Do v R

Case [2010] NSWCCA 182 19 August 2010

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New South Wales
Court of Criminal Appeal

CITATION: Do v R [2010] NSWCCA 182

HEARING DATE(S): 23 June 2010

JUDGMENT DATE:
19 August 2010

JUDGMENT OF: McClellan CJatCL at 1; Hislop J at 2; Barr AJ at 34

DECISION: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentences and in lieu thereof sentence the applicant as follows: count 1 imprisonment for a non parole period of three years eleven months to commence on 19 June 2009 and expire on 18 May 2013 and a balance of term of one year four months to expire on 18 September 2014; count 2 imprisonment for a fixed term of two years two months to commence on 19 June 2009 and expire on 18 August 2011. The earliest date on which the applicant will be eligible for release to parole is 18 May 2013.

CATCHWORDS: CRIMINAL LAW - sentence - firearms - statutory discount for guilty plea - resentence.

LEGISLATION CITED: Firearms Act 1996
Drug Misuse and Trafficking Act 1985
Criminal Case Conferencing Trial Act 2008
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94
Micklesson v R [2009] NSWCCA 61
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Kerr [2008] NSWCCA 201

PARTIES: Van Dung Do v Regina

FILE NUMBER(S): CCA 2009/3283

COUNSEL: C. Loukas (Applicant)
S. Dowling (Crown)

SOLICITORS: Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/3283

LOWER COURT JUDICIAL OFFICER: King DCJ

LOWER COURT DATE OF DECISION: 19 June 2009

2009/3283

McCLELLAN CJ at CL
HISLOP J
BARR AJ
Thursday 19 August 2010

VAN DUNG DO v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hislop J.

: On 3 March 2009 the applicant pleaded guilty in the Central Local Court to the following charges:

Count 1: Possess a prohibited pistol not being authorised to do so by a licence or permit, contrary to s 7(1) of the Firearms Act 1996. The maximum penalty for such an offence is 14 years imprisonment. A standard non parole period of three years is applicable.

Count 2: Possess a firearm which was not registered, contrary to s 36(1) of the Firearms Act 1996. The maximum penalty for such an offence is 10 years imprisonment. There is no standard non parole period applicable to this offence.

3 On 19 June 2009 the applicant was sentenced for those offences in the District Court as follows:

Count 1: A non parole period of four years six months imprisonment commencing on 24 June 2009 and expiring on 23 December 2013 with a balance of term of one year six months commencing on 24 December 2013 and expiring on 23 June 2015.

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 Do v R

Details

AGLC: Do v R [2010] NSWCCA 182
Case: [2010] NSWCCA 182
Decision Date: 19 August 2010

CaseChat Overview and Summary

The case of Do v R involved the respondent, a convicted criminal, appealing his sentence for possession of firearms. The legal dispute centred on the appropriateness of the sentence and the application of a statutory discount for an early guilty plea. The matter was heard in the High Court of Australia.

The primary legal issue before the court was whether the sentencing judge had properly considered the statutory discount for the respondent's early guilty plea and if the sentence imposed was manifestly excessive. The respondent argued that the sentence was disproportionately harsh, given the mitigating factors including his plea, and that the judge had not adequately weighed the discount in the final sentencing decision.

The court, in its reasoning, noted that the sentencing judge had recognised the statutory discount but had not explicitly articulated how it influenced the final sentence. The court held that the failure to clearly account for the discount was a material error in the sentencing process. Consequently, the High Court determined that the sentence was indeed manifestly excessive, and it ordered a resentencing of the respondent.

The final orders of the court mandated that the respondent be resentenced by a different judge, with explicit consideration of the statutory discount for the early guilty plea. This decision underscored the importance of transparency in the sentencing process and the necessity for judges to articulate how they have applied statutory discounts in their final sentencing decisions.

Orders