R v Tran - [2019] NSWDC 545

District Court

New South Wales

Medium Neutral Citation: R v Tran [2019] NSWDC 545
Hearing dates: 15 July 2019
Date of orders: 15 July 2019
Decision date: 15 July 2019
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
A term of imprisonment of 4 year, 6 months with a non-parole period of 2 years, 8 months: at [12]

Catchwords: SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Circumstances of offence
SENTENCING — Mitigating factors — Remorse — Unlikely to re-offend — Rehabilitation — Plea of guilty — No record of previous convictions
SENTENCING — Aggravating factors — Financial gain
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code (Cth)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571
R v Niketic [2002] NSWCCA 425
R v Qutami (2001) 127 A Crim R 369
Xiao v R [2018] NSWCCA 4
Texts Cited: Nil
Category: Sentence
Parties:
Regina (Crown)
Van Tran (Offender)
Representation: Ms I Ibbett (Crown)
Mr G James QC (Counsel for the offender)

File Number(s): 2018/153893

Judgment

Van Tran was born in Vietnam in 1972, the youngest of nine children. He grew up during the horrors of the Vietnam War. His father was imprisoned for ten years, and his family’s circumstances were very difficult during those years. They fled from Vietnam as refugees when he was 14 years old after his father was released. They initially travelled by boat to Malaysia and were granted political asylum by the Australian government. The boat trip to Australia was traumatic, including an episode where they had been stranded without food or fuel for a period of two weeks. He spent some time in Villawood detention centre. He was granted permanent residency. Despite his deprived background which, as Mr James QC put, justifies a degree of consideration under Bugmy v The Queen (2013) 249 CLR 571, he did, as the Crown properly points out, contribute usefully as a functioning member of society in regular employment for many years thereafter.
He pleads guilty to one count under s 307.5(1) of the Criminal Code (Cth) of attempting to possess a border-controlled drug, namely, heroin, which carries a maximum penalty of life imprisonment, which is the yardstick to be taken into account in the sentencing process. I have also taken into account the sentencing principles set out in the Crimes Act 1914 (Cth). He has been in custody since 29 May 2018, and it is common ground that a term of full-time custody is required and should commence on that date.
In my view, he should receive a 25% discount on any term of imprisonment for his willingness to facilitate the administration of justice and the utilitarian value of the plea, in accordance with Xiao v R [2018] NSWCCA 4 as a result of the early plea.
The facts extend over ten pages of the Crown sentencing summary. They involve the importation of a package containing 12 kilograms of heroin. His role is uncontroversially summarised in the Crown’s submissions as being,…

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 [2019] NSWDC 545
Case: [2019] NSWDC 545
Decision Date: 15 July 2019

CaseChat Overview and Summary

The case of R v Tran involved the sentencing of the respondent, Tran, by the court. The matter was heard in a higher court, the specifics of which were not provided in the text. The central issue in the case was the determination of an appropriate sentence for Tran, considering both aggravating and mitigating factors. The court was tasked with weighing these factors to arrive at a sentence that was fair and just under the circumstances of the offence.

The legal issues that the court needed to decide involved several key considerations. These included the nature of the offence, the extent of Tran's remorse, his likelihood of re-offending, his prospects for rehabilitation, and the plea of guilty. Additionally, the court had to consider the aggravating factor of financial gain from the offence. The court also needed to balance these factors with the broader goal of general deterrence, ensuring that the sentence would serve as a warning to others who might consider committing similar offences.

The court's reasoning and outcome were based on a thorough analysis of both mitigating and aggravating factors. The mitigating factors included Tran's remorse, the lack of a previous criminal record, and his plea of guilty, which were considered significant in reducing the severity of the sentence. On the other hand, the aggravating factor of financial gain was also taken into account, as it indicated a certain level of premeditation and personal benefit. After considering all these factors, the court determined that a term of imprisonment of four years and six months, with a non-parole period of two years and eight months, was appropriate. This sentence aimed to achieve a balance between punishment, deterrence, and the potential for rehabilitation.

Orders

Orders of the court

A term of imprisonment of 4 year, 6 months with a non-parole period of 2 years, 8 months: at [12]

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 [2019] NSWDC 545
Hearing dates:	15 July 2019
Date of orders:	15 July 2019
Decision date:	15 July 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of 4 year, 6 months with a non-parole period of 2 years, 8 months: at [12]
Catchwords:	SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Circumstances of offence SENTENCING — Mitigating factors — Remorse — Unlikely to re-offend — Rehabilitation — Plea of guilty — No record of previous convictions SENTENCING — Aggravating factors — Financial gain
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code (Cth)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 R v Niketic [2002] NSWCCA 425 R v Qutami (2001) 127 A Crim R 369 Xiao v R [2018] NSWCCA 4
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Van Tran (Offender)
Representation:	Ms I Ibbett (Crown) Mr G James QC (Counsel for the offender)
File Number(s):	2018/153893