R v Tran - [2000] NSWCCA 409

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Tran [2000] NSWCCA 409 revised - 17/10/2000

FILE NUMBER(S):
60647/98

HEARING DATE(S): 4 October 2000

JUDGMENT DATE: 04/10/2000

PARTIES:
Crown /Respondent
Si Ngoc TRAN/Applicant

JUDGMENT OF: Simpson J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/21/2176

LOWER COURT JUDICIAL OFFICER: Rummery DCJ

COUNSEL:
R A Hulme - Crown
J C Nicholson SC - Applicant

SOLICITORS:
S E 'Connor - Crown
D J Humphreys - Applicant

CATCHWORDS:

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985

DECISION:
Leave to appeal granted - appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60647/98
SIMPSON J
HIDDEN J

4 October 2000

REGINA v SI NGOC TRAN

Judgment

SIMPSON J :

The applicant seeks leave to appeal against a sentence imposed by Judge Rummery in the District Court on 23 October 1998 following the applicant's plea of guilty to a charge of supplying not less that the trafficable quantity of heroin. His Honour imposed a total term of seven years’ imprisonment made up of a minimum term of five years and an additional term of two years. The maximum custodial sentence applicable to the offence, by reason of ss 25 and 29 of the Drug Misuse and Tracking Act 1985, is imprisonment for fifteen years.
Facts
On 14 August 1997 the applicant was found to be in possession of $80,000 in cash. A search of his home produced another $109,600 in cash, items associated with the distribution of drugs, one of which contained an amount of heroin and, in the applicant's bedroom, heroin amounting to 147.78 grams in pure form. The applicant was arrested but declined to be interviewed. His arrest came as a result of an ongoing investigation and surveillance.
There was some susubjective material placed before the court. The applicant was born in Vietnam on 1 December 1959. He was thirty-seven years of age at the time of the offence. He came to Australia with his father and brother in 1981, having spent some time in a refugee camp in Malaysia. His mother and other siblings remain in Vietnam. The applicant completed his education in Vietnam. In Australia he has had some employment, mostly labouring, and in 1991 was involved in a work accident in which he suffered head injuries. He has not worked for about five years and he has been addicted to heroin.
The most significant matter relating to sentence concerns the applicant's prior record. In February 1995 he was convicted of supplying heroin and sentenced to three years’ imprisonment made up of a minimum term of eighteen months and an additional term of eighteen months. The minimum term expired on 21 March 1996. At the date of the present offence, therefore, he was still subject to the additional term of the previous sentence, with about five weeks left to serve. Plainly this is a significant aggravating factor. The amount of the drug involved in the earlier offence was ninety-six grams.
Sentencing the applicant Judge Rummery…

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 [2000] NSWCCA 409
Case: [2000] NSWCCA 409
Decision Date: 4 October 2000

CaseChat Overview and Summary

The applicant in this case, Tran, seeks leave to appeal against a sentence imposed by Judge Rummery in the District Court. Following his guilty plea to a charge of supplying a trafficable quantity of heroin, Tran was sentenced to seven years’ imprisonment, consisting of a minimum term of five years and an additional term of two years. The maximum custodial sentence applicable to the offence under the Drug Misuse and Trafficking Act 1985 is fifteen years’ imprisonment. The primary legal issue before the court was whether the sentence imposed was manifestly excessive and whether the sentencing judge failed to take adequate account of several mitigating factors. These factors included Tran’s plea of guilty, his contrition, limited cooperation with authorities, family background, refugee status, work-related head injuries, heroin addiction, rehabilitation efforts, and the surrender of money found in his possession.

The court considered the mitigating factors presented by Tran's counsel but found that the sentence was not manifestly excessive. The court acknowledged the severity of the offence, the amount of heroin involved, and Tran's prior criminal record, which included a recent conviction for a similar offence. While the court recognised Tran's personal circumstances and challenges, it emphasised the need for deterrence and the protection of the community, given the significant quantities of heroin involved in both his current and previous offences. The court held that the sentence imposed was within the appropriate range and adequately reflected the seriousness of the offence and Tran's criminal history.

As a result of the court’s reasoning, Tran's application for leave to appeal was dismissed. The court found no manifest error in the sentencing judge’s approach or in the sentence itself. The court upheld the District Court's decision, affirming that the sentence was appropriate given the circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

The applicant seeks leave to appeal against a sentence imposed by Judge Rummery in the District Court on 23 October 1998 following the applicant's plea of guilty to a charge of supplying not less that the trafficable quantity of heroin. His Honour imposed a total term of seven years’ imprisonment made up of a minimum term of five years and an additional term of two years. The maximum custodial sentence applicable to the offence, by reason of ss 25 and 29 of the Drug Misuse and Tracking Act 1985, is imprisonment for fifteen years.Facts On 14 August 1997 the applicant was found to be in possession of $80,000 in cash. A search of his home produced another $109,600 in cash, items associated with the distribution of drugs, one of which contained an amount of heroin and, in the applicant's bedroom, heroin amounting to 147.78 grams in pure form. The applicant was arrested but declined to be interviewed. His arrest came as a result of an ongoing investigation and surveillance. There was some susubjective material placed before the court. The applicant was born in Vietnam on 1 December 1959. He was thirty-seven years of age at the time of the offence. He came to Australia with his father and brother in 1981, having spent some time in a refugee camp in Malaysia. His mother and other siblings remain in Vietnam. The applicant completed his education in Vietnam. In Australia he has had some employment, mostly labouring, and in 1991 was involved in a work accident in which he suffered head injuries. He has not worked for about five years and he has been addicted to heroin. The most significant matter relating to sentence concerns the applicant's prior record. In February 1995 he was convicted of supplying heroin and sentenced to three years’ imprisonment made up of a minimum term of eighteen months and an additional term of eighteen months. The minimum term expired on 21 March 1996. At the date of the present offence, therefore, he was still subject to the additional term of the previous sentence, with about five weeks left to serve. Plainly this is a significant aggravating factor. The amount of the drug involved in the earlier offence was ninety-six grams. Sentencing the applicant Judge Rummery fixed 21 September 1997 as the date for commencement of the sentence. He did this, notwithstanding that the applicant was arrested on 13 August 1997 and remained in custody thereafter. He expressly took this course because 21 September 1997 was the date the applicant's parole expired. The choice of the sentencing date therefore amounted to a de facto revocation of parole. This, however, does not appear to be outside the power conferred by the Sentencing Act 1989, under which the applicant was sentenced. On behalf of the applicant it was accepted that no patent error in the remarks on sentence could be identified, although that position was somewhat modified in the course of oral submissions. In written submissions it was submitted that the sentence is manifestly excessive and denotes a failure to take adequate account of the plea of guilty, the applicant's contrition, some limited but useful cooperation with the authorities, his family background and circumstances, particularly his refugee status, the effect of the work injury, his heroin addiction and its antecedent causes, his rehabilitation and the surrender of the money in his possession.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SIMPSON J

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Ratio Decidendi

Legal Principle Established

Established by: SIMPSON J

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