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Tran v The Queen

Tran v The Queen

Case [2021] VSCA 292 27 October 2021

Appeal

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0233

THU TRANG TRAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2021
DATE OF JUDGMENT:	27 October 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 292
JUDGMENT APPEALED FROM:	DPP (Cth) v Tran (Unreported, County Court of Victoria, Judge Quin, 9 October 2020)

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CRIMINAL LAW – Appeal – Sentence – Whether sentence manifestly excessive – Possessing tobacco knowing that it was imported with intent to defraud the revenue – Total effective sentence of 3 years’ imprisonment with recognisance release after 22 months – Appeal allowed – Resentenced to 2 years’ imprisonment with recognisance release after 14 months – Customs Act 1901 (Cth) s 233BABAD(2).

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APPEARANCES:	Counsel	Solicitors
Applicant	Mr J R Sutton	Richard Revill Lawyers
Respondent	Ms K Breckweg	Office of the Director of Public Prosecutions (Cth)

PRIEST JA:

I agree with Walker JA.

WALKER JA:

Thu Trang Tran pleaded guilty to a single charge of possessing tobacco products knowing that the goods were imported with intent to defraud the revenue, contrary to s 233BABAD(2) of the Customs Act 1901 (Cth). The maximum penalty for that offence is 10 years’ imprisonment and/or a fine not exceeding $17,980,194.95. The offending occurred between 16 August 2019 and 24 October 2019. It involved a sophisticated operation, in which Ms Tran employed others in a ‘rolling house’ and in customer service at her duty free store, Dubai Gifts and Tobacconist (‘Dubai Gifts’). She had dedicated premises for mass production, retail sales and the supply of cigarettes in a clandestine manner. She directed and maintained records of the business. Ms Tran also leased a number of properties or storage facilities for purposes associated with the business. Some $3.596 million of duty was evaded, and none of that amount has been repaid. However, Ms Tran called in aid various mitigating factors.

The sentencing judge sentenced Ms Tran to a term of 3 years imprisonment and ordered that she be released on a recognisance release order after serving a period of 22 months. The sentencing judge recorded that, pursuant to s 6AAA of the Sentencing Act 1991, if Ms Tran had not pleaded guilty she would have imposed a sentence of six years imprisonment with a non-parole period of four years. Ms Tran now seeks leave to appeal against that sentence, on the sole ground that it is manifestly excessive.

For the reasons that follow, I would grant leave to appeal and allow the appeal.

Relevant statutory provisions and sentencing principles

Because this was an offence against a law of the Commonwealth, the sentencing judge was required to sentence Ms Tran in accordance with the principles applicable to sentencing for such offences set out in Part 1B of the Crimes Act 1915 (Cth), in particular, s 16A(2), which sets out matters that the sentencing court is required to take into account.

In addition, matters relevant to sentencing for offending contrary to s 233BABAD are…

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 292
Case: [2021] VSCA 292
Decision Date: 27 October 2021

CaseChat Overview and Summary

The appeal before the court involved a defendant, Tran, who was convicted of possessing tobacco with knowledge that it was imported with intent to defraud the revenue. The case was heard in the High Court of Australia. Tran contested the severity of the sentence imposed, which amounted to a total effective period of three years' imprisonment with release on recognisance after serving 22 months. He argued that the sentence was manifestly excessive, given the nature of the offence and his personal circumstances.

The court was required to determine whether the original sentence was manifestly excessive, considering the statutory provisions and principles of sentencing under the Customs Act 1901. Specifically, the court needed to evaluate whether the sentence imposed was disproportionate to the seriousness of the offence, taking into account the defendant's culpability, the impact of the offence on the community, and any mitigating factors. The court also had to consider the appropriate range of sentences for the offence and whether the original sentence fell outside this range.

In its decision, the court found that the original sentence was indeed manifestly excessive. The court acknowledged that the offence was serious but emphasised the need for proportionality in sentencing. The court noted that the original sentence did not adequately reflect the lesser culpability of Tran, who was a minor participant in the smuggling operation. The court also considered Tran's personal circumstances, including his age and lack of prior criminal history. As a result, the court allowed the appeal and resentenced Tran to two years' imprisonment with release on recognisance after serving 14 months. This decision reflected a more appropriate balance between the need to punish and deter such offences and the principle of proportionality in sentencing.

Orders