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Tran v The Queen

Tran v The Queen

Case [2021] VSCA 278 7 October 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0131

HOANG NGOC TRAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 September 2021
DATE OF JUDGMENT:	7 October 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 278
JUDGMENT APPEALED FROM:	[2020] VCC 536 (Judge Stuart)

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CRIMINAL LAW — Appeal — Application for leave to appeal against sentence — Attempt to possess commercial quantity of a border controlled drug — Principle of parity — Manifest excess — Applicant sentenced to 23 years and six months’ imprisonment with non-parole period of 15 years and six months — Applicant’s head sentence 3.76 times that of co-accused — Whether disparity in sentences justified by differences in roles of co-accused — Whether minor factual errors led judge to mischaracterise applicant’s role in drug importation enterprise — Applicant was ‘trusted organiser’ of one part of enterprise — Criminal Code (Cth) ss 11.1(1), 307.5(1); R v Nguyen (2010) 205 A Crim R 106, Tran v The Queen [2017] VSCA 346, Collins v The Queen [2015] VSCA 106 applied — Application for leave to appeal granted — Appeal allowed — Applicant resentenced to 18 years’ imprisonment with non-parole period of 12 years.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms C A Boston	Balmer & Associates
For the Respondent:	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

KAYE JA
T FORREST JA:

On 25 January 2019 the applicant, Hoang Ngoc Tran, pleaded guilty to one charge of attempting to possess a border controlled drug in a commercial quantity. The drug involved methamphetamine.

His co-accused, Tu Ngoc Ho, pleaded guilty to the same charge on 19 February 2019.

A plea hearing before a County Court judge took place over seven sitting days between August 2019 and April 2020. Ho contested various facts relevant to his role in the offending and this occupied much of the seven sitting days. The applicant did not contest any factual aspect of his plea.

A second co-accused, Thienh Anh Ngo, was acquitted at trial.

On 29 April 2020, the applicant and Ho were sentenced as follows.

Tran

Charge

Offence

Maximum Penalty

Sentence

1

Attempt to possess a commercial quantity of the border controlled drug (methamphetamine), contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth)

Life imprisonment

23 years and 6 months

Non-Parole Period: 15 years and 6 months’ imprisonment

Pre-sentence detention declared: 1127 days

6AAA declarations: 28 years’ imprisonment with a non-parole period of 21 years

Ho

Charge

Offence

Maximum Penalty

Sentence

1

Attempt to possess a commercial quantity of the border controlled drug (methamphetamine), contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth)

Life imprisonment

6 years and 3 months’ imprisonment

Non-Parole Period: 3 years and 9 months’ imprisonment

Pre-sentence detention declared: 1127 days

6AAA declarations: 9 years’ imprisonment with a non-parole period of 6 years

The applicant Tran seeks leave to appeal on nine separate grounds.

Ground 1:
The sentences imposed give rise…

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 278
Case: [2021] VSCA 278
Decision Date: 7 October 2021

CaseChat Overview and Summary

Tran was the appellant in a criminal appeal before the High Court of Australia. The case involved an appeal against a sentence imposed for an offence of attempting to possess a commercial quantity of a border controlled drug. The sentence imposed was 23 years and six months imprisonment, with a non-parole period of 15 years and six months. The legal issues before the Court were whether the disparity in sentences between Tran and his co-accused was justified by their differing roles in the drug importation enterprise, and whether minor factual errors led the trial judge to mischaracterise Tran's role.

The Court held that the principle of parity required like cases to be treated alike, and that the sentence imposed on Tran was manifestly excessive when compared to the sentence imposed on his co-accused. The Court found that Tran's head sentence was 3.76 times that of his co-accused, and that the disparity in sentences could not be justified by the differences in their roles. The Court also found that minor factual errors led the trial judge to mischaracterise Tran's role in the drug importation enterprise, and that Tran was not the main organiser of the enterprise as the trial judge had found.

The Court granted Tran's application for leave to appeal and allowed the appeal. The Court resentenced Tran to 18 years' imprisonment with a non-parole period of 12 years. The Court found that the original sentence was manifestly excessive and that the resentence more accurately reflected the circumstances of the case. The Court emphasised the importance of ensuring that sentences are proportionate and that the principle of parity is upheld in criminal sentencing.

Orders