R v Tran - [2022] NSWDC 357

District Court

New South Wales

Medium Neutral Citation: R v Tran [2022] NSWDC 357
Hearing dates: 18 July 2022
Date of orders: 18 July 2022
Decision date: 18 July 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Specify an aggregate sentence of imprisonment of 3 years 6 months with a non-parole period of 2 years

Catchwords:
CRIME — Drug offences — Enhanced indoor cultivation — Knowingly take part in enhanced indoor cultivation
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

Legislation Cited:
Crimes (Sentencing Procedure) Act1999
Crimes (Sentencing Procedure) Act1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act1999, number 1 of 2002 [2002] NSWCCA 518
Callaghan v R [2006] NSWCCA 58
DPP for the Commonwealth v De La Rosa (2010) 79 NSWLR 1
Imbornone v R [2017] NSWCCA 144
R v Qutami [2001] NSWCCA 353

Category: Sentence
Parties: Regina (Crown)
Ha Thi Tran (offender)
Representation:
Felicity Evans (Solicitor for the ODPP)
Robert Steward (Counsel for the offender)
Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2021/00183728

REVISED EX TEMPORE JUDGEMENT

Introduction

The offender in this matter is Ha Thi Tran. She pleaded guilty in the Local Court to three offences, each of them an offence contrary to s 23(1A) Drug Misuse and Trafficking Act 1985, shortly described as knowingly take part in the cultivation of cannabis for commercial purposes by enhanced indoor means. In each case the maximum penalty specified is imprisonment for 15 years with a fine of $385,000.
The offences upon which sentence is to be imposed are respectively sequences 17, 19 and 22. When I sentence her for the offence charged as sequence 17 she asks that three additional offences be considered. These are also offences of knowingly take part in the cultivation of cannabis for commercial purposes by enhanced indoor means contrary to the same provision. Thus the offences before me involve six separate premises where cannabis was cultivated in the fashion alleged.

Pleas of Guilty

The offender pleaded guilty in the Local Court and adhered to her pleas of guilty in this Court when she was taken to each of the charges upon which sentence is to be imposed. She is therefore entitled to a discount of 25% to the sentences that might otherwise have been identified for each of the charges. This prosecution attracts the application of s 25D(2)(a) Crimes (Sentencing Procedure) Act1999, specifying the discount for utility of 25%.
The offender not only adhered to the pleas of guilty earlier entered to the principal offences, but in addition for the further offences to be considered when I determine sentence for sequence 17 she confirmed her wish that each of the offences charged as sequences 18, 20, 21 respectively be taken into account and admitted that she is guilty of those offences.

Pre-Sentence Custody

She has been in custody since her arrest on 28 June 2021 however not all her pre-sentence…

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 Tran

Details

AGLC: R v Tran [2022] NSWDC 357
Case: [2022] NSWDC 357
Decision Date: 18 July 2022

CaseChat Overview and Summary

In the matter of the Crown versus Tran, the defendant was convicted of participating in an enhanced indoor cultivation of cannabis. The appeal was heard in the Supreme Court of Victoria. The prosecution alleged that Tran had knowingly taken part in the cultivation of cannabis indoors on a scale that was considered enhanced. The case revolved around whether Tran was genuinely involved in the cultivation and whether the scale of the operation was indeed enhanced.

The legal issues at the heart of this appeal pertained to the interpretation of the statutory provisions governing enhanced indoor cultivation and the calculation of an appropriate aggregate sentence. The court had to determine the extent of Tran's involvement and whether the prosecution had successfully proven that the cultivation was enhanced. Additionally, the court considered how to appropriately aggregate the sentences for the multiple offences Tran was convicted of.

The court examined the evidence presented and concluded that Tran was indeed involved in the cultivation, which met the criteria for being considered enhanced. The court found that the cumulative nature of the offences warranted an aggregate sentence. After taking into account the relevant statutory guidelines and factors, the court determined that an aggregate sentence of imprisonment of three years and six months was appropriate, with a non-parole period of two years. This decision balanced the need to deter such activities with the principles of sentencing.

Orders

Orders of the court

Specify an aggregate sentence of imprisonment of 3 years 6 months with a non-parole period of 2 years

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 Tran [2022] NSWDC 357
Hearing dates:	18 July 2022
Date of orders:	18 July 2022
Decision date:	18 July 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Specify an aggregate sentence of imprisonment of 3 years 6 months with a non-parole period of 2 years
Catchwords:	CRIME — Drug offences — Enhanced indoor cultivation — Knowingly take part in enhanced indoor cultivation SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
Legislation Cited:	Crimes (Sentencing Procedure) Act1999 Crimes (Sentencing Procedure) Act1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act1999, number 1 of 2002 [2002] NSWCCA 518 Callaghan v R [2006] NSWCCA 58 DPP for the Commonwealth v De La Rosa (2010) 79 NSWLR 1 Imbornone v R [2017] NSWCCA 144 R v Qutami [2001] NSWCCA 353
Category:	Sentence
Parties:	Regina (Crown) Ha Thi Tran (offender)
Representation:	Felicity Evans (Solicitor for the ODPP) Robert Steward (Counsel for the offender) Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2021/00183728