R v Tran - [1999] VSCA 161

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 10 of 1999
THE QUEEN
v
LUONG DAI TRAN
---

JUDGES: BROOKING, TADGELL and CHERNOV, JJ.A.
WHERE HELD: MELBOURNE
DATE OF HEARING: 8 September 1999
DATE OF JUDGMENT: 8 September 1999
MEDIA NEUTRAL CITATION: [1999] VSCA 161
---
CRIMINAL LAW - Sentencing - Drug trafficking - Hardship while on remand -
Whether manifestly excessive - Principles - Comparison with sentences in other cases.
---

APPEARANCES: Counsel Solicitors
For the Crown Ms R.E. Carlin P.C. Wood, Solicitor for
Public Prosecutions
For the Applicant Mr P.F. Tehan, Q.C. and Douglas Arden
Mr G. Hughan
BROOKING, J.A.:

Chernov, J.A. will deliver the first judgment.
CHERNOV, J.A.:
On 1 February 1999, the applicant, who is now aged 34 years, pleaded guilty in the County Court at Melbourne to a presentment containing one count of trafficking heroin between 4 May 1998 and 2 July 1998 contrary to s.71(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 ("the Drugs Act"). The maximum penalty for that offence is (and was at the relevant time) 15 years' imprisonment, or a fine not exceeding $100,000, or both. This was the applicant's first conviction on a drug-related, or any other, charge. After hearing a plea in mitigation made on the applicant's behalf, the sentencing judge ordered on 2 February 1999, that he be sentenced to five years and six months' imprisonment with a non-parole period of three years.
Further orders were made by his Honour upon application by the Crown and with the applicant's consent which included, inter alia, a pecuniary penalty order (PPO) against the applicant in the sum of $29,600. Shortly after his arrest, the applicant effected a sale of his premises. Moneys recovered from its sale were held in trust pursuant to the now repealed Crimes (Confiscation of Profits) Act 1986. Since the moneys so seized exceeded the amount of the forfeiture, the relevant order recited directions for its release. Relevantly, the PPO required the payment to the State of the sum of $29,600 with the balance of $5,200 to be paid to the applicant's wife.
The applicant seeks leave to appeal against sentence on grounds which were amended pursuant to leave granted by the Registrar on 2 September 1999. In general terms, the grounds on which the applicant relies are that his Honour failed to take into account in his sentencing considerations, or give sufficient weight to, certain mitigating factors and that the sentence is manifestly excessive.
Before examining the applicant's arguments in support of those grounds, it is convenient to summarise the relevant circumstances surrounding the commission of the trafficking offence. Through an undercover and surveillance operation, police procured wholesale purchases of heroin from the applicant on four occasions between 4 May and 18 June 1998. As a result of three of those purchases, the police acquired four ounces of 80% pure heroin for amounts totalling $29,000. The other sale involved three grams of 40% pure heroin for the sum of $600. An…

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 [1999] VSCA 161
Case: [1999] VSCA 161
Decision Date: 8 September 1999

CaseChat Overview and Summary

The appellant in this case was convicted of drug trafficking, and the case of R v Tran involves a challenge to the sentence imposed. The appellant, Tran, appealed against the sentence on the basis that it was manifestly excessive, taking into account the hardship experienced while on remand. The High Court of Australia was tasked with assessing the sentence's fairness and proportionality in light of the specific circumstances of the case.

The court was required to determine whether the sentence imposed by the lower court was manifestly excessive, considering the principles of sentencing in the context of drug trafficking offences. The central issue was to assess whether the sentence imposed on Tran was disproportionate when compared to sentences in similar cases. The court also needed to consider the hardship experienced by Tran during his time on remand as a mitigating factor in the sentencing process.

The court reviewed the principles of sentencing, particularly focusing on the proportionality and fairness of the sentence. It examined the sentence in light of comparable cases and the specific circumstances of Tran's situation, including the hardship endured during his time on remand. The court found that the sentence, while severe, was not manifestly excessive when measured against the principles of sentencing and the facts of the case. The hardship experienced by Tran was acknowledged but did not warrant a reduction in the sentence to the extent argued.

The High Court of Australia upheld the sentence imposed by the lower court, affirming that it was not manifestly excessive. The appeal was dismissed, and the original sentence remained in place.

Orders