R v Tran - [2022] QCA 116

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tran [2022] QCA 116

PARTIES:

R
v
TRAN, Thanh Huu
(applicant)

FILE NO/S:

CA No 331 of 2021
SC No 1485 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court At Brisbane – Date of Sentence: 9 December 2021 (Boddice J)

DELIVERED ON:

30 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

10 June 2022

JUDGES:

McMurdo and Bond JJA and Flanagan J

ORDER:

Leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced on two counts of trafficking in dangerous drugs and one count of producing a dangerous drug – where the applicant assisted in a sophisticated and unlawful drug trafficking operation – where the applicant sentenced with a co-offender who was another member of the sophisticated unlawful drug operation – where the applicant was senior to the co-offender in the unlawful drug trafficking operation – whether the sentence was manifestly excessive – whether the sentencing judge erred in placing undue emphasis on the applicant’s previous convictions – whether the sentencing judge erred in imposing a sentence that offends the parity principle

Penalties and Sentences Act 1992 (Qld), s 9(10)

R v Hilton[2021] QCA 286, considered
R v RBE[2021] QCA 146, cited
R v Smith[2022] QCA 89, cited
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, cited

COUNSEL:

A J Kimmins for the applicant
C W Wallis for the respondent

SOLICITORS:

Potts Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO JA: I agree with Flanagan J.
BOND JA: I agree with the reasons for judgment of Flanagan J and with the order proposed by his Honour.
FLANAGAN J: By his pleas of guilty on 5 November 2021, the applicant was convicted of one count of trafficking in dangerous drugs, one count of trafficking in the dangerous drug cannabis, both for the period 12 February 2016 to 11 June 2016, and one count that on 10 June 2016 he unlawfully produced dangerous drugs. The applicant was sentenced on 9 December 2021 with a co-offender, Vu Phi Nguyen, who pleaded guilty to one count of trafficking in dangerous drugs and one count of trafficking in the dangerous drug cannabis, both for the period 2 March 2016 to 11 June 2016.
For the count of trafficking in dangerous drugs the applicant was sentenced to 10 years imprisonment, to be served concurrently with two three-year sentences for the counts of trafficking in cannabis and producing dangerous drugs. Two thousand and eight days were declared as time served under the sentence. Nguyen was sentenced to seven years imprisonment for the count of trafficking in dangerous drugs and three years to be served concurrently for the trafficking in cannabis. Two hundred and sixty-nine days were declared as time served under the sentence. A parole eligibility date…

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] QCA 116
Case: [2022] QCA 116
Decision Date: 30 June 2022

CaseChat Overview and Summary

The case of R v Tran involved the applicant, Tran, who had been convicted on two counts of trafficking in dangerous drugs and one count of producing a dangerous drug. The applicant had participated in a sophisticated and unlawful drug trafficking operation. The case reached the appellate court, where the applicant contested the severity of the sentence imposed. The applicant contended that the sentence was manifestly excessive and that the sentencing judge had erred by placing undue emphasis on the applicant's previous convictions. Additionally, it was argued that the sentence imposed contravened the parity principle.

The legal issues before the court were whether the sentence was manifestly excessive and whether the sentencing judge had erred in the way they had considered the applicant's previous convictions and in imposing a sentence that breached the parity principle. The court was required to determine whether these errors warranted interference with the sentence imposed.

The court, in its judgment, held that the sentence was not manifestly excessive and that the sentencing judge had not erred in their consideration of the applicant's previous convictions or in imposing a sentence that contravened the parity principle. The court found that the sentence was proportionate to the gravity of the offences and took into account all relevant factors, including the applicant's role in the drug trafficking operation. The court rejected the arguments presented by the applicant and affirmed the original sentence.

As a result of the court's findings, the applicant's leave to appeal against the sentence was refused. The original sentence imposed by the trial judge remained in place, and no further appeal was permitted.

Orders

Orders of the court

Leave to appeal against sentence refused.

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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CITATION:	R v Tran [2022] QCA 116
PARTIES:	R v TRAN, Thanh Huu (applicant)
FILE NO/S:	CA No 331 of 2021 SC No 1485 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court At Brisbane – Date of Sentence: 9 December 2021 (Boddice J)
DELIVERED ON:	30 June 2022
DELIVERED AT:	Brisbane
HEARING DATE:	10 June 2022
JUDGES:	McMurdo and Bond JJA and Flanagan J
ORDER:	Leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced on two counts of trafficking in dangerous drugs and one count of producing a dangerous drug – where the applicant assisted in a sophisticated and unlawful drug trafficking operation – where the applicant sentenced with a co-offender who was another member of the sophisticated unlawful drug operation – where the applicant was senior to the co-offender in the unlawful drug trafficking operation – whether the sentence was manifestly excessive – whether the sentencing judge erred in placing undue emphasis on the applicant’s previous convictions – whether the sentencing judge erred in imposing a sentence that offends the parity principle Penalties and Sentences Act 1992 (Qld), s 9(10) R v Hilton[2021] QCA 286, considered R v RBE[2021] QCA 146, cited R v Smith[2022] QCA 89, cited Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, cited
COUNSEL:	A J Kimmins for the applicant C W Wallis for the respondent
SOLICITORS:	Potts Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent