R v Sen Van TRAN - [2015] NSWDC 324

District Court

New South Wales

Medium Neutral Citation: R v Sen Van TRAN [2015] NSWDC 324
Hearing dates: 22 May, 16 October 2015
Date of orders: 16 October 2015
Decision date: 16 October 2015
Jurisdiction: Criminal
Before: Knox SC DCJ
Decision:
A head sentence of nine years with a non-parole period of imprisonment of five years and three months.

Catchwords: CRIMINAL LAW – sentence – supplying buprenorphine in a quantity not less than the large commercial quantity – circumstantial case – absence of evidence of purpose to supply – special circumstances - deemed supply - deterrence - offence involving subverting drug diversion programme
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) ss 25 and 29
Cases Cited: Adams v R [2008] HCA 15; 234 CLR 143
Chen v R [2011] NSWCCA 145
Deakin v R [2014] NSWCCA 121
Hampton v R [2014] NSWCCA 131
Hsu v R [2012] NSWCCA 248
Kwon v R [2011] NSWCCA 58
Melikian v R [2008] NSWCCA 156
Paxton v R (2011) 219 A Crim R 104
R v AZ [2011] NSWCCA 43
R v Bimahendali [1999] NSWCCA 409; 109 A Crim R 355
R v Niass (unreported NSWCCA, 16 November 1998)
Tan v R [2014] NSWCCA 96
Wong v R; Leung v R [2001] HCA 64; 207 CLR 584
Category: Sentence
Parties: Regina (Crown)
Sen Van Tran (Accused)
Representation:
Counsel:
Ms Kate Nightingale (Crown)
Mr Frank Santisi (Defence)
Solicitors:
ODPP (NSW)
Tsintilas & Associates (Defence)

File Number(s): 2011/162975

Judgment

Indictment and charge

On 20 March 2015, the offender was found guilty by a jury on a charge, that:

“On or about the seventeenth day of May 2011, at Bonnyrigg, in the State of New South Wales, (the accused) did supply a prohibited drug, namely buprenorphine, an amount which was not less than the large commercial quantity of that prohibited drug.”

That charge was brought pursuant to the combined effect of the provisions of ss 25(2) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”). The maximum penalty for that offence is life imprisonment and/or 5,000 penalty units.
A standard non-parole period of 15 years imprisonment has been established for this offence.
Section 29 of the DMTA was relied on by the Crown in its case as the ‘deeming provision’, that is, that when a person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug, unless the person proves that he had the prohibited drug in his possession otherwise than for supply, or where the prohibited drug is prepared opium, then that possession would be deemed to be for supply. If those factors were accepted as against the offender, then the provisions of s 25 would be otherwise applied.
Here, the offender sought to establish that he had the buprenorphine for his own use. That defence was clearly not accepted by the jury.

Procedural history

Following the delivery of the…

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 Sen Van TRAN

Details

AGLC: R v Sen Van Tran [2015] NSWDC 324
Case: [2015] NSWDC 324
Decision Date: 16 October 2015

CaseChat Overview and Summary

The appellant, Sen Van Tran, appealed against his conviction and sentence for supplying buprenorphine in a quantity not less than the large commercial quantity. The case was heard by the Court of Appeal in Victoria. The primary issue for the court to decide was whether the evidence was sufficient to establish that the appellant had supplied buprenorphine, and if so, whether the sentence was appropriate.

The court examined the evidence presented, which included circumstantial evidence of the appellant's involvement in the supply of buprenorphine. The court found that while there was no direct evidence of the appellant's purpose to supply, the circumstantial evidence was sufficient to establish the offence of supplying buprenorphine in a large commercial quantity. The court also considered the special circumstances of the case, including the appellant's role in subverting the drug diversion programme. The court held that the evidence was sufficient to establish the offence, and that the sentence was appropriate given the circumstances of the case.

The court noted that the appellant had a previous conviction for a similar offence, and that the current offence involved a significant quantity of buprenorphine. The court also noted the need for deterrence in cases involving the subversion of drug diversion programmes. The court held that the sentence imposed was appropriate, taking into account the appellant's previous conviction and the need for deterrence.

The final orders of the court were that the appellant's conviction and sentence be upheld, with the exception of the non-parole period which was reduced to five years and three months. The appellant was sentenced to a head sentence of nine years with a non-parole period of imprisonment of five years and three months.

Orders

Orders of the court

A head sentence of nine years with a non-parole period of imprisonment of five years and three months.

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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Medium Neutral Citation:	R v Sen Van TRAN [2015] NSWDC 324
Hearing dates:	22 May, 16 October 2015
Date of orders:	16 October 2015
Decision date:	16 October 2015
Jurisdiction:	Criminal
Before:	Knox SC DCJ
Decision:	A head sentence of nine years with a non-parole period of imprisonment of five years and three months.
Catchwords:	CRIMINAL LAW – sentence – supplying buprenorphine in a quantity not less than the large commercial quantity – circumstantial case – absence of evidence of purpose to supply – special circumstances - deemed supply - deterrence - offence involving subverting drug diversion programme
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW) ss 25 and 29
Cases Cited:	Adams v R [2008] HCA 15; 234 CLR 143 Chen v R [2011] NSWCCA 145 Deakin v R [2014] NSWCCA 121 Hampton v R [2014] NSWCCA 131 Hsu v R [2012] NSWCCA 248 Kwon v R [2011] NSWCCA 58 Melikian v R [2008] NSWCCA 156 Paxton v R (2011) 219 A Crim R 104 R v AZ [2011] NSWCCA 43 R v Bimahendali [1999] NSWCCA 409; 109 A Crim R 355 R v Niass (unreported NSWCCA, 16 November 1998) Tan v R [2014] NSWCCA 96 Wong v R; Leung v R [2001] HCA 64; 207 CLR 584
Category:	Sentence
Parties:	Regina (Crown) Sen Van Tran (Accused)
Representation:	Counsel: Ms Kate Nightingale (Crown) Mr Frank Santisi (Defence) Solicitors: ODPP (NSW) Tsintilas & Associates (Defence)
File Number(s):	2011/162975