Tran v The Queen

[2016] ACTCA 5

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
House v The King (1936) 55 CLR 499

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

1. 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).

1. 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

1. 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.

1. 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

1. 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

1. The appellant was 27 years old. She was a single mother of three children. She had family…