R v Tran

Case [2006] VSCA 222 19 October 2006

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 342 of 2005

THE QUEEN

MARTIN TRAN

No. 339 of 2005

THE QUEEN

VAN NHAN TRAN

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JUDGES:	WARREN, C.J., NETTLE and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 September 2006
DATE OF JUDGMENT:	19 October 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 222	1^st Revision 17 November 2006

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CRIMINAL LAW – Sentencing – Appellants pleaded guilty to trafficking in a drug of dependence – Parity – Respective roles of appellants in trafficking network – Whether mitigating factors of delay, guilty pleas and ill health adequately taken into account – Whether non-parole periods for drug trafficking offences unusual or excessive – Whether undue delay – Complexity of investigation – Whether principle of totality given effect where second appellant committed further offences whilst on bail – Appeals dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Ms A. Cannon, Solicitor for Public Prosecutions
For Martin Tran	Mr O.P. Holdenson, Q.C.	Theo Magazis & Associates
For Van Nhan Tran	Mr K.J. Doyle	Slades & Parsons

WARREN, C.J.:

For the reasons stated by Redlich, J.A., I agree that both appeals should be dismissed.

NETTLE, J.A.:

I agree with Redlich, J.A. that the appeals should be dismissed.

REDLICH, J.A.:

The appellants were both sentenced for drug trafficking offences in the County Court on 11 November 2005. They had been involved in a drug trafficking network which predominantly involved trafficking in heroin. The appellants now appeal against the sentences imposed upon them having been granted leave to do so on 7 April 2006.

The first appellant, Martin Tran, who turned 36 years of age during the period of his offending, pleaded guilty on 11 October 2005 to one count of trafficking in a drug of dependence, namely heroin, between 17 August and 1 November 2002. A plea in mitigation was heard on 31 October and 7 and 8 November 2005. He was sentenced to six years’ imprisonment with a non-parole period of four-and-a-half years. It was not in issue that he had traded in 490 gm of a mixed substance containing heroin during the period alleged.

The second appellant, Van Tran, who was about 47 years of age at the time of his offending, pleaded guilty on 30 September 2005 to one count of trafficking in a drug of dependence, namely heroin, and to one count of trafficking in a drug of dependence, namely crystal methylamphetamine (commonly known as “ice”) between 20 April and 1 November 2002. It was not in issue that Van Tran had trafficked in 351.2 gm of heroin and 8.2 gm of methylamphetamine between those dates. A plea in mitigation was heard on 31 October and 8 November 2005. He was sentenced to five years’ imprisonment with a non-parole period of three-and-a-half years.

Each of the appellants was originally charged with trafficking in a large commercial quantity of heroin. The first appellant was alleged to be the principal supplier of drugs to the second appellant and…

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.

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Details

AGLC: R v Tran [2006] VSCA 222
Case: [2006] VSCA 222
Decision Date: 19 October 2006

CaseChat Overview and Summary

Tran and two others were convicted for their involvement in a drug trafficking operation. They appealed against the sentences imposed on them. The court had to determine whether the sentences were appropriate in light of the mitigating factors presented and whether the non-parole periods were excessive. The court examined the roles of the appellants within the trafficking network, the delay in bringing the case to trial, the guilty pleas entered by the appellants, and the health issues of one of the appellants. Additionally, the court assessed the principle of totality, considering the further offences committed by one of the appellants while on bail.

The court found that the sentences imposed were appropriate, taking into account all relevant factors. The appellants' roles in the trafficking network were significant, but the court considered the mitigating factors of delay, guilty pleas, and ill health. The non-parole periods for drug trafficking offences were not deemed unusual or excessive, and the court found that the principle of totality was properly applied, considering the appellant's further offences while on bail. The complexity of the investigation and the need to deter drug trafficking were also considered in the sentencing.

In light of the court's findings, the appeals were dismissed. The sentences imposed by the trial judge were upheld, reflecting the appropriate balance between punishment, deterrence, and the consideration of mitigating factors. The court determined that the trial judge had adequately weighed the various factors and applied the relevant legal principles in arriving at the sentences.

Orders