R v Tien

Case [1998] VSCA 6 22 July 1998

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SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 30 of 1998
31 of 1998

48 of 1998

THE QUEEN

CUONG MANH TIEN TAM HOANG PHAM THANH CHINH TRUONG

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JUDGES:	TADGELL, CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 July 1998
DATE OF JUDGMENT:	22 July 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 6

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Criminal law - Sentence - Trafficking in and possession of heroin - Role of addiction in crimes - Parity - Meaning and application of concept of parity - Sentences not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. N.T. Robinson	Solicitor for Commonwealth DPP
For the Applicant Tien	Mr. P.F. Tehan QC and	Haines & Polites
Ms. L.A. Taylor
For the Applicant Pham	Mr. O.P. Holdenson	Stary & George
For the Applicant Truong	In Person

TADGELL, J.A.:

I shall invite Mr Justice Buchanan to deliver the first judgment.

BUCHANAN, J.A.:

The applicants were charged with offences arising from the possession and sale of heroin as the result of an undercover operation conducted by the Australian Federal Police in the western suburbs of Melbourne. Each of the applicants supplied heroin which was purchased by Neil Jones, an undercover policeman, or entered into an agreement for the sale of heroin to Neil Jones.
Thanh Chinh Truong and Tam Hoang Pham were committed for trial on charges of conspiracy to traffic in heroin contrary to s.79(1) of the Drugs Poisons and Controlled Substances Act. The maximum penalty for the offences was a fine of $100,000 or 15 years' imprisonment. In addition Truong was committed for trial on charges of trafficking in heroin contrary to s.71(1) of the Act and possession of a prohibited import, being heroin, contrary to provisions of the Customs Act. The maximum penalty for trafficking is the same as that for conspiracy to traffic.
On 10 February 1998 Truong and Pham pleaded guilty to the charges of conspiracy and Truong pleaded guilty to the charge of trafficking. Truong was sentenced to 18 months' imprisonment on the charge of conspiracy, and 3 years' imprisonment on the charge of trafficking. The learned sentencing judge ordered that 6 months of the sentence for conspiracy be served cumulatively upon the sentence for trafficking, producing a total sentence of 3 years and 6 months. His Honour directed that the applicant serve a minimum of 2 years before he was to be eligible for parole. Pham was sentenced to 5 years' imprisonment and a minimum term of 3 years' imprisonment was fixed.
Cuong Manh Tien was committed to stand trial on charges of trafficking in and possession of heroin contrary to the provisions of the State Act, and pleaded guilty upon arraignment in the County Court. On 16 February 1998 he was sentenced to 3 years' imprisonment on one count of trafficking and 2 years' imprisonment on a second count of trafficking and to 6 months' imprisonment for possession. The sentences for trafficking were cumulated, producing a total sentence of 5 years. The learned…

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

AGLC: R v Tien & Ors [1998] VSCA 6
Case: [1998] VSCA 6
Decision Date: 22 July 1998

CaseChat Overview and Summary

The case of R v Tien involved the appellant, Tien, who was convicted of drug trafficking and possession of heroin. The primary dispute was whether the sentences imposed by the trial judge were manifestly excessive, particularly in light of Tien's role as an addicted courier in the drug trafficking operation. The matter was heard in the High Court of Australia, which was asked to review the appeal against the sentence.

The central legal issues were whether the trial judge erred in failing to consider the principle of parity in sentencing and whether the sentences imposed were manifestly excessive. The appellant argued that the trial judge did not adequately consider the mitigating effect of his addiction and role as a courier, which should have resulted in a lesser sentence. The key issue was whether the trial judge appropriately balanced the severity of the crime against the mitigating factors, including addiction and role in the crime.

The High Court examined the principle of parity in sentencing, noting that while it is a relevant consideration, it does not automatically require equal sentences for all offenders in similar circumstances. The Court concluded that the trial judge did not misapply the principle of parity but rather appropriately balanced the aggravating and mitigating factors. The Court found that the sentences were not manifestly excessive, considering the gravity of the offences and the appellant's role in the drug trafficking operation. The Court also highlighted that the trial judge had considered the appellant's addiction, but it did not outweigh the severity of the crimes committed.

The final orders of the Court were to dismiss the appeal, affirming the trial judge's sentencing decision as appropriate and not manifestly excessive. The Court upheld the sentences imposed, finding that the trial judge had correctly applied the relevant principles and adequately considered all mitigating factors, including the appellant's addiction and role in the crime.

Orders