R v Tran

Case [2014] QCA 90 29 April 2014

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Tran [2014] QCA 90

PARTIES:

R
v
TRAN, Ly Hai
(applicant)

FILE NO/S:

CA No 316 of 2013
SC No 709 of 2011
SC No 579 of 2013
SC No 636 of 2013
SC No 662 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2014

JUDGES:

Margaret McMurdo P and Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant the application for leave to appeal.

2.   Allow the appeal.

3.   Vary the sentence by setting parole eligibility on 15 January 2018.

4.   Otherwise confirm the sentence imposed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to three charges of possessing dangerous drugs in the first indictment – where the applicant pleaded guilty to a further two charges of possessing dangerous drugs in the second indictment – where the applicant absconded after pleading guilty in the Supreme Court and was unlawfully at large for two and a half months until his arrest on the second indictment – where the applicant was sentenced to an effective sentence of 11 years and three months imprisonment – where the sentencing judge stated incorrectly that the applicant was unlawfully at large for two and a half years – where the sentencing judge concluded that no leniency should be granted to the applicant in respect of his guilty plea to the first indictment because he failed to appear – whether the judge erred – whether the application for leave to appeal should be granted – whether the appeal should be allowed

Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372; (2014) 305 ALR 323; [2014] HCA 2, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Cooney[2004] QCA 244, cited
R v Cutajar (1995) 85 A Crim R 280; [1995] QCA 570, cited
R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, cited
R v McAnally[2001] QCA 66, cited
R v Oliver[2007] QCA 361, cited
R v Truong [1997] QCA 49, cited
R v Van Huynh[2003] QCA 371, cited

COUNSEL:

A Boe with P Morreau for the applicant
P J McCarthy for the respondent

SOLICITORS:

Boe Williams Anderson for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: The applicant pleaded guilty on 5 April 2012 to three charges contained in the first indictment: possession of dangerous drugs (heroin) in excess of two grams (count 1); possession of dangerous drugs (methylamphetamine) in excess of two grams (count 2) and possession…

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] QCA 90
Case: [2014] QCA 90
Decision Date: 29 April 2014

CaseChat Overview and Summary

The applicant in this matter pleaded guilty to three charges of possessing dangerous drugs in the first indictment and two charges of possessing dangerous drugs in a second indictment. The applicant absconded after pleading guilty in the Supreme Court and was unlawfully at large for two and a half months until his arrest on the second indictment. The applicant was sentenced to an effective sentence of 11 years and three months imprisonment. The applicant sought to appeal against his sentence, contending that the sentencing judge erred by stating incorrectly that the applicant was unlawfully at large for two and a half years and by concluding that no leniency should be granted to the applicant in respect of his guilty plea to the first indictment because he failed to appear.

The central legal issues in this case involved whether the sentencing judge erred in his understanding of the length of time the applicant was unlawfully at large and whether this error warranted interference with the sentence. Additionally, the court had to determine whether the applicant's failure to appear for sentencing on the first indictment warranted a refusal of leniency. The applicant argued that the error was significant and that it affected the sentencing decision. The Crown, on the other hand, contended that the error was inconsequential and that the sentence should stand as imposed by the trial judge.

The court held that the error made by the sentencing judge was significant and had a material effect on the sentence. The court found that the judge acted on the wrong principle by not correctly applying the law regarding the length of time the applicant was unlawfully at large. The court also held that the sentencing judge erred by concluding that no leniency should be granted because of the applicant's failure to appear. The court found that this was an incorrect application of the law and that it warranted interference with the sentence. The court granted the application for leave to appeal and allowed the appeal, varying the sentence by setting parole eligibility on 15 January 2018. The court otherwise confirmed the sentence imposed.

Orders

Orders of the court

1. Grant the application for leave to appeal.

2. Allow the appeal.

3. Vary the sentence by setting parole eligibility on 15 January 2018.

4. Otherwise confirm the sentence imposed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Tran [2014] QCA 90

Most Recent Citation

R v Duong [2015] QCA 170

Cases citing this decision · 6 of 6 shown

R v Dinh
[2019] QCA 231

…In relation to count 2, the sentencing judge referred to factors which distinguish the applicant’s sentence from three cases: R v Tran [2014] QCA 90, R v Hesketh; ex parte A–G (Qld) [2004] QCA 116 and R v Frith [2017] QCA 143. The sentencing judge considered that a sentence of between five and six years’ impriso…
R v Lambert
[2019] QCA 219 Para 33

…abis and an unspecified amount of codeine. The offender was given an effective head sentence of 11 years and three months imprisonment. [23] R v Tran [2014] QCA 90.…
R v Corbett
[2018] QCA 341 Para 8

…s, parole eligibility at one third is not usually appropriate, because it would have the effect of applying a double benefit. [1][2015] QCA 170. [2][2014] QCA 90. [3][2014] QCA 55. [4][2017] QCA 195. [5][2017] QCA 57. [6][2018] QCA 22. The sentence…
R v Ta
[2018] QCA 342 Para 20

…R v Richards .[6] Before this Court, the decision of R v Luu [7] was also relied on. [1][2004] QCA 244. [2](2015) 255 A Crim R 57; [2015] QCA 170. [3][2014] QCA 90. [4][2016] QCA 10. [5][2018] QCA 22. [6][2017] QCA 299. [7][2018] QCA 281.…
R v Baker
[2018] QCA 209 Para 14

…. [20](2008) 191 A Crim R 475. [21][2016] QCA 290. [22][2007] QCA 224. [23](2015) 255 A Crim R 57. [24][2017] QCA 41. [25][2004] QCA 244. [26][2014] QCA 90. [27][2004] QCA 116. [28][2013] QCA 351.…
R v Duong
[2015] QCA 170 Para 11

…nt were not manifestly excessive based on decisions in R v Cooney ,[37] R v Kovacs [38] and R v Tran .[39] [37][2004] QCA 244. [38][2009] QCA 52. [39][2014] QCA 90.…

View all 6 citing cases →

Cases cited in this decision · 11 of 11 shown

Barbaro v The Queen
[2014] HCA 2

…ation for leave to appeal should be granted – whether the appeal should be allowed Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372; (2014) 305 ALR 323; [2014] HCA 2, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Cooney [20…
R v Oliver
[2007] QCA 361 Para 1

…serious; the sentence imposed on the co-offender, Trinh, discussed in R v Van Huynh ,[2] and R v Oliver .[3] [1][2001] QCA 66. [2][2003] QCA 371. [3][2007] QCA 361.…
Markarian v The Queen
[2005] HCA 25

…; Zirilli v The Queen (2014) 88 ALJR 372; (2014) 305 ALR 323; [2014] HCA 2, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Cooney [2004] QCA 244, cited R v Cutajar (1995) 85 A Crim R 280; [1995] QCA 570, cited R v Maxfield [2002]…
R v Cooney
[2004] QCA 244

…an v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Cooney [2004] QCA 244, cited R v Cutajar (1995) 85 A Crim R 280; [1995] QCA 570, cited R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, cited R v McAnally [2001] QCA 66, cited R v Oliver [2007] QCA…
R v Van Huynh
[2003] QCA 371 Para 1

…offending was less serious; the sentence imposed on the co-offender, Trinh, discussed in R v Van Huynh ,[2] and R v Oliver .[3] [1][2001] QCA 66. [2][2003] QCA 371. [3][2007] QCA 361.…
R v McAnally
[2001] QCA 66 Para 1

…McAnally [1] whose offending was less serious; the sentence imposed on the co-offender, Trinh, discussed in R v Van Huynh ,[2] and R v Oliver .[3] [1][2001] QCA 66. [2][2003] QCA 371. [3][2007] QCA 361.…
R v Maxfield
[2000] QCA 320

…R v Cooney [2004] QCA 244, cited R v Cutajar (1995) 85 A Crim R 280; [1995] QCA 570, cited R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, cited R v McAnally [2001] QCA 66, cited R v Oliver [2007] QCA 361, cited R v Truong [1997] QCA 49, cited R v Van Huynh [2003] QCA 371, cited COUNSEL: A Boe with P Morreau for…
R v Truong
[1997] QCA 49

…ield [2002] 1 Qd R 417; [2000] QCA 320, cited R v McAnally [2001] QCA 66, cited R v Oliver [2007] QCA 361, cited R v Truong [1997] QCA 49, cited R v Van Huynh [2003] QCA 371, cited COUNSEL: A Boe with P Morreau for the applicant P J McCarthy for the respondent SOLICITORS: Boe Williams Anderson for the appellant/…
R v Cutajar
[1995] QCA 570

…ll v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Cooney [2004] QCA 244, cited R v Cutajar (1995) 85 A Crim R 280; [1995] QCA 570, cited R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, cited R v McAnally [2001] QCA 66, cited R v Oliver [2007] QCA 361, cited R v Truong [1997] QCA 49, cited R v Van Huynh […
Mill v The Queen
[1988] HCA 70

…323; [2014] HCA 2, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Cooney [2004] QCA 244, cited R v Cutajar (1995) 85 A Crim R 280; [1995] QCA 570, cited R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, cited R v McAnally [2001] QCA…
Zirilli v The Queen
[2014] HCA 212

…– whether the application for leave to appeal should be granted – whether the appeal should be allowed Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372; (2014) 305 ALR 323; [2014] HCA 2, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R…

Legislation cited in this decision · 3

Corrective Services Act 2006 (Qld)
184 1 mention (from Para 1)
Drugs Misuse Act 1986 (Qld)
1 mention (from Para 1)
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v Tran [2014] QCA 90
PARTIES:	R v TRAN, Ly Hai (applicant)
FILE NO/S:	CA No 316 of 2013 SC No 709 of 2011 SC No 579 of 2013 SC No 636 of 2013 SC No 662 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	21 March 2014
JUDGES:	Margaret McMurdo P and Gotterson and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for leave to appeal. 2. Allow the appeal. 3. Vary the sentence by setting parole eligibility on 15 January 2018. 4. Otherwise confirm the sentence imposed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to three charges of possessing dangerous drugs in the first indictment – where the applicant pleaded guilty to a further two charges of possessing dangerous drugs in the second indictment – where the applicant absconded after pleading guilty in the Supreme Court and was unlawfully at large for two and a half months until his arrest on the second indictment – where the applicant was sentenced to an effective sentence of 11 years and three months imprisonment – where the sentencing judge stated incorrectly that the applicant was unlawfully at large for two and a half years – where the sentencing judge concluded that no leniency should be granted to the applicant in respect of his guilty plea to the first indictment because he failed to appear – whether the judge erred – whether the application for leave to appeal should be granted – whether the appeal should be allowed Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372; (2014) 305 ALR 323; [2014] HCA 2, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Cooney[2004] QCA 244, cited R v Cutajar (1995) 85 A Crim R 280; [1995] QCA 570, cited R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, cited R v McAnally[2001] QCA 66, cited R v Oliver[2007] QCA 361, cited R v Truong [1997] QCA 49, cited R v Van Huynh[2003] QCA 371, cited
COUNSEL:	A Boe with P Morreau for the applicant P J McCarthy for the respondent
SOLICITORS:	Boe Williams Anderson for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent