R v Quang Het Tran - [2007] NSWDC 52

CITATION: R v Quang Het Tran [2007] NSWDC 52

JUDGMENT DATE:
16 February 2007

EX TEMPORE JUDGMENT DATE: 12 April 2007

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Convicted. Overall sentence of seven years imposed. [66]; N.P.P. 4 years and 3 month’s to date 12 August 2005 and expire 11 November 2009. ; Whole sentence expire 11 August 2012.

CATCHWORDS: Criminal Law - Sentence - Importation of prohibited drug - heroin varying levels of purity - weight 860grams - drugs concealed in suitcase lining and book covers - courier - nature of objective criminality - nature of custodial conditions - significant intellectual impairment - application of deterence.

LEGISLATION CITED: Crimes Act 1914 (Cwlth) s.16A
Customs Act (1901) s233B

CASES CITED: Gladue v The Queen [1999] 1 SCR 688 at [80].
R v Cuthbert (1967) 2 NSWR 329, R v Rushby [1977] 1 NSWLR 594, R v Hayes [1984] 1NSWLR 740
Wong v The Queen (2001) 207 CLR 584
Pham [2005] NSWCCA
R v Qutami 2007 NSWCCA 353
Power v The Queen 131 (1974) CLR 623

PARTIES: Regina
Quang Het Tran

FILE NUMBER(S): 06/11/0386

SOLICITORS: Crown: Mr Nicoll
Accused: Mr Neild

Sentence
1 HIS HONOUR: Quang Het Tran is described by his niece as a loving and caring husband to her aunt and a devoted father to his son. He, willingly, she says, “Helps out with the cooking and cleaning and always has time for his family. He is supportive and ready to offer help to any family member when in need or in trouble”.

2 Yet on 12 August 2005, he imported into Australia $600,000 worth of heroin concealed in the lining of a suitcase and two hard covered books. The total weight of the pure heroin was 861 grams.

3 Today, this forty-six year old Australian citizen of Vietnamese origin, is to be held accountable for his serious criminal offending.

4 As sentencing judge, it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence, before this Court, committed by this offender, harming this community, see R v Gladeu [1999] SCR 688 at [80].

5 My initial task requires an assessment of the objective criminality of this offence before the Court. I will also need to have regard to matters personal to the offender, principally those set out in s 16A of the Crimes Act 1914 (Cwlth).

6 The starting point for such assessments requires the sentencing judge to make findings of fact from the evidence before the Court relating to both the offence and to the offender. My fact finding task has been circumscribed in this case, in that the parties have tendered an agreed set of facts, to which I shall shortly return. It is sufficient at this point that I remind the Court, a judge is not party to any agreement in respect of the facts tendered before him or her. The tender of agreed facts does not relieve the judge from…

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 Quang Het Tran

Details

AGLC: R v Quang Het Tran [2007] NSWDC 52
Case: [2007] NSWDC 52
Decision Date: 12 April 2007

CaseChat Overview and Summary

The case of R v Quang Het Tran involved the defendant, Tran, who was convicted of importing a prohibited drug, specifically heroin, into Australia. The heroin weighed 860 grams and was concealed within the lining of a suitcase and book covers. The case was heard and decided in the relevant Australian court. The primary issue before the court was the appropriate sentence for Tran's crime, considering the nature of his objective criminality, the conditions of his custodial environment, and his significant intellectual impairment. The court also had to balance these factors against the need for deterrence.

The court considered the nature of Tran's involvement, finding that he acted as a courier for the drugs. It was noted that the drugs were of varying levels of purity, and their concealment indicated a level of sophistication in the operation. The court evaluated the significance of Tran's intellectual impairment, which was found to be significant. This impairment was considered in assessing the appropriate sentence. The court also reviewed the conditions of the custodial environment, which included potential harsh conditions that might exacerbate Tran's impairment. The court determined that, while the intellectual impairment was a mitigating factor, the severity of the crime and the need for deterrence were paramount. The overall sentence imposed was seven years, with specific details provided regarding the non-parole period and the expiry dates of the sentence.

Orders

Orders of the court

Convicted. Overall sentence of seven years imposed. [66]; N.P.P. 4 years and 3 month's to date 12 August 2005 and expire 11 November 2009. ; Whole sentence expire 11 August 2012.

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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CITATION:	R v Quang Het Tran [2007] NSWDC 52
JUDGMENT DATE:	16 February 2007
EX TEMPORE JUDGMENT DATE:	12 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Overall sentence of seven years imposed. [66]; N.P.P. 4 years and 3 month’s to date 12 August 2005 and expire 11 November 2009. ; Whole sentence expire 11 August 2012.
CATCHWORDS:	Criminal Law - Sentence - Importation of prohibited drug - heroin varying levels of purity - weight 860grams - drugs concealed in suitcase lining and book covers - courier - nature of objective criminality - nature of custodial conditions - significant intellectual impairment - application of deterence.
LEGISLATION CITED:	Crimes Act 1914 (Cwlth) s.16A Customs Act (1901) s233B
CASES CITED:	Gladue v The Queen [1999] 1 SCR 688 at [80]. R v Cuthbert (1967) 2 NSWR 329, R v Rushby [1977] 1 NSWLR 594, R v Hayes [1984] 1NSWLR 740 Wong v The Queen (2001) 207 CLR 584 Pham [2005] NSWCCA R v Qutami 2007 NSWCCA 353 Power v The Queen 131 (1974) CLR 623
PARTIES:	Regina Quang Het Tran
FILE NUMBER(S):	06/11/0386
SOLICITORS:	Crown: Mr Nicoll Accused: Mr Neild