Giang Truong Tran v The Queen - [2016] VSCA 79

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0166

GIANG TRUONG TRAN	Applicant
v
THE QUEEN	Respondent

AND

S APCR 2015 0170

TONY CHANG	Applicant
V
THE QUEEN	Respondent

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JUDGES:	WEINBERG, SANTAMARIA and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 February 2016
DATE OF JUDGMENT:	26 April 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 79
JUDGMENT APPEALED FROM:	DPP v Chang & Anor (Unreported, County Court of Victoria, Judge Quin, 10 August 2015)

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CRIMINAL LAW – Conviction – Application for leave to appeal against conviction – Evidence – Admissibility – Identification evidence – Lay opinion – No error in judge admitting voice recognition evidence – No error in judge’s charge on voice identification – Application refused – Kheir v The Queen (2014) 43 VR 308 applied – Evidence Act 2008 ss 78, 79, 135, 137

CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Applicant Chang convicted of trafficking large commercial quantity of drug of dependence and dealing with proceeds of crime – 13,890.7 grams methylamphetamine – Total effective sentence of 15 years’ imprisonment with 12 year non-parole period – No significant mitigating factors – Application refused

CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Applicant Tran convicted of trafficking large commercial quantity of drug of dependence and possessing unregistered Category D firearm (non-prohibited person) – 13,890.7 grams methylamphetamine – Total effective sentence of 12 years and 3 months’ imprisonment with 8 year non-parole period – Role in trafficking significant and above that of mere ‘mule’ – Parity – Lesser role compared with co-offender Chang adequately reflected in sentence –Application refused

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APPEARANCES:	Counsel	Solicitors
For the Applicant Tran	Mr D Langton	Tait Lawyers
For the Applicant Chang	Mr N Papas QC	Access Law Lawyers
For the Crown	Mr D A Trapnell QC with Ms R J Sharp	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
SANTAMARIA JA
McLEISH JA:

The applicants, Giang Truong Tran (now aged 35) and Tony Chang (now aged 42) are brothers. In May 2015, they were each convicted, in the County Court at Melbourne, on Charge 1 of an indictment which alleged that they had, between 3 May 2013 and 26 June 2013, trafficked in a large commercial quantity of a drug of dependence (methylamphetamine). Chang was also convicted, on Charge 2, of having, on 31 May 2013, dealt with the proceeds of crime, namely a sum of $429,430 in cash. Tran was convicted, on Charge 3, of having, on 26 June 2013 (while being a non-prohibited person) been in possession of an unregistered Category D longarm that was not registered.

The applicants were sentenced on 10 August 2015 as follows:

GIANG TRAN

Charge on Indictment Offence Maximum Sentence Cumulation

1 Traffick large commercial quantity of methylamphetamine [Drugs, Poisons & Controlled Substances Act 1981 s 71(1)]
Life imprisonment and not more than 5000 penalty units
12 years Base

3 Possess unregistered Category D Longarm – non-prohibited person [Firearms…

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.

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Details

Case: [2016] VSCA 79
Decision Date: 26 April 2016

CaseChat Overview and Summary

The case of Giang Truong Tran v The Queen involved an application for leave to appeal against both conviction and sentence. The appellant, Tran, was convicted of trafficking a large commercial quantity of methylamphetamine and possessing an unregistered Category D firearm. He was sentenced to 12 years and 3 months’ imprisonment, with an 8-year non-parole period. The court was required to determine the admissibility of certain voice recognition evidence and the propriety of the sentence imposed.

The legal issues before the court encompassed the admissibility of voice recognition evidence, the judge's charge on voice identification, and the proportionality of the sentence. The court examined whether the evidence and the charge were in accordance with the provisions of the Evidence Act 2008 and whether the sentence reflected the appellant's role in the crime. The court also considered the principle of parity with co-offenders in sentencing.

The court found no error in the judge's decision to admit the voice recognition evidence, aligning with the decision in Kheir v The Queen. The court held that the judge's charge on voice identification was correctly framed and that the sentence adequately reflected the appellant's significant role in the trafficking, albeit lesser than that of the co-offender. The court refused the application for leave to appeal against both conviction and sentence, finding the total effective sentence proportionate and the principles of parity and proportionality properly applied.

In conclusion, the court's decision underscored the importance of ensuring that evidence is properly admitted and charges are accurately framed while also highlighting the necessity of proportionality in sentencing. The court's refusal to grant leave to appeal confirmed that the appellant's role and the sentence imposed were adequately considered and justified.

Orders