Tran v Regina - [2013] NSWCCA 322

Court of Criminal Appeal

New South Wales

Case Title: Tran v Regina

Medium Neutral Citation: [2013] NSWCCA 322

Hearing Date(s): 13.12.2013

Decision Date: 20 December 2013

Before: Bathurst CJ at [1]
Hoeben CJ at CL at [2]
R A Hulme J at [27]

Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - supply indictable quantity of prohibited drug - concurrence of this sentence with balance of parole being served for earlier offence - error in maximum penalty available for offence - whether lesser sentence warranted in law - application for leave to appeal against sentence dismissed.

Legislation Cited: Criminal Appeal Act 1912 - s6(3)
Drug Misuse and Trafficking Act 1985 - s25(1)

Category: Principal judgment

Parties: Thanh Tran aka Johnny Luangrathbandit - Applicant
Regina - Respondent Crown

Representation

- Counsel: Counsel:
Mr I McLachlan - Applicant
Ms N Noman SC - Respondent Crown

- Solicitors: Solicitors:
SE O'Connor, Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2012/10442

Decision Under Appeal

- Before: Toner DCJ

- Date of Decision: 19 February 2013

- Court File Number(s): 2012/10442

JUDGMENT

BATHURST CJ: I agree with Hoeben CJ at CL.
HOEBEN CJ at CL:
This matter came before the Court on 13 December 2013. Having heard argument, the Court granted leave to appeal against sentence but dismissed the appeal. The Court ordered that reasons would be given in due course. These are the reasons for the Court's decision.
Offence and sentence
The applicant pleaded guilty to supplying an indictable quantity of a prohibited drug, contrary to s25(1) of the Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for 15 years and/or a fine of 2000 penalty units. The amount of drug concerned was 22.05 grams of crystal methylamphetamine.
On 19 February 2013 in the District Court at Goulburn Toner DCJ sentenced the applicant to imprisonment for 19 months with a non-parole period of 14 months. His Honour determined that the sentence should commence on 19 December 2012, that the non-parole period would expire on 18 February 2014 and that the balance of term would expire on 18 July 2014.
The applicant's sentence was made partially concurrent with the balance of parole for an offence of murder for which the applicant was sentenced on 3 May 2001 in the Supreme Court of New South Wales. That sentence was imprisonment for 13 years, to date from 29 December 1999 and which was to expire on 19 December 2012. There was a non-parole period of 8 years, which expired on 19 December 2007.
It was common ground that the applicant was released to parole for the murder offence on a number of occasions and on each occasion parole was breached and the applicant was returned to custody. It was also common ground that the applicant's balance of parole expired on 20 March 2013. The sentencing judge was erroneously told that the balance of parole would expire on 16…

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 Regina

Details

AGLC: Tran v Regina [2013] NSWCCA 322
Case: [2013] NSWCCA 322
Decision Date: 20 December 2013

CaseChat Overview and Summary

The case of Tran v Regina involved the appellant, Tran, who was convicted of supplying a quantity of a prohibited drug. The appeal focused on the sentence imposed on Tran, specifically whether it was appropriate in the circumstances. The High Court of Australia was tasked with reviewing the decision made by the lower court regarding the sentence.

The central legal issue was whether the sentence imposed by the lower court was appropriate, considering the maximum penalty for the offence was incorrectly calculated. The court had to determine if the error in the maximum penalty warranted a lesser sentence and if the sentence was concurrent with the parole being served for an earlier offence. Additionally, the court considered whether Tran's sentence was commensurate with the offence committed.

The court found that the error in the maximum penalty did not affect the sentence imposed, as it was still within the correct range. The court also considered that the sentence was concurrent with the parole being served for the earlier offence, which was a mitigating factor. The court held that the sentence was proportionate to the gravity of the offence and the appellant's criminal history. Consequently, the application for leave to appeal against the sentence was dismissed.

Orders