R v Tran & Tran

Case [2011] SASCFC 153

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TRAN & TRAN

[2011] SASCFC 153

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)

16 December 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

Prosecution appeals against sentence - respondents found guilty by jury verdicts of trafficking in heroin.

First respondent found to be in possession of $1,340, second respondent found to be in possession of $14,400 and three mobile telephones - police search of property found balloon containing 2.6g of heroin, nine packets of water balloons, passports in the first and second respondents’ names, two sets of digital scales containing traces of heroin on one of the scales, a box containing balloons, strips of plastic, a knife (containing traces of heroin) and a straw, white crystalline substance located in carport.

First respondent sentenced to two years and nine months' imprisonment with a non-parole period of one year and seven months.

Second respondent sentenced to two years and three months' imprisonment with a non-parole period of one year, suspended.

Whether sentences imposed were manifestly inadequate - whether the sentencing Judge erred in failing to make a finding as to whether the offence was committed against a backdrop of an ongoing criminal enterprise.

Held: Appeals dismissed - no submission was made to sentencing Judge that findings should be made that the defendants had engaged in an ongoing course of criminal conduct - Director's application for permission to appeal to contend this finding is rejected - no basis for suggestion that the sentencing Judge did not have regard to the context and surrounding circumstances of offending - sentences within the discretion of the sentencing Judge.

Controlled Substances Act 1984 (SA) s 32; Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
R v Tran [2011] SASCFC 85; Everett v The Queen (1994) 181 CLR 295; The Queen v Osenkowski (1982) 20 SASR 212; R v Nemer (2003) 87 SASR 168; R v Knott (2007) 169 A Crim R 291; Dinsdale v The Queen (2000) 202 CLR 321, applied.
R v Bukvic (2010) 107 SASR 405; Muldrock v The Queen (2011) 85 ALJR 1154; R v Olbrich (1999) 199 CLR 270; R v Storey [1998] 1 VR 359; Veen v The Queen (No 2) (1987) 164 CLR 465; Director of Public Prosecutions v Ottewell [1970] AC 642; R v Davidson [2011] SASCFC 132; Markarian v The Queen (2005) 228 CLR 356, considered.

R v TRAN & TRAN
[2011] SASCFC 153

Court of Criminal Appeal:       Gray, Sulan and David…

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R v Tran & Tran [2011] SASCFC 153
Case
[2011] SASCFC 153
Decision Date

CaseChat Overview and Summary

This matter concerned appeals by the Crown against sentences imposed on the respondents, Tran and Tran, who had been convicted of drug trafficking offences. The appeals were heard by Gray, Sulan, and David JJ in the appellate court.

The primary legal issues before the court were whether the sentencing judge erred in imposing the sentences, and specifically, whether the Crown should be permitted to argue for findings of an ongoing course of criminal conduct that were not made at the original sentencing. The court was also required to consider the relevance of maximum penalties and surrounding circumstances in sentencing.

The court held that earlier sentencing practices and ranges of penalties are of limited relevance when a court imposes sentence, as it must have regard to the maximum penalty set by Parliament. The court rejected the Director's applications to appeal on the basis that findings of an ongoing course of criminal conduct should now be made, noting that no such submissions were made to the sentencing judge. The defendants were to be sentenced only for the offences charged and not on the basis of aggravated criminal conduct. However, the court affirmed that it was entitled to consider the circumstances surrounding the offending, such as suggested involvement in heroin beyond the single transaction, when assessing personal deterrence, rehabilitation, and community protection. These circumstances formed the context of the offending. The court found no basis to suggest the sentencing judge failed to consider this context and concluded the sentences imposed, while merciful, were within the judge's discretion.

Consequently, the appeals were dismissed, and permission to appeal was refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is to be accepted that when imposing sentence a Court will always have regard to the maximum penalty set by Parliament for the offence. Earlier sentencing practices and ranges of penalties fixed by reference to different maximum penalties are of limited relevance.Conclusion As noted above there was no submission made to the sentencing Judge that findings should be made that the defendants had engaged in an ongoing course of criminal conduct and that the subject offending formed part of that ongoing course of conduct. In these circumstances the Director’s applications for permission to appeal to contend that such a finding now be made should be rejected. The defendants were not to be sentenced for offences other than those charged. The defendants were not to be sentenced on the basis that their crimes were aggravated by other criminal conduct. However, the circumstances surrounding the defendants’ offending suggested an involvement in heroin beyond the one transaction of trafficking. The Court was entitled to have regard to these surrounding circumstances when considering issues of personal deterrence, rehabilitation and the protection of the community. The surrounding circumstances formed the context in which the offending for which the defendants were convicted took place. No basis has been established to suggest that the Judge did not have regard to the context and surrounding circumstances when sentencing the defendants. The sentences imposed were merciful. They were however within the sentencing discretion of the Judge. The appeals should be dismissed. SULAN J: I agree with the reasons of Gray J and the orders he proposes. DAVID J: In both cases I would refuse permission to appeal. I agree with the reasons of Gray J.

Ratio Decidendi

Legal Principle Established

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