AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 7 December 2023

R v Tran

[2023] NSWDC 593

Drugs
CURSOR

Citation: R v Tran [2023] NSWDC 593
Court: District Court of New South Wales
Date: 7 December 2023
Judge: Bennett SC DCJ

Background

The offender, Van Toan Tran, appeared for sentencing on three principal drug offences committed in June 2022 in the Greenacre area of Sydney. The offences related to the manufacture of methylamphetamine in an amount of 2,689.4 grams (more than five times the large commercial quantity threshold), and two separate supply offences involving 1,000 grams and 561.8 grams respectively. All three offences fell within the large commercial quantity provisions of the Drug Misuse and Trafficking Act 1985 (NSW), each carrying a maximum penalty of life imprisonment.

Police identified the offender's conduct through a combination of physical surveillance, telephone intercepts, closed-circuit television, and strategically placed devices. The manufactured drug was distributed to multiple recipients, with the total quantity comprised of drugs seized after supply events, drugs found in solid form at the Greenacre premises, and drug product located in liquid form at those same premises.

In addition to the three principal offences, the offender asked the court to take into account six further offences on a Form 1. These included two additional supply charges involving smaller quantities (105 grams and 119.2 grams), and four charges of possessing precursor chemicals intended for use in methamphetamine manufacture, including substantial quantities of hypophosphorous acid and iodine.

  • What aggregate sentence was appropriate for three large commercial quantity drug offences, having regard to the standard non-parole period regime and the principles of totality?
  • What weight should be given to the Form 1 offences in increasing the sentence above what would otherwise apply to the principal offences alone?
  • What discount applied for the guilty pleas, and at what stage were they entered?
  • What mitigating factors, including the offender's background, drug addiction, and custodial challenges, bore on the final sentence?

Decision

Bennett SC DCJ convicted the offender on all three principal offences and imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court specified indicative sentences for each offence before arriving at an aggregate, as required for standard non-parole period offences.

A discount of 25% was applied to each indicative sentence, reflecting the utilitarian value of guilty pleas entered in the Local Court on 9 August 2023, consistent with s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999. The court noted the pleas were maintained when the matter was committed to the District Court for sentence.

The six Form 1 offences did not attract separate sentences of imprisonment, but the court was required to impose an appropriate uplift on the principal sentence to reflect deterrence and the community's entitlement to a proportionate response. The court was careful not to calculate this uplift with arithmetical precision, consistent with established authority. The offender received the benefit of not facing individual terms of imprisonment for those additional offences.

In assessing the overall sentence, the court took into account the offender's recent commencement of drug addiction treatment, the language barriers he experienced in custody, and the principles of totality. The court also considered the substantial quantities involved and the overlap between the manufacture offence and the supply offences (the supplied drugs forming part of the total manufactured quantity).

Orders Made

  • The offender was convicted of each of the three principal offences (sequences 1, 3, and 4).
  • The court certified that the six Form 1 offences were taken into account.
  • Indicative sentences were specified as follows:
  • Sequence 1 (manufacture): 7 years 6 months, with a non-parole period of 5 years.
  • Sequence 3 (supply, 1,000 grams): 6 years, with a non-parole period of 4 years.
  • Sequence 4 (supply, 561.8 grams): 4 years 6 months, with a non-parole period of 3 years 3 months.
  • An aggregate sentence of 12 years was imposed, with a non-parole period of 8 years commencing 29 June 2022, with eligibility for parole from 28 June 2030.

Key Takeaways

  • The District Court applied a 25% guilty plea discount under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, reflecting pleas entered in the Local Court prior to committal for sentence.
  • Where Form 1 offences are taken into account, the sentencing court must increase the sentence for the principal offence to reflect deterrence and community expectations, but this increase is not calculated with arithmetical precision or as a specified additional period.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence may be imposed across multiple offences, but where standard non-parole period offences are involved, the court must still specify the non-parole period for each indicative individual sentence.
  • Overlapping conduct across manufacture and supply charges (where the supplied drug formed part of the manufactured quantity) was a relevant consideration in applying totality principles to avoid double-counting.
  • Factors such as language barriers in custody and the recent commencement of drug addiction treatment were acknowledged as bearing on the final sentence, even where the offending involved very large quantities of a serious prohibited drug.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 24A(1)(a), 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 25D(2)(a), 53A, Part 4 Division 1A
- Evidence Act 1995 (NSW)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1991 No 1 of 2000 [2002] NSWCCA 518
- Kalid Kaddour v R [2013] NSWCCA 243
- Kurniawan v R [2017] NSWCCA 171
- Markarian v R [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- RJT v R [2012] NSWCCA 280
- Roberts (a pseudonym) v R [2019] NSWCCA 102
- R v Calderoni [2000] NSWCCA 511
- R v Fernando [2004] NSWCCA 147
- R v Henry [1999] NSWCCA 111
- R v XX [2017] NSWCCA 90
- Tepania v R [2018] NSWCCA 247
- Veen v The Queen (No 2) (1988) HCA 14