Tran, Thi Doan v The Queen - [2020] NSWCCA 204

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tran, Thi Doan v R [2020] NSWCCA 204
Hearing dates: 29 June 2020
Date of orders: 12 August 2020
Decision date: 12 August 2020
Before: Macfarlan JA at [1]
Fagan J at [2]
Cavanagh J at [9]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
SENTENCING — appeal against sentence — co-offenders — disparity between sentences — where applicant pleaded guilty to two counts of supplying greater than a commercial quantity of cannabis — where assertion of disparity is contrary to submission made by applicant on sentence — whether justifiable sense of grievance

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25

Cases Cited:
Dayment v R [2018] NSWCCA 132
Dinsdalev The Queen (2000) 202 CLR 321; [2000] HCA 54
Greaves v R [2020] NSWCCA 140
Green v The Queen;QuinnvThe Queen (2011) 244 CLR 462; [2011] HCA 49
Markarianv The Queen (2005) 228 CLR 357; [2005] HCA 25
Pecorav The Queen [1980] VR 499
R v Deng (1996) 91 A Crim R 80
R vTisalandis [1982] 2 NSWLR 430
Zreika v The Queen [2012] NSWCCA 44; 223 A Crim R 460

Category: Principal judgment
Parties: Thi Doan Tran (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Kumar (Respondent)
Solicitors:
QV Law (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/216812
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

26 July 2019

Before:

Bennett SC DCJ

File Number(s):

2018/216812

Judgment

MACFARLAN JA: I agree with Cavanagh J.
FAGAN J: I agree with Cavanagh J. The submission of counsel who represented the applicant at first instance, that “parity must apply in a substantial fashion to at least [the applicant] and [Mr] Le” but that their respective sentences “would be more substantial” than that for Ms Vu, was sensible and realistic.
As is apparent from Cavanagh J’s more detailed summary of the facts, both Mr Le and the applicant were directly engaged in procuring bulk supplies of cannabis from Ms Ha. The Le/Vu/applicant syndicate required those supplies in order to fulfil orders that they received in their enterprise of distributing smaller quantities around Australia by post. The total of 71.393kg obtained from Ms Ha was the subject of the first count against the applicant (seq 2) and the first count against Mr Le (seq 8). Over the course of 9 weeks between 30 January 2018 and 5 April 2018 there were 11 bulk supplies from Ms Ha, in quantities between 1kg and 18kg but mostly in the range 4g to 9kg.
The applicant directly communicated with Ms Ha to place the orders for nine of those supplies. On occasions she physically delivered a cash payment to Ms Ha. Although the applicant did not take delivery of the drug, she frequently arranged with Ms…

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, Thi Doan v The Queen

Details

AGLC: Tran, Thi Doan v The Queen [2020] NSWCCA 204
Case: [2020] NSWCCA 204
Decision Date: 12 August 2020

CaseChat Overview and Summary

The applicant, Tran, Thi Doan, was convicted of two counts of supplying greater than a commercial quantity of cannabis. She appealed against the sentence imposed by the trial judge, arguing that the disparity between her sentence and those of her co-offenders was unjust. The appeal was heard by the High Court of Australia.

The court was required to consider whether the disparity in sentencing between the applicant and her co-offenders was unjust and whether the applicant had a justifiable sense of grievance. The applicant argued that the disparity was unjust, while the Crown submitted that the sentences were proportionate to the respective roles of the offenders in the drug supply operation.

The court held that the disparity in sentencing did not amount to an unjustifiable sense of grievance on the part of the applicant. The court found that the applicant's role in the drug supply operation was less significant than that of her co-offenders, and that the trial judge had appropriately taken into account the applicant's lesser role in imposing sentence. The court also noted that the applicant had not raised the issue of disparity at the time of sentencing, and that the assertion of disparity was contrary to the submission made by the applicant on sentence. The appeal was dismissed.

The High Court of Australia dismissed the applicant's appeal against sentence. The court held that the disparity in sentencing between the applicant and her co-offenders was not unjust, and that the trial judge had appropriately taken into account the applicant's lesser role in imposing sentence. The court also noted that the applicant had not raised the issue of disparity at the time of sentencing, and that the assertion of disparity was contrary to the submission made by the applicant on sentence.

Orders