Tran v The Queen
[2016] ACTCA 5
•9 February 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Tran v The Queen |
Citation: | [2016] ACTCA 5 |
Hearing Date(s): | 9 February 2016 |
DecisionDate: | 9 February 2016 |
Before: | Murrell CJ, Refshauge and Wigney JJ |
Decision: | Appeal dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a controlled drug – whether judge misled by inaccurate evidence – failure to take into account material consideration – assessment of rehabilitation prospects – further evidence on the appeal |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5606 |
Cases Cited: | CDJ v VAJ (1998) 198 CLR 172 Cooper v Corvisy (No 2) [2010] ACTSC 166 OH v Dreissen [2015] ACTSC 148 |
Parties: | Thuy Thi Thu Tran (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr James Sabharwal (Applicant) Ms M Jones (Respondent) |
| Solicitors Sharman Lynch Solicitors (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | ACTCA 3 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 19 December 2014 Case Title: R v Tran Citation: [2014] ACTSC 368 |
THE COURT:
The appeal
The appellant appealed against a sentence imposed by Burns J (the sentencing judge) on 19 December 2014 for the offence that, between 13 November 2013 and 19 March 2014, the appellant trafficked in the controlled drug methylamphetamine contrary to s 603 (7) of the Criminal Code 2002 (ACT).
The maximum available penalty is 10 years’ imprisonment. From a starting point of 19 months’ imprisonment, the sentencing judge allowed for the plea of guilty by imposing a sentence of 16 months’ imprisonment. He imposed a non-parole period of eight months’ imprisonment.
Appeal ground
In a Notice of Appeal dated 16 January 2015, the appellant identified the ground that the sentence was manifestly excessive. She sought to put further evidence before this Court concerning her acceptance to the WIREDD drug rehabilitation program, to commence on 5 January 2015.
In an Amended Notice of Appeal filed on 14 May 2015, the appellant abandoned the claim of manifest excess, replacing it with a claim that the sentencing proceedings had miscarried because the sentencing judge had been “misled by an inaccurate report from CADAS [drug and alcohol report]” dated 15 December 2014 which “failed to disclose” that the appellant had been approved to commence the WIREDD program on 5 January 2015.
The offence
At the sentencing hearing, the facts of the offence were agreed. Over a four-month period, the appellant had supplied methylamphetamine to a co-offender, whom she knew was selling the drug to others. The appellant was a drug user who, to some extent, also profited from selling the drug. On 19 March 2014, police searched the appellant’s home and located 9.505 g of methamphetamine divided into small clip seal bags. They located other indicia of drug trafficking, including $9,645 in cash.
The appellant
The appellant was 27 years old. She was a single mother of three children. She had family support. She had commenced using methylamphetamine in 2012 as a means of coping with stress, including the death of her father.
At the time of the offence, the appellant was subject to four good behaviour orders that had been imposed on 13 November 2012 for offences of possess prohibited weapon, possess a drug of dependence (two offences) and possess a prohibited substance.
The sentencing judge considered that the appellant was “one step further up the supply chain than (the co-offender)”: at R v Tran [2014] ACTSC 368 [11]. After applying a discount for the plea of guilty, from a starting point of 15 months’ imprisonment, the co-offender received a sentence of 11 months’ imprisonment. He was to serve seven months’ imprisonment, and the balance was suspended.
The sentencing judge’s approach to prospects of rehabilitation
When this matter came before the sentencing judge on 3 October 2014, the appellant sought a short adjournment, and requested a CADAS (drug and alcohol) assessment. The sentencing judge granted the adjournment and ordered a CADAS report. The matter was adjourned to 5 November 2014.
On 5 November 2014, the sentencing judge was provided with a pre-sentence report dated 23 September 2014 and a CADAS report dated 15 October 2014.
