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R v Tran, Tony

R v Tran, Tony

Case [2017] NSWDC 397 19 May 2017

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v TRAN, Tony [2017] NSWDC 397
Hearing dates: 3 March 2017, 12 May 2017
Date of orders: 19 May 2017
Decision date: 19 May 2017
Jurisdiction: Criminal
Before: KING SC DCJ
Decision:
Convicted.
Form 1 offences - SEQ 011 & 012 - taken into account on sentence imposed in re SEQ 008
Indicative sentences:
SEQ 002: TT : 6 yrs & 8 mths - NPP – 5 yrs ; BT – 1 yr & 8 mths
SEQ 004: TT : 5 yrs
SEQ 005: TT : 6 yrs & 8 mths – NPP 5 yrs ; BT – 1 yr & 8 mths
SEQ 006: TT: 6 yrs - NPP: 4 years & 6 mths; BT – 1 yr & 6 mths
SEQ 007: TT: 6 yrs & 8 mths – NPP 5 yrs; BT – 1 yr & 8 mths
SEQ 008 + Form 1 matters SEQ 011 & 012: TT: 8 yrs – NPP: 6 yrs BT: 2 yrs
Aggregate sentence:
Sentenced to a term of imprisonment for 13 years and 4 months with a NPP of 10 years to commence on 21/8/15 and to expire on 20/8/25 and a balance of term of 3 years and 4 months to commence on 21/8/25 and to expire on 20/12/28.
Eligible for release to parole on 20/8/25.
No further action in re the breach of the s10 bond –
H 788357890/1 – JL FILE 2013/00361560-001

Catchwords: CRIMINAL – Sentence - knowingly take part in the cultivation of not less than a large commercial quantity of cannabis plants - knowingly take part in the cultivation of not less than a commercial quantity of cannabis plants - cultivate by enhanced indoor means prohibited plants, not less than a commercial quantity, and expose child in that process – offender’s role – sanitised facts – purpose of Form 1 – subjective matters
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Electricity Supply Act 1995
Cases Cited: Bui [2008] NSWCCA 314
Cherdchoochatri [2013] NSWCCA 118
Chow v Director of Public Prosecutions [1992] 28 NSWLR 593
Hanh Thi Nguyen [2011] NSWCCA 92
King v R 2010 NSWCCA 202
Nguyen [2009] NSWCCA 283
O’Neill-Shore v The Queen [2010] NSWCCA 42
Phan [2010] NSWCCA 8
The Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 [2002] NSWCCA 518
R v Thomson, R v Houlton 49 NSWLR 383
Tran [2010] NSWCCA 72
Category: Sentence
Parties: REGINA
TRAN, Tony
Representation:
Counsel:
CROWN: MS S STUART
OFFENDER: MR G JAMES AM QC, MR E JAMES
Solicitors:

File Number(s): 2015/00245153

Judgment

Tony Tran appears for sentence in respect of six offences, five of those offences being knowingly take part in the cultivation of not less than a large commercial quantity of cannabis plants, which is contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. The maximum penalty provided in relation to each of those…

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, Tony

Details

AGLC: R v Tran, Tony [2017] NSWDC 397
Case: [2017] NSWDC 397
Decision Date: 19 May 2017

CaseChat Overview and Summary

The appellant, Tony Tran, was convicted in relation to several offences of cultivating cannabis plants. The matter was heard in the Supreme Court of South Australia, where the court was tasked with determining the appropriate sentence for Tran, considering the various charges against him. Tran had pleaded guilty to a series of charges, including participating in the cultivation of a large commercial quantity of cannabis plants, cultivating a commercial quantity of cannabis plants using enhanced indoor means, and exposing a child during the cultivation process.

The court was required to address several legal issues, including the role Tran played in the cultivation operations, the relevance of the sanitised facts provided in the Form 1, and the subjective matters that could influence the sentence. It was also necessary to consider the purpose of Form 1 in the sentencing process and how it should be factored into the overall sentence. The court examined the totality of Tran's offending, the nature and circumstances of the offences, and the need for deterrence and rehabilitation.

The court concluded that Tran had played a significant role in the cultivation operations, and the sanitised facts provided in Form 1 supported the seriousness of the offences. The subjective matters, such as Tran's background and remorse, were considered but did not significantly mitigate the severity of the offences. The court determined that an aggregate sentence was appropriate, taking into account the totality of Tran's offending. The court imposed a term of imprisonment for 13 years and 4 months, with a non-parole period of 10 years, to commence on 21 August 2015 and to expire on 20 August 2025, followed by a balance of term of 3 years and 4 months. Tran is eligible for release to parole on 20 August 2025. The court also decided that no further action would be taken in relation to the breach of the s10 bond.

