Tran v R

Case [2014] NSWCCA 32 18 March 2014

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Court of Criminal Appeal

New South Wales

Case Title: Tran v R

Medium Neutral Citation: [2014] NSWCCA 32

Hearing Date(s): 4 March 2014

Decision Date: 18 March 2014

Before: Beazley P at [1]
RA Hulme J at [2]
Schmidt J at [3]

Decision:
Leave to appeal refused.

Catchwords: CRIMINAL - application for leave to appeal sentence - whether there was an absence of sufficient information with respect to mental health/special circumstance, family support and remorse - whether criminality was not on par with co-accused - additional evidence - leave to appeal refused

Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited: Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
Pham v R [2010] NSWCCA 208
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 628

Category: Principal judgment

Parties: Ha Bu "Matthew" Tran
Regina

Representation

- Counsel: Counsel:
Mr K Becker (Applicant)
Mr R Herps (Crown)

- Solicitors: Solicitors:
S Kavanagh, solicitor for Public Prosecutions (Crown)

File Number(s): 2009/2352004

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Sorby DCJ

- Date of Decision: 19 March 2010

- Court File Number(s): 2009/2352

Publication Restriction: None

JUDGMENT

BEAZLEY P: I agree with the reasons of Schmidt J.
RA HULME J: The reasons disclosed in the judgment of Schmidt J reflect my own for joining in the refusal of leave to appeal.
SCHMIDT J: On 4 March 2014, the Court refused the applicant Mr Tran leave to appeal the sentence imposed upon him by Sorby DCJ in March 2010. He was then sentenced to 10 years imprisonment after a discount of 15% for his guilty plea for an offence of knowingly taking part in the supply of a prohibited drug, agreed to be some 10.124 kg of pseudoephedrine, an offence which his Honour found fell into the mid-range. There was also a finding of special circumstances, with the result a non-parole period of 6 years was imposed.
This was a relatively lenient sentence, given the objective seriousness of this offence, the maximum penalty of life imprisonment and the standard non-parole period 15 years (see s 25 of the Drug Misuse and Trafficking Act 1985 (NSW)). The sentence imposed was the same as that imposed on the applicant's co-offender Mr Pham, after a discount of 25% for his early guilty plea. A severity appeal against that sentence was dismissed, it being observed that in addition to the 25% plea of guilty reduction, the non-parole period imposed was a further 5 years and 3 months or 35% less than the standard non-parole period (see Pham v R [2010] NSWCCA 208).
The grounds of this application for leave to appeal were:
A. Absence of sufficient information before the sentencing judge: Mental Health/special circumstances; Family support; and Remorse; and
B. The Appellant's criminality was not "on par with" the co-accused, Pham, and sentencing consequently should not have indicated "equal criminality".
The Crown opposed the leave sought in circumstances where…

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 R [2014] NSWCCA 32
Case: [2014] NSWCCA 32
Decision Date: 18 March 2014

CaseChat Overview and Summary

The case before the court involved an appeal against sentence by the appellant, Tran, who was convicted of a serious criminal offence. The appellant sought leave to appeal the sentence on the grounds that there was an absence of sufficient information regarding his mental health, special circumstances, family support, and remorse. Additionally, the appellant argued that his criminality was not on par with his co-accused. The appeal was heard in the High Court of Australia.

The primary legal issues the court had to address were whether the trial judge failed to consider relevant mitigating factors such as the appellant's mental health, special circumstances, family support, and remorse. The court also needed to determine if there was a significant disparity in the criminality of the appellant and his co-accused that warranted a different sentence. Furthermore, the court examined whether the additional evidence provided was sufficient to warrant a reconsideration of the sentence.

The court held that the trial judge had adequately considered all relevant mitigating factors and that there was no significant disparity in the criminality of the appellant and his co-accused. The court found that the appellant's mental health and special circumstances had been thoroughly assessed and taken into account during the sentencing process. Furthermore, the court determined that the family support and remorse of the appellant were appropriately considered. The court also found that the additional evidence presented did not provide a compelling reason to alter the sentence. Consequently, the court refused the appellant's application for leave to appeal the sentence.

The High Court of Australia ruled that the appellant's application for leave to appeal the sentence was dismissed. The court found that the trial judge had appropriately considered all relevant mitigating factors and that the sentence was proportionate to the appellant's criminality and the circumstances of the case.

Orders