Tran v The Queen - [2021] VSCA 311

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0235

HOANG TRAN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 November 2021
DATE OF JUDGMENT:	16 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 311
JUDGMENT APPEALED FROM:	[2020] VCC 1667 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – One Commonwealth offence (possess counterfeit money) – Six State offences – Total effective sentence on State offences 3 years, 9 months’ imprisonment with non-parole period of 2 years, 6 months – 4 months’ imprisonment on Commonwealth offence to commence upon completion of non-parole period – Whether sentence and commencement order on Commonwealth offence manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr W Barker	Furstenberg Law
For the Respondent	Ms R L Harper	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
T FORREST JA:

Introduction and summary

On 23 September 2020, the appellant pleaded guilty to the charges set out in the table below and, on 15 October 2020, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Tran [2020] VCC 1667 (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

Indictment

1 Possess traffickable quantity of firearms [Firearms Act 1996 s 7C(1)] 10 years 3 years 6 months

2 Possess loaded firearm in a public place [Firearms Act s 130(1)] 10 years 3 years Base

3 Possess firearm with no serial number [Firearms Act s 134C(1)] 4 years 9 months 1 month

4 Possess counterfeit money [Crimes (Currency) Act 1981 (Cth) s 9(1)] 10 years 4 months To commence at end of non‑parole period

5 Possess a drug of dependence [Drugs, Poisons and Controlled Substances Act 1981 s 73(1)(b)] 1 year 3 months Nil

6 Negligently deal with proceeds of crime [Crimes Act 1958 s 194(4)] 5 years 6 months 1 month

7 Unlicensed person store a firearm in an insecure manner [Firearms Act s 129A] 4 years 9 months 1 month

Related summary offences

4 Possess cartridge ammunition without a licence [Firearms Act s 124(1)] 40 penalty units $826.10 fine Not applicable

5 Possess controlled weapon without lawful excuse [Control of Weapons Act 1990 s 6(1)] 1 year 2 months Nil

8 Commit indictable offence while on bail [Bail Act 1977 s 30B] 3 months 1 month Nil

23 Possess prohibited weapon without exemption [Control of Weapons Act s 5AA] 2 years 2 months Nil

Total effective sentence: 3 years and 9 months’ imprisonment

Non-parole period: 2 years and 6 months

Section 6AAA statement: 5 years’ imprisonment with non-parole period of 3 years and 4 months

On 1 June 2021, the appellant was granted leave to appeal against his sentence on the ground that the sentence in relation to charge 4 on the indictment and its commencement date are manifestly excessive.[2]
[2]References to charges are references to charges on the indictment, unless otherwise specified.

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 [2021] VSCA 311
Case: [2021] VSCA 311
Decision Date: 16 November 2021

CaseChat Overview and Summary

The appellant Tran was convicted and sentenced in the Supreme Court of South Australia on six state offences and one Commonwealth offence. Tran appealed against the sentence imposed by the Supreme Court of South Australia, contending that the sentence and the order for the Commonwealth offence to commence upon the completion of the non-parole period for the state offences were manifestly excessive. The High Court of Australia was asked to consider whether the appeal should be allowed.

The central legal issue was whether the sentence and the order for the Commonwealth offence to commence upon the completion of the non-parole period for the state offences were manifestly excessive. The appellant argued that the sentence was disproportionate and that the order for the Commonwealth sentence to commence upon completion of the non-parole period for the state offences was inappropriate. The central consideration was whether the sentence and order were manifestly excessive, and whether the trial judge had failed to properly exercise his discretion.

The Court concluded that the sentence was not manifestly excessive and that the order for the Commonwealth offence to commence upon completion of the non-parole period for the state offences was appropriate. The Court found that the trial judge had properly exercised his discretion in imposing the sentence and in making the order. The Court held that the sentence and order were not manifestly excessive and that the appeal should be dismissed.

The appeal was dismissed, and the original sentence and order were upheld. The Court found that the sentence and order were not manifestly excessive and that the trial judge had properly exercised his discretion. The Court did not interfere with the sentence or the order, and the original sentence and order were upheld.

Orders