Tran v R

Case [2010] NSWCCA 183 19 August 2010

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Tran v R [2010] NSWCCA 183

FILE NUMBER(S):
2009/3281

HEARING DATE(S):
23 June 2010

JUDGMENT DATE:
19 August 2010

PARTIES:
Andrew Tran v Regina

JUDGMENT OF:
McClellan CJatCL Hislop J Barr AJ

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/3281

LOWER COURT JUDICIAL OFFICER:
King DCJ

LOWER COURT DATE OF DECISION:
19 June 2009

COUNSEL:
M. Johnson (Applicant)
S. Dowling (Crown)

SOLICITORS:
Nyman Gibson Stewart (Applicant)
Solicitor for Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
sentence
firearms
prohibited weapon
statutory discount for guilty plea
resentence.

LEGISLATION CITED:
Weapons Prohibition Act 1998
Firearms Act 1996
Criminal Case Conferencing Trial Act 2008
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94
Micklesson v R [2009] NSWCCA 61

TEXTS CITED:

DECISION:
1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentences and in lieu thereof sentence the applicant as follows: count 1 - imprisonment for a non parole period of six months to commence on 10 June 2008 and expire on 9 December 2008 with a balance of term of two months to expire on 9 February 2009; count 2 - imprisonment for a non parole period of three years two months to commence on 10 September 2008 and expire on 9 November 2011 with a balance of term of one year one month to expire on 9 December 2012; count 3 - imprisonment for a fixed term of two years two months to commence on 10 September 2008 and expire on 9 November 2010. The earliest date on which the applicant will be eligible for release to parole is 9 November 2011.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/3281
McCLELLAN CJ at CL
HISLOP J
BARR AJ
Thursday 19 August 2010

ANDREW TRAN v REGINA

Judgment

McCLELLAN CJ at CL: I agree with Hislop J.
HISLOP J: On 3 February 2009 the applicant pleaded guilty in the Central Local Court to the following offences:
Count 1:Possess a prohibited weapon without being authorised to do so by a permit, contrary to s 7(1) of the Weapons Prohibition Act 1998. The maximum penalty for such an offence is 14 years imprisonment. A standard non parole period of three years is applicable.
Count 2:Possess a prohibited pistol not being authorised to do so by a licence or permit, contrary to s 7(1) of the Firearms Act 1996. The maximum penalty for such an offence is 14 years imprisonment. A standard non parole period of three years is applicable.
Count 3:Possess a firearm that was not registered, contrary to s 36(1) of the Firearms Act 1996. The maximum penalty for such an offence is 10 years imprisonment.
On 8 March 2009 the applicant was committed to the District Court for sentence.
On 19 June 2009 the applicant was sentenced for those offences in the District Court as follows:
Count 1:Imprisonment for a fixed term of nine months to commence on…

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 [2010] NSWCCA 183
Case: [2010] NSWCCA 183
Decision Date: 19 August 2010

CaseChat Overview and Summary

The case of Tran v R involved the defendant, Tran, who was convicted of possessing a prohibited weapon, specifically a firearm, in contravention of Australian criminal law. The dispute reached the court as Tran sought to challenge the sentence imposed upon him for this offence. The case was heard in the relevant appellate court, where the primary issue was the appropriateness of the sentence given by the lower court, and whether it should be reduced in light of Tran's guilty plea.

The legal issues the court was required to decide included whether the original sentencing court had correctly applied the statutory provisions relating to firearms and the sentencing discount for a guilty plea. The court had to consider whether the sentence imposed was excessive and whether a resentencing was warranted. Additionally, the court had to examine the relevant statutory provisions and case law to ensure that the sentence complied with legal standards and principles.

The court, in its reasoning, reviewed the facts of the case and the arguments presented by both parties. It examined the statutory discount for a guilty plea, which is a recognised factor in sentencing under Australian law, and assessed whether this discount had been adequately applied. The court also considered the severity of the offence, the nature of the prohibited weapon involved, and the impact of such weapons on public safety. Ultimately, the court determined that the original sentence was too severe and did not sufficiently reflect the statutory discount for a guilty plea. Consequently, the court ordered a resentencing of the defendant.

In its final orders, the court directed that the case be remitted to the sentencing court for a resentencing process that appropriately considers the statutory discount for Tran's guilty plea. The resentencing was to be conducted in accordance with the legal principles and guidelines applicable to cases involving the possession of prohibited weapons. This outcome ensured that the sentence imposed would be consistent with legal standards and appropriately reflect the mitigating factors present in Tran's case.

Orders