special Operations Group. Police watched the appellant exit a house in St Albans and enter the driver’s seat of a Commodore.

8 Police vehicles then attempted to intercept the appellant. A white police van pulled up beside the appellant’s car and another police vehicle activated its siren. Hearing the siren, the appellant repeatedly rammed a red sedan parked in front of his car until an avenue of escape was created and then accelerated down the street, colliding forcefully with a green four-wheel drive police vehicle which blocked his escape. Once the appellant’s vehicle was stationary, Operator 55 (a policeman) opened the door and grabbed the appellant’s shoulder shouting, ‘Police, don’t move.’ But the appellant struggled free and reversed rapidly causing the driver’s door to hit Operator 55’s lower left leg. The impact forced Operator 55 backwards until he collided with Operator 78 (another policeman) knocking him to the ground. Operator 55 sustained bruising and swelling of his left lower leg and Operator 78 landed heavily on his right elbow and sustained minor grazing and soreness (Charges 5 and 6, assault police).

9 The appellant reversed past the white police van, shearing off the door. He continued, hitting another unmarked police vehicle and a power pole guide wire on the nature strip. Then he accelerated forward along the footpath. The green four-wheel drive collided with the appellant’s car as he drove along the footpath, forcing his vehicle into a fence. Operator 96 (another policeman) was struck by the appellant’s vehicle and lifted from the ground into the fence. (Charge 4, reckless conduct endangering serious injury.)

10 The appellant attempted to flee on foot and was tasered. He got back into his car, however, and was tasered again before finally being arrested. Then he was taken to the police station.

11 Following his arrest, the appellant was found to have in his jeans’ pocket a bag containing white crystal substance, foil containing a white rock substance and a tissue containing a rock substance. He admitted that the white crystal was methylamphetamine possessed for the purpose of sale (Charge 7, traffick in a drug of dependence) and that the white rock substance was diacetylmorphine (Charge 8, possess heroin).

12 On 3 December 2008, a search of the house leased to the appellant at St Albans located an unregistered automatic Browning .32 calibre pistol used in the commission of the Charges 1 to 3 together with its magazine and spent cartridges. Its serial number had been obliterated (Charge 9, possess unregistered firearm as prohibited person).

13 Also located at the house were numerous pieces of foil and small plastic deal bags, an ice pipe, a canister containing small deal bags of white powder substance, property related to Charges 2 and 3 and a further ziplock bag containing white crystal substance which the appellant admitted was methylamphetamine possessed for the purpose of sale (Charge 7, traffick in a drug of dependence).

14 There is only one ground of appeal against conviction. It is that the appellant ought not to have been charged with Charge 4 as well as Charges 5 and 6, because it exposed him to double jeopardy in respect of the criminal conduct which comprised all three charges, and thus resulted in a substantial miscarriage of justice.

15 The argument is based on the judgment of Hayne JA (as his Honour then was) in R v Sessions..[1] In that case, the applicant had pleaded guilty and been sentenced on counts of rape and intentionally causing serious injury comprised of one single act of digital penetration of the complainant’s vagina. Hayne JA, with whom Batt JA and Eames AJA agreed, held that, since the act for which the applicant was to be sentenced on the count of rape was the same as the act for which he was to be sentenced on the count of intentionally causing serious injury, and there was no fact which should be taken into account in sentencing on one count which should not be taken into account in sentencing on the other, it was oppressive and unfair to punish the appellant twice and, therefore, the conviction entered on the count of intentionally causing serious injury should be quashed.

16 Here, counsel for the appellant relied on the fact that, as the prosecutor opened the plea, he did not specifically attribute facts individually to Charges 4, 5 and 6 but instead read out the facts relating to those three charges much as I have set out above. Counsel also emphasised an observation in the Chief Judge’s sentencing remarks that the ‘the driving constituted charge 4’. In counsel’s submission, both the Crown’s opening and the Chief Judge’s observation demonstrated that the acts relied on by the Crown as establishing Charge 4 were the same facts as were relied upon as establishing Charges 5 and 6. It followed from what was said in Sessions, counsel contended, that the appellant had been subjected to double punishment in respect of those acts.

17 Further or alternatively, counsel submitted, inasmuch as the conduct the subject of Charges 5 and 6 could have been taken into account in sentencing the appellant on Charge 4, just as Hayne JA held in Sessions that the fact of the injury inflicted on the complainant could be taken into account in sentencing the applicant on the count of rape, it would be illusory and artificial to suggest that ‘the effects of the appellant’s reckless driving should be separated from the balance of his reckless driving’.

18 I do not think the argument to be persuasive. The Crown did not rely on the same physical acts as comprising Charge 4 as comprised Charges 5 and 6. It is apparent from paragraph 18 of the Crown’s Plea Opening [2] that the conduct which the Crown alleged, and thus which appellant by his plea admitted, comprised Charges 5 and 6 was confined to the conduct recited in that paragraph. It was that:

19 Equally, it can be seen from paragraphs 16, 17, 19 and 20 of the Plea Opening, that the Crown relied on the balance of the appellant’s errant driving, as set out in those paragraphs, as comprising the offence of reckless conduct endangering serious injury, the subject of Charge 4.

20 Nor in my view is there anything illusory or artificial about the way in which the Crown drew a distinction between the specific acts of delinquent driving which constituted the assault of Operators 55 and 78 (which is to say, accelerating backwards into Operator 55 as he attempted to arrest the appellant) and the balance of the appellant’s delinquent driving which recklessly endangered the lives of others (by repeatedly ramming the red sedan; accelerating down the street so as to collide forcefully with the green four-wheel drive police vehicle blocking the appellant’s escape; reversing past the white police van, thereby shearing off its door; continuing on and hitting another unmarked police vehicle and a power pole guide wire on the nature strip; and finally accelerating forward along the footpath into a further collision with the green four-wheel drive, hitting Operator 96, and ultimately careering into the fence).

