Tran v The Queen

Tran was convicted of drug trafficking and appealed the severity of his sentence. The Court of Appeal heard the appeal and considered whether the trial judge had appropriately taken into account the impact of the crime on the victims. Specifically, the court examined whether the trial judge had breached the principles of procedural fairness by relying on a victim impact statement that was not properly adduced as evidence. The court also considered whether the trial judge had sufficiently exercised his discretion in sentencing Tran.

The court found that the trial judge had indeed relied on the victim impact statement, which was not admissible under the Sentencing Act 1991 s 95B, and that this reliance had breached the principles of procedural fairness. The court noted that the Crown had conceded this point, and that the case of R v Swift (2007) 15 VR 497 had been relied upon to support the contention that the trial judge's error warranted reopening the sentencing discretion. The court concluded that the error was not a mere irregularity, but rather a breach of a fundamental principle of procedural fairness, and that this warranted reopening the sentencing discretion.

Given that the sentencing discretion had been reopened, the court exercised its discretion to impose a sentence of 12 years imprisonment with a non-parole period of 8 years. The court noted that this sentence was lower than the original sentence imposed by the trial judge, but that it was still sufficient to reflect the seriousness of Tran's crime and to provide adequate deterrence and denunciation. The court also noted that it had not found any point of principle in the appeal that warranted the intervention of a full court.

No further orders were made by the court.