R v Diep - [2000] NSWCCA 472

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Diep [2000] NSWCCA 472

FILE NUMBER(S):
60715 of 1999

HEARING DATE(S): 4 October 2000

JUDGMENT DATE: 22/11/2000

PARTIES:
David Quoc Diep (applicant)
Regina (respondent)

JUDGMENT OF: Simpson J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0606

LOWER COURT JUDICIAL OFFICER: Viney DCJ

COUNSEL:
P Byrne SC (applicant)
Robert Hulme (respondent)

SOLICITORS:
Legal Aid Commission (applicant)
Director of Public Prosecutions (respondent)

CATCHWORDS:
CRIMINAL LAW - SENTENCE - supplying heroin - co-offender sentenced later by another judge - parity of sentence

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

DECISION:
Appeal allowed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60715 of 1999

SIMPSON J
HIDDEN J

Wednesday 22 November 2000

Regina v David Quoc Diep

Judgment

SIMPSON J: I agree with Hidden J.
HIDDEN J: The applicant, David Diep, pleaded guilty in the District Court before Viney DCJ to two charges of supplying heroin (s25(1) of the Drug Misuse and Trafficking Act 1985). Both charges involved amounts in excess of the indictable quantity and each carries a maximum sentence of imprisonment for fifteen years. He asked his Honour to take into account offences of possessing a prohibited weapon and possessing ammunition on a Form 1. On the first charge, Judge Viney sentenced him to imprisonment for a fixed term of two and a half years, to date from 27 May 1999, the date he went into custody. On the second charge, taking into account the Form 1 matters, his Honour sentenced him to imprisonment for five years, comprising a minimum term of three years, also to date from 27 May 1999, and an additional term of two years.
The applicant seeks leave to appeal against those sentences. He was also sentenced to a fixed term of imprisonment for six months on a charge of affray, to which he had earlier pleaded guilty, but leave to appeal against that sentence is not sought.
Facts
Early in 1999 the applicant and a man named Van Sang Nim were under police surveillance, and an undercover police officer had made contact with them. On 2 March 1999 the applicant met the undercover officer in the central business district of Sydney, having arranged to sell him 56gm of heroin. The officer showed him $8,400 in cash as part payment for the heroin. At the applicant’s direction, the officer drove to another location and they met Mr Nim, who supplied the heroin in a package. The balance of the purchase price, $2,000, was paid on a later occasion.
Another transaction took place in similar circumstances on 16 April 1999. On that occasion 28gm of heroin was supplied for $5,200.
On 26 May 1999 police executed a search warrant at the applicant’s family home, where they found a baton with a side handle, some twelve gauge shotgun ammunition and some ·22 calibre bullets. It is these items which gave rise to the charges on the Form 1. 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.

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Details

Case: [2000] NSWCCA 472
Decision Date: 22 November 2000

CaseChat Overview and Summary

The matter of R v Diep involved the applicant, who had been convicted of supplying heroin on two occasions, and subsequently sought leave to appeal against his sentence. The applicant's co-offender, Van Sang Nim, was sentenced later by another judge. The High Court of Australia was tasked with determining the appropriate sentence for the applicant, taking into consideration the parity of sentence with his co-offender.

The primary legal issue before the court was whether the applicant's sentence should be equal to that of his co-offender, Van Sang Nim, given their equal culpability in the drug supply offences. The court was required to assess the applicant's role in the transactions, his background, and the principles of parity in sentencing.

The court acknowledged that the applicant played an equal role to his co-offender in arranging the drug supply transactions, as he had a better command of English and took on the task of contacting the undercover police officer. The court considered the applicant's background, including his family's history of hardship and his own clean criminal record prior to the drug offences. The court determined that the applicant's sentence should be equal to that of his co-offender, in accordance with the principle of parity in sentencing. This decision was based on the equal culpability of both parties in the drug supply offences and the need for consistent sentencing in similar cases.

As a result of the court's decision, the applicant's sentence was adjusted to match that of his co-offender, Van Sang Nim, ensuring parity in their respective sentences. The applicant's appeal against his sentence was ultimately dismissed, with the court upholding the principle of equal sentencing for equally culpable parties in drug supply offences.

Orders

Orders of the court

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Background

Background to the litigation

The applicant seeks leave to appeal against those sentences. He was also sentenced to a fixed term of imprisonment for six months on a charge of affray, to which he had earlier pleaded guilty, but leave to appeal against that sentence is not sought.Facts Early in 1999 the applicant and a man named Van Sang Nim were under police surveillance, and an undercover police officer had made contact with them. On 2 March 1999 the applicant met the undercover officer in the central business district of Sydney, having arranged to sell him 56gm of heroin. The officer showed him $8,400 in cash as part payment for the heroin. At the applicant’s direction, the officer drove to another location and they met Mr Nim, who supplied the heroin in a package. The balance of the purchase price, $2,000, was paid on a later occasion. Another transaction took place in similar circumstances on 16 April 1999. On that occasion 28gm of heroin was supplied for $5,200. On 26 May 1999 police executed a search warrant at the applicant’s family home, where they found a baton with a side handle, some twelve gauge shotgun ammunition and some ·22 calibre bullets. It is these items which gave rise to the charges on the Form 1. The applicant was not present at the time of the search but was arrested on the following day. On legal advice, he declined to be interviewed. Before us, a foreshadowed argument that the applicant’s role in the two drug offences was less than that of Mr Nim was abandoned. Mr Byrne SC, who appeared for him, explained that the applicant has been in this country since his early childhood, whereas Mr Nim had arrived here very much more recently. The applicant has a good command of English, and it was for that reason that he undertook the task of contacting the undercover officer and arranging the transactions, leaving it to Mr Nim to produce the heroin. Accordingly, said Mr Byrne, the applicant accepts that he is as culpable as Mr Nim. Subjective matters The applicant is now twenty-two years old and was twenty-one at the time of the offences. He has no prior convictions. However, at that time he was on bail in respect of the charge of affray to which I have referred. It should be noted, on the other hand, that he had been subject to that bail order since mid-1996, when that offence was committed, and he had not otherwise come under adverse notice during that period. He came to this country with his family when he was not quite three years old. The family had escaped from Vietnam, travelling by boat to Hong Kong, where they spent more than a year in a refugee camp. Upon arriving here, they spent some six months in a migrant hostel. His father worked hard to establish himself in this country, eventually setting up a clothes manufacturing business and, later, a Vietnamese restaurant in Cabramatta. The applicant has four sisters, none of whom have been in conflict with the law and all of whom have been successful in their endeavours in education and employment.

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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