Tran v R

Case [2010] NSWCCA 72 23 April 2010

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New South Wales
Court of Criminal Appeal

CITATION: Tran v R [2010] NSWCCA 72

HEARING DATE(S): 7 April 2010

JUDGMENT DATE:
23 April 2010

JUDGMENT OF: Beazley JA at 1; Howie J at 2; Hislop J at 3

DECISION: Leave to appeal granted; appeal dismissed.

LEGISLATION CITED: Drug Misuse and Trafficking Act, 1985
Criminal Procedure Act

CASES CITED: R v Way (2004) 60 NSWLR 168
R v Tran (unreported, NSWDC, 3 April 2009)
R v Phu (unreported, NSWDC, 30 January 2008)
R v Nguyen (unreported, NSWDC, 4 September 2008)
Bui v R [2008] NSWCCA 314
Nguyen v R [2009] NSWCCA 283
Phan v R [2010] NSWCCA 8
R v Bloomfield (1998) 44 NSWLR 734
Wong v R [2001] HCA 64; (2001) 207 CLR 584
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338
R v AD [2005] NSWCCA 208
De Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549
Markarian v R [2005] HCA 25; (2005) 228 CLR 357

PARTIES: Quoc Huong Tran v R

FILE NUMBER(S): CCA 2008/14427

COUNSEL: M. Ramage QC (Applicant)
M. Cinque (Crown)

SOLICITORS: AKN and Associates (Applicant)
Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/14427

LOWER COURT JUDICIAL OFFICER: Sides DCJ

LOWER COURT DATE OF DECISION: 3 April 2009

2008/14427

BEAZLEY JA
HOWIE J
HISLOP J
Friday 23 April 2010

QUOC HUONG TRAN v REGINA

Judgment

1 BEAZLEY JA: I agree with Hislop J.

2 HOWIE J: I agree with Hislop J.

3 HISLOP J: The applicant pleaded guilty to a charge pursuant to the Drug Misuse and Trafficking Act, 1985, s 23(2)(a), that on 29 May 2008 at Moorebank, New South Wales he did cultivate a number of prohibited plants by enhanced indoor means to wit 210 cannabis plants, which was not less than the large commercial quantity applicable to that prohibited plant. The maximum penalty for the offence was imprisonment for 20 years. A standard non parole period of 10 years was applicable.

4 On 3 April 2009 the applicant was sentenced to imprisonment in respect of the offence for a non parole period of five years to commence on 28 May 2008 and to expire on 27 May 2013 with a balance of term of two years six months to commence on 27 May 2013 and expire on 27 November 2015.

5 The facts were, shortly, that on 29 May 2008 when executing a warrant the police found 210 cannabis plants of varying sizes growing by enhanced indoor means in a house at Moorebank. The applicant was the only person there and had keys to open locked doors within the house. He told police that he grew the plants to make money. He cooperated with police during the search and later, at the police station, participated in an interview during which he made significant admissions, clearly indicating…

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 72
Case: [2010] NSWCCA 72
Decision Date: 23 April 2010

CaseChat Overview and Summary

The case of Tran v R involved an appeal against sentence by Quoc Huong Tran, who had been found guilty of cultivating a large commercial quantity of cannabis plants. The appeal was heard by the New South Wales Court of Criminal Appeal, with Beazley JA, Howie J, and Hislop J delivering the judgment. The primary legal issues addressed by the court were whether the sentence was unduly harsh and severe and whether the sentencing judge had erred in making certain findings adverse to the applicant. The Court of Criminal Appeal found that the sentence was not unduly harsh or severe, as it was consistent with the sentencing patterns for similar offences and took into account the applicant's higher degree of criminality. The court also found that the sentencing judge's adverse findings were open to him and not unwarranted or unsupported. As a result, the Court granted leave to appeal but dismissed the appeal. The final orders were to grant leave to appeal and dismiss the appeal.

Orders