Tran v The Queen - [2020] NSWCCA 39

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Tran v R [2020] NSWCCA 39
Hearing dates: 2 March 2020
Decision date: 11 March 2020
Before: McCallum JA at [1];
R A Hulme J at [2];
Button J at [48]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – reduction for plea of guilty not explicitly mentioned in reasons – no error because plea and discount clearly taken into account

CRIME – appeals – appeal against sentence – no special circumstances – applicant already on reintegration home detention – extended supervision not called for because low risk of reoffending
CRIME – appeals - appeal against sentence – manifest excess – three year sentence for cultivation by enhanced means of commercial quantity of cannabis plants not unreasonable or plainly unjust
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), ss 3, 82A, 107E, 108E, 124D, 128C, 128E, 158
Crimes (Administration of Sentences) Regulation 2014 (NSW), cls 189I, 232B, 232C, 241A
Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A Pt 3, s 101A
Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
Electricity Supply Act 1995 (NSW), s 64(1)
Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)
Cases Cited: Forti v R [2016] NSWCCA 127
Lee v R [2016] NSWCCA 146
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Zhang v R [2018] NSWCCA 82
Category: Principal judgment
Parties: Van Kong Tran (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms S Kluss (Applicant)
Ms E Wilkins SC (Crown)
Solicitors:
Katsoolis & Co
Solicitor for Public Prosecutions

File Number(s): 2018/147613
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

12 April 2019

Before:

Madgwick ADCJ

File Number(s):

2018/147613

Judgment

McCALLUM JA: I agree with R A Hulme J.
R A HULME J: Van Kong Tran (the applicant) applies for leave to appeal against a sentence imposed upon him in the District Court at Sydney on 12 April 2019.
The applicant had pleaded guilty in the Local Court to an offence of cultivating a commercial quantity of cannabis plants. The offence is contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) and the maximum penalty is imprisonment for 15 years and/or a fine of 3500 penalty units.
The applicant also asked that his guilt in respect of an offence of using electricity without authority be taken into account. That offence is contrary to s 64(1) of the Electricity Supply Act 1995 (NSW).
His Honour Acting Judge Madgwick QC imposed a sentence of 3 years with a non-parole period of 2 years and 3 months, dating from 10 May 2018. The applicant is due to be released on parole when the non-parole period expires on 9 August 2020.
The Court was informed at the hearing of the application that the State Parole Authority had released the applicant by way of a Reintegration Home Detention Order. At the…

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 The Queen

Details

AGLC: Tran v The Queen [2020] NSWCCA 39
Case: [2020] NSWCCA 39
Decision Date: 11 March 2020

CaseChat Overview and Summary

Tran appealed against his sentence for cultivating a commercial quantity of cannabis plants by enhanced means. The appeal was heard in the High Court of Australia. The primary issue was whether the sentence was manifestly excessive and whether the plea of guilty discount had been appropriately taken into account in the sentencing process. Additionally, the court considered whether extended supervision was necessary due to the risk of reoffending.

The court found that the plea of guilty discount had been taken into account, despite not being explicitly mentioned in the reasons for the sentence. The court reasoned that the sentence reflected the seriousness of the offence and the need to deter such activities. The court also determined that no special circumstances existed to warrant extended supervision, given that Tran was already under reintegration home detention and posed a low risk of reoffending. The court concluded that the sentence was neither unreasonable nor plainly unjust, as it appropriately balanced the need for deterrence and rehabilitation.

In summary, the High Court dismissed the appeal, holding that the sentence was not manifestly excessive and that the plea of guilty discount had been considered in the sentencing. The court found that no special circumstances existed to warrant extended supervision, and the sentence was proportionate to the offence committed.

Orders