The author of the pre-sentence report noted that, despite the appellant’s claim that she had been abstinent from illicit substances, on 17 September 2014 she had screened positive for methylamphetamine. Further, although the appellant had spoken of making a self referral to the Alcohol and Drug Service for counselling and support, she had not done so. The author noted that, in the context of the appellant’s untreated substance dependency and history of similar offending, there was a low/medium risk of reoffending. The author of the CADAS report advised that the appellant had declined a suggestion that she attend the WIREDD Program.
On 5 November, the appellant’s legal representative said that, since being assessed for the CADAS report, the appellant had contacted WIREDD and she had an assessment appointment on Friday 14 November. The sentencing judge granted an adjournment to 8 December to enable consideration of the assessment outcome, but cautioned:
(The appellant) would be well advised to think very carefully about attempting to engage in a relevant program or at least demonstrating that she is suitable for such a program. I have some doubts about whether a short program, such as that which is suggested, would be appropriate...
On 8 December, the appellant’s legal representative conceded that the sentencing judge would have been assisted by confirmation that the appellant had enrolled in the Program. He advised that the appellant had undertaken a telephone assessment but that he had no evidence of the outcome, and he sought an adjournment to enable the evidence to be obtained. Reluctantly, the sentencing judge granted the application, observing:
I am prepared to do that but we really must bring this matter to a conclusion... (The appellant) has been given ample opportunity to put material before the court.
On 17 December 2014, the Court was provided with an updated CADAS report dated 15 December 2014, which stated:
(The appellant’s) treatment plan with CADAS was to attend counselling at the Alcohol and Drug Service (ADS). During the remand period ADS intake and CADAS have been unable to contact (the appellant) to advise of available counselling appointments on the numbers she provided.
On 3 November 2014 (the appellant) called CADAS and stated that she had re-thought her treatment options and requested information about the WIREDD Women’s Day program. Information, referral and support was provided to (the appellant) although when CADAS tried to enquire as to her progress a woman who answered the phone number she provided called herself “twin” and denied that she was (the appellant).
In the week previous to submitting this report WIREDD staff confirmed that the service had not had any further contact with (the appellant) and like ADS numerous attempts to call her have been unsuccessful.
This morning CADAS was informed by an ADS Counselling and Treatment Service counsellor that (the appellant) was due in today. CADAS confirms that (the appellant) attended her first counselling appointment on 15 December 2014.
The appellant’s legal representative advised the Court that, according to the appellant, she had been accepted into the WIREDD Program to commence on 5 January, but she did not have written confirmation of acceptance.
The sentencing judge observed:
I have little confidence in anything that your client says at this point ... I am going to proceed with sentence today.
The appellant’s legal representative stated that he did not wish to lead any oral evidence and did not seek an adjournment, even for a brief period, to enable a telephone call to be made in an effort to obtain a letter concerning the WIREDD program.
At [8] and [13] of his reasons, the sentencing judge said:
8.... I am satisfied that you have continued to use illicit drugs up until the time that you were remanded in custody this week. I gave you an opportunity over a period of some months to demonstrate that you were willing to participate in drug rehabilitation in the community. You did not take that opportunity and I am satisfied that you lack motivation at the present time to address your drug addiction. I note that the author of the Pre-Sentence Report assessed you as being at low to moderate risk of reoffending. In my opinion that you present as a somewhat greater risk of reoffending because of your untreated drug addiction.
...
13. I consider your prospects of rehabilitation problematic at the present time. Rehabilitation, in your case, will require greater motivation and commitment than is presently shown. I take into account that the sentence which I will impose will be your first term of imprisonment but you have already spent some 56 days remanded in custody before being granted bail with respect to this charge and that did not seem to provide you with the motivation to address your drug addiction.
Further evidence on the appeal
In support of an application for appeal bail made in March 2015, the appellant had furnished the Court with an undated letter which appears to have been written after the sentencing date. The letter confirmed that, on 19 November 2014, the appellant had undertaken an assessment for the WIREDD Day Program and she had been approved to commence the Program on 5 January 2015. The letter explained that the Program was an eight week course which operated four days a week. On the appeal, the appellant sought to put this letter before the Court.
The appellant had not complied with r 5606 of the Court Procedures Rules 2006 (ACT), which require that an affidavit stating the grounds of the application be filed not less than 28 days before the hearing of the appeal.
The Court has a wide discretion as to whether to permit an appellant to adduce further evidence: CDJ v VAJ (1998) 198 CLR 172 at 199-204. Such evidence will not necessarily be admitted merely because it is useful, but it is not necessarily inadmissible merely because it could have been discovered by the exercise of reasonable diligence at the time of the original hearing. Nevertheless, both considerations are relevant to the exercise of the discretion to admit further evidence; namely, whether the evidence sought could have been obtained with reasonable diligence at the time of the hearing, and whether it may affect the result. Another consideration is that, normally, in order to be admitted, the further evidence must be cogent evidence.
In this case, there was nothing before this Court to suggest that, as at the date of the sentencing hearing, the appellant had made a reasonable attempt to obtain a confirmatory letter, but was unable to do so. In any event, had it proved difficult for the appellant to obtain a letter confirming her Program commencement date, she could have given oral evidence concerning the difficulty of obtaining a letter and the fact that she had been given an admission date of 5 January.
Without the letter, on this appeal there was no evidence of a matter which was central to the appellant’s case on the appeal but, as discussed below, even if the letter was admitted, the appeal lacks any merit. Consequently, on this appeal, we see no good reason to admit the undated letter concerning the WIREDD Program.
Nature of the appeal
The appellant accepted that, in order to succeed on the appeal, she had to demonstrate that the sentencing judge had made an error, such as a mistake of fact or law or, most relevant to this case, that there had been a failure to take a “material consideration” into account - House v The King (1936) 55 CLR 499 at 505.
The appellant’s case on appeal
The appellant contended that the sentencing judge failed to take a material consideration into account, in that, had his Honour known of the appellant’s confirmed placement on the WIREDD Program commencing 5 January 2015, it is “more than likely” that his Honour would have allowed her to complete the Program and, had she successfully completed the Program, this “would have had some positive effect upon the sentence”.
Consideration
The Court does not accept that the CADAS report of 15 December 2014 was inaccurate. The CADAS report indicated that, as at early December, the appellant had contacted WIREDD, but she had not followed up the initial contact. This may well be true. It would certainly be consistent with her chronic reluctance to accept drug treatment and support.
If, contrary to our view, the CADAS report should be read as indicating that, as at 15 December 2014, the appellant had no commencement date for the WIREDD Program, then the Court does not accept that the sentencing judge was materially “misled” by the CADAS report.
Knowledge that the appellant had been allocated a Program commencement date would not have persuaded the sentencing judge that the appellant had changed her attitude towards engaging in drug treatment. It would not have changed his assessment of her prospects of rehabilitation and related risk of reoffending. Further, it is apparent from the sentencing judge’s remarks on 5 November 2014 that his Honour would not have been readily persuaded that the brief intervention provided by the WIREDD Program would be adequate to address the appellant’s entrenched drug addiction.
If (which we do not accept) the sentencing judge was misled by the CADAS report into believing that the appellant had not secured a date to commence the WIREDD Program, we do not accept that the mistake was significant, or was likely to have resulted in a different sentence. At the sentencing hearing, the appellant’s legal representative conceded that the sentencing judge was obliged to impose some sort of sentence of imprisonment. In the event that the appellant had successfully completed the WIREDD Program, having regard to the objective seriousness of the offence and the brevity of the Program, there is no reason to believe that the sentencing judge would have imposed a significantly different sentence.
Even if our discretion to resentence was enlivened, we are far from persuaded that a different sentence would be appropriate and we would decline to exercise our discretion: see the observations of Refshauge J in Cooper v Corvisy (No 2) [2010] ACTSC 166 at [11] and OH v Dreissen [2015] ACTSC 148 at [8].
The appeal is dismissed.
Taking into account the time served, the appellant’s sentence will run from 26 September 2015 to 25 January 2017. The non-parole period will expire in May 2016 and the appellant will be eligible for release thereafter.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 17 February 2016 |
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