R v Alexander Tran - [2011] NSWDC 105

District Court

New South Wales

Medium Neutral Citation: R v Alexander TRAN [2011] NSWDC 105
Decision date: 14 July 2011
Jurisdiction: Criminal
Before: Cogswell SC DCJ
Decision:
Non-parole period of 4 years, balance of the term of 2 years 3 months.

Catchwords: CRIMINAL LAW - sentence - importing commercial quantity of border controlled precursor -pseudoephedrine - mail received from Vietnam intercepted by Customs - package contained a total pure quantity of 1.818 kg of pseudoephedrine - Customs substituted an inert substance for the pseudoephedrine powder and delivered the parcel - motivated by greed - plea of guilty at late stage - cannot be satisfied beyond reasonable doubt that offender was aware of the precise quantity of the precursor - other items related to drug manufacturing found at home - shared home - exclusive possession question - not satisfied offender knew thereby elevating role
Legislation Cited: Crimes Act 1914 s 17A, 19A(b)
Criminal Code Act 1995 s 307.11(1)
Category: Sentence
Parties: Regina
Alexander Tran
Representation: Mr M Coroneos for the offender
Mr A Powell for the Office of the Commonwealth Director of Public Prosecutions

File Number(s): 2010/111661

SENTENCE

1. I am sentencing a thirty year old well-educated man, respected by his peers, who decided to make extra money by bringing into Australia a commercial quantity of a substance which he knew would be used to manufacture prohibited drugs in this country. That decision and action brought him from being a well-regarded citizen to becoming a criminal facing a maximum of twenty-five years gaol.

2. The crime which he committed is a crime against federal legislation. It is a crime against s 307.11(1) of Criminal Code of the Commonwealth and is called importing a substance, intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being what is called a border controlled precursor.

3. In this case, the border controlled precursor was pseudoephedrine. The quantity which Mr Tran imported into Australia was more than the commercial quantity. By that I mean it was a commercial quantity. It was over the minimum amount specified for a commercial quantity.

4. It is important for a judge in sentencing an offender to set out briefly what happened which brought about the arrest and charging of the offender.

5. In referring to Mr Tran as an offender, I now formally convict him of the crime which I referred to and I also note that he has pleaded guilty to the crime.

6. Briefly, what happened is this. On 9 September 2009 Customs examined some mail which arrived from Vietnam. It was registered and bore a number. It was addressed to a man in Chester Hill. The sender of the package was referred to as another man from Vietnam. The package described itself as containing fruit powder, dried fruit and knurr flavour.

7. Customs officers opened them and found nine packets. Each one weighed about a kilogram. They were variously labelled. They tested a powder…

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 R v Alexander Tran

Details

AGLC: R v Alexander Tran [2011] NSWDC 105
Case: [2011] NSWDC 105
Decision Date: 14 July 2011

CaseChat Overview and Summary

The case of R v Alexander Tran involved a dispute over the importation of a commercial quantity of a border-controlled precursor, pseudoephedrine, into Australia. Tran was intercepted by Customs when a package he received from Vietnam, containing 1.818 kg of pure pseudoephedrine, was delivered to him. Customs substituted an inert substance for the pseudoephedrine powder before delivering the parcel. Tran was charged and subsequently pleaded guilty to importing a commercial quantity of a border-controlled precursor at a late stage. The court had to consider the quantity of pseudoephedrine Tran was aware of, his level of knowledge, and his role in the importation, as well as the circumstances of his shared home and the items related to drug manufacturing found there.

The central legal issues revolved around the extent of Tran's knowledge regarding the precise quantity of pseudoephedrine he was importing, and whether this knowledge elevated his role in the importation. The court needed to determine if Tran was aware of the exact amount of precursor in the package and whether this awareness signified a higher level of involvement in the importation. Additionally, the court had to assess the significance of the items found at Tran's home, which were related to drug manufacturing, in the context of his shared residence. These factors were crucial in determining the appropriate sentence.

The court held that Tran was motivated by greed, but could not be satisfied beyond reasonable doubt that Tran was aware of the precise quantity of the precursor. The court found that while Tran was involved in the importation, there was insufficient evidence to prove he knew the exact amount of pseudoephedrine. The presence of other items related to drug manufacturing at Tran's home did not conclusively establish his knowledge or elevate his role. The court concluded that a sentence reflecting the seriousness of the offence was necessary, but did not find sufficient evidence to elevate Tran's role beyond that of a courier.

The court imposed a sentence with a non-parole period of 4 years, followed by a balance of the term of 2 years and 3 months. This sentence took into account the seriousness of the importation of a commercial quantity of a border-controlled precursor, the late plea of guilty, and the mitigating factors present in the case.

Orders

Orders of the court

Non-parole period of 4 years, balance of the term of 2 years 3 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Alexander TRAN [2011] NSWDC 105
Decision date:	14 July 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Non-parole period of 4 years, balance of the term of 2 years 3 months.
Catchwords:	CRIMINAL LAW - sentence - importing commercial quantity of border controlled precursor -pseudoephedrine - mail received from Vietnam intercepted by Customs - package contained a total pure quantity of 1.818 kg of pseudoephedrine - Customs substituted an inert substance for the pseudoephedrine powder and delivered the parcel - motivated by greed - plea of guilty at late stage - cannot be satisfied beyond reasonable doubt that offender was aware of the precise quantity of the precursor - other items related to drug manufacturing found at home - shared home - exclusive possession question - not satisfied offender knew thereby elevating role
Legislation Cited:	Crimes Act 1914 s 17A, 19A(b) Criminal Code Act 1995 s 307.11(1)
Category:	Sentence
Parties:	Regina Alexander Tran
Representation:	Mr M Coroneos for the offender Mr A Powell for the Office of the Commonwealth Director of Public Prosecutions
File Number(s):	2010/111661