Do, Van Nghiem v The Queen - [2008] NSWCCA 34

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
DO, Van Nghiem v R [2008] NSWCCA 34

FILE NUMBER(S):
2006/5141

HEARING DATE(S):
11 February 2008

JUDGMENT DATE:
28 February 2008

PARTIES:
Van Nghiem Do (Applicant)
Regina (Respondent)

JUDGMENT OF:
McClellan CJ at CL Grove J Simpson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/21/0089

LOWER COURT JUDICIAL OFFICER:
Ellis DCJ

LOWER COURT DATE OF DECISION:
17 August 2006

COUNSEL:
G D Wendler (Applicant)
N Adams (Respondent)

SOLICITORS:
AKN & Associates (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW – appeal against sentence – supply of not less than the commercial quantity of a prohibited drug methylamphetamine – plea of not guilty – parity principle – additional offences of co-offender

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CATEGORY:
Principal judgment

CASES CITED:
R v De Simoni [1981] HCA 31; 147 CLR 383
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168
The Queen v Lowe [1984] HCA 46; (1984) 154 CLR 606
The Queen v Postiglione [1997] HCA 26; (1997) 189 CLR 295

TEXTS CITED:

DECISION:
1. Leave to appeal granted; 2. Appeal allowed; 3. Sentence imposed in the District Court on 17 August 2006 be quashed, and in lieu thereof the applicant be sentenced to imprisonment for 6 years and 6 months, made up of a non-parole period of 3 years and 6 months, commencing on 5 October 2005 and expiring on 4 April 2009, and an additional term of 3 years commencing on 4 April 2009 and expiring on 4 April 2012.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2006/5141
McCLELLAN CJ at CL
GROVE J
SIMPSON J
28 February 2008

DO, Van Nghiem v R

Judgment

McCLELLAN CJ at CL: I agree with Simpson J. I accept that the principles of parity require the intervention of this Court. But for that matter the sentence received by the applicant was lenient and that imposed on Tran even more so. The standard non-parole period specified by the Parliament is ten years. It is difficult to reconcile the sentences which his Honour imposed with the expectation of the legislature.
GROVE J: I agree with Simpson J.
SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court at Parramatta on 17 August 2006 by Ellis DCJ following his plea of guilty to a single count of knowingly taking part in the supply of not less than the commercial quantity of a prohibited drug. The prohibited drug was methylamphetamine. By ss 25(2) and 33(2) of the Drug Misuse and Trafficking Act 1985 a maximum custodial penalty of imprisonment for 20 years is prescribed. By Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) a standard non-parole period of 10 years is specified.
Ellis DCJ sentenced…

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, Van Nghiem v The Queen

Details

AGLC: Do, Van Nghiem v The Queen [2008] NSWCCA 34
Case: [2008] NSWCCA 34
Decision Date: 28 February 2008

CaseChat Overview and Summary

This appeal concerns the sentence imposed by Ellis DCJ on the applicant, Van Nghiem Do, for the supply of a commercial quantity of methylamphetamine. The applicant was sentenced to a term of imprisonment of 7 years, with a non-parole period of 4 years. The applicant challenges the sentence on the basis that it is manifestly excessive and that it did not accord with the parity principle. The central issue for determination was whether the sentence imposed by the sentencing judge was manifestly excessive, particularly in light of the parity principle. The applicant contended that his role in the drug supply was less significant than that of his co-offender, and that the parity principle required his sentence to reflect this lesser role. The applicant argued that the sentence was manifestly excessive because it did not accord with the parity principle.

The Court considered the principles of sentencing in relation to drug offences and the application of the parity principle. The Court noted that the sentencing judge had found that the applicant and his co-offender had approximately equal roles in the transaction, albeit performing different functions. The Court held that while the applicant’s role was not that of a mere courier, it was also not that of a major player in the supply chain. The Court concluded that the sentence imposed by the sentencing judge was not manifestly excessive and appropriately reflected the gravity of the offence and the applicant’s role within it. The Court found that the parity principle was not engaged in a way that required a different outcome.

The appeal was dismissed. The Court upheld the sentence imposed by the sentencing judge, finding it to be appropriate and not manifestly excessive.

Orders

Orders of the court

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Background

Background to the litigation

Ellis DCJ sentenced the applicant to imprisonment for 7 years made up of a non-parole period of 4 years and an additional term of 3 years, commencing on 5 October 2005. The facts The offence was committed on 5 October 2005. The applicant was acquainted with another man, Van Vu Tran. Tran was under surveillance because he was suspected of being involved in the supply and distribution of methylamphetamine in suburban Sydney. On 5 October 2005 Tran expressly agreed to supply to another man, known to him as “Robert”, 500g of the drug for a purchase price of $113,000. “Robert” was, in fact, an undercover police officer. Tran gave “Robert” a sample of the drug, and “Robert” showed Tran the money. The applicant and Tran spoke to one another a number of times by telephone during that day, and then met. They kept in contact with one another during the course of the afternoon. Eventually, at the Bass Hill shopping centre, the applicant handed to Tran a plastic resealable bag which later proved to contain 497.4g of crystal methylamphetamine. In turn Tran supplied this to “Robert”. Police arrested the applicant as he was about to drive away. The drug was analysed and found to be 74 percent pure. An estimated street value of $250,000 was placed on the drug.Subjective circumstances The applicant was born in Vietnam in January 1959. He was 46 years old at the time of the offence. He had one previous conviction, for social security fraud, for which he was, in 2000, fined $600 and required to pay reparations of under $1000. The sentencing judge (correctly, in my view) disregarded this as irrelevant for sentencing purposes. The applicant married in 1978 while still in Vietnam, and a daughter was born a year later. He came to Australia, by fishing boat, in 1981. Three years later his wife and daughter arrived in Australia, and two more children were subsequently born. The applicant developed a gambling problem, which led to the breakdown of his marriage. He nevertheless remains on good terms with his former wife, who has been supportive during his incarceration and the sentencing proceedings. The applicant was in employment as a labourer in a kitchen factory for five years until an injury caused the termination of his capacity for physically demanding work. A psychologist who prepared a report for the sentencing judge was of the view that the applicant suffered from a closed head injury, the result of a wound caused by shrapnel from a hand grenade that struck him above the left ear when he was 20. He demonstrated a “marked memory deficiency”, and was thought likely “to be often beset by periods of irrational thought”. His criminal conduct was thought to be out of character, probably precipitated by “financial desperation”, itself the consequence of his gambling addiction.The Remarks on Sentence Ellis DCJ set out the facts of the offence and referred to the evidence of the subjective matters that was before him. He made relevant findings of fact. Specifically, he found that the applicant and Tran were working together and that they had approximately equal roles (though performing different functions, Tran as purchaser and the applicant dealing with the supplier) in the transaction. In each case, the role was “more than that of a mere courier but less than that of those up the line sourcing the drug”. For the purposes of considering the applicability of the standard non-parole period, Ellis DCJ assessed the gravity of the applicant’s offence as:“… not within the mid range but falls within the low to mid range.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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