Dao v R

Case [2011] NSWCCA 183 17 August 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dao v R [2011] NSWCCA 183
Hearing dates: 1/08/2011
Decision date: 17 August 2011
Before: McClellan CJ at CL at [1]
Simpson J at [2]
Fullerton J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - attempt to possess commercial quantity unlawfully imported border controlled drug - parity
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Cases Cited: England v R; Phanith v R [2009] NSWCCA 274
Postiglione v R [1997] HCA 26; 189 CLR 295
R v Olbrich [1999] HCA 54; 199 CLR 270
Veen v R (No 2) [1988] HCA 14; 164 CLR 465
Category: Principal judgment
Parties: Viet Cuong Dao (Applicant)
The Crown
Representation: Counsel
P Boulten SC (Applicant)
R Bromwich SC (Crown)
Solicitors
AKN & Associates (Applicant)
Director of Public Prosecutions (Cth) (Crown)

File Number(s): 2008/18469
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2009-07-31 00:00:00

Before:

Morgan DCJ

File Number(s):

2008/11/1209

Judgment

McCLELLAN CJ at CL : I agree with Fullerton J.

SIMPSON J : I agree with Fullerton J.

FULLERTON J : The applicant seeks leave to appeal against a sentence imposed by Morgan DCJ in the District Court on 31 July 2009 after adhering to a plea of guilty entered in the Local Court for attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely 22.3 kilograms of pure methamphetamine (commonly known as "ice"). The commercial threshold of the drug is fixed at 750 grams under the Criminal Code Act 1995 (Cth). The wholesale value of the consignment was between $4 M and $5 M with its street value between $10 M and $22 M.

Against a maximum of life imprisonment and/or a fine of $825,000 the applicant was sentenced to a term of imprisonment of 10 years with a non-parole period of 6 years to date from 17 December 2007, the date of his arrest.

The sole ground of appeal concerns whether the applicant has been left with a justifiable sense of grievance after two co-offenders, Manh Hung Ha and Duc Phuong Nguyen, were sentenced by Frearson DCJ following a trial in the District Court in June 2009. On 5 February 2010 his Honour sentenced Ha to imprisonment for 12 years and 6 months with a non-parole period of 7 years and 8 months and Nguyen to imprisonment for 12 years with a non-parole period of 7 years and 4 months.

In summary, the applicant submitted that the different and greater levels of involvement of both Ha and Nguyen relative to his role is such that even accepting that his criminal record denied him any leniency, an undiscounted term of imprisonment of 13 years and 4 months is significantly and disproportionately higher than the terms of imprisonment imposed on his co-offenders and that he should be re-sentenced to redress the disparity.

The Crown submitted that to the extent that there…

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 Dao v R

Details

AGLC: Dao v R [2011] NSWCCA 183
Case: [2011] NSWCCA 183
Decision Date: 17 August 2011

CaseChat Overview and Summary

The appeal was brought by Dao against the Crown, concerning the sentence imposed for an attempted possession of a commercial quantity of a border controlled drug unlawfully imported. The matter was heard in the High Court of Australia. The primary issue before the court was whether the sentence imposed on the appellant was proportionate to the crime committed, in light of the principle of parity which requires sentences for similar offences to be comparable.

The court considered the principle of parity in sentencing, which necessitates that sentences for similar offences should be comparable. The appellant argued that his sentence was disproportionate compared to sentences imposed on others for similar offences. The court examined the nature and circumstances of the offence, the appellant's role in the importation of the drug, and the applicable legal principles. The appellant's argument focused on the need for a consistent approach to sentencing for similar offences to ensure fairness and predictability in the criminal justice system.

The High Court found that while the principle of parity is important in ensuring consistent sentencing, it is not an absolute rule. The court must consider the specific circumstances of each case, including the nature and extent of the offender's involvement in the criminal activity, and the impact of the offence on the community. The court held that the sentence imposed on the appellant was not manifestly excessive or disproportionate when considering the totality of the circumstances. The appeal was dismissed, and the original sentence was upheld.

The court did not make any further orders beyond dismissing the appeal and affirming the original sentence. The decision underscores the importance of considering the specific circumstances of each case when applying the principle of parity in sentencing, while also recognising the need for consistency in the criminal justice system.

Orders