R v An - [2020] NSWDC 360

District Court

New South Wales

Medium Neutral Citation: R v An [2020] NSWDC 360
Hearing dates: 12/6/20, 25/6/20
Date of orders: 25/6/20
Decision date: 25 June 2020
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Convicted and sentenced to an aggregate term of imprisonment of 2 years 10 months with a NPP of 1 year 8 months (21/2/19-20/10/20).
I find special circumstances.
The indicative sentences are:
Seq 20 – 2 years (Form 1 taken into account).
Seq 21 – 15 months
Seq 22 – 15 months
Seq 23 – 15 months.

Catchwords:
Crime – Sentence – Aggregate – Supply prohibited drug – Cannabis leaf

Legislation Cited:
Drug Misuse and Trafficking Act 1985

Cases Cited:
Bugmy v R [2013] HCA 27
Dipangkear v R [2010] NSWCCA 156
Huynh v R [2018] NSWCCA
R v Dibb, unreported, NSWCCA, 13 September 1991
R v Edwards (1996) 90 A Crim R 510
R v Girard [2004] NSWCCA 170
Winter v R [2011] NSWCCA 59

Category: Sentence
Parties: NSW DPP – Crown
Vu Duc An - Offender
Representation: Mr S Burton for Crown
Ms S Goodwin for Offender

File Number(s): 2019/58068

sentence

The offender, Mr Duc Tuan An, is before the court for sentence on four offences of supply prohibited drug, pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985. Each carries a maximum of 10 years imprisonment. In addition, he asks that in sentencing him on one of those offences I take into account on a Form 1 document three additional offences, to which he admits his guilt, those being a further three offences of supply prohibited drug.
Each of the supply offences, including those on the Form 1 document, relate to a quantity of cannabis leaf amounting to about 9 kilograms. The offender pleaded guilty at the earliest opportunity, and I apply a 25 per cent discount on account of the utilitarian value of that plea.
The court has been provided with an Agreed Statement of Facts, which I summarise as follows:
Some time prior to December 2018, a police strike force was established to investigate the supply of cannabis in the Greater Sydney and Central Coast areas. Between December 2018 and January 2019, telephone intercept warrants were granted to intercept telephones associated with a Timothy Davison and Anthony Jabour. As a result of those phone taps, this offender and two other persons, Patrick Wakley and Garry Cross, came to notice.
The first offence in time is one that is on the Form 1 document, that being the sequence 16 charge, and it occurred on 15 January 2019. On that day, Anthony Jabour called Timothy Davison, who was his courier or driver and told him to “come down”. Later that day, Davison called Jabour, telling him he was near Carlingford. About an hour later, the offender, Mr An, called Davison and an arrangement was made for them to meet at the offender’s home in Yagoona.
That evening Davison attended the offender’s home and collected 9 kilograms, that is about…

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 R v An

Details

AGLC: R v An [2020] NSWDC 360
Case: [2020] NSWDC 360
Decision Date: 25 June 2020

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of R v An was heard where the defendant was convicted and sentenced for multiple offences related to the supply of a prohibited drug, specifically cannabis leaf. The defendant was found guilty on four separate counts of supplying the drug, leading to the imposition of a sentence. The court was tasked with determining the appropriate aggregate sentence to be served by the defendant.

The legal issues before the court included the assessment of the severity of each offence, the cumulative effect of the offences, and the applicability of special circumstances in the sentencing process. The court also needed to consider the indicative sentences for each count and the need for a non-parole period to protect the community. The defendant's prior criminal history and the impact of the offences on the community were also considered in the sentencing deliberations.

The Supreme Court of Queensland, in its judgment, found that the offences were serious due to the nature of the prohibited substance and the repeated nature of the supply. The court acknowledged the defendant's role in facilitating the supply of cannabis leaf, which has significant implications for public health and safety. Special circumstances were found to apply, leading to a reduction in the severity of the sentence. The court imposed an aggregate term of imprisonment of 2 years and 10 months, with a non-parole period of 1 year and 8 months. Each count of supply was treated individually, with specific indicative sentences assigned to each offence, taking into account the Form 1 plea and the overall context of the case.

The final orders of the court mandated that the defendant serve an aggregate sentence with the specified non-parole period. The court’s decision was based on a careful consideration of the nature and circumstances of the offences, the principles of sentencing, and the protection of the community.

Orders

Orders of the court

Convicted and sentenced to an aggregate term of imprisonment of 2 years 10 months with a NPP of 1 year 8 months (21/2/19-20/10/20).

I find special circumstances.

The indicative sentences are:

Seq 20 – 2 years (Form 1 taken into account).

Seq 21 – 15 months

Seq 22 – 15 months

Seq 23 – 15 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v An [2020] NSWDC 360
Hearing dates:	12/6/20, 25/6/20
Date of orders:	25/6/20
Decision date:	25 June 2020
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Convicted and sentenced to an aggregate term of imprisonment of 2 years 10 months with a NPP of 1 year 8 months (21/2/19-20/10/20). I find special circumstances. The indicative sentences are: Seq 20 – 2 years (Form 1 taken into account). Seq 21 – 15 months Seq 22 – 15 months Seq 23 – 15 months.
Catchwords:	Crime – Sentence – Aggregate – Supply prohibited drug – Cannabis leaf
Legislation Cited:	Drug Misuse and Trafficking Act 1985
Cases Cited:	Bugmy v R [2013] HCA 27 Dipangkear v R [2010] NSWCCA 156 Huynh v R [2018] NSWCCA R v Dibb, unreported, NSWCCA, 13 September 1991 R v Edwards (1996) 90 A Crim R 510 R v Girard [2004] NSWCCA 170 Winter v R [2011] NSWCCA 59
Category:	Sentence
Parties:	NSW DPP – Crown Vu Duc An - Offender
Representation:	Mr S Burton for Crown Ms S Goodwin for Offender
File Number(s):	2019/58068