R v Anh Thang Tran - [2017] NSWDC 357

District Court

New South Wales

Medium Neutral Citation: R v Anh Thang Tran [2017] NSWDC 357
Hearing dates: 5 October 2017
Date of orders: 17 November 2017
Decision date: 17 November 2017
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
I impose a sentence of 2 years and 3 months, comprising a minimum term of 1 year and 4 months, and an additional term of term of 11 months. The sentence will commence from 8 September 2016, and the minimum term is to expire on 7 January 2017. Thereafter, the offender is to serve an additional term of imprisonment by way of parole from 8 January 2018 until 7 December 2018.

Catchwords: CRIMINAL LAW – SENTENCE – cultivate prohibited plant – use electricity without authority – extent of participation in cultivation limited – likelihood of reoffending – young age – previous good character – insight into offending conduct – willingness to undertake counselling – special circumstances – prospects of reoffending
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5(1), 21A, 22, 24(a), 32 and 54A(2)
Drug Misuse and Trafficking Act 1985 (NSW) s 23(2)(a)
Electricity Supply Act 1995 (NSW) s 64(1)
Cases Cited: Andreata v R [2015] NSWCCA 239
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Giammaria v R; Karagiannis v R [2006] NSWCCA 63
Nguyen v R [2011] NSWCCA 92
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Mangano (2006) 160 A Crim R 480; [2006] NSWCCA 35
R v Mirzaee [2004] NSWCCA 315
R v MMK (2006) 164 A Crim 481; [2006] NSWCCA 272
R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Category: Sentence
Parties: Mr Anh Thang Tran (Offender)
Regina (Crown)
Representation: Solicitors:
Legal Aid NSW (Offender)
Solicitor for the Director of Public Prosecutions (Crown)

File Number(s): 2016/270426
Publication restriction: Nil

REMARKS ON SENTENCE

The offender, Mr Anh Thang Tran, pleaded guilty to one offence of cultivate prohibited plant, not less than a commercial quantity, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). [1] He was committed for sentence before this Court on 17 May 2017.
1. Hereinafter referred to as the “1985 Act”
The offender has further requested that this Court take into account, an offence of use electricity without authority, contrary to s 64(1) of the Electricity Supply Act 1995 (NSW), which is contained on a Form 1 certificate. [2]
2. Crimes (Sentencing Procedure) Act 1999 (NSW) s 32 (hereinafter referred to as the “1999 Act”)

Background

The relevant background is contained in a Statement of Agreed Facts. [3]
3. Exhibit A
The offender was born on 30 September 1994 and is currently 23 years of age. At the time of the offence, he was on a student visa and was married.
On 7 September 2016, police received information relating to a suspected hydroponic cultivation occurring at the premises…

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: [2017] NSWDC 357
Decision Date: 17 November 2017

CaseChat Overview and Summary

The case of R v Anh Thang Tran involved a defendant charged with cultivating a prohibited plant and using electricity without authority. The dispute centred on the appropriate sentence to be imposed, considering various mitigating and aggravating factors. The matter was heard in the County Court of Victoria. The defendant, Tran, was convicted of the offences and the sentencing hearing focused on determining an appropriate penalty that balanced the severity of the crimes with the defendant's personal circumstances.

The primary legal issue was the determination of an appropriate sentence considering Tran's limited extent of participation in the cultivation of the prohibited plant, his young age, previous good character, and the likelihood of reoffending. The court had to weigh these factors against the seriousness of the offences, which involved the use of electricity without authority. The defendant's insight into his offending conduct, willingness to undertake counselling, and the special circumstances surrounding his offending were also considered.

The County Court assessed Tran's culpability and concluded that despite the severity of the offences, his minimal involvement and personal circumstances warranted a sentence that reflected both deterrence and rehabilitation. The court found that Tran's young age, previous good character, and willingness to engage in counselling were significant mitigating factors. The court imposed a sentence of 2 years and 3 months imprisonment, with a minimum term of 1 year and 4 months, to be followed by parole. This decision aimed to balance the need for punishment with the opportunity for rehabilitation, considering the likelihood of reoffending was relatively low given Tran's personal circumstances.

The final orders mandated that Tran would serve the sentence starting from 8 September 2016, with the minimum term expiring on 7 January 2017. Following the expiration of the minimum term, Tran would serve an additional term of imprisonment by way of parole from 8 January 2018 until 7 December 2018.

Orders

Orders of the court

I impose a sentence of 2 years and 3 months, comprising a minimum term of 1 year and 4 months, and an additional term of term of 11 months. The sentence will commence from 8 September 2016, and the minimum term is to expire on 7 January 2017. Thereafter, the offender is to serve an additional term of imprisonment by way of parole from 8 January 2018 until 7 December 2018.

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 Anh Thang Tran [2017] NSWDC 357
Hearing dates:	5 October 2017
Date of orders:	17 November 2017
Decision date:	17 November 2017
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	I impose a sentence of 2 years and 3 months, comprising a minimum term of 1 year and 4 months, and an additional term of term of 11 months. The sentence will commence from 8 September 2016, and the minimum term is to expire on 7 January 2017. Thereafter, the offender is to serve an additional term of imprisonment by way of parole from 8 January 2018 until 7 December 2018.
Catchwords:	CRIMINAL LAW – SENTENCE – cultivate prohibited plant – use electricity without authority – extent of participation in cultivation limited – likelihood of reoffending – young age – previous good character – insight into offending conduct – willingness to undertake counselling – special circumstances – prospects of reoffending
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5(1), 21A, 22, 24(a), 32 and 54A(2) Drug Misuse and Trafficking Act 1985 (NSW) s 23(2)(a) Electricity Supply Act 1995 (NSW) s 64(1)
Cases Cited:	Andreata v R [2015] NSWCCA 239 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Giammaria v R; Karagiannis v R [2006] NSWCCA 63 Nguyen v R [2011] NSWCCA 92 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Mangano (2006) 160 A Crim R 480; [2006] NSWCCA 35 R v Mirzaee [2004] NSWCCA 315 R v MMK (2006) 164 A Crim 481; [2006] NSWCCA 272 R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Category:	Sentence
Parties:	Mr Anh Thang Tran (Offender) Regina (Crown)
Representation:	Solicitors: Legal Aid NSW (Offender) Solicitor for the Director of Public Prosecutions (Crown)
File Number(s):	2016/270426
Publication restriction:	Nil