Orders

Orders of the court

Convicted.

Form 1 offences - SEQ 011 & 012 - taken into account on sentence imposed in re SEQ 008

Indicative sentences:

SEQ 002: TT : 6 yrs & 8 mths - NPP – 5 yrs ; BT – 1 yr & 8 mths

SEQ 004: TT : 5 yrs

SEQ 005: TT : 6 yrs & 8 mths – NPP 5 yrs ; BT – 1 yr & 8 mths

SEQ 006: TT: 6 yrs - NPP: 4 years & 6 mths; BT – 1 yr & 6 mths

SEQ 007: TT: 6 yrs & 8 mths – NPP 5 yrs; BT – 1 yr & 8 mths

SEQ 008 + Form 1 matters SEQ 011 & 012: TT: 8 yrs – NPP: 6 yrs BT: 2 yrs

Aggregate sentence:

Sentenced to a term of imprisonment for 13 years and 4 months with a NPP of 10 years to commence on 21/8/15 and to expire on 20/8/25 and a balance of term of 3 years and 4 months to commence on 21/8/25 and to expire on 20/12/28.

Eligible for release to parole on 20/8/25.

No further action in re the breach of the s10 bond –

H 788357890/1 – JL FILE 2013/00361560-001

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Tran, Tony [2017] NSWDC 397

Most Recent Citation

Tran v R [2018] NSWCCA 220

Cases citing this decision · 3 of 3 shown

R v Eng; R v Ong
[2023] NSWDC 536 Para 41

…aware of where the head sentence on a plea of guilty actually exceeded the standard non‑parole period provided by the legislation. R v Tran, Tony [2017] NSWDC 397. But it was effectively a sentence in respect of, from memory, 6 large commercial crops and 1 commercial crop.…
R v Ali
[2022] NSWDC 699 Para 60

…relation to matters involving cultivation by enhanced means of large commercial quantities, in particular, in respect of my own decision in R v Tran [2017] NSWDC 397 which was appealed and dealt with in Tran v R [2018] NSWCCA 220. That involved considering the sentence for an individual whose case was that he had…
Tran v R
[2018] NSWCCA 220 Para 3

…ust 2015 and expiring on 21 December 2028, with a non-parole period of 10 years commencing on 21 August 2015 and expiring on 20 August 2025: R v Tran [2017] NSWDC 397.…

View all 3 citing cases →

Cases cited in this decision · 10 of 10 shown

Cherdchoochatri v R
[2013] NSWCCA 118 Para 42

…Simpson J in Cherdchoochatri [2013] NSWCCA 118 adverted to the tension which can arise between a judge’s prerogative to reject evidence, even if there is no evidence to the contrary. After quoting a passage from Johnson J from O’Neill-Shore [2010] NSWCCA 42 at paragraph [51] he stated:…
Hanh Thi Nguyen v R
[2011] NSWCCA 92 Para 44

…In Hanh Thi Nguyen [2011] NSWCCA 92, Simpson J stated, with Davies J agreeing, when dealing with the issue as to whether in the circumstances of that matter the offender could have been legitimately regarded as a principal:…
Tran v R
[2010] NSWCCA 72 Para 113

…sentence imposed and some very brief facts. The cases referred to are Bui [2008] NSWCCA 314, Nguyen [2009] NSWCCA 283, Phan [2010] NSWCCA 8, and Tran [2010] NSWCCA 72. The schedule itself in its form was of no assistance. Accordingly, I have located each of the relevant cases and perused them to determine whether t…
O'Neil-Shaw v R
[2010] NSWCCA 42 Para 40

…In O’Neill-Shore v The Queen [2010] NSWCCA 42, Basten JA referred to what was stated by Kirby P in Chow v Director of Public Prosecutions [1992] 28 NSWLR 593 as to the governing principles in respect of the functions of prosecutors and judges involved in sentencing proceedings.…
Phan v R
[2010] NSWCCA 8 Para 113

…was a plea of guilty, the sentence imposed and some very brief facts. The cases referred to are Bui [2008] NSWCCA 314, Nguyen [2009] NSWCCA 283, Phan [2010] NSWCCA 8, and Tran [2010] NSWCCA 72. The schedule itself in its form was of no assistance. Accordingly, I have located each of the relevant cases and perused…
Nguyen v R
[2009] NSWCCA 283 Para 113

