R v Tran No. Sccrm-02-194

[2002] SASC 323

R  v  TRAN
[2002] SASC 323

Court of Criminal Appeal:  Doyle CJ, Debelle and Williams JJ (ex tempore)

1. DOYLE CJ:            This is an application for leave to appeal against sentence.

2. A judge of this Court refused leave to appeal. The applicant has requested that the Full Court consider the application. The Full Court ordered that the application be listed for oral argument.

3. The applicant pleaded guilty to knowingly taking part in the sale of heroin contrary to s 32(1)(d) of the Controlled Substances Act 1984. The heroin was in the form of four blocks, each of about 350 grams and each of about 50% pure heroin. This was a large amount of heroin worth about four million dollars if sold at street level in small amounts. The maximum penalty was imprisonment for life or a fine of $500,000, or both.

4. The judge made detailed findings about the applicant’s involvement in the offence. The judge found that the applicant was involved in the packaging of the heroin in Sydney and in arranging for its movement from Sydney to Adelaide, and in arranging for its delivery then to a purchaser. The judge found that Mr Tran came from Sydney to Adelaide. He was arrested in Adelaide. The judge found he came here to supervise the transport of the heroin by his nephew, Mr Nguyen.

5. The judge rejected Mr Tran’s claim that Mr Tran was involved only in a minor way and at Mr Nguyen’s request. The judge found that Mr Tran was involved at a relatively high level of the distribution chain. The Judge imposed a sentence of imprisonment for eleven years and fixed a non-parole period of seven years. The grounds of appeal, if leave is granted, challenge the judge’s findings. Mr Tran says he should be sentenced as a person involved in a minor way. Mr Tran says he did no more than help his nephew transport the heroin.

6. In my opinion there is no prospect at all of a successful challenge to the main findings by the judge. The main finding is that Mr Tran was the owner of the heroin and was organising its movement from Sydney to Adelaide. In my opinion that finding is a sufficient basis for the approach that the judge took.

7. Counsel for Mr Tran was not able to point to any particular error by the judge. He relied on some evidence from a detective to the effect that it is unusual for high level dealers to get this closely involved with the heroin in question. That is a submission that goes nowhere, because, in the end, the judge’s finding was that Mr Tran was the owner of the heroin.

8. For such a serious offence involving so much heroin, the sentence is moderate. I would refuse leave to appeal against the sentence on that ground.

9. Mr Tran also wishes to argue that the difference between his sentence and Mr Nguyen’s sentence indicates an error by the judge. In my opinion that argument also has no prospect of success at all. The different approach taken to Mr Nguyen is completely supported by his much lesser role in the transaction and by the slightly greater leniency the judge was able to show by reference to matters personal to Mr Nguyen. It is not arguable that the judge’s approach in this respect was in error. For those reasons I would refuse leave to appeal.

10. DEBELLE J:          I agree. The sentence imposed on the applicant was grounded on the findings of fact made by the sentencing judge. No error has been demonstrated in those findings. It follows that there is no arguable case to appeal against those findings. That disposes of the appeal against sentence. In addition, it must be noted that counsel for the applicant did not seek to contend that the sentence was excessive if the application for leave to appeal against the findings of fact was dismissed. Insofar as the appeal rests upon the disparity between sentences, that disparity results from the findings of fact made by the trial judge.

11. I too would dismiss the application.

12. WILLIAMS J:        I agree.

13. DOYLE CJ:            The order of the Court is that leave to appeal be refused.