R v Dao - [2023] NSWDC 351

District Court

New South Wales

Medium Neutral Citation: R v Dao [2023] NSWDC 351
Hearing dates: 31 August 2023
Date of orders: 31 August 2023
Decision date: 31 August 2023
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
1. Offender convicted of the offence of supply prohibited drug indictable and commercial quantity, being sequence 9. Offender sentenced to a term of imprisonment of two years, commencing 31 August 2023.
2. The imprisonment term to be served by way of an Intensive Corrections Order.

Catchwords:
Supply Prohibited Drug – Prior Criminal History – Breach of Intensive Correction Order – Time in Custody

Legislation Cited:
Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
Crimes Act 1900, s 193
Drug Misuse and Trafficking Act 1985, s10(1)
Road Transport Act 2013 (NSW),s 54(3)(a)
Crimes (Sentencing Procedure) Act 1999, ss 3(A), 66(1) and 66(2)

Cases Cited:
Callaghan v R (2005) 160 A CRIM R 145
Hutchen v R [2015] NSWCCA 101.
Melikian v R [2008] NSWCCA 156
R v Bristow (1982) 7 A Crim R 36
R v Dang [2005] NSWCCA 430
R v MacDonnell [2002] NSWCCA 34
R v Sarikaya NSWCCA, 21 June 1985 (unreported)

Category: Sentence
Parties: Rex (Crown)
Tri Huu Dao (Offender)
Representation:
Counsel:
C Shaw (Crown)
R Steward (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
AKN & Associates (Offender)

File Number(s): 2022/238455
Publication restriction: None

JUDGMENT: EX TEMPORE

HIS HONOUR: The Offender Tri Dao was born on 26 September 1984. He is currently 38 years of age and was 37 years old at the time of the offending.
The Offender is before the Court to be sentenced in relation to one set of offending which occurred on 11 August 2022. I set out below the offence the subject of the charge, together with the Form 1 matter.

Offence

Sequence 9, supply prohibited drug indictable in commercial quantity T1 (135.65 grams of methamphetamine) s 25(1) Drug Misuse and Trafficking Act 1985 (NSW), for which the maximum penalty is 15 years imprisonment and 2000 penalty units.

Form 1

The Offender has also asked me to take into account a series of related offences, all of which occurred on 11 August 2022 on Form 1. They are:

Sequence 1, deal with property proceeds of crime (less than $10,000) dollars pursuant to s 193 Crimes Act 1900, for which the maximum penalty is 3 years imprisonment.

Sequence 6, possess prohibited drug (1.05 grams of methamphetamine) s 10(1) Drug Misuse and Trafficking Act 1985 (NSW), for which the maximum penalty is 2 years imprisonment and/or 20 penalty units.

Sequence 7, possess prohibited drug (0.33 grams of ketamine) s 10(1) Drug Misuse and Trafficking Act 1985 (NSW), for which the maximum penalty is 2 years imprisonment and/or 20 penalty units.

Sequence 8, possess prohibited drug (11.6 grams of butanediol) s 10(1) Drug Misuse and Trafficking Act 1985 (NSW), for which the maximum penalty is 2 years imprisonment and/or 20 penalty units.

Sequence 11, drive motor vehicle while licence suspended (section…

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 Dao

Details

AGLC: R v Dao [2023] NSWDC 351
Case: [2023] NSWDC 351
Decision Date: 31 August 2023

CaseChat Overview and Summary

In the matter of R v Dao, the defendant was convicted of supplying a prohibited drug in a commercial quantity, specifically sequence 9. The case involved a breach of an Intensive Correction Order and the defendant's prior criminal history. The case was heard in the relevant court, where the presiding judge was tasked with determining the appropriate sentence. The primary legal issue before the court was the appropriate punishment for the defendant's supply of a prohibited drug in a commercial quantity. The court was also required to consider the defendant's prior criminal history and the breach of an Intensive Correction Order. The court's reasoning centred on the gravity of the offence, the defendant's criminal history, and the breach of the Intensive Correction Order. The judge emphasised the need to balance the punishment with the deterrence of future criminal behaviour. The court concluded that the defendant should be sentenced to a term of imprisonment of two years, to commence on 31 August 2023. The imprisonment term was to be served by way of an Intensive Corrections Order, providing an opportunity for rehabilitation and reintegration into society. The court's decision was aimed at addressing the defendant's criminal behaviour while also considering the potential for rehabilitation.

Orders

Orders of the court

1. Offender convicted of the offence of supply prohibited drug indictable and commercial quantity, being sequence 9. Offender sentenced to a term of imprisonment of two years, commencing 31 August 2023.

2. The imprisonment term to be served by way of an Intensive Corrections Order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Dao [2023] NSWDC 351
Hearing dates:	31 August 2023
Date of orders:	31 August 2023
Decision date:	31 August 2023
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	1. Offender convicted of the offence of supply prohibited drug indictable and commercial quantity, being sequence 9. Offender sentenced to a term of imprisonment of two years, commencing 31 August 2023. 2. The imprisonment term to be served by way of an Intensive Corrections Order.
Catchwords:	Supply Prohibited Drug – Prior Criminal History – Breach of Intensive Correction Order – Time in Custody
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) Crimes Act 1900, s 193 Drug Misuse and Trafficking Act 1985, s10(1) Road Transport Act 2013 (NSW),s 54(3)(a) Crimes (Sentencing Procedure) Act 1999, ss 3(A), 66(1) and 66(2)
Cases Cited:	Callaghan v R (2005) 160 A CRIM R 145 Hutchen v R [2015] NSWCCA 101. Melikian v R [2008] NSWCCA 156 R v Bristow (1982) 7 A Crim R 36 R v Dang [2005] NSWCCA 430 R v MacDonnell [2002] NSWCCA 34 R v Sarikaya NSWCCA, 21 June 1985 (unreported)
Category:	Sentence
Parties:	Rex (Crown) Tri Huu Dao (Offender)
Representation:	Counsel: C Shaw (Crown) R Steward (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) AKN & Associates (Offender)
File Number(s):	2022/238455
Publication restriction:	None