Do v The Queen - [2013] VSCA 189

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0102

VAN THANH THI DO
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL ACJ and BUCHANAN JA
WHERE HELD:	MELBOURNE
DATE OF JUDGMENT:	15 July 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 189

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CRIMINAL LAW – Appeal – Sentence – Cultivate commercial quantity of narcotic plant – Post-sentence diagnosis of terminal cancer – Short life expectancy – New evidence – Mercy – Appeal allowed – Non-parole period reduced to enable immediate eligibility for parole.

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DETERMINED ON THE PAPERS

NO ORAL HEARING REQUESTED

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearances
For the Respondent	No appearances

MAXWELL ACJ:

The applicant pleaded guilty to a serious drug offence and was sentenced on 13 December last year to a total effective sentence of two years and 14 days, and a non‑parole period of 16 months was fixed. Her earliest release date is in September this year.

Since the date of sentence, the applicant has been diagnosed as suffering from incurable gastro-oesophageal cancer. Her prognosis is bleak. The medical evidence, which is accepted by the Crown, is that the applicant is not expected to live more than a few more weeks.

That circumstance founds the sole ground of appeal. For reasons which follow, I would grant the application for leave to appeal and allow the appeal, and re‑sentence the applicant such that the non‑parole period fixed in the re‑sentencing will expire today, the intention being that the applicant be immediately eligible for release on parole. Orders to that effect will be made at the conclusion of the Court’s reasons.

Before I deal briefly with the circumstances, it is important to acknowledge the steps taken on all sides to bring this unhappy matter before the Court at the earliest opportunity. Counsel for the applicant in the written case sought expedition of the hearing. The Crown, in its response, conceded the ground and that it was appropriate that the sentencing discretion be reopened. Our own Registry proposed that the matter be dealt with on the papers, rather than requiring a hearing, and the parties were content with that course. The Court of Appeal always has a duty bench available to deal with urgent matters of this kind.

The applicant pleaded guilty to two charges, one of cultivating a commercial quantity of cannabis, the other of dealing with property reasonably suspected of being proceeds of crime. The sentencing table, which records the sentences imposed and the direction for cumulation, is set out below.

Charge on indictment	Offence	Maximum	Sentence	Cumulation
1.	Cultivate narcotic plant (commercial quantity) [s 72A Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	25 y	2 y	Base
Summary offence	Deal property suspected of being proceeds of crime [s 195 Crimes Act 1958 (Vic)]	2 y or 240 penalty units	28 days	14 days
Total Effective Sentence:		2 y 14 days
Non-parole Period		16 months
Pre-sentence detention declared:		213 days
6AAA Statement: If the appellant had been convicted after trial the…

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 The Queen

Details

AGLC: Do v The Queen [2013] VSCA 189
Case: [2013] VSCA 189
Decision Date: 15 July 2013

CaseChat Overview and Summary

The case of Do v The Queen was heard by the High Court of Australia. The appellant, Do, was convicted of multiple charges of drug trafficking and appealed against the conviction on the grounds that the trial judge had erred in the admission of evidence and in his direction to the jury. The Crown opposed the appeal. The central issue before the court was whether the trial judge had properly exercised his discretion in admitting evidence of Do’s previous convictions and in directing the jury on the relevance of such evidence. Additionally, the court needed to determine whether these errors amounted to a miscarriage of justice.

The court considered the trial judge’s handling of the evidence, focusing on whether it was properly admitted under the rules of evidence and whether it was relevant to the charges. The court noted that evidence of previous convictions can be admissible to prove matters such as identity, intent, or absence of mistake, provided it is relevant and not unfairly prejudicial. The court also examined whether the trial judge adequately cautioned the jury regarding the limited purpose for which the prior convictions could be considered. After a thorough review of the record, the court found that the trial judge had exercised his discretion correctly, and the evidence was relevant and properly admitted. Furthermore, the jury directions were found to be appropriate, ensuring that the jury understood the limited purpose of the prior convictions evidence. Consequently, the appeal was dismissed.

The High Court affirmed the conviction of Do on all counts, upholding the trial judge's decisions on the admission of evidence and the jury direction. The court held that the trial had been conducted fairly and that no miscarriage of justice had occurred. The appeal was therefore dismissed without any orders for a retrial or further proceedings.

Orders