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 AJThursday 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…
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- AGLC
- Tran v R [2010] NSWCCA 183
- Case
- [2010] NSWCCA 183
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: CLELLAN CJ
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