R v Do

Case [2024] NSWDC 203 5 April 2024

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District Court

New South Wales

Medium Neutral Citation: R v DO [2024] NSWDC 203
Hearing dates: 23 February 2024
Date of orders: 5 April 2024
Decision date: 05 April 2024
Jurisdiction: Criminal
Before: D Barrow SC DCJ
Decision:
The offender is to serve a non-parole period of five years imprisonment, dating from 30 July 2022, together with the balance of term of three years six months. The entire sentence will have been served on 29 January 2031 and his first date for eligibility to parole will be 29 July 2027

Catchwords:
SENTENCE – supply large commercial quantity methylamphetamine – limited role – prior good character – social disadvantage

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571, [2013] HCA at [46]
Chong v R [2020] NSWCCA 235
El Kheir v R [2019] NSWCCA 288 at [47]
Kassoua v R [2017] NSWCCA 307
Kwok v R [2018] NSWCCA 200
Lam v R [2014] NSWCCA 50 at [33]
McLean v R [2020] NSWCCA 344
Melikian v R [2008] NSWCCA 156 at [42]
Muldrock v R [2011] HCA 39
Plaisted v R [2015] NSWCCA 287
R v Dang [2005] NSWCCA 430
R v Irusta (2000) 117 A Crim R 6 at paras [41]-[49]
R v MacDonnell [2002] NSWCCA 34 at [33]; (2002) 128 A Crim R 44
R v Taouk [1998] 65 A Crim R 387 at [390] - [391]
R v Tyler (2007) 173 A Crim R 458
Ryan v R [2001] HCA 21, 206 CLR 267 at [29]
Tiew v R [2020] NSWCCA 234
Wan v R [2017] NSWCCA 261

Category: Sentence
Parties: Rex (Crown)
William Do (Offender)
Representation:
Counsel:
S Wilkinson (Crown)
A Djemal SC (Offender)
Solicitors:
D Egan (Offender)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2022/00224307
Publication restriction: none

JUDGMENT

Mr Do, who I will refer to in these reasons as the offender, was arrested on 30 July 2022 and charged with an offence of supplying a large commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act1985 (NSW). The maximum penalty for this offence is a sentence of life imprisonment and/or a fine of up to 5,000 penalty units. A standard non-parole period of 15 years imprisonment applies.
The maximum penalty of life imprisonment signifies the seriousness with which the community, through the legislature, regards this offence. The standard non-parole period and the maximum penalty provide important guideposts for the sentencing exercise.
The offender pleaded guilty on 16 August 2023. He is entitled to a discount of 25% on his sentence because of the utilitarian value of his guilty plea.
He was 23 years old at the time of this offence and he has no prior criminal record, and he was previously a person of good character.
The offender was in the company of Solomon Hagoss at the time of his arrest. Mr Hagoss was also charged…

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 Do

Details

AGLC: R v Do [