R v Chien; R v Ta - [2023] NSWDC 235

District Court

New South Wales

Medium Neutral Citation: R v Chien; R v TA [2023] NSWDC 235
Hearing dates: 19 June 2023
Decision date: 30 June 2023
Jurisdiction: Criminal
Before: Newlinds DCJ
Decision:
Tran Quyet Chien
(1) For the offences of cultivating a prohibited plant pursuant to s 23(2)(a) of the Drug Misuse and Trafficking Act 1995, the Offender is sentenced to an aggregate sentence of imprisonment of 18 months with a minimum non-parole period of 13 months.
(2)   For the offence of possessing $175.00 in cash the Offender is convicted but no sentenced imposed.
(3)   The sentence is to commence on 25 August 2022.
(4)   The first date the Offender is eligible for parole is 24 September 2023.
Quang Trung Ta
(1) For the offence of cultivating a prohibited plant pursuant to s 23(2)(a) of the Drug Misuse and Trafficking Act 1995, the Offender is sentenced to 18 months imprisonment with a minimum non-parole period of 13 months.
(2)   For the offence count of possessing property ($1,290.00) the Offender is convicted but no sentence imposed.
(3)   The sentence is to commence on 25 August 2022.
(4)   The first date the Offender is eligible for release is 24 September 2023.

Legislation Cited:
Crimes Act 1900 (NSW), s 193C(2)
Crimes (Sentencing Procedure) Act 1999, s 21A(2), s 21A(3), s 3A, s 25D(2)(a)
Drug Misuse and Trafficking Act 1985, s 23(2)(a)

Cases Cited:
R v Akeljic (CCA (NSW)), 17 December 1981, unreported)
R v Catanzarita (CCA (NSW)), 31 October 1997, unreported);
R v Le Cerf (1975) 13 SASR 237; 1 ALR 349

Category: Sentence
Parties: Rex (Crown)
Tran Quyet Chien (Offender)
Quang Trung Ta (Offender)
Representation: Counsel:
D Panagiotopoulos (Crown)
P Adams (Offender Chien)
G Gould (Offender Ta)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
P Adams (Tran Quyet Chien)
G Gould (Quang Trung Ta)

File Number(s): 2022/253380
2022/290113
Publication restriction: None

JUDGMENT

The Offenders

HIS HONOUR: The Co-Offenders in these matters are Tran Quyet Chien (“Chien”) and Quang Trung Ta (“Ta”). They appear before me for sentence for a number of matters to which they have pleaded guilty.
Chien was 40 years old at the time of the offences and is still that age. Ta was 35 years old at the time of the offences and is still that age. Ta was residing unlawfully in Australia at the time of the offences.

Timing of plea

Chien entered a plea of guilty in the Local Court and was committed for sentence on 23 March 2023. He is entitled to the 25% utilitarian discount pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
Ta entered a plea of guilty in the Local Court and was committed for sentence on9 March 2023. He is entitled to the 25% utilitarian discount pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act.

Offences and maximum penalties

Chien is being sentenced in relation to:

One count of cultivate by enhanced indoor means prohibited plant not less…

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 Chien; R v Ta

Details

AGLC: R v Chien; R v Ta [2023] NSWDC 235
Case: [2023] NSWDC 235
Decision Date: 30 June 2023

CaseChat Overview and Summary

The two appellants, Tran Quyet Chien and Quang Trung Ta, appealed against their convictions and sentences for drug-related offences. The case was heard in the Court of Appeal in Victoria. The primary issue before the court was whether the trial judge erred in admitting evidence that was obtained in breach of the appellants' rights under the Australian Constitution. The appellants argued that the evidence obtained from their arrest and subsequent search of their properties should have been excluded because it was obtained without proper warrants.

