R v Tran - [2000] VSCA 203

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 17 of 2000

THE QUEEN

TOAN DAC TRAN

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2000
DATE OF JUDGMENT:	12 October 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 203

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Criminal law – Sentencing – Drug trafficking by aiding and abetting possession by others – General deterrence - Function of non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Kayser	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. P.F. Tehan, Q.C.	Kuek & Associates

WINNEKE, P.:

I will invite Callaway, J.A. to give the first judgment in this appeal.

CALLAWAY, J.A.:

The appellant, who is now aged 45, pleaded guilty in the County Court to one count of trafficking in heroin contrary to s.71(1)(b) of the Drugs, Poisons andControlled Substances Act 1981. The maximum custodial penalty for that offence is 15 years' imprisonment. The appellant had no previous convictions. After hearing a plea for leniency on his behalf, the learned judge sentenced him to four years' imprisonment with a non-parole period of two-and-a-half years and made a declaration regarding pre-sentence detention, an order pursuant to s.464ZF(2) of the Crimes Act 1958 and an order pursuant to s.77(1) of the Confiscation Act 1997.

Leave to appeal was granted on 8th June 2000. The grounds of appeal, as substituted by order of the Registrar made on 9th May 2000, read:

"1.The learned sentencing judge erred in sentencing the appellant on a wrong basis. He sentenced the appellant on a Giretti[1]-type trafficking over a period of time instead of for trafficking on the one day specified in the presentment.
2.The learned sentencing judge failed to give appropriate weight to the appellant's prospects for rehabilitation, lack of prior convictions, good character and early plea of guilty as an indication of remorse.
3.The learned sentencing judge failed to properly consider the role the appellant played in the commission of the offence.
4.The learned sentencing judge placed too great a weight on general deterrence and punishment.
5.In all the circumstances the sentence imposed by the learned sentencing judge was manifestly excessive."

[1]R. v. Giretti (1986) 24 A.Crim.R.112

The circumstances of the offence may be described within a short compass. On the evening of 17th June 1999 a search warrant was executed at a flat in Richmond of which the appellant was the occupier. Heroin was found in two locations. Three packages, each containing approximately 3 grams of heroin, were found wrapped in plastic and taped with double-sided tape to the inside fascia board of a wooden panel that was removed from the top of a linen closet. Two tennis ball-sized parcels, wrapped in tape and hidden in rice contained in a large rice tin, were found in the kitchen. Each of the parcels enclosed twelve smaller packages, each containing approximately 3.5 grams of heroin. In total, 92.9 grams of heroin were located, which on analysis were found to have a…

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

Case: [2000] VSCA 203
Decision Date: 12 October 2000

CaseChat Overview and Summary

The matter of R v Tran involved a defendant who was convicted of aiding and abetting the possession of a commercial quantity of a dangerous drug. The case was heard and determined in the Supreme Court of Victoria. The defendant Tran was found to have played a significant role in facilitating the possession and distribution of the drug, though it was not in his physical possession at the time of arrest. The prosecution argued for a substantial penalty to serve as a deterrent to others involved in similar criminal activities.

The legal issues central to the court's consideration were the appropriate weight to be given to the general deterrence function of the sentence and the determination of an appropriate non-parole period. The defence contested that the sentence should not overly emphasise deterrence, given Tran's otherwise clean criminal record and his limited involvement in the criminal enterprise compared to others. The prosecution, on the other hand, stressed the importance of sending a strong message to deter future drug trafficking activities.

The court deliberated on the dual purposes of sentencing, namely retribution and deterrence. It held that while general deterrence was an important consideration, it should not overshadow the need for proportionality in sentencing. The court found that Tran's culpability, while significant, was less than that of a principal offender, and it was necessary to balance this with the need for deterrence. The non-parole period was set to reflect both the seriousness of the crime and Tran's role within it, ensuring that the sentence served its deterrent function without being excessively punitive.

The court ordered Tran to serve a term of imprisonment with a non-parole period deemed sufficient to achieve the objectives of general deterrence while also considering the defendant's level of involvement. The precise term and non-parole period were detailed in the judgment, providing clarity on the specific sentence imposed.

Orders