TRAN, Hoai Vinh v R [2011] NSWCCA 116

TRAN, Hoai Vinh v R [2011] NSWCCA 116

The sentencing judge erred in finding commission of the offence in company as an aggravating factor when the accomplice was not complicit and shared no common criminal purpose. The appropriate assessment is that the objective gravity of the offence is below mid-range, given the lack of premeditation and absence of intention to kill. The sentence is consequently reduced to reflect this assessment.

Jurisdiction
Australia
Judgment Date
19 May 2011
Procedural Posture
Criminal Appeal / Leave to Appeal Against Sentence; Resentencing
Outcome
appeal allowed; sentence quashed; applicant re-sentenced
Legal Topics
['murder' 'sentencing' 'objective Seriousness' 'aggravating and Mitigating Factors' 'assessment of Gravity' 'standard Non Parole Period']
['criminal Law'] ['murder' 'sentencing' 'objective Seriousness' 'aggravating and Mitigating Factors' 'assessment of Gravity' 'standard Non Parole Period']

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Procedural Posture

Criminal Appeal / Leave to Appeal Against Sentence; Resentencing

Legal Issues

  1. 1 ['Whether the sentencing judge erred in finding the offence aggravated by commission in company' 'Proper assessment of the offence’s objective seriousness for sentencing' 'Appropriate sentence for murder with intent to cause grievous bodily harm']

Ratio Decidendi

The sentencing judge erred in finding commission of the offence in company as an aggravating factor when the accomplice was not complicit and shared no common criminal purpose. The appropriate assessment is that the objective gravity of the offence is below mid-range, given the lack of premeditation and absence of intention to kill. The sentence is consequently reduced to reflect this assessment.

Court Disposition

appeal allowed; sentence quashed; applicant re-sentenced

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Sentence passed by Mathews AJ quashed.' 'Applicant re-sentenced to imprisonment for 24 years, comprising a non-parole period of 18 years, commencing 7 November 2007 and expiring 6 November 2025, and a balance of term of 6 years, commencing 7 November 2025 and expiring 6...