Tran v Tran [2009] ACTSC 66 (12 June 2009)

Last Updated: 20 July 2009

PHUC KIM TRAN v DENA HUA GEK TAN
[2009] ACTSC 66 (12 JUNE 2009)

APPEAL – criminal law – sentencing – minor theft – account to be taken of plea of guilty – totality considerations.

Crimes (Sentencing) Act 2005 (ACT), s 37
Crimes (Sentencing Administration) Act 2005 (ACT), s 110

R v Thompson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
AB v The Queen [1999] HCA 46; (1999) 198 CLR 111

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 114 of 2007

Judge: Gray J
Supreme Court of the ACT
Date: 12 June 2009

IN THE SUPREME COURT OF THE )
) No. SCA 114 of 2007
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: PHUC KIM TRAN

Appellant

AND: DENA HUA GEK TAN

Respondent

ORDER

Judge: Gray J
Date: 12 June 2009
Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.
2. The appellant be re-sentenced on the charges the subject of this appeal.

1. This is an appeal against the severity of two sentences of three months imprisonment imposed in the ACT Magistrates Court on 18 December 2007 in respect of charges of minor theft. The sentences were ordered to be served consecutively. The penalty for minor theft is a fine of 50 penalty units and/or imprisonment for six months. The penalty imposed for the two offences therefore equated to the maximum term of imprisonment for one offence.
2. The first sentence imposed related to a theft offence committed on 3 June 2007 from a supermarket. It involved food items to the value of $36.56. The appellant was stopped outside the store. The items were recovered. The conviction recorded in respect of that offence meant that the appellant was in breach of a suspended sentence of three months imprisonment that had been imposed in the ACT Magistrates Court on 5 December 2006. That sentence was also in respect of a minor theft offence but of significantly more seriousness in that it involved property valued at $998.00 and was committed in association with two other minor theft offences involving property valued in total at $883.00. That property was apparently stolen to provide gifts for the appellant’s family. However, it was entirely recovered.
3. The appellant has a history of committing shoplifting offences on six previous occasions commencing in 1996. Up until the offences recorded on 5 December 2006, the other offending has resulted in fines and recognisances. Up until the time that she was sentenced on this occasion, the appellant complied with the conditions of earlier recognisances that had been imposed. The sentence that is the subject of this appeal, is the first time that the appellant has been ordered to serve full-time custody.

Background

4. The appellant is a 46 year old woman who was born in Vietnam. She left that country when she was 27 years of age and spent six years in a refugee camp in Hong Kong. She married in Hong Kong and came to Australia in 1993. She divorced her husband in 2005. That relationship was characterised by significant domestic violence and there have been incidents of violence since the divorce. At present, she resides with her eldest daughter, her son-in-law and their two children, who are now aged eight years and two years. She also continues to have her youngest daughter aged 13 years in her care. In the course of the pre-sentence report that was tendered in the sentencing proceedings before the Magistrates Court, the author commented:

As one must take into account the complexity of Ms Tran’s background I must also consider the evidence that suggests a connection between shoplifting and depression in middle-aged women. The scope and purpose of this report prohibits little more than a cursory glance at the literature, but low self-esteem and general dissatisfaction with life can contribute to this manner of offending.
The burden to change her behaviour remains with Ms Tran. It is incumbent upon her to take the required steps to understand and manage the factors that could be contributing to her recidivism. It is suggested, with her cooperation services can be harnessed to provide the therapeutic interventions and support that could assist in correction and restoration.

5. The report also went on to refer to the court considering a psychological assessment being obtained for Ms Tran.

The sentencing remarks

6. In the magistrate’s sentencing remarks, she said:

Mr O’Keefe (who appeared for Ms Tran) submitted on her behalf that I should take into account the fact that she’s pleaded guilty, the cultural background, her mental condition, and the effect that a sentence of imprisonment would have upon her family, also the fact that she expressed remorse. I note all of these factors and I’ve considered them all.

