R v Tran - [2002] VSCA 148

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 249 of 2001

THE QUEEN
	v.
ANH DUY TRAN

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JUDGES:	PHILLIPS, CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2002
DATE OF JUDGMENT:	11 September 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 148

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Criminal law – Sentencing – Trafficking in heroin – Other offender subsequently sentenced to a longer head term – Whether disparity insufficient given the different circumstances – Principle of parity not offended.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr G.J. Lyon	Hale & Wakeling

PHILLIPS, J.A.:

This is an appeal by leave against a sentence imposed in the County Court on 14 September 2001. The appellant had pleaded guilty to a single rolled-up count of trafficking in a drug of dependence, heroin, between 11 and 30 August 2000. He had no previous convictions although it was established on the plea in mitigation that he had for some time been himself an addict. His offending however was motivated not merely by his addiction but also by his desire to help his mother who had run up huge gambling debts and who, through those debts, had been led herself, it is alleged, into trafficking in heroin. After a plea in mitigation in the course of which evidence was given by the appellant's sister and a family friend, the appellant was sentenced to four years and six months' imprisonment and a non-parole period was fixed at two years and six months. Although granted bail on 10 April 2001, since when he had been drug-free, the appellant had already been in custody for 232 days and so much was declared to be pre-sentence detention.

The appellant filed notice of application for leave to appeal against sentence on 28 September 2001 on the sole ground that the sentence was manifestly excessive and on 8 February last was granted leave to appeal.

So far as the ground of manifest excess is concerned, I am satisfied that that is not made out. When the appellant was sentenced on 14 September 2001, a co-offender, Hien Pham, was sentenced at the same time. It was established for sentencing purposes that he was "at the lowest rung of the hierarchy involved in the trafficking process" with a role simply "to assist others by carrying out deliveries of smaller quantities of heroin". He too had no prior convictions and was not an addict. He was sentenced to 2½ years' imprisonment and 18 months was fixed as the non-parole period. He too had been in custody already and 380 days were declared to be time reckoned as already served.

Both Pham and the appellant were involved with others in the trafficking of heroin, as already indicated. They were involved, directly or indirectly and to a greater or lesser extent, with three others, those three being Cuong Cao Hoang (born on 1 October 1964), Cuc Thi Tran (born on 26 February 1953 and the…

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 [2002] VSCA 148
Case: [2002] VSCA 148
Decision Date: 11 September 2002

CaseChat Overview and Summary

In the case of R v Tran, the respondent Tran was convicted for trafficking in heroin. The court was tasked with determining an appropriate sentence for the crime. The case came before the court as an appeal against sentence, where it was argued that the disparity between the appellant's sentence and another offender's sentence, who was subsequently sentenced to a longer head term, was insufficient given the different circumstances. The respondent sought to argue that the principle of parity had been offended.

The central legal issue before the court was whether the disparity in sentencing between the respondent and the other offender was sufficient to warrant a re-evaluation of the sentence. The court considered whether the sentencing judge had properly applied the principle of parity, and whether the disparity in the sentences was justified by the different circumstances of the two cases. The court also needed to determine whether the sentence imposed was appropriate in the context of the principles of criminal sentencing, including deterrence, denunciation, and rehabilitation.

The court examined the principle of parity in sentencing, which seeks to ensure that similar crimes are punished in a similar manner. The court noted that while there was a disparity between the sentences, it was not sufficient to warrant a departure from the principle of parity. The court found that the sentencing judge had appropriately considered the circumstances of the case, including the respondent's role in the crime, the amount of heroin involved, and the potential harm caused by the crime. The court held that the disparity in the sentences was justified by the different circumstances of the two cases, and that the principle of parity had not been offended. The sentence imposed was deemed to be appropriate in light of the principles of criminal sentencing.

The court dismissed the appeal against sentence, and the original sentence was upheld. The court found that the sentencing judge had properly exercised their discretion in determining an appropriate sentence, and that the principle of parity in sentencing had been appropriately applied.

Orders