Bang Tran v The Queen - [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

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.
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
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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bang Tran v The Queen

Details

AGLC: Bang Tran v The Queen [2017] VSCA 314
Case: [2017] VSCA 314
Decision Date: 1 November 2017

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.

Orders