21 It is true that the Chief Judge referred in his sentencing remarks to ‘the driving’ constituting the offence the subject of Count 4. Perhaps, his Honour could have been more precise in his description of the offence. But, with respect, it is plain what his Honour intended. And, in view of the Plea Opening, there could not have been any doubt about it. It was the Plea Opening which was taken to set forth the facts agreed for the purposes of the plea and there is no reason to doubt that it was that which his Honour intended to encapsulate in the short hand form of expression which he adopted.

22 In the result, in my view, it is not the case that the acts for which the appellant stood to be sentenced on Charge 4 were the same as the acts for which he was sentenced on Charges 5 and 6. To the contrary, there were facts which needed to been taken into account in sentencing on Charge 4 which were not be taken into account in sentencing on Charges 5 and 6; and vice versa. In those circumstance, it was not oppressive or unfair to punish the appellant both for Charge 4 and Charges 5 and 6. He was not subjected to double jeopardy in respect of any of his offending.

23 The appellant’s grant of leave to appeal against sentence was confined to Ground 1 and part of Ground 2

24 Ground 1 depends on the validity of the contention that the Crown failed to make clear the separation between the conduct on which it relied to establish Charge 4 and the conduct on which it relied to establish Charges 5 and 6. Counsel for the appellant submitted that, because of uncertainty about that, either in the way in which the prosecutor opened the plea or in the Chief Judge’s sentencing remarks, it may be that the sentence which the Chief Judge imposed on Charge 4 included some punishment for some of the conduct which comprised Charges 5 and 6. That conclusion was supported, he submitted, by what he described as the ‘heavy’ sentence of two years’ imprisonment imposed on Charge 4 (given the plea of guilty and that the maximum penalty was five years’ imprisonment).

25 I am not persuaded by that either. For the reasons I have given, I do not consider that there was any doubt about the facts on which the Crown relied to establish Charge 4, or the facts on which it relied to establish Charges 5 and 6. And I do not accept that the Chief Judge was uncertain about them. Nor do I consider that the sentence of two years’ imprisonment imposed on Charge 4 could be thought of as excessive. As has been seen, the offence involved multiple acts of wild and dangerous driving which put at risk the lives of several policemen apart from Operators 55 and 78, and were likely also to have put at risk the lives of members of the public. In that sense, it is difficult to conceive of a more sustained or serious sequence of reckless conduct endangering serious injury. It was a particularly serious instance of the offence. If anything, despite the appellant’s relative youth and plea of guilty, the sentence of two years’ imprisonment should properly be regarded as merciful.

26 The complaint made under Ground 2 is that the Chief Judge erred by ordering too great a degree of cumulation of parts of the sentences imposed on Charges 4 to 8 on the base sentence imposed on Charge 2. Leave to appeal on that ground was confined, however, to the following two aspects of it:

1) First, if Charges 5 and 6 were not quashed, whether the extent of cumulation of the sentences imposed on those charges on the sentence imposed on Charge 4 was too great; and

2) Secondly, whether the extent of cumulation ordered in respect of the sentence imposed on Charge 7 was too great.

27 Taking those points in turn, I accept that the cumulation of three months of each of the sentences imposed on Charges 5 and 6, as well as two years of the sentence imposed on Charge 4, was stern. Given that the offending the subject of Charges 5 and 6 was comprised of a single act of criminal conduct, one might have thought that it would be sufficient to cumulate, say, three months of the sentence imposed on Charge 5 and order that the sentence imposed on Charge 6 be served wholly concurrently. That said, however, there were two victims and, subject always to the principle of totality, the effect of such a crime on each victim should be recognised where possible in some moderate degree of cumulation of the penalty imposed in respect of each.[3] In the circumstances, I am not persuaded that the Chief Judge was in error in deciding to cumulate as he did.

28 As to the second point, I am unable to detect any error in the Chief Judge’s determination to cumulate six months of the sentence imposed on Charge 7. That offence added significantly to the total criminality of the appellant’s offending and thus it warranted additional punishment. Moreover, because of the nature of the offence, which is to say trafficking in amphetamines, his Honour was right to approach the task on the basis that general deterrence was at the forefront of relevant sentencing considerations.[4] It may be, as counsel for the appellant submitted, that had the charge been dealt with alone in the Magistrates’ Court, it might not have attracted a custodial sentence. But, for my own part, were it not for the appellant’s relative youth and plea of guilty, I should have expected a significantly greater degree of cumulation to reflect the considerations to which I have referred.

30 I agree that the appeals against conviction and sentence should be dismissed, for the reasons given by the presiding judge.

32 The orders of the Court are that the appeals against sentence and conviction are dismissed.

	S APCR 2010 0478 S APCR 2011 0116

SINH TRAN	Appellant
v
THE QUEEN	Respondent

JUDGES	NETTLE JA, LASRY and ROSS AJJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 November 2011
DATE OF JUDGMENT	15 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 363
JUDGMENT APPEALED FROM	R v Tran (Unreported, County Court of Victoria, Chief Judge Rozenes)

Appearances:	Counsel	Solicitors

For the Appellant	Mr D A Glynn	Andrew George Solicitors

For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

Supreme Court of Victoria - Court of Appeal

Tran v The Queen [2011] VSCA 363 (15 November 2011)