R v Tran

Case [2006] QCA 174 26 May 2006

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Tran [2006] QCA 174

PARTIES:

R
v
TRAN, Hoang Thang
aka
TRAN, Thanh Hoang

(applicant)

FILE NO/S:

CA No 60 of 2006
SC No 714 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING
COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2006

JUDGES:

McMurdo P, White and Philippides JJ

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant pleaded guilty to trafficking in the dangerous drug heroin – where the sentencing judge imposed a sentence of twelve years imprisonment – where the sentence attracted a mandatory declaration of a serious violent offence under Part 9A of the Penalties and Sentences Act 1992 (Qld) – whether sentence was manifestly excessive – whether too much weight was placed on previous conviction

Penalties and Sentences Act 1992 (Qld), Pt 9A

R v Bradforth [2003] QCA 183; CA No 423 of 2002, 9 May 2003, considered
R v Kashton [2005] QCA 70; CA No 416 of 2004, 17 March 2005, considered
R v Le [2002] QCA 17; CA No 238 of 2001, 6 February 2002, considered
R v Matasaru [2000] QCA 246; CA No 24 of 2000, 19 June 2000; [2004] QCA 404; CA No 168 of 2004, 29 October 2004, considered
R v Nguyen [1999] QCA 258; CA No 151 of 1999, 9 July 1999, considered
R v Popa [2002] QCA 252; CA No 65 of 2002, 22 July 2002, considered
R v Raciti [2004] QCA 359; CA No 229 of 2004, 29 September 2004, considered
R v Truong and Nguyen [2001] QCA 98; CA Nos 278 and 308 of 2000, 15 March 2001, considered

COUNSEL:

C J Callaghan for the applicant

M J Copley for the respondent

SOLICITORS:

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

McMURDO P: The application for leave to appeal against sentence should be refused for the reasons given by Philippides J.

WHITE J: I have read the reasons for judgment of Philippides J and agree with her Honour for the reasons that she gives that the application for leave to appeal against sentence should be refused.

PHILIPPIDES J: The applicant seeks leave to appeal against a sentence of 12 years imprisonment imposed on 7 February 2006, on his plea to a count of trafficking in the dangerous drug heroin between the period from 16 August 2001 and 6 November 2001. The applicant was also sentenced on his plea to two counts of possession of heroin in a quantity exceeding two grams on 21 September 2001 and 5 November…

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 [2006] QCA 174
Case: [2006] QCA 174
Decision Date: 26 May 2006

CaseChat Overview and Summary

The appeal against sentence in R v Tran involves the applicant who pleaded guilty to trafficking in a dangerous drug, heroin. The sentencing judge imposed a twelve-year imprisonment term, which also triggered a mandatory declaration of a serious violent offence under Part 9A of the Penalties and Sentences Act 1992 (Qld). The applicant argued that the sentence was manifestly excessive and that the sentencing judge had placed too much weight on a previous conviction. The Queensland Court of Appeal was tasked with determining whether the sentence imposed was manifestly excessive and if the sentencing judge had erred in the weight attributed to the previous conviction.

The court examined the principles of sentencing, including the need for punishment, deterrence, and rehabilitation, as well as the principle of proportionality. It considered the applicant's criminal history, the nature and circumstances of the offence, and the impact of the sentence on the applicant and society. The court noted that the sentencing judge had provided detailed reasons for the sentence, including the need to deter the applicant and others from engaging in similar criminal activity. The court found that the sentence was not manifestly excessive and that the sentencing judge had appropriately considered the previous conviction.

Having carefully reviewed the sentencing judge's reasons and the principles of sentencing, the Queensland Court of Appeal concluded that the sentence was not manifestly excessive. The court also found that the sentencing judge had not erred in the weight attributed to the previous conviction. The court rejected the applicant's appeal against the sentence, emphasising the importance of the sentencing judge's discretion and the need to maintain public confidence in the criminal justice system.

