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Du Thanh Tran v The Queen

Du Thanh Tran v The Queen

Case [2018] VSCA 107 1 May 2018

Appeal

Sentencing

Manifestly Excessive Sentence

Fresh Evidence

Criminal Law

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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…

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 Du Thanh Tran v The Queen

Details

AGLC: Du Thanh Tran v The Queen [2018] VSCA 107
Case: [2018] VSCA 107
Decision Date: 1 May 2018

CaseChat Overview and Summary

The matter before the court was an appeal by Du Thanh Tran against his conviction and sentence for drug trafficking. The appellant was sentenced to two years and ten months' imprisonment, with a non-parole period of one year and ten months, for three charges of trafficking drugs of dependence. The appeal raised several issues, including whether the sentencing judge had misconstrued the facts of the offending, whether the sentence involved double punishment, whether it breached the principle of parity, and whether the sentence was manifestly excessive. Additionally, the appellant sought to introduce fresh evidence regarding the cancellation of his visa post-sentencing.

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