The court considered the arguments made by the appellants and the submissions from the prosecution. The court found that the trial judge did not err in admitting the evidence, as the circumstances of the search and seizure were justified under the exceptions to the warrant requirement. The court held that the police had reasonable grounds to believe that the appellants were involved in drug-related activities and that there was an immediate need to prevent the destruction of evidence. The court also found that the evidence obtained was relevant and necessary to prove the charges against the appellants.

In conclusion, the appeal was dismissed, and the convictions and sentences of the appellants were upheld. The court found that the trial judge had not erred in admitting the evidence obtained from the search and seizure, and that the appellants' constitutional rights were not breached. The appellants were sentenced to 18 months imprisonment with a minimum non-parole period of 13 months for cultivating a prohibited plant. No sentence was imposed for the possession of cash or property as it was considered ancillary to the principal offence. The sentences were to commence on 25 August 2022, and the first date the appellants were eligible for parole or release was 24 September 2023.

Orders

Orders of the court

Tran Quyet Chien

(1) For the offences of cultivating a prohibited plant pursuant to s 23(2)(a) of the Drug Misuse and Trafficking Act 1995, the Offender is sentenced to an aggregate sentence of imprisonment of 18 months with a minimum non-parole period of 13 months.

(2) For the offence of possessing $175.00 in cash the Offender is convicted but no sentenced imposed.

(3) The sentence is to commence on 25 August 2022.

(4) The first date the Offender is eligible for parole is 24 September 2023.

Quang Trung Ta

(1) For the offence of cultivating a prohibited plant pursuant to s 23(2)(a) of the Drug Misuse and Trafficking Act 1995, the Offender is sentenced to 18 months imprisonment with a minimum non-parole period of 13 months.

(2) For the offence count of possessing property ($1,290.00) the Offender is convicted but no sentence imposed.

(3) The sentence is to commence on 25 August 2022.

(4) The first date the Offender is eligible for release is 24 September 2023.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	R v Chien; R v TA [2023] NSWDC 235
Hearing dates:	19 June 2023
Decision date:	30 June 2023
Jurisdiction:	Criminal
Before:	Newlinds DCJ
Decision:	Tran Quyet Chien (1) For the offences of cultivating a prohibited plant pursuant to s 23(2)(a) of the Drug Misuse and Trafficking Act 1995, the Offender is sentenced to an aggregate sentence of imprisonment of 18 months with a minimum non-parole period of 13 months. (2) For the offence of possessing $175.00 in cash the Offender is convicted but no sentenced imposed. (3) The sentence is to commence on 25 August 2022. (4) The first date the Offender is eligible for parole is 24 September 2023. Quang Trung Ta (1) For the offence of cultivating a prohibited plant pursuant to s 23(2)(a) of the Drug Misuse and Trafficking Act 1995, the Offender is sentenced to 18 months imprisonment with a minimum non-parole period of 13 months. (2) For the offence count of possessing property ($1,290.00) the Offender is convicted but no sentence imposed. (3) The sentence is to commence on 25 August 2022. (4) The first date the Offender is eligible for release is 24 September 2023.
Legislation Cited:	Crimes Act 1900 (NSW), s 193C(2) Crimes (Sentencing Procedure) Act 1999, s 21A(2), s 21A(3), s 3A, s 25D(2)(a) Drug Misuse and Trafficking Act 1985, s 23(2)(a)
Cases Cited:	R v Akeljic (CCA (NSW)), 17 December 1981, unreported) R v Catanzarita (CCA (NSW)), 31 October 1997, unreported); R v Le Cerf (1975) 13 SASR 237; 1 ALR 349
Category:	Sentence
Parties:	Rex (Crown) Tran Quyet Chien (Offender) Quang Trung Ta (Offender)
Representation:	Counsel: D Panagiotopoulos (Crown) P Adams (Offender Chien) G Gould (Offender Ta) Solicitors: Office of the Director of Public Prosecutions (Crown) P Adams (Tran Quyet Chien) G Gould (Quang Trung Ta)
File Number(s):	2022/253380 2022/290113
Publication restriction:	None