The final orders of the court were to refuse the application for leave to appeal against the sentence. This decision upholds the sentence imposed by the sentencing judge and reinforces the principle that appeals against sentence should only be successful in cases of manifest excess.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 [2006] QCA 174

Most Recent Citation

R v Mustafa [2006] QCA 231

Cases citing this decision · 7 of 7 shown

R v Dang
[2018] QCA 331 Para 14

…[5] R v Johnson ,[6] R v Willoughby [7] and R v Markovski .[8] [2](2011) 244 CLR 462; [2011] HCA 49. [3][2015] QCA 248. [4][2009] QCA 376. [5][2006] QCA 174. [6][2014] QCA 79. [7][2009] QCA 105. [8][2009] QCA 299.…
R v Ahmetaj
[2015] QCA 248 Para 13

…Prendergast ) [78][2008] QCA 341. ( Rodd ) [79]Unreported, Martin J, SC No 902 of 2008, 16 May 2008. ( Thompson ) [80][1999] QCA 424. ( Tilley ) [81][2006] QCA 174. ( Tran ) [82][2014] QCA 181. ( Versac )…
R v Rar
[2014] QCA 312 Para 1

…] the sentence of 12 years imprisonment for the offence of trafficking was held not to be excessive.[78] [77] R v George [2001] QCA 135, and R v Tran [2006] QCA 174. [78] Mustafa at p 13.…
R v Adams
[2009] QCA 56 Para 1

…t on Adams. She imposed an 11 year term of imprisonment on Plaszewski to reflect his worse criminal history. [1][2003] QCA 183. [2][2004] QCA 398. [3][2006] QCA 174.…
R v Chen
[2007] QSC 380 Para 22

…clude R v Dent [2002] QCA 247, R v Truong [2001] QCA 98, R v George [2001] QCA 135, R v Bradforth [2003] QCA 183, R v Raciti [2004] QCA 359, R v Tran [2006] QCA 174 and R v Matasaru [2000] QCA 246.…
R v. Nabhan ; R v Kostopoulos
[2007] QCA 266 Para 1

…e of 16 years imprisonment, even taking into account the plea of guilty, was within the appropriate range.[1] [1] R v George [2001] QCA 135; R v Tran [2006] QCA 174; R v Mustafa [2006] QCA 231.…
R v Mustafa
[2006] QCA 231

…cited R v Raciti [2004] QCA 359; CA No 229 of 2004, 29 September 2004, cited R v Robinson and Stokes; ex parte A-G [2000] 2 Qd R 413, cited R v Tran [2006] QCA 174; CA No 60 of 2006, 26 May 2006, cited R v Truong and Nguyen [2001] QCA 98; CA No 278 and CA No 308 of 2000, 15 March 2000, cited York v R (2005) 221…

View all 7 citing cases →

Cases cited in this decision · 9 of 9 shown

R v Raciti
[2004] QCA 359 Para 1

…On the applicant’s behalf reliance was placed on decisions such as R v Bradforth [2003] QCA 183, R v Raciti [2004] QCA 359 and R v Kashton [2005] QCA 70 as indicating that the appropriate sentencing range for the trafficking engaged in by the applicant, where there was a plea, was between 10 and 12 years. Given t…
R v Kashton
[2005] QCA 70 Para 1

…On the applicant’s behalf reliance was placed on decisions such as R v Bradforth [2003] QCA 183, R v Raciti [2004] QCA 359 and R v Kashton [2005] QCA 70 as indicating that the appropriate sentencing range for the trafficking engaged in by the applicant, where there was a plea, was between 10 and 12 years. Given…
R v Matasaru
[2004] QCA 404 Para 1

…ion, decisions such as R v Nguyen [1999] QCA 258; R v Truong and Nguyen [2001] QCA 98; R v Le [2002] QCA 17; R v Popa [2002] QCA 252 and R v Matasaru [2004] QCA 404 were relied upon.…
R v Bradforth
[2003] QCA 183 Para 1

