Tran v R (Cth) - [2020] NSWCCA 310

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tran v R (Cth) [2020] NSWCCA 310
Hearing dates: 16 November 2020
Decision date: 27 November 2020
Before: Hoeben CJ at CL at [1];
Price J at [50];
Fagan J at [51]
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – sentence appeal – offence of dealing with money intended as a instrument of crime where value of money was more than $100,000 – maximum sentence of 20 years imprisonment – applicant played an integral role in transferring money in and out of Australia – applicant in charge and giving directions to a number of locally based participants – person Nguyen part of syndicate controlled by applicant – Nguyen physically attended banks and carried out transactions on behalf of applicant – when sentenced Nguyen received a much less sentence than the applicant – whether the applicant had a justifiable sense of grievance due to the disparity between her sentence and that of Nguyen – appeal against sentence dismissed.

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code (Cth)

Cases Cited:
Burrows v R [2017] NSWCCA 45
Why v R [2017] NSWCCA 101
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Thi Quynh Quyen Tran – Applicant
Regina (Cth) – Respondent
Representation:
Counsel:
Q Nguyen (solicitor) – Applicant
A Williams/K Fitzgerald – Respondent
Solicitors:
QV Law – Applicant
Commonwealth Director of Public Prosecutions – Respondent

File Number(s): 2017/008946
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

3 February 2020

Before:

Huggett DCJ

File Number(s):

2017/008946

JUDGMENT

HOEBEN CJ at CL:

Offence and sentence

The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed upon her by her Honour Huggett DCJ on 3 December 2019 in the District Court at Sydney.

The applicant was sentenced after entering a plea of guilty to a single count of dealing with money intending that it would become an instrument of crime and where the value of the money was more than $100,000 contrary to s 400.4(1) of the Criminal Code (Cth).
The applicable maximum sentence for the offence is 20 years imprisonment and/or a fine of 1200 penalty units.
The facts on which the applicant was to be sentenced were agreed.
The applicant was sentenced to a term of imprisonment of 4 years with a non-parole period of 2 years. The sentence was to commence on 3 February 2020.

Factual background

Strike Force Bogami was a joint investigation conducted by the New South Wales Police Force Organised Crime Squad and the Australian Criminal Intelligence Commission (ACIC) into money laundering syndicates involved in the laundering of significant amounts of money on behalf of organised crime syndicates. As a part of the investigation, ACIC obtained Commonwealth intercept warrants for the mobile phone…

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 (Cth)

Details

AGLC: Tran v R (Cth) [2020] NSWCCA 310
Case: [2020] NSWCCA 310
Decision Date: 27 November 2020

CaseChat Overview and Summary

The case of Tran v R (Cth) involved the applicant, Tran, who was appealing against her sentence for dealing with money intended to be used as an instrument of a crime, where the value of the money exceeded $100,000. The maximum penalty for this offence is 20 years imprisonment. Tran played a significant role in transferring money into and out of Australia and was in charge of directing several locally based participants. One of these participants, Nguyen, was part of the syndicate controlled by Tran and carried out transactions on her behalf at various banks. Upon sentencing, Nguyen received a significantly lower sentence than Tran, which led to the applicant's appeal on the grounds of a disparity in sentencing. The appeal questioned whether the disparity was sufficient to constitute a justifiable sense of grievance.

The primary legal issue before the court was whether the disparity in sentencing between Tran and Nguyen justified a reduction in Tran’s sentence. The court had to consider whether Tran's role in the syndicate and the disparity in sentences warranted a reconsideration of the sentence imposed. The applicant argued that the lower sentence received by Nguyen was unjust and that she should have been sentenced more leniently in comparison. The Crown, on the other hand, contended that the disparity did not justify a reduction in Tran's sentence, as both were involved in the criminal activity to varying degrees.

The court, after thorough consideration of the arguments presented, found that the disparity in sentencing did not provide a justifiable basis for reducing Tran’s sentence. The court reasoned that the disparity was not indicative of an error in principle or a manifestly excessive sentence. The severity of Tran’s involvement and the significant role she played in the syndicate warranted the sentence imposed. The court also noted that while the disparity was notable, it did not undermine the overall proportionality of the sentences. The appeal was dismissed, and Tran’s original sentence was upheld.

No additional orders were made by the court beyond the dismissal of the appeal.

Orders