7. The magistrate went on to express the view that this was a case that called for a strong element of personal deterrence. She concluded that apart from Ms Tran’s plea of guilty, there were no other relevant mitigating factors. It would seem that the magistrate does not appear to have regarded the factors which she had noted being factors that she could take in mitigation. The magistrate then imposed a sentence of three months imprisonment which, despite her reference to the plea of guilty, does not indicate the imposition of a lesser penalty as a consequence of the plea (cf s 37 Crimes (Sentencing) Act 2005 (ACT)).

Grounds of appeal

8. The original grounds of appeal were:
(i) The sentence is manifestly excessive;
(ii) Her Honour did not give due regard to the Appellant’s family circumstances as required under s.33(1)(o) of the Crimes (Sentencing) Act 2005;
(iii) Her Honour gave inappropriate consideration to the Appellant’s failure to learn English.
9. Amended grounds of appeal were filed to add the following:
(iv) Her honour miscarried her discretion in failing to reduce the sentence for a guilty plea or, alternatively, she failed to explain the reduction in sentence as required by s.37 of the Crimes (Sentencing) Act 2005;
(v) Her Honour erred in considering an earlier pre-sentence report that was neither tendered in evidence nor made available to defence counsel;
(vi) Her Honour failed to indicate for the purposes of s.110 of the Crimes (Sentencing Administration) Act 2005 whether she was imposing a suspended sentence on charge no. CC2007/9034 or re-sentencing the offender; and
(vii) In directing that the sentence on charge no. CC2007/9034 be served consecutively on the sentence for CC2007/8605, Her Honour failed to consider the principle of totality and imposed a double punishment.
10. As far as the complaint that the magistrate did not have due regard to the appellant’s family circumstances is concerned, the magistrate did comment that there are many persons who commit offences in the community that have families and that is but one factor to be taken into account. However, what is of some concern is that in ordering the sentences to be served by way of full-time detention, the magistrate remarked that “there are no compelling circumstances which would convince me that it would be appropriate to impose periodic detention”. The appellant’s family circumstance is clearly a matter that has a role to play in the consideration of this particular alternative to a full-time custodial sentence. Such a circumstance does not have to be compelling but it is one to be considered as to whether this is a case for an alternative to full-time custody.
11. The grounds of appeal also raised a question of what is said to be the magistrate’s inappropriate consideration of the appellant’s failure to learn English. It is certainly true that the magistrate was prepared to judge harshly the appellant’s predicament with respect to learning English. However, I do not see how that translates into the sentences that were imposed. I do say that the magistrate’s remarks which demonstrate a lack of empathy to the difficulties of non-English speaking people in this country require a more sensitive consideration than appears to have been given in this case. That is so particularly in the circumstances of the appellant who was in a grossly abusive relationship with her former husband.
12. The submission that the magistrate did not obviously reduce the sentence in respect of the guilty plea, has some force. Nor was any reference made to her plea. A similar complaint could well be made in respect of the suspended sentence that had been imposed on 5 December 2006. In both cases, irrespective of the question of remorse, the appellant was entitled to the utilitarian value of her plea (see R v Thompson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383) and the appropriate discount to be made in respect of it.
13. A further complaint was made that an earlier pre-sentence report was not tendered in evidence or made available to defence counsel but was before the magistrate. In my view, there is no substance in this complaint. The pre-sentence report before her Honour referred specifically to the report that had been prepared for the charges and sentence that took place on 5 December 2006.
14. When the magistrate sentenced the appellant in respect of the suspended sentence imposed on 5 December 2006, it is not clear as to whether or not she imposed the suspended sentence or re-sentenced the offender for the offence, those being the alternatives given by s 110 of the Crimes (Sentencing Administration) Act 2005. If she had re-sentenced the appellant, she would have been required to consider the facts that gave rise to the suspended sentence. Section 110(4) of the Crimes (Sentencing Administration) Act 2005 provides that it applies to the re-sentencing in the same way as it applies to the sentencing of an offender on conviction of the offence. In the present case, however, it is apparent from the transcript that the magistrate had those facts before her as she referred in argument to those facts. If it was a re-sentence, then the magistrate was required to consider how she should deal with the commission of two like offences that were being dealt with on the one occasion.
15. The final amended ground of appeal was a complaint concerning the order that the sentences be served wholly consecutively upon each other; that the principle of totality should have operated to provide some degree of concurrence. In AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at [121] and [122], Hayne J said:

If an offender is sentenced for a number of offences it is necessary to examine both the particular sentences imposed for each offence and the overall effective sentence reached as a result of orders for cumulation or concurrence. It is in both the individual sentences and the overall sentence that the considerations relevant to sentencing must find their reflection.
... And, subject to the consideration of questions of totality, a just sentence must be imposed for each of those offences (see, for example Mill v R [1988] HCA 70; (1988) 166 CLR 59; 83 ALR 1). Totality may lead to the moderation of the overall sentence and may require some tailoring of the individual sentence to achieve a proper result. But that is not to deny the importance of imposing a just sentence in respect of each offence.

16. It must be borne in mind that it is the commission of the later offence which triggers the suspended sentence. There is every reason to assess the seriousness of each offence in the course of the criminality alleged and to determine whether the total effect is justified or should be mitigated. This is not so much an exercise giving effect to the totality principle as to apply the approach recommended by Hayne J in the passage cited.
17. The sentence which was suspended is a significantly heavy sentence which, as I have said, does not appear to have given credit for the plea of guilty. There is considerable difference in the objective facts between the offences; one involving a small quantity of vegetables, the other being valuable items intended for family gifts. There is also the fact that the sentence imposed for the earlier offence was part of a course of conduct involving other offences. In these circumstances, a sentence equivalent to that which was earlier imposed but suspended, in my view, cannot be justified. As well, the result of making the sentences consecutive is to impose for the commission of two offences the maximum penalty for one such offence. There may be circumstances where this could be said to be a proper result but, in my view, this case is not one of them. The sentencing process has miscarried and the appellant should be re-sentenced.
18. However, a matter which now causes concern is the fact that whilst on bail in respect of this appeal, the appellant committed yet a further offence of minor theft.
19. That offence was committed on 11 May 2008 and involved the theft of a tray of pork ribs from a supermarket. The food item was valued at $9.47.
20. Dr Bruce Stevens had been asked to prepare a psychological report in respect of the commission of this last offence although he did so without the realisation that the appellant was on bail in respect of the convictions and sentence the subject of this appeal.
21. He concluded that Ms Tran had a major depressive disorder and a chronic post-traumatic stress disorder. He thought her offending behaviour related more to mental health issues rather than antisocial tendencies such as trying to profit from stealing.
22. In light of the fact that there was the additional factor of the offence having been committed whilst on bail, I asked that further comment be made by Dr Stevens. He confirmed that his assessment was not substantially changed. He concluded:

(b) I think that her recidivism does relate to her mental health conditions such as depression and PTSD largely the result of being in a violent and abusive marriage. I think that the risk can be reduced by an evidence based treatment of her depression and PTSD. Hopefully this will reduce her impulsivity and poor judgement. It is also important for counselling to address her high level of dissociation (a defence mechanism for the trauma). I can not guarantee that she will not offend in the future but I think that appropriate treatment will help to reduce the risk. I agree with the pre-sentence report that a referral to ACT Women’s Health Service would be helpful especially if they can arrange treatment with a psychiatrist of clinical psychologist offering an evidence based therapy.
(c) I think Ms Tran can make some steps to alleviate the Court’s concerns about recidivism. It is absolutely vital that she enter treatment and fully engage with her treating professionals in an attempt to fully recover from the offending behaviour I also agree with the presentence reports that would encourage steps in the direction of reducing social isolation and learning better English in order to find employment. I would note that she has dropped out of courses, which may indicate low motivation. It is essential that she demonstrate a high level of motivation to help herself in the future or I can see no other option than incarceration as an adverse experience.

23. In the result, I propose to allow the appeal and to re-sentence the appellant on the charges the subject of this appeal as well as for the offence that was committed on 11 May 2008.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 12 June 2009

Counsel for the appellant: Mr B Aulich
Solicitor for the appellant: John O’Keefe
Counsel for the respondent: Mr A Doig
Solicitor for the respondent: Director of Public Prosecutions (ACT)
Date of hearing: 10 December 2008
Date of judgment: 12 June 2009