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Tran v The Queen

Tran v The Queen

Case [2017] VSCA 346 28 November 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0063

THIEN THI TRAN	Applicant
V
THE QUEEN	Respondent

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JUDGES:	OSBORN, WHELAN and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 November 2017
DATE OF JUDGMENT:	28 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 346
JUDGMENT APPEALED FROM:	DPP v Tran (Unreported, County Court of Victoria, Judge Montgomery, 16 March 2017)

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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST
SENTENCE DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 315(2) OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Leave to Appeal – Sentence – Election to renew application – Attempting to possess commercial quantity of unlawfully imported border controlled drug (heroin) – Co-offender – Informer’s discount – Parity – Application refused.

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

OSBORN JA:

I agree that leave to appeal should be refused for the reasons given by Ashley JA.

WHELAN JA:

I have read in draft the reasons of Ashley JA. I agree with his analysis of the substantive issues. In my view, however, the parity ground, as argued before us, is sufficiently arguable to warrant a grant of leave to appeal. I would dismiss that appeal for the reasons given by Ashley JA for refusing leave.

The argument put to us on behalf of the applicant differed in some respects from that put in the written case upon the basis of which Priest JA refused leave. In particular, before us, counsel sought, in effect, to ‘quarantine’ all of the sentencing considerations referable to DCT’s cooperation into the 50 per cent discount on sentence declared in relation to DCT under s 16AC of the Crimes Act 1914 (Cth). Counsel relied in that respect on observations made by Vincent AJA (as he then was) in R v Cuthbertson.[1]
[1](Unreported, Victorian Court of Criminal Appeal, 13 November 1995) (‘Cuthbertson’).

The reason why I would grant leave to appeal on the parity ground is DCT’s prior conviction. On 26 March 1999 DCT was convicted of supplying a prohibited drug in a quantity greater than a commercial quantity. According to the sentencing judge, DCT had been sentenced to a ‘minimum term of 3 years’ imprisonment’ for that offence. Little else is known of the circumstances of the offending or the sentence, but what is known suggests that DCT must have been released from prison approximately 12 years prior to this offence being committed. In my view, the existence of this prior conviction for a serious drug trafficking offence was a circumstance which differentiated DCT from the applicant to such an extent as to render the parity ground arguable.

A Court of Appeal will reduce a sentence, not in itself manifestly excessive, because of considerations of parity only where that is necessary in order to avoid a ‘marked disparity’ with the sentence imposed on a co-offender.[2] The court…

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: Thien Thi Tran v The Queen [2017] VSCA 346
Case: [2017] VSCA 346
Decision Date: 28 November 2017

CaseChat Overview and Summary

The case of Tran v The Queen involved the appellant, who had been found guilty of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, specifically heroin. The dispute centred on the sentence imposed on the appellant, and whether the trial judge had correctly applied the law in relation to the informer’s discount and parity. The appeal was heard by the High Court of Australia.

The primary legal issues that the court was required to decide related to whether the trial judge had correctly exercised his discretion in imposing the sentence on the appellant. Specifically, the court needed to determine whether the trial judge had appropriately considered the principles of parity in relation to the sentences imposed on the co-offenders, and whether the informer’s discount had been correctly applied. The appellant argued that the sentence imposed on him was excessive in comparison to the sentence imposed on his co-offender, and that the trial judge had not adequately considered the principles of parity.

In considering the appeal, the court found that the trial judge had exercised his discretion correctly in imposing the sentence on the appellant. The court noted that the trial judge had given careful consideration to the principles of parity, and had made findings that the appellant’s role in the offence was more significant than that of his co-offender. The court also found that the trial judge had appropriately applied the informer’s discount, taking into account the appellant’s level of involvement in the offence. The court concluded that the sentence imposed on the appellant was not excessive, and that the trial judge had correctly exercised his discretion.

The final orders of the court were that the appeal against sentence was dismissed, and that the sentence imposed on the appellant was upheld. The application for leave to appeal was also refused. The court found that the appellant was not entitled to an informer’s discount, and that the sentence imposed on him was appropriate in the circumstances. The court emphasised the importance of the principles of parity and the need for sentences to be proportionate to the gravity of the offence.

Orders