Phoung Qui Tran v The Queen

[2001] FCA 242

FEDERAL COURT OF AUSTRALIA

Phoung Qui Tran v The Queen [2001] FCA 242

PHOUNG QUI TRAN v THE QUEEN
A51 OF 2000

HIGGINS, DRUMMOND & DOWSETT JJ
6 FEBRUARY 2001
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A51 OF 2000

ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	PHOUNG QUI TRAN APPLICANT
AND:	THE QUEEN RESPONDENT
JUDGES:	HIGGINS, DRUMMOND AND DOWSETT JJ
DATE OF ORDER:	6 FEBRUARY 2001
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.The application seeking leave to appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A51 OF 2000

ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	PHOUNG QUI TRAN APPLICANT
AND:	THE QUEEN RESPONDENT

JUDGES:	HIGGINS, DRUMMOND AND DOWSETT JJ
DATE:	6 FEBRUARY 2001
PLACE:	CANBERRA

EX TEMPORE REASONS FOR JUDGMENT

HIGGINS J:

1. This is an application for leave to appeal brought by Phoung Qui Tran who was, on the 4^th day of November 1999, sentenced by his Honour, the Chief Justice of the Australian Capital Territory, upon four counts alleging trafficking in heroin to, on the first count, four years imprisonment and on the remaining three counts, each to one years imprisonment, the latter sentences being concurrent with each other, but consecutive with the sentence on the first count, giving rise to a total sentence of imprisonment of 5 years.  A non-parole period of two and a half years was fixed and no doubt to take account of the times Mr Tran had by then spent in custody, the sentences and the non-parole period are to date from 18 December 1998.  It follows that Mr Tran will be eligible for consideration for parole on 18 June in this year.  The application seeking leave to appeal was filed on 28 July 2000.

2. In support of the application seeking leave to appeal, Mr Tran filed an affidavit in which he stated that he believed an appeal had been lodged by his solicitor after he was sentenced, however, it appears more likely from Mr Tran’s statement to the Court, that what he intended to convey was that he had instructed his solicitor to appeal, but his solicitor had required payment before he would do so.  The payment was not forthcoming and so Mr Tran was left to his own devices in relation to the filing of an appeal and, as I apprehend it, that would indicate that Mr Tran suggests that the delay was due to his uncertainty as to what to do in those circumstances.

3. Nevertheless, he did obtain, ultimately, assistance – it would seem from the Welfare Officer at Mannus – so as to enable the application for leave to appeal to be filed.  There does not seem to be any particular reason why that could not have happened earlier.  It therefore seems to me that the excuse for failing to file a notice of appeal within the time allowed is neither compelling nor satisfactory.  Of more significance however, on an application for leave to file an appeal out of time is whether the appeal, if it was heard, would have any reasonable prospect for success.

4. It would seem that the applicant had been one of four persons who were engaged in the systematic trafficking of heroin, supplying a number of persons described as sub-dealers.  It further appears that the appellant and those who joined with him in that enterprise took care to ensure that the amount of which they were in possession at any one time was less than the 2 grams of pure heroin which is the amount in the Australian Capital Territory which is defined as a trafficable quantity, the possession of which would attract a greater maximum penalty than the maximum penalty available for the counts to which the applicant pleaded guilty.

5. It was open to his Honour, the Chief Justice, to characterise the conduct of the applicant, as he did, in being involved with the organisation of heroin distribution in the Australian Capital Territory, not merely to maintain a heroin habit of his own, but rather as a commercial enterprise.  It was also open to his Honour to, having considered the subjective factors which might recommend leniency, including the brain damage which the applicant had suffered at an earlier time, consider that it did not prevent the applicant being regarded as an experienced, cunning and, in his Honour’s view, unrepentant criminal.

6. On the hearing of this application the applicant has explained his past conduct on the basis that it was spontaneous, that he became addicted and became desperate for money.  He also revealed to this Court, though it does not seem to have been mentioned before his Honour the Chief Justice, that he had a wife and young child.  On the hearing of this appeal it would only be open to this court to intervene if it appeared that his Honour the Chief Justice had been in error, which error relevantly affected the sentence imposed.  It is not open to this Court to intervene, simply because, in the period of time between the date of sentence and now, that this applicant has come to experience genuine remorse or has now prospects for rehabilitation which were not then apparent.

7. I note that his Honour did impose a relatively brief non-parole period, no doubt in the hope that the applicant would, during that non-parole period, take steps towards rehabilitation so as to become an appropriate candidate for parole.  The documents which the applicant has presented to this Court do indicate that, if that was his Honour’s view, it may well be justified.  It also, of course, reinforces his Honour’s view that the offences with which the applicant and his co-offenders were involved was a systematic, deliberate and well thought-out course of dealing.  If the applicant is indeed as repentant as he claims to be and continues his efforts at self-improvement, it is very likely he will be given the opportunity for parole when the non-parole period expires.

8. However, I do not see anything in what has been put to the Court which persuades me that there is any reason for the Court to intervene and alter the sentences which his Honour the Chief Justice imposed.  In those circumstances, I would refuse leave to appeal and dismiss that application.

   DRUMMOND J:

9. I agree with the reasons given by the learned presiding judge for dismissing the application for an extension of time within which to appeal and with the orders proposed by his Honour.

   DOWSETT J:

10. I also agree.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Higgins, Drummond and Dowsett.

Associate:  Dated:             16 March 2001

Counsel for the Applicant:	The applicant appeared in person.
Interpreter for the Applicant:	Uyen Loewald
Counsel for the Respondent:	Mr A Robertson
Solicitor for the Respondent:	ACT Director of Public Prosecutions
Date of Hearing:	6 February 2001
Date of Judgment:	6 February 2001