Legal Research
Cases
DPP v Tran

DPP v Tran

Case [2024] VSCA 16 29 February 2024

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0193

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
LUONG TRONG TRAN	Respondent

---

JUDGES:	NIALL, WALKER and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2024
DATE OF JUDGMENT:	29 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 16
JUDGMENT APPEALED FROM:	DPP v Tran (County Court of Victoria, Judge Leighfield, 2 October 2023)

---

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Cultivation of large commercial quantity of narcotic plant – Whether sentence manifestly inadequate – Where respondent’s conduct involved significant criminality – Where respondent pleaded guilty during Covid-19 pandemic – Whether Court should exercise residual discretion to dismiss appeal – Residual discretion not exercised – Appeal allowed.

Spiteri v The Queen (2011) 206 A Crim R 528, Dang v The Queen [2020] VSCA 24, Nguyen v The Queen (2021) 301 A Crim R 1, Lai v The King [2023] VSCA 151 applied; Worboyes v The Queen (2021) 96 MVR 344 applied; DPP v Browne [2023] VSCA 13 discussed.

---

Counsel
Appellant:		Mr B Kissane KC with Mr L McAuliffe
Respondent:		Mr C Mandy SC with Ms B East
Solicitors
Appellant:	Mr C Michell, Solicitor for Public Prosecutions
Respondent:	Slades & Parsons Criminal Law

NIALL JA
BOYCE JA:

We have had the advantage of reading in draft the reasons for judgment of Walker JA. Having had the benefit of those reasons we can state our conclusions on the appeal briefly. We would allow the appeal and resentence the respondent. We would not exercise the residual discretion that this Court has in order to dismiss the appeal.
The relevant considerations that a sentencing court must take into account are primarily found in the Sentencing Act 1991 as explicated in decisions of this Court and the High Court. The principles that are to be applied in sentencing an offender for drug offences generally accord with those applicable to other offences. That said, the cases emphasise certain factors as being of particular importance in sentencing offenders for drug offences.
First, the structure of drug offences is tied to the quantity of drugs involved.[1]
[1]Nguyen v The Queen [2010] VSCA 127, [19] (Maxwell P, Buchanan JA agreeing at [42]); Dang v The Queen [2020] VSCA 24, [2], [15] (Niall and Weinberg JJA) (‘Dang’).
Second, Parliament’s assessment of the gravity of this type of offending is partially revealed by the relevant maximum term of imprisonment.[2] There is no room for the Court to make any relative assessment as to the harm caused by various drugs: Parliament has already attended to that task, as reflected in the different quantities of each drug that make up trafficable, commercial and large commercial quantities.
[2]Nguyen v The Queen [2010] VSCA 127, [20] (Maxwell P, Buchanan JA agreeing at [42]); Lai v The King [2023] VSCA 151, [23] (T Forrest and Osborn JJA) (‘Lai’).
Third, in part demand for drugs is fuelled by addiction. That is…

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 DPP v Tran

Details

AGLC: Director of Public Prosecutions v Tran [2024] VSCA 16
Case: [2024] VSCA 16
Decision Date: 29 February 2024

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v Tran, the Court of Appeal was tasked with reviewing the sentence imposed on the respondent for cultivating a large commercial quantity of a narcotic plant. The respondent, Tran, had pleaded guilty to the charge during the Covid-19 pandemic. The Director of Public Prosecutions (DPP) appealed the sentence on the basis that it was manifestly inadequate.

The primary legal issue before the Court was whether the sentence imposed on the respondent was manifestly inadequate, given the significant criminality involved. The Court also considered whether, in light of the exceptional circumstances of the Covid-19 pandemic, it should exercise its residual discretion to dismiss the appeal. The Court needed to balance the principles of finality and certainty in sentencing against the need to ensure that sentences reflect the seriousness of the offence and deter similar conduct.

The Court found that the sentence was manifestly inadequate, considering the substantial quantity of the narcotic plant involved and the respondent’s criminal conduct. The Court noted that the original sentencing judge had not fully appreciated the seriousness of the offence. While acknowledging the exceptional circumstances of the pandemic, the Court decided not to exercise its residual discretion to dismiss the appeal. Instead, the Court allowed the appeal and remitted the matter to the original sentencing court for re-sentencing. The Court's decision was influenced by precedents such as Spiteri v The Queen and Dang v The Queen, as well as the principles discussed in DPP v Browne.

The final order of the Court was that the appeal was allowed, and the matter was remitted to the original sentencing court for re-sentencing, ensuring that the sentence adequately reflected the gravity of the offence.

Orders