SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0024
| DU THANH TRAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | TATE and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 April 2018 |
| DATE OF JUDGMENT: | 1 May 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 107 |
| JUDGMENT APPEALED FROM: | DPP v Tran (Unreported, County Court of Victoria, Judge Campton, 11 December 2017) |
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CRIMINAL LAW – Appeal – Sentence – Trafficking drugs of dependence (3 charges) – Sentenced to 2 years and 10 months’ imprisonment with non-parole period of 1 year and 10 months – Whether judge mistook facts of offending – Whether sentence involved double punishment – Whether sentence infringed principle of parity – Whether sentence was manifestly excessive – Errors contended for by applicant not reasonably arguable – Manifest excess not reasonably arguable – Application for leave to appeal refused.
CRIMINAL LAW – Appeal – Fresh evidence – Applicant’s visa cancelled after sentencing – Cancellation of applicant’s visa not throwing light on any pre-existing fact – Cancellation of visa not an event showing sentence has turned out to be excessive – No miscarriage of justice – Application to admit fresh evidence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G G Connelly | Ann Valos Criminal Law |
| For the Respondent | Mr M D Phillips | Mr J Cain, Solicitor for Public Prosecutions |
TATE JA
BEACH JA:
On 30 November 2017, the applicant pleaded guilty in the County Court to three charges of trafficking in a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981, and one charge of unlicensed driving contrary to s 18(1)(a) of the Road Safety Act 1986. Following a plea hearing, on 11 December 2017, the applicant was sentenced as follows:
| Charge on Indictment G10750641 | Offence | Maximum | Sentence | Cumulation |
| 1 | Traffick a drug of dependence (MDMA) | 15 years | 12 months | 2 months |
| 2 | Traffick a drug of dependence (heroin) | 15 years | 10 months | 2 months |
| 3 | Traffick a drug of dependence (methylamphetamine) | 15 years | 30 months | Base |
| Related Summary Offences | ||||
| 6 | Unlicensed Driving | 25 penalty units or 3 months | Fined $500 | N/A |
| Total Effective Sentence: | 2 years and 10 months’ imprisonment | |||
| Non-Parole Period: | 1 year and 10 months | |||
| Pre-Sentence Detention Declared: | 475 days | |||
| 6AAA Statement: 4 years’ imprisonment with a non-parole period of 3 years. | ||||
| Other Relevant Orders: 1. s 464ZF Forensic Sample Order. 2. Disposal Order. | ||||
The applicant seeks leave to appeal against his sentence on the following grounds:
1.The sentencing discretion miscarried because the sentencing judge mistook the facts upon which the applicant could be sentenced.
2.The sentencing judge erred in doubly punishing [the applicant].
3.The sentence imposed on charge 3 is manifestly excessive.
4.The orders for cumulation are manifestly excessive.
5.The judge erred in imposing a total effective sentence that offends the principle of parity.
6.This court should admit as fresh evidence and resentence the applicant on the basis that the applicant’s visa permitting him to remain in Australia has been cancelled.
Circumstances of…
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- AGLC
- Du Thanh Tran v The Queen [2018] VSCA 107
- Case
- [2018] VSCA 107
- Decision Date
CaseChat Overview and Summary
The court examined the arguments presented and found that the errors contended for by the appellant were not reasonably arguable. The court determined that there was no misapprehension of the facts by the sentencing judge and that the sentence did not involve double punishment or violate the principle of parity. The court also concluded that the sentence was not manifestly excessive and, therefore, the application for leave to appeal was refused. Regarding the fresh evidence, the court held that the cancellation of the appellant's visa did not throw light on any pre-existing fact and did not demonstrate that the sentence had turned out to be excessive or result in a miscarriage of justice. Consequently, the application to admit fresh evidence was also refused.
Ultimately, the court upheld the original sentence and dismissed both the appeal and the application for fresh evidence. The appellant's application for leave to appeal was denied, and the application to admit fresh evidence was refused. The decision of the lower court remained in place, with the appellant's sentence of two years and ten months' imprisonment, with a non-parole period of one year and ten months, upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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