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Tran, Brendon v Regina

Tran, Brendon v Regina

Case [2014] NSWCCA 85 19 May 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: TRAN, Brendon v Regina [2014] NSWCCA 85
Hearing dates: 1 May 2014
Decision date: 19 May 2014
Before: Hall J at [1];
RA Hulme J at [66];
Davies J at [71]
Decision:
(1) Leave to appeal be granted.
(2) The appeal be dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - one count supply commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) - two counts possess a firearm without being authorised by a licence or permit contrary to s 7(1) of the Firearms Act 1996 (NSW) - applicant was denied procedural fairness in that the sentencing judge failed to warn the applicant's representative that he considered the objective gravity of Count 1 to be above the mid range of objective seriousness - sentencing judge did not err in the assessment of the objective seriousness of Count 1 - sentencing judge erred in sentencing the applicant on the basis that his plea of guilty was late - sentence imposed in respect of Count 1 was not manifestly excessive - no other sentence is warranted in law and should have been passed - leave granted - appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Cases Cited: Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 [2002] NSWCCA 518
Boney v R [2008] NSWCCA 165
Mulato v R [2006] NSWCCA 282
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
R v Bonett [2009] NSWCCA 135
R v Dib [2003] NSWCCA 117
R v Gallagher (1991) 23 NSWLR 220
R v NP [2003] NSWCCA 195
R v Simpson [2001] NSWCCA 534
R v Sukkar [2006] NSWCCA 92
Wong v R [2001] HCA 64; (2001) 207 CLR 584
Category: Principal judgment
Parties: Brendon Tran (Appellant)
Regina (Crown)
Representation: Counsel:
H Dhanji SC (Appellant)
R Herps (Crown)
Solicitors:
William O'Brien and Ross Hudson Solicitors (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/275881
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-05-31 00:00:00

Before:

Blackmore DCJ

File Number(s):

2011/275881

Judgment

HALL J: The applicant, Brendon Tran, seeks leave to appeal in respect of sentences imposed upon him in the District Court (Blackmore DCJ) on 31 May 2013.

The application for leave to appeal was filed on 12 December 2013.

The applicant entered a guilty plea in Central Local Court on 19 July 2012. He was subsequently arraigned in the District Court on the following three charges:

(i) Supply commercial quantity of methylamphetamine (977.7 grams), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985: maximum penalty 20 years imprisonment and/or 3,500 penalty units; SNPP 10 years.

(ii) Possess a firearm without being authorised by a licence or permit (namely a .38 revolver) contrary to s 7(1) of the Firearms Act 1996: maximum penalty 14 years imprisonment; SNPP 3 years.

(iii) Possess a…

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 Tran, Brendon v Regina

Details

AGLC: Tran, Brendon v Regina [2014] NSWCCA 85
Case: [2014] NSWCCA 85
Decision Date: 19 May 2014

CaseChat Overview and Summary

In the matter of Tran, Brendon, the appellant, versus Her Majesty, the respondent, the appellant sought to appeal his sentence on the basis of alleged procedural unfairness, excessiveness of the sentence, and an error in the consideration of his plea of guilty. The case was heard in the Supreme Court of New South Wales, Court of Criminal Appeal. The appellant, Tran, was convicted of one count of supplying a commercial quantity of methylamphetamine, two counts of possessing a firearm without a licence or permit, and one count of possessing a prohibited weapon. The appeal was specifically focused on the sentence imposed for the first count of supplying methylamphetamine.

The primary legal issues before the court were whether the sentencing judge denied the appellant procedural fairness by not warning his representative that the objective gravity of Count 1 was considered to be above the mid-range of objective seriousness, whether the sentencing judge erred in assessing the objective seriousness of Count 1, and whether the sentence was manifestly excessive or should have included a sentence for the prohibited weapon. Additionally, the court examined whether the sentencing judge erred by considering the late plea of guilty as an aggravating factor.

The court determined that while the sentencing judge did not err in assessing the objective seriousness of Count 1, there was a failure to warn the appellant's representative about considering the objective gravity of Count 1 to be above the mid-range of objective seriousness, which constituted a denial of procedural fairness. However, this procedural error did not result in a manifestly excessive sentence. The court also found that the sentencing judge did err in considering the late plea of guilty as an aggravating factor, which was not a proper consideration for sentencing. Despite this error, the court concluded that the sentence imposed for Count 1 was not manifestly excessive and that no other sentence was warranted in law. Therefore, the appeal was dismissed, and leave was granted.

Orders