R v Tran - [2014] ACTSC 368

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Tran
Citation:	[2014] ACTSC 368
Hearing Dates:	3 October 2014, 5 November 2014, 8 December 2014, 17 December 2014
DecisionDate:	19 December 2014
Before:	Burns J
Decision:	See [14] – [16]
Category:	Sentence
Catchwords:	CRIMINAL LAW – Particular Offences – drug offences – sentence – traffic in a controlled drug other than cannabis – breach of good behaviour order.
Legislation Cited:	Confiscation of Criminal Assets Act 2003 (ACT) Criminal Code 2002 (ACT) s 603 (7)
Parties:	The Queen (Crown) Thuy Thi Thu Tran (Offender)
Representation:	Counsel Mr Reardon (Crown) Mr Sharman (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Lynch Solicitors (Offender)
File Numbers:	SCC 184 of 2014

Burns J:

Background

Ms Tran, you have pleaded guilty to trafficking in methylamphetamine between 13 November 2013 and 19 March 2014 (CC2014/2997). I note that a Statement of Facts was agreed between the parties and was tendered at the sentence hearing. I will not refer in great detail to that Statement of Facts, but it is sufficient to note that between those dates you supplied methylamphetamine to a person by the name of Yan Cui on an ongoing basis.

On 19 March this year police executed a search warrant on your home. During the execution of that search warrant police located 9.505 grams of a white crystalline substance divided into small clip seal bags. That white crystalline substance later proved to be methylamphetamine. Police also located other indicia of trafficking during the search of your home including the sum of $9,645.00 in cash.

At the time of your offending the maximum penalty for the offence of trafficking in methylamphetamine, contrary to s 603 (7) of the Criminal Code 2002 (ACT), was ten years' imprisonment.

I note that you first appeared before the ACT Magistrates Court on 20 March this year. On that occasion you were charged with the offence of trafficking methylamphetamine and also with two further charges. Pleas of not guilty were entered to all charges on 4 April this year, which was the second mention date.

You entered a plea of guilty to the charge of trafficking in methylamphetamine at a case management hearing on 14 August this year and the matter was then committed to this Court for sentence. The prosecution withdrew the other charges as a result of your plea of guilty to this charge and your undertaking not to oppose an application under the Confiscation of Criminal Assets Act 2003 (ACT).

The facts reveal an ongoing process of supply of methylamphetamine to Mr Cui who then, to your knowledge, on-sold the substance to others. I accept that you were a user of methylamphetamine but the evidence establishes that you were more than simply a subsistent supplier. I am satisfied that you were also making a profit, albeit not a very significant profit, from this process of supply. The process of supply to Mr Sui continued over some four months and involved a significant amount…

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 [2014] ACTSC 368
Case: [2014] ACTSC 368
Decision Date: 19 December 2014

CaseChat Overview and Summary

The appellant, Tran, was convicted of trafficking in methylamphetamine and breaching good behaviour orders. The matter was heard in the Supreme Court of Victoria. The appellant pleaded guilty to both charges and the court accepted his plea. The court was required to determine the appropriate sentence for the appellant in light of his guilty plea and the relevant statutory provisions.

In determining the sentence, the court considered the seriousness of the offences and the appellant's criminal history. The court found that the appellant had a significant criminal history, including previous convictions for drug offences. The court also considered the appellant's guilty plea and the fact that he had commenced serving his sentence in custody prior to the sentencing hearing. The court determined that a sentence of 16 months' imprisonment was appropriate, with a non-parole period of eight months. The court also cancelled the good behaviour orders imposed in the Magistrates Court and sentenced the appellant to seven days’ imprisonment for each charge.

The court imposed a sentence of 16 months' imprisonment for the charge of trafficking in methylamphetamine, with a non-parole period of eight months. The court also imposed a sentence of seven days’ imprisonment for each charge of breach of good behaviour orders. The sentences are to commence on 22 October 2014 and the non-parole period will expire on 21 June 2015.

Orders

Orders of the court

With respect to the charge of trafficking in methylamphetamine you are convicted and you are sentenced to 16 months' imprisonment. I have reduced that from 19 months in order to reflect your plea of guilty commencing 22 October 2014.

For the breach of the good behaviour orders imposed in the Magistrates Court on 13 November 2012, I cancel those good behaviour orders and on each charge you will be sentenced to seven days’ imprisonment also commencing on 22 October 2014.

There will be a non-parole period of eight months commencing on 22 October 2014 and expiring on 21 June 2015.

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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