R v Tran - [2020] QCA 81

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tran [2020] QCA 81

PARTIES:

R
v
TRAN, Van Chieu
(applicant)

FILE NO/S:

CA No 265 of 2019
SC No 1898 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 12 September 2019 (Wilson J)

DELIVERED ON:

24 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

9 April 2020

JUDGES:

Fraser and Mullins JJA and Applegarth J

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty and was sentenced to 10 years’ imprisonment for trafficking in dangerous drugs – where the applicant submits that a nine year head sentence should have been imposed – where the applicant submits that there was disparity between his sentence and that of a “co-accused” – whether the sentence was manifestly excessive in all the circumstances

R v Cumner[2020] QCA 54, cited
R v Davenport[2018] QCA 330, distinguished

COUNSEL:

The applicant appeared on his own behalf
D C Boyle for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Applegarth J and the order proposed by his Honour.
MULLINS JA: I agree with Applegarth J.
APPLEGARTH J: The applicant pleaded guilty to trafficking in dangerous drugs. On 12 September 2019 he was sentenced to 10 years’ imprisonment. As a result, his offence was declared to be a serious violent offence. He applies for leave to appeal on the ground that the sentence was manifestly excessive.
The applicant contends that the sentence should have been nine years. His submissions rely on the fact that he was a drug user at the time of his arrest, his age (he was aged 52 to 54 at the time of the offending and is now aged 57), his remorse and his future prospects of rehabilitation in the community. He also relies upon what he describes as “offender’s disparity on co-accused/offending behaviour”.
Circumstances of the offending
The applicant was engaged as a principal in the wholesale trafficking of methylamphetamine and heroin over a period of 18 and a half months between 31 August 2015 and 15 March 2017. On occasions he also trafficked in cannabis.
His trafficking falls into two consecutive periods. In the first period, leading up to his first arrest in May 2016, he was a high level wholesaler, purchasing in 350 gram amounts of heroin and one kilogram amounts of methylamphetamine. After he was arrested in May 2016 and granted bail, his major sources of supply ceased, either by the arrest of one of his major wholesale suppliers (“T”) or by another wholesale supplier (“LH”) refusing to deal with him any further. Nevertheless, the applicant’s business continued at a wholesale level, supplying in single or multiple ounce quantities of methylamphetamine and heroin.…

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 [2020] QCA 81
Case: [2020] QCA 81
Decision Date: 24 April 2020

CaseChat Overview and Summary

In the case of R v Tran, the applicant appealed against the sentence imposed upon him for trafficking in dangerous drugs. Tran pleaded guilty and was sentenced to 10 years’ imprisonment. The applicant argued that the sentence was manifestly excessive and that a nine-year sentence should have been imposed instead. Additionally, Tran submitted that there was a disparity between his sentence and that of a co-accused. The Queensland Court of Appeal was tasked with determining whether the sentence imposed was manifestly excessive or inadequate in all the circumstances.

The court considered the argument that the sentence was manifestly excessive by comparing Tran’s case with that of R v Davenport. Davenport was involved in wholesale trafficking over six months, operating at a managerial level with a relatively small benefit. Davenport’s sentence of 11 years and nine months was considered to be appropriate given the totality of his offending and pre-sentence custody. The court found that Davenport’s case did not demonstrate that Tran’s sentence was excessive. The court also noted that defence counsel had submitted that the appropriate sentence range was between eight to twelve years, with nine years being suitable, and accepted that a sentence of 10 years was within the sentencing discretion. The court concluded that the sentencing judge had properly considered the relevant aggravating and mitigating factors and exercised the sentencing discretion correctly.

The Court of Appeal concluded that the applicant’s desire for rehabilitation within the community was understandable, but the need for general and personal deterrence, as well as the denunciation of Tran’s serious drug trafficking, were major considerations. The court found that the sentence was not manifestly excessive and there was no error in the exercise of the sentencing discretion.

ORDERS:
The application for leave to appeal against sentence is refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant’s outline of submissions in this Court refers to R v Davenport.[7] Davenport was involved in wholesale trafficking over a period of six months, involving 15 wholesale suppliers. He operated at a managerial level, directed by another person. He was an addict and had received relatively small benefits. He received a total sentence of 11 years nine months, with parole eligibility after five years and 10 and a half months. Davenport is distinguishable because the applicant’s trafficking was over a longer period and at a higher level. Further, if Davenport had been sentenced for drug trafficking alone, a sentence of 10 and a half years would have been imposed. His sentence of nine years and nine months for trafficking reflected totality considerations and 261 days in pre-sentence custody which could not be declared. Davenport does not demonstrate that the applicant’s sentence of 10 years’ imprisonment was excessive.[7][2018] QCA 330.Conclusion The sole ground of appeal is that in all the circumstances the sentence was manifestly excessive. That submission is hard to sustain when defence counsel, at the sentencing hearing, submitted in writing that the range was eight to twelve years’ imprisonment, submitted that a sentence of nine years’ imprisonment was appropriate, and in the course of oral submissions accepted that it was within the sentencing discretion to impose a sentence of 10 years. There is no predetermined range of sentences of this kind.[8] Comparable cases provide guidance as a yardstick in determining the sentence which is just for the particular circumstances of the subject offence and offender. The learned sentencing judge had regard to comparable authorities and properly took into account relevant aggravating and mitigating factors. No error of principle is suggested. The applicant’s desire to be rehabilitated within the community is understandable. However, general and personal deterrence and the need to denounce wholesale drug trafficking on the scale committed by a mature-aged offender were major considerations. The learned sentencing judge properly regarded the applicant’s offending as a very serious case of trafficking. There was no error in the exercise of the sentencing discretion. The sentence was not manifestly excessive.[8]R v Nunn [2019] QCA 100 at [14]. I would refuse the application for leave to appeal against sentence.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Tran [2020] QCA 81
PARTIES:	R v TRAN, Van Chieu (applicant)
FILE NO/S:	CA No 265 of 2019 SC No 1898 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 12 September 2019 (Wilson J)
DELIVERED ON:	24 April 2020
DELIVERED AT:	Brisbane
HEARING DATE:	9 April 2020
JUDGES:	Fraser and Mullins JJA and Applegarth J
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty and was sentenced to 10 years’ imprisonment for trafficking in dangerous drugs – where the applicant submits that a nine year head sentence should have been imposed – where the applicant submits that there was disparity between his sentence and that of a “co-accused” – whether the sentence was manifestly excessive in all the circumstances R v Cumner[2020] QCA 54, cited R v Davenport[2018] QCA 330, distinguished
COUNSEL:	The applicant appeared on his own behalf D C Boyle for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent