R v Tran - [2000] SASC 431

R v TRAN
[2000] SASC 431

Court of Criminal Appeal: Prior, Olsson and Debelle JJ

1................ PRIOR J........... ............. I agree that this appeal should be dismissed. The sentence imposed was not manifestly excessive. The sentencing discretion has not miscarried, be it on the material put before the sentencing judge or because of recent initiatives taken with respect to a Drug Court. The approach of this Court is that suspension of sentences of imprisonment for this kind of offending is rare. Public deterrence is significant. The standards of punishment set by this Court are not to be eroded because of recent government initiatives (R v Mangelsdorf (1995) 66 SASR 60 at 70).

2................ OLSSON J....... This is an appeal by leave against a sentence imposed upon him by a judge of the District Court, consequent upon him pleading guilty to a charge of possessing heroin for sale.

In one sense, this was a fairly routine matter of its type, in relation to which the learned sentencing judge imposed what, prima facie, appears to have been a modest and appropriate sentence. However, particularly having regard to the potential impact of the activities of the recently created, so-called, Drug Court, considered in concert with the circumstances personal to the present appellant, Lander J was persuaded that it was appropriate for the present appeal to be considered by this Court. He thought it desirable for the Court to entertain what he described as a novel argument sought to be advanced in relation to the approach proper to be adopted to certain types of circumstance in which a prisoner has rehabilitated himself by undergoing treatment to cure his drug dependency.
It is, accordingly, desirable that attention first be directed to the relevant detailed factual background.
The appellant is a young man 22 years of age. He has no relevant criminal background. He was born in Vietnam and migrated to Australia with his family in 1980, when he was approximately two years of age. His father had, in fact, preceded the rest of the family, as a refugee, some two years prior to that time.
The family was originally resident in Sydney where the appellant's father initially performed factory work. He thereafter established his own business, first in the clothing trade and later as a fisherman, owning his own boat. In 1986 the family moved to South Australia, where they had relatives who resided at Virginia and were involved in the market gardening business.
The appellant's parents purchased a property at Virginia and commenced growing vegetables commercially. They later commenced to deal in vegetables as merchants on a large scale. The business prospered and currently employs some 15 people. It is a major supplier of certain lines to the leading supermarket retail outlets in this State.
The appellant's parents enrolled him at a leading private college in Adelaide. In 1994 he successfully completed matriculation as a student of that college. Whilst at school, on weekends and holidays, he worked on the family property as…

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] SASC 431
Case: [2000] SASC 431
Decision Date: 19 December 2000

CaseChat Overview and Summary

This appeal against sentence was heard by Prior, Olsson, and Debelle JJ of the South Australian Court of Criminal Appeal. The appellant, Tran, had pleaded guilty to possessing heroin for sale and was sentenced to four years imprisonment with a non-parole period of 18 months by a judge of the District Court. The appellant appealed against his sentence, arguing that it should be suspended due to his rehabilitation and successful completion of a detoxification programme.

The court considered whether the sentencing judge had misapplied the principles of sentencing, particularly in light of the recently established Drug Court, which aims to rehabilitate drug offenders. The court held that the sentencing judge had not erred and that the sentence imposed was appropriate for the offence committed. The court emphasised the importance of deterrence in sentencing drug offenders and noted that rehabilitation is only one factor to be considered. Given the clear legislative intent for severe penalties for drug offences, the court found no basis to interfere with the sentence.

The appeal was dismissed by all three judges. The court found that the sentence was appropriate and that there was no error in the sentencing process. The court also noted that the appellant had breached his bail conditions by residing in Vietnam, which somewhat offset his commendable efforts at rehabilitation. Overall, the court concluded that the sentence imposed was not manifestly excessive and appropriately balanced the need for deterrence with the appellant's efforts to rehabilitate himself.

Orders