Ky BOI Tran v The Queen - [2020] VSCA 284

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0037

KY BOI TRAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2020
DATE OF JUDGMENT:	13 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 284
JUDGMENT APPEALED FROM:	DPP v Tran [2019] VCC 1942 (Judge Lacava)

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CRIMINAL LAW — Appeal — Dealing with money reasonably suspected of being proceeds of crime, trafficking in heroin and possessing a restricted substance — Total effective sentence of 3 years’ imprisonment with recognizance release order after 2 years— Whether individual sentence of 2 years’ imprisonment for dealing with money reasonably suspected of being proceeds of crime manifestly excessive — Whether excessive cumulation between sentences — Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Connolly	Paul Vale Criminal Law
For the Respondent	Ms K Breckweg	Commonwealth Director of Public Prosecutions

PRIEST JA
T FORREST JA:

Introduction

On 1 November 2019, the applicant pleaded guilty in the County Court to a Commonwealth indictment charging him with one charge of dealing with money, being $100,000 or more, reasonably suspected of being the proceeds of crime[1] (charge 1); two charges of dealing with money, being less than $100,000, reasonably suspected of being the proceeds of crime[2] (charges 2 and 3); one charge of trafficking in a trafficable quantity of a controlled substance,[3] heroin (charge 4); and two charges of possessing a controlled drug,[4] methamphetamine and cocaine respectively (charges 5 and 6).
[1]Criminal Code (Cth), s 400.9(1). The maximum penalty is three years’ imprisonment or 180 penalty units (or both).
[2]Criminal Code (Cth), s 400.9(1A). The maximum penalty is two years’ imprisonment or 120 penalty units (or both).
[3]Criminal Code (Cth), s 302.4(1). The maximum penalty is 10 years’ imprisonment or 2000 penalty units (or both).
[4]Criminal Code (Cth), s 308.1(1). The maximum penalty is two years’ imprisonment or 400 penalty units (or both).

Following a plea, on 22 November 2020 the judge sentenced the applicant to three years’ imprisonment, and directed that he be released on a recognizance release order[5] in the sum of $2,000 for two years after serving two years’ of the sentence. It is convenient to set the sentence out in tabular form:
[5]Pursuant to s 19AC(1) of the Crimes Act 1914 (Cth), where a court imposes an aggregate sentence of imprisonment of three years or less, the court must make a single recognizance release order in respect of that sentence and must not fix a non-parole period.

Charge Offence Sentence Cumulation[6]

1 Dealing with money being $100,000 or more, reasonably suspected of being proceeds of crime 2 years Base

2 Dealing with money being less than $100,00, reasonably suspected of being proceeds of crime 6 months 6 months

3 Dealing with money being less than $100,00, reasonably suspected of being proceeds of crime 2 months —

4 Trafficking heroin 6 months 6 months

5 Possess a controlled drug (methamphetamine) $200 fine —

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: [2020] VSCA 284
Decision Date: 13 November 2020

CaseChat Overview and Summary

In the case of Ky BOI Tran v The Queen, the appellant, Ky BOI Tran, was convicted of dealing with money reasonably suspected of being the proceeds of crime, trafficking in heroin, and possessing a restricted substance. The appellant was sentenced to a total effective sentence of 3 years' imprisonment, with a recognizance release order after 2 years. The appeal focused on whether the individual sentence of 2 years' imprisonment for dealing with money reasonably suspected of being proceeds of crime was manifestly excessive, and whether there was excessive cumulation between the sentences.

The court was required to decide whether the sentence imposed on the appellant was manifestly excessive and whether the cumulation of sentences was inappropriate. The court needed to consider the individual sentences and the total effective sentence, as well as the principles of proportionality and deterrence in sentencing.

The court found that the sentence for dealing with money reasonably suspected of being proceeds of crime was not manifestly excessive. It was noted that the appellant had been involved in a significant drug trafficking operation, and the sentence reflected the seriousness of the offence. The court also found that there was no excessive cumulation between the sentences. The total effective sentence was considered to be proportionate to the appellant's offending, and the recognizance release order after 2 years provided an appropriate balance between punishment and rehabilitation. Consequently, the appeal was dismissed, and leave to appeal was refused.

Orders

Orders of the court

See [27]

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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Charge	Offence	Sentence	Cumulation[6]
1	Dealing with money being $100,000 or more, reasonably suspected of being proceeds of crime	2 years	Base
2	Dealing with money being less than $100,00, reasonably suspected of being proceeds of crime	6 months	6 months
3	Dealing with money being less than $100,00, reasonably suspected of being proceeds of crime	2 months	—
4	Trafficking heroin	6 months	6 months
5	Possess a controlled drug (methamphetamine)	$200 fine	—