Tran v The Queen

[2006] NSWCCA 266

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Tran v Regina [2006]  NSWCCA 266

FILE NUMBER(S):
2005/2289

HEARING DATE(S):               02/03/2006

DECISION DATE:     30/08/2006

PARTIES:
Minh Tran v Regina

JUDGMENT OF:       Beazley JA Adams J Howie J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          04/11/0858

LOWER COURT JUDICIAL OFFICER:     Ainslie-Wallace DCJ

COUNSEL:
D. Arnott SC - Crown
H. Dhanji - Applicant

SOLICITORS:
S. Kavanagh - Crown
J. Doolan - Applicant

CATCHWORDS:
Criminal Law - Sentencing - Parity with co-offender - No matter of principle.

LEGISLATION CITED:
Drug (Misuse and Trafficking) Act 1985 - s 25(2)
Crimes (Sentencing Procedure) Act 1999 - ss 44, 54A

DECISION:
Leave to appeal granted.  Appeal is allowed.  A non-parole period of  four years and three months commencing 21 August 2003 and a balance of term of two years and nine months commencing 21 November 2007 and ending on 20 August 2010 are substituted.  The applicant will be eligible to be considered for parole on 20 November 2007.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2289 CCAP

BEAZLEY JA
ADAMS J
HOWIE J

WEDNESDAY 30 AUGUST 2006

Minh TRAN v REGINA

Judgment

1. BEAZLEY JA:  I agree with the orders proposed by Adams J and otherwise endorse the comments of Howie J.

   Introduction

2. ADAMS J:  The applicant entered an early plea of guilty to an indictment containing a single count of supplying a commercial quantity of heroin contrary to s 25(2) of the Drug (Misuse and Trafficking) Act 1985.  This involved 834.9 grams of heroin and, accordingly, a maximum penalty of twenty years’ imprisonment with a standard non-parole period of ten years’ imprisonment applied.  The applicant also asked that twenty-four other matters be taken into account on a Form 1.  Two of those matters concern amounts of money ($355,000, $2,007.05 and $2,300) discovered on a search of his flat; the rest of the offences concern the possession of small amounts of different drugs conceded by the prosecution to have been held by the applicant for his own use.  The applicant was sentenced to imprisonment for eight years with a non-parole period of five years.

   Facts 

3. The facts of the offence were not in dispute.  The following account comes largely from the reasons for sentence of the learned sentencing judge.  Police conducting an investigation by using physical and electronic surveillance intercepted a telephone call between a person known as Lam and the applicant concerning the supply of drugs – in the conversation referred to as ‘tapes’.  In a later conversation the applicant told Lam that something was going to happen on 21 August 2003.  Lo had been instructed by Lam to obtain two “movies” and bring them out – these movies referred to blocks of heroin which were to be supplied to the applicant.  Lo went to the restaurant with Hoang and was instructed by Lam to “order beef noodles and place the video under the noodles”.  Sometime later Lam and another co-offender Fung, travelled to the restaurant where they met Lo and Hoang.  Hoang and Lam…