TRAN v R [2007] NSWCCA 110

New South Wales Court of Criminal Appeal

CITATION: TRAN v R [2007] NSWCCA 110

HEARING DATE(S): 5 February 2007 JUDGMENT OF: McClellan CJ at CL

EX TEMPORE JUDGMENT DATE: 5 February 2007

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - Appeal against sentence imposed in the Drug Court - supply and possess prohibited drug - single heroin dose - prior convictions for driving offences - breach of earlier imposed suspended sentences - unsuccessful participation in Drug Court Program.

Criminal Appeal Act 1912 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Drug Court Act 1998

PARTIES: Tan Tai Tran (Appl) The Crown

FILE NUMBER(S): CCA 2006/2682

COUNSEL: J Manuell (Appl) N Noman (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Drug Court

LOWER COURT FILE NUMBER(S): 2005/0236

LOWER COURT JUDICIAL OFFICER: Dive DCJ

LOWER COURT DATE OF DECISION: 17 July 2006

IN THE COURT OF CRIMINAL APPEAL 2006/2682

McCLELLAN CJ at CL

MONDAY 5 FEBRUARY 2007 TRAN, Tan Tai v R Judgment 1 HIS HONOUR: This is an appeal pursuant to s 5AF of the Criminal Appeal Act 1912 in relation to sentences imposed in the Drug Court. The Chief Justice, exercising the relevant statutory power, has directed that I, as a single judge of the Court, determine the appeal. 2 On 21 October 2005, the appellant was sentenced at Liverpool Local Court for two offences of drive whilst disqualified. In relation to the first offence committed on 30 September 2004, the appellant was sentenced to 6 months imprisonment suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. 3 In relation to the second matter committed on 2 October 2004, the appellant was sentenced to 12 months imprisonment with a non-parole period of 9 months pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. 4 On 4 November 2005, the appellant arranged to sell heroin to an undercover police officer. The heroin was said to be worth $50. Arrangements were made over the telephone for the appellant to meet with the operative. As arranged the appellant entered a vehicle and was given $50 in exchange for a silver foil containing .2 grams of heroin. Whether, in fact, there was .2 grams of heroin in the foil is unclear. It may be that the .2 includes the weight of the foil itself. In any event, it is apparent that the transaction involved a single heroin dose. 5 The appellant later gave the money that he obtained to an associate. Thereafter both were arrested and the appellant was found to be in possession of .4 grams of heroin as well as a plastic spoon with burn marks on the bottom. Upon arrest he made admissions in relation to arranging the drug transactions, supplying the heroin and being in possession of further heroin upon arrest. The appellant was charged with supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, and possession of a prohibited drug contrary to s 10 of that Act. 6 He was refused bail. Thereafter, he was allowed entry into the drug court program. Because of the fact that he had breached the two suspended sentences imposed 2 weeks earlier, by committing the further drug offences, the breach of bond traffic matters were also referred to the Drug Court to be dealt with pursuant to s 8AA of the Drug Court Act 1998 as it then was. 7 On 2 December 2005, Judge Barnett of the Drug Court imposed initial sentences on the appellant. In relation to the breach of bond traffic matters, he was sentenced to 6 months imprisonment and 12 months imprisonment with a non-parole period of 9 months respectively. These were the terms previously set, and His Honour was obliged to revoke the bond and impose such conditions, the breach not being a trivial one. The sentences were directed to be served concurrently. 8 In relation to supplying a prohibited drug, the appellant was sentenced to 8 months imprisonment with a non-parole period of 6 months. For possessing a prohibited drug, he was sentenced to a fixed term of 1 month imprisonment. The sentences of both drug offences were to be served concurrently but consecutively upon the separate breach of bond matters. The sentences were suspended upon the appellant's entry into the Drug Program. 9 The appellant was released from custody having been in custody since 4 November 2005. The appellant participated in the program with limited success, serving 49 days and a further 7 days on consensual sanctions. His participation was then terminated due to non compliance and he was refused bail. 10 He was sentenced on 17 July 2006. The initial sentences imposed for the breach of bond matters remained unchanged, namely concurrent terms of 6 months imprisonment and 12 months imprisonment with a non-parole period of 9 months respectively. Taking into account his limited efforts in the Drug Court Program and time in custody and on remand, the sentences were backdated to 1 April 2006. 11 In relation to supplying a prohibited drug, his Honour departed from and reduced the initial sentence. He sentenced the appellant to imprisonment for 7 months with a non-parole period of 2 months consecutive upon the breach of bond traffic matters. The fixed term of 1 month imprisonment for possession of a prohibited drug remained unchanged and was also made to date from the expiry date for the breach of bond matters. 12 The sentence which his Honour imposed in relation to the supply matter was provided to commence on 1 January 2007 with the consequence that for a 3 month period it was made concurrent with the sentence which his Honour imposed in relation to the second count of the driving offence matters. As a consequence, the overall effective sentence which his Honour imposed was one of 16 months imprisonment with a non-parole period of 11 months. 13 The appellant is now entitled to be released on parole on 28 February 2007. The ground of appeal advanced is that the sentence for the supply of prohibited drug was manifestly excessive. Although no complaint was originally made about the non-parole period, the submissions being confined to complaint about the term of the overall sentence. I understand that it is now submitted that, having regard to the volume of heroin supplied, a prison sentence may not have been appropriate. If it was, it is submitted that it should now be brought to an end. 14 When sentencing the appellant, the sentencing judge made it plain that in relation to the supply matter, it was important to mark out an effective parole period and also an overall term which would provide both punishment for the offence committed and also ensure that an effective message was sent to those who might consider undertaking similar offences. 15 In my opinion, his Honour had appropriate regard to the matters which could be found in the appellant's favour together with matters which were adverse. Although the Court was dealing with a small quantity of heroin, and it may have been in some circumstances that a lesser sentence could have been imposed, in my opinion, having regard to all of the circumstances, the sentence which his Honour determined to impose following the appellant's failure in the Drug Court Program could not be said to be excessive. It is to be hoped that the sentence has operated as a firm reminder to the appellant of the serious nature of the offences which he had committed. 16 In my view, the appeal must fail and is accordingly dismissed. **********