Citation: Tran v R [2014] NSWCCA 32
Court: NSW Court of Criminal Appeal
Date: 18 March 2014
Judge(s): Beazley P, RA Hulme J, Schmidt J
Background
The applicant had been sentenced in March 2010 by Sorby DCJ in the District Court to 10 years imprisonment, with a non-parole period of 6 years, after pleading guilty to knowingly taking part in the supply of approximately 10.124 kg of pseudoephedrine. The sentencing judge applied a 15% discount for the guilty plea, found the offence fell in the mid-range of objective seriousness, and made a finding of special circumstances to justify the reduced non-parole period.
The applicant sought leave to appeal the sentence in the Court of Criminal Appeal. To support his grounds of appeal, he sought to rely on substantial additional evidence that had not been placed before the sentencing judge, including a psychologist's report obtained in 2012 and a series of affidavits and statements from family members and his partner made in 2013.
The Crown opposed leave on the basis that the additional evidence was inadmissible and that the appeal lacked merit. The Court had refused leave on 4 March 2014, with the reasons published on 18 March 2014.
Legal Issues
- Whether the sentencing judge had insufficient information before him concerning the applicant's mental health, special circumstances, family support, and remorse.
- Whether post-sentence evidence, or evidence available at the time of sentencing but not adduced, could be admitted on appeal.
- Whether the applicant's criminality was erroneously assessed as being on par with that of his co-offender, Mr Pham, resulting in an unwarranted finding of equal criminality.
Decision
On the additional evidence: The Court confirmed the general principle that an applicant for leave to appeal a sentence is bound by the case presented at the sentencing hearing and cannot improve that case on appeal by tendering evidence that could have been called at first instance but was not. The principles in Khoury v R [2011] NSWCCA 118 governed the analysis. Evidence of events or circumstances arising entirely after sentencing cannot be admitted because, by definition, a sentencing judge cannot have erred in failing to account for facts that did not yet exist at the time of sentence.
On the first ground: The applicant had in fact been represented by senior counsel at sentencing and had placed before the sentencing judge a psychologist's report, other documents, and oral evidence from his father and long-term partner. In those circumstances, any gap in the evidence was attributable to choices made at the sentencing hearing, not to error by the sentencing judge. The first ground was found to have no merit.
On the parity ground: The sentencing judge had expressly considered parity between the applicant and Mr Pham. He concluded that, while the applicant's role was not as significant at the organisational level as Mr Pham's, it was nonetheless pivotal: without the applicant's contact with his "Chinese friend," the supply scheme would not have occurred. The applicant also had stronger subjective factors and was 18 months younger than Mr Pham, which was reflected in a lower pre-discount starting point (11 years 9 months against Mr Pham's 13 years 4 months). The resulting equal sentence was consistent with those findings and disclosed no error.
Orders Made
- Leave to appeal refused.
Key Takeaways
- A sentence applicant is generally bound by the evidentiary case advanced at the sentencing hearing and cannot supplement or improve it on appeal with evidence that was available but not called at first instance.
- Under the principles in Khoury v R, evidence of facts and circumstances arising entirely after sentence is inadmissible on a sentence appeal because the Court of Criminal Appeal can only intervene where it identifies error in the sentencing process or outcome, and a judge cannot err in failing to account for facts that did not exist at the time of sentencing.
- Where post-sentence developments (such as changes in remorse, custodial experiences, or family hardship) are relevant, the appropriate avenue is the executive, not the appellate courts.
- A finding of parity does not require identical roles between co-offenders. The Court of Criminal Appeal confirmed that a sentencing judge can properly find equal criminality where differing roles and differing subjective circumstances are weighed together to produce the same sentence.
- The sentence of 10 years with a 6-year non-parole period was characterised as relatively lenient given the maximum penalty of life imprisonment and the standard non-parole period of 15 years under the Drug Misuse and Trafficking Act 1985 (NSW).
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases
- Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
- Pham v R [2010] NSWCCA 208
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623