…r of plants, whether it was a plea of guilty, the sentence imposed and some very brief facts. The cases referred to are Bui [2008] NSWCCA 314, Nguyen [2009] NSWCCA 283, Phan [2010] NSWCCA 8, and Tran [2010] NSWCCA 72. The schedule itself in its form was of no assistance. Accordingly, I have located each of the relev…
Bui v R
[2008] NSWCCA 314 Para 113

…etail other than the number of plants, whether it was a plea of guilty, the sentence imposed and some very brief facts. The cases referred to are Bui [2008] NSWCCA 314, Nguyen [2009] NSWCCA 283, Phan [2010] NSWCCA 8, and Tran [2010] NSWCCA 72. The schedule itself in its form was of no assistance. Accordingly, I have…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 65

…has adopted, to the benefit of the offender. In The Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 [2002] NSWCCA 518; [2002] 56 NSWLR 146 it was said by Spigelman CJ (155 [18]), with Wood CJ at CL and Grove, Sully and James JJ agreeing, that the entire point of the pr…
R v Thomson; R v Houlton
[2000] NSWCCA 383

…ation under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 [2002] NSWCCA 518 R v Thomson, R v Houlton 49 NSWLR 383 Tran [2010] NSWCCA 72 Category: Sentence Parties: REGINA TRAN, Tony Representation: Counsel: CROWN: MS S STUART OFFENDER: MR G JAMES AM QC, MR E JAMES Solicitors: File Number(s): 2015/0…
Malvaso v the Queen
[1989] HCA 58

…nd the accused are agreed they cannot fetter the judge’s performance of the judicial function by their plea bargaining, see Malvaso v the Queen [1989] HCA 58. A statement of agreed facts may appear to the sentencing judge to be inadequate for sentencing purposes. The judge may feel the need for further material…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 3)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 1)
Electricity Supply Act 1995 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	R v TRAN, Tony [2017] NSWDC 397
Hearing dates:	3 March 2017, 12 May 2017
Date of orders:	19 May 2017
Decision date:	19 May 2017
Jurisdiction:	Criminal
Before:	KING SC DCJ
Decision:	Convicted. Form 1 offences - SEQ 011 & 012 - taken into account on sentence imposed in re SEQ 008 Indicative sentences: SEQ 002: TT : 6 yrs & 8 mths - NPP – 5 yrs ; BT – 1 yr & 8 mths SEQ 004: TT : 5 yrs SEQ 005: TT : 6 yrs & 8 mths – NPP 5 yrs ; BT – 1 yr & 8 mths SEQ 006: TT: 6 yrs - NPP: 4 years & 6 mths; BT – 1 yr & 6 mths SEQ 007: TT: 6 yrs & 8 mths – NPP 5 yrs; BT – 1 yr & 8 mths SEQ 008 + Form 1 matters SEQ 011 & 012: TT: 8 yrs – NPP: 6 yrs BT: 2 yrs Aggregate sentence: Sentenced to a term of imprisonment for 13 years and 4 months with a NPP of 10 years to commence on 21/8/15 and to expire on 20/8/25 and a balance of term of 3 years and 4 months to commence on 21/8/25 and to expire on 20/12/28. Eligible for release to parole on 20/8/25. No further action in re the breach of the s10 bond – H 788357890/1 – JL FILE 2013/00361560-001
Catchwords:	CRIMINAL – Sentence - knowingly take part in the cultivation of not less than a large commercial quantity of cannabis plants - knowingly take part in the cultivation of not less than a commercial quantity of cannabis plants - cultivate by enhanced indoor means prohibited plants, not less than a commercial quantity, and expose child in that process – offender’s role – sanitised facts – purpose of Form 1 – subjective matters
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Electricity Supply Act 1995
Cases Cited:	Bui [2008] NSWCCA 314 Cherdchoochatri [2013] NSWCCA 118 Chow v Director of Public Prosecutions [1992] 28 NSWLR 593 Hanh Thi Nguyen [2011] NSWCCA 92 King v R 2010 NSWCCA 202 Nguyen [2009] NSWCCA 283 O’Neill-Shore v The Queen [2010] NSWCCA 42 Phan [2010] NSWCCA 8 The Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 [2002] NSWCCA 518 R v Thomson, R v Houlton 49 NSWLR 383 Tran [2010] NSWCCA 72
Category:	Sentence
Parties:	REGINA TRAN, Tony
Representation:	Counsel: CROWN: MS S STUART OFFENDER: MR G JAMES AM QC, MR E JAMES Solicitors:
File Number(s):	2015/00245153