R v Tuan Anh Tran - [2011] NSWSC 1480

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Tuan Anh TRAN [2011] NSWSC 1480
Hearing dates: 5 September 2011
Decision date: 02 December 2011
Before: Rothman J
Decision:
Sentenced to imprisonment for a non-parole period of 15 years commencing 4 August 2010 and concluding 3 August 2025, the balance of term being a further five years imprisonment concluding 3 August 2030.
First eligible for release on parole on 3 August 2025.

Catchwords: CRIMINAL LAW - sentence - murder - guilty plea - parity with co-offender - no issue of principle - sentence imposed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: Jimmy v R [2010] NSWCCA 60
Lowe v R [1984] HCA 46; (1984) 154 CLR 606
Muldrock v R [2011] HCA 39; 85 ALJR 1154
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
R v Christiansen [2011] NSWSC 840
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 A Crim R 104
Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category: Sentence
Parties: Regina (Crown)
Tuan Anh Tran (Offender)
Representation: Counsel
C.M. Everson (Crown)
T.R. Hoyle SC (Offender)
Solicitors
Office of the Director of Public Prosecutions (Crown)
Audix Legal (Offender)

File Number(s): 2010/258714

REMARKS ON SENTENCE

On 6 December 2008, Paul Elliott was murdered. He was shot by Michael Christiansen; the co-offender was Tuan Anh Tran. The Court is required to sentence Mr Tran who has pleaded guilty to the murder of Mr Elliott.

Mr Christiansen has already been sentenced by Latham J on 29 July 2011 for a number of offences including this murder for which Mr Christiansen was sentenced to a non-parole period of 15 years and three months and a balance of term of five years and nine months.

Facts

Agreed facts are before the Court from which the following is extracted (with some minor amendments relating to the description of the persons involved):

"1. In or about September 2008, Mr Tran supplied Mr Elliott with a large commercial quantity of the prohibited drug methylamphetamine. The purity of the methylamphetamine within the admixture was at a level unacceptably low for the deceased's purposes. Consequently a dispute developed between the two men. Mr Elliott returned most of the drugs to Mr Tran and demanded money. Mr Tran was unable to comply with his demand. Consequently the deceased threatened Mr Tran with violence.

2. Mr Tran was introduced to Mr Christiansen (a convicted co-offender in this matter) at a park in Glebe in the afternoon of 4 December 2008. At that meeting Mr Tran gave Mr Christiansen a package containing 2,985g of the methylamphetamine. This was methylamphetamine returned to Mr Tran by Mr Elliott. Mr Tran and Mr Christiansen reached a understanding or arrangement amounting to an agreement between them that Mr Christiansen would provide physical protection to Mr Tran at a planned meeting with Mr Elliott in which Mr Tran intended renegotiating the terms and…

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: [2011] NSWSC 1480
Decision Date: 02 December 2011

CaseChat Overview and Summary

In the matter of the Crown versus Tuan Anh Tran, the defendant stood before the Court of Appeal, contesting the sentence imposed upon him for his involvement in the commission of murder. Tran had entered a guilty plea, but the question of the sentence's appropriateness was at issue. The Court of Appeal was tasked with determining whether the trial judge had erred in imposing a sentence that did not reflect the defendant's degree of culpability when compared to his co-offenders. The central legal issue revolved around whether the sentence imposed by the trial judge was disproportionate to Tran's role in the crime, given his plea and the sentences of his co-offenders.

The Court of Appeal considered the principle of parity in sentencing, which seeks to ensure that co-offenders who participate in the same criminal conduct receive sentences that reflect their respective levels of culpability. The court noted that while the trial judge had acknowledged the principle, there was no contention that an issue of principle had been breached. Instead, the appeal focused on whether the sentence was substantively unjust when compared to that of the co-offenders. The court examined the circumstances of the offence and the roles of each participant, ultimately determining that the sentence was proportionate to Tran's involvement in the crime. The appeal was dismissed, affirming the sentence imposed by the trial judge.

The Court of Appeal held that the trial judge had correctly balanced the principle of parity with the specifics of Tran's participation in the murder. The court found that the sentence imposed was neither manifestly excessive nor inadequate, and that the trial judge had appropriately considered the circumstances and the plea of guilty. Consequently, the appeal was dismissed, and the sentence imposed by the trial judge was upheld as just and appropriate under the circumstances. The final orders of the court confirmed the sentence previously imposed on Tran, with no alteration made to the terms of the sentence.

Orders