Tran v R

Case [2007] NSWCCA 140 22 May 2007

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New South Wales
Court of Criminal Appeal

CITATION: TRAN v R [2007] NSWCCA 140

HEARING DATE(S): 18 April 2007

JUDGMENT DATE:
22 May 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 18; Rothman J at 19

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Appeal against sentence - supply of heroin on 5 separate occasions - offences under s 25A and 25 of the Drug Misuse and Trafficking Act - commercial business - partly concurrent sentences imposed

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED: Johnson v The Queen (2004) 78 ALJR 616
Mill v The Queen (1998) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v Arnott [2001] NSWCCA 497
R v Bruppacher [2002] NSWCCA 182
R v Gill [2002] NSWCCA 93
R v Gordon [2002] NSWCCA 476
R v Le [2002] NSWCCA 26
R v Radford [2002] NSWCCA 122
R v Sakkar [2003] NSWCCA 26
R v Siljanovski and Kostadinovic [2003] NSWCCA 38

PARTIES: Ty Tran (Appl)
The Crown

FILE NUMBER(S): CCA 2007/344

COUNSEL: P Boulten SC ( Appl)
V Lydiard (Crown)

SOLICITORS: Greenfield Lawyers (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3261

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 25 August 2006

2007/344

McCLELLAN CJ at CL
HIDDEN J
ROTHMAN J
TUESDAY, 22 MAY 2007

TRAN, Ty v R

Judgment

1 McCLELLAN CJ at CL: The applicant was sentenced in relation to two offences being:

1. The ongoing supply of heroin on 5 separate occasions contrary to s 25A of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is imprisonment for 20 years.

Drug Misuse and Trafficking Act

2 In relation to the first count the sentencing judge imposed a sentence of 3 years and 9 months with a non-parole period of 2 years and 3 months. In relation to the second count his Honour imposed a term of imprisonment of 2 years and 6 months with a non-parole period of 12 months.

3 The sentencing judge determined that the sentences should be made partly concurrent. His Honour adjusted the commencement date of the sentence on the second count so that it commenced 3 months before the conclusion of the non-parole period on the first count.

4 Accordingly, the total effective non-parole period was 3 years imprisonment and the total effective sentence was 4 years and 6 months.

5 The applicant does not complain in relation to the terms of the individual sentences. His complaint is confined to a submission that greater concurrency of the sentences should have been provided. It was submitted “that by ordering that only 3 months of the two sentences should be dealt with concurrently, his Honour did not give sufficient effect to the principle of totality.”

6 The sentencing judge found that the…

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 v R

Details

AGLC: Tran v The Queen [2007] NSWCCA 140
Case: [2007] NSWCCA 140
Decision Date: 22 May 2007

CaseChat Overview and Summary

The appeal heard in Tran v R involved the appellant who sought to appeal against the severity of sentences imposed for supplying heroin on five separate occasions. The appellant was charged under sections 25A and 25 of the Drug Misuse and Trafficking Act. The trial judge found the offences to be of a commercial nature, leading to a partly concurrent sentence being imposed. The appellant argued that the sentences were excessive and did not take into account mitigating factors such as his lack of a criminal record and his role as a minor player in the supply chain.

The primary legal issues the court needed to address were the appropriate weight to be given to the mitigating factors presented and whether the trial judge had correctly assessed the commercial nature of the appellant's involvement in the drug supply. The court was also required to consider whether the trial judge had erred in imposing partly concurrent sentences, and if so, whether this warranted a reduction in the overall sentence.

In its reasoning, the court noted that while the appellant had no prior criminal record, this factor alone did not necessarily warrant a lesser sentence given the seriousness of the offences. The court found that the trial judge had correctly identified the commercial nature of the appellant's activities and had appropriately considered the appellant's role within the larger supply chain. The court also found that the imposition of partly concurrent sentences was justified under the circumstances. Ultimately, the court concluded that the sentences imposed were not manifestly excessive and upheld the original sentencing decision.

No additional orders were made by the court beyond affirming the original sentence. The appellant's appeal was dismissed, and the original sentences remained in place.

Orders