Thuy Thanh Thi Tran v The Queen - [2022] VSCA 44

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0245

THUY THANH THI 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 44
JUDGMENT APPEALED FROM:	[2020] VCC 1748 (Judge Cahill)

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CRIMINAL LAW – Appeal – Sentence – Manifest excess – Trafficking in commercial quantity of methamphetamine – Single transaction – 1.06 times commercial quantity threshold – Applicant supplied methamphetamine for sale – Enlisted son to deliver methamphetamine – Sentenced to 10 years and 6 months’ imprisonment with 7 year non-parole period – High culpability – Significant mitigatory factors – Whether sentence outside available range – Sentencing standards – Comparable cases – Sentence comfortably within range - DPP (Cth) v Omar [2019] VSCA 188 considered – Criminal Code 1995 (Cth) s 302.2(1).

CRIMINAL LAW – Appeal – Sentence – Parity – Identical sentence imposed on heroin ‘runner’ involved in same drug enterprise – Whether offending comparable – Whether open to judge not to differentiate – Similar culpability and mitigatory factors – Parity not infringed – Irrelevance of s 6AAA statements – Saab v The Queen [2012] VSCA 165 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Grace QC	Melasecca, Kelly & Zayler
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P
PRIEST JA:

On 8 September 2020 in the County Court the applicant pleaded guilty to one charge of trafficking in a commercial quantity of a controlled drug, methamphetamine.[1] The gross weight of the drug was 997.8 grams; the pure weight was 798.2 grams. This represented 1.06 times the threshold for a commercial quantity of methamphetamine.
[1]Contrary to the Criminal Code (Cth) s 302.2(1).

The judge sentenced her to 10 years and 6 months’ imprisonment with a 7 year non-parole period, as follows:[2]
[2]DPP (Cth) v Tran [2020] VCC 1748 (‘Sentencing Remarks’).

Charge on indictment

Offence

Maximum

Sentence

8

Trafficking a commercial quantity of a controlled drug.

Life imprisonment

10 years and 6 months’ imprisonment

Non-parole period

7 years

Section 6AAA declaration

13 years’ imprisonment with a non-parole period of 9 years

Pre-sentence detention

600 days

In her notice of application for leave to appeal the applicant contends that the sentence was manifestly excessive (‘proposed ground 1’), that the judge erred by not adequately reflecting the worth of her plea of guilty (‘proposed ground 2’) and that the judge erred in relying, for parity purposes, on the sentence imposed on another member of the syndicate, Thi Thuy Tam Tran (‘Lina Tran’) (‘proposed ground 3’).

We have concluded that leave to appeal should be refused. What follows are our reasons for that conclusion.

Factual background

The applicant was 55 at the time of the offending. She was known to a drug trafficking syndicate which imported and trafficked heroin throughout the Melbourne area. One member of the syndicate, Kha Tien Ngo, asked the applicant to supply…

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: [2022] VSCA 44
Decision Date: 1 April 2022

CaseChat Overview and Summary

Tran appealed against her sentence for trafficking in a commercial quantity of methamphetamine. The court was asked to determine if the sentence imposed was manifestly excessive or disproportionate when compared to a co-offender who was sentenced for the same drug-related activities. The appeal also addressed whether the sentences were comparable and whether parity was preserved between the sentences.

The court considered the legal principles surrounding the assessment of the sentence's appropriateness and the requirement for parity between co-offenders. The appeal hinged on whether the sentence of 10 years and 6 months’ imprisonment with a 7-year non-parole period was outside the available sentencing range, considering Tran's culpability and the mitigating factors. The court also examined the requirement for parity with a co-offender who received an identical sentence, despite different drugs being trafficked. The court evaluated whether the judge was open to not differentiating the sentences and if the statements made under section 6AAA of the Criminal Code were relevant to the parity consideration.

In determining the appeal, the court found that Tran's sentence was within the appropriate range given her culpability and the mitigating factors present. The court held that the sentences were comparable, and the requirement for parity was not infringed. The court also concluded that the statements made under section 6AAA were irrelevant to the parity consideration. The appeal was dismissed, and the sentence was upheld.

No further orders were made by the court.

Orders