Thi Thuy Tam Tran v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0259

THI THUY TAM TRAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and PRIEST JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 January 2022
DATE OF JUDGMENT:	1 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 45
JUDGMENT APPEALED FROM:	[2020] VCC 1631 (Judge Cahill)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in commercial quantity of heroin – 1.56 times commercial quantity threshold – Sentenced to 10 years and 6 months’ imprisonment with 7 year non-parole period – Whether manifestly excessive – Whether parity principle infringed – Co-offender trafficked greater quantity over longer period – Co-offender given lower head sentence and non-parole period – Sentencing differential reasonably open –Sentence within range – Leave to appeal refused – Criminal Code 1995 (Cth) ss 302.2(1) and 311.2(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Dwyer	Giorgianni & Liang Lawyers
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P
PRIEST JA:

1                  The applicant, who is known as ‘Lina Tran’, pleaded guilty in the County Court on 9 September 2020 to one charge of trafficking in a commercial quantity of a controlled drug.[1]  The charge encompassed four transactions involving packages of heroin.  The applicant was sentenced on the basis that she trafficked in at least 2,340 grams of heroin, which is 1.56 times the commercial quantity threshold.

[1]Contrary to ss 302.2(1) and 311.2(1) of the Criminal Code (Cth).

2                  On 9 October 2020 the applicant was sentenced to 10 years and 6 months’ imprisonment with a 7-year non-parole period, as set out in the table below.[2]

[2]DPP (Cth) v Tran [2020] VCC 1631 (Judge Cahill) (‘Sentencing Remarks’).

Charge on indictment	Offence	Maximum	Sentence
7	Trafficking a commercial quantity of a controlled drug	Life imprisonment	10 years and 6 months’ imprisonment
Non-parole period		7 years
Pre-sentence declaration		634 days
Section 6AAA declaration		13 years and 6 months’ imprisonment with a non-parole period of 9 years and 6 months

3                  The applicant now seeks leave to appeal against that sentence on two grounds, expressed as follows:

Ground 1:      In all the circumstances, the head sentence and non-parole period imposed upon the Applicant and the head [sentence] and non-parole period imposed upon the co-offender Zainal, give rise to a justifiable sense of grievance.

Ground 2:      When regard is had to the following:

·an accurate characterisation of the Applicant’s role;

·the Applicant’s plea of guilty and the stage at which it was entered;

·the increased burden of imprisonment on the Applicant;

·the Applicant’s prospects for rehabilitation;

·the Applicant’s conduct in custody;  and,

·the Applicant’s remorse;

the head sentence and non-parole period are manifestly excessive.

4                  For reasons which follow, we would refuse leave to appeal.

Factual background

5                  At the time of the offending, the applicant was aged 47.  She was born in Vietnam and migrated to Australia in 1992.  She was involved in an international drug trafficking syndicate, the primary business…