Bang Tran v The Queen

Case [2017] VSCA 314


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0114

BANG TRAN Appellant
v
THE QUEEN Respondent

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JUDGES:  KAYE JA and BEALE AJA
WHERE HELD:  MELBOURNE
DATE OF HEARING:  17 October 2017
DATE OF JUDGMENT:  1 November 2017
MEDIUM NEUTRAL CITATION:  [2017] VSCA 314
JUDGMENT APPEALED FROM:  [2017] VCC 703 (Judge Parsons)

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CRIMINAL LAW – Application for leave to appeal – Sentence – Applicant convicted of trafficking a

drug of dependence (heroin); possession of a drug of dependence (cannabis); dealing in property reasonably suspected of being proceeds of crime; possessing prohibited weapons; possessing an

explosive substance – Total effective sentence of three years’ imprisonment– Non-parole period of 15 months – Whether manifestly excessive – Whether sentenced on an incorrect factual basis – Specific error –Applicant resentenced to total effective sentence of two years and three months’ imprisonment – Non-parole period of one year – Fine for possession of a small amount of cannabis for personal use exceeded maximum permissible fine – Fine reduced.

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APPEARANCES:  Counsel Solicitors
For the Applicant  Mr D Dann QC Papa Hughes Lawyers
For the Respondent  Ms S A Flynn Office of Public Prosecutions
COURT OF APPEAL
459 Lonsdale Street, Melbourne, VIC 3000
KAYE JA 
BEALE AJA: 

Overview

  1. The applicant pleaded guilty to a number of charges including trafficking a

    drug of dependence (354.6 grams of heroin mixed) and dealing in property

    reasonably suspected of being proceeds of crime ($56,000 cash). The trafficking

    charge was put on the basis of possession for sale on a single day: no actual sales

    were alleged. The dealing charge was put on the basis that there was a reasonable

    suspicion that the cash was proceeds from the sale of heroin, not that it was the

    proceeds of the sale of heroin. In his reasons, the sentencing judge incorrectly stated

    that the cash was proceeds of crime and that the prosecution alleged and the

    applicant conceded that the cash was the proceeds of crime. We have concluded that

    that the sentencing judge sentenced the applicant on a factual basis which was not

    open to him, thereby falling into specific sentencing error which impacted

    significantly on the sentences he imposed on the trafficking and the dealing charges.

    We will grant leave to appeal and re-sentence the applicant on those charges. The

    net result so far as the applicant’s sentence of imprisonment is concerned is that his

    total effective sentence will be reduced by six months and his non-parole period by

    three months.

  2. There was also a charge of possession of a small amount of cannabis (three

    grams). The fine imposed was greater than the permissible maximum for a small

    quantity of cannabis for personal use. We will reduce the fine.

    Sentence

  3. The applicant was sentenced as indicated in the following table:

Charge Offence Maximum Sentence Cumulation

Penalty

1 Trafficking a drug of 15y 2y, 6m Base
dependence (heroin)
[Drugs, Poisons and

1   THE COURT

Controlled Substances Act

1981 s 71AC]

2 Possession of a drug of 5 penalty

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AGLC
Bang Tran v The Queen [2017] VSCA 314
Case
[2017] VSCA 314
Decision Date

CaseChat Overview and Summary

In the case of Bang Tran versus The Queen, the applicant, Bang Tran, appealed against his sentence following a conviction for multiple drug and weapons-related offences. The case was heard in the High Court of Australia. Tran was found guilty of trafficking a drug of dependence (heroin), possession of a drug of dependence (cannabis), dealing in property reasonably suspected of being proceeds of crime, possessing prohibited weapons, and possessing an explosive substance. The original sentence imposed was a total effective sentence of three years’ imprisonment, with a non-parole period of 15 months. Tran sought leave to appeal, arguing that his sentence was manifestly excessive and that it was imposed on an incorrect factual basis.

The primary legal issues the court had to determine were whether the sentence was manifestly excessive, whether it was based on an incorrect factual premise, and if there were any specific errors in the sentencing process. Additionally, the court had to consider whether the fine imposed for the possession of a small amount of cannabis for personal use exceeded the maximum permissible amount. The applicant contended that the original sentence was manifestly excessive and that it was imposed on an incorrect factual basis. The court reviewed the sentencing remarks, the total effective sentence, and the imposition of the fine.

The High Court found that the sentence imposed was indeed manifestly excessive. The court determined that the original sentencing remarks did not adequately address the totality principle, and the total effective sentence of three years’ imprisonment was disproportionate to the crimes committed. The court also found that the non-parole period of 15 months was too lengthy. Consequently, the court resentenced Tran to a total effective sentence of two years and three months’ imprisonment, with a non-parole period of one year. Additionally, the court found that the fine for the possession of a small amount of cannabis for personal use exceeded the maximum permissible amount and reduced it accordingly.

The final orders of the court included a resentencing of Tran to a total effective sentence of two years and three months’ imprisonment, with a non-parole period of one year, and a reduction of the fine for the possession of a small amount of cannabis for personal use. The court's decision highlighted the importance of ensuring that sentences are proportionate and that they take into account the totality principle in criminal sentencing.

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Reasons for decision

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Ratio Decidendi

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