…On the applicant’s behalf reliance was placed on decisions such as R v Bradforth [2003] QCA 183, R v Raciti [2004] QCA 359 and R v Kashton [2005] QCA 70 as indicating that the appropriate sentencing range for the trafficking engaged in by the applicant, where there was a plea, was between 10 and 12 years. Given t…
R v Popa
[2002] QCA 252 Para 1

…ears. In support of that submission, decisions such as R v Nguyen [1999] QCA 258; R v Truong and Nguyen [2001] QCA 98; R v Le [2002] QCA 17; R v Popa [2002] QCA 252 and R v Matasaru [2004] QCA 404 were relied upon.…
R v Le
[2002] QCA 17 Para 1

…the range of 12 to 14 years. In support of that submission, decisions such as R v Nguyen [1999] QCA 258; R v Truong and Nguyen [2001] QCA 98; R v Le [2002] QCA 17; R v Popa [2002] QCA 252 and R v Matasaru [2004] QCA 404 were relied upon.…
R v Truong & Nguyen
[2001] QCA 98 Para 1

…of mitigation, was in the range of 12 to 14 years. In support of that submission, decisions such as R v Nguyen [1999] QCA 258; R v Truong and Nguyen [2001] QCA 98; R v Le [2002] QCA 17; R v Popa [2002] QCA 252 and R v Matasaru [2004] QCA 404 were relied upon.…
R v Matasaru
[2000] QCA 246 Para 1

…In R v Matasaru [2000] QCA 246 (see also [2004] QCA 404), a sentence of 12 years imprisonment imposed on a plea to trafficking in heroin over a period of six months was upheld. The 47 year old offender, with no relevant convictions, was described as a substantial dealer, with a total of 149.3 grams of pure heroin…
R v Nguyen
[1999] QCA 258 Para 1

…nce, after taking into account matters of mitigation, was in the range of 12 to 14 years. In support of that submission, decisions such as R v Nguyen [1999] QCA 258; R v Truong and Nguyen [2001] QCA 98; R v Le [2002] QCA 17; R v Popa [2002] QCA 252 and R v Matasaru [2004] QCA 404 were relied upon.…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v Tran [2006] QCA 174
PARTIES:	R v TRAN, Hoang Thang aka TRAN, Thanh Hoang (applicant)
FILE NO/S:	CA No 60 of 2006 SC No 714 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 May 2006
DELIVERED AT:	Brisbane
HEARING DATE:	8 May 2006
JUDGES:	McMurdo P, White and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant pleaded guilty to trafficking in the dangerous drug heroin – where the sentencing judge imposed a sentence of twelve years imprisonment – where the sentence attracted a mandatory declaration of a serious violent offence under Part 9A of the Penalties and Sentences Act 1992 (Qld) – whether sentence was manifestly excessive – whether too much weight was placed on previous conviction Penalties and Sentences Act 1992 (Qld), Pt 9A R v Bradforth [2003] QCA 183; CA No 423 of 2002, 9 May 2003, considered R v Kashton [2005] QCA 70; CA No 416 of 2004, 17 March 2005, considered R v Le [2002] QCA 17; CA No 238 of 2001, 6 February 2002, considered R v Matasaru [2000] QCA 246; CA No 24 of 2000, 19 June 2000; [2004] QCA 404; CA No 168 of 2004, 29 October 2004, considered R v Nguyen [1999] QCA 258; CA No 151 of 1999, 9 July 1999, considered R v Popa [2002] QCA 252; CA No 65 of 2002, 22 July 2002, considered R v Raciti [2004] QCA 359; CA No 229 of 2004, 29 September 2004, considered R v Truong and Nguyen [2001] QCA 98; CA Nos 278 and 308 of 2000, 15 March 2001, considered
COUNSEL:	C J Callaghan for the applicant M J Copley for the respondent
SOLICITORS:	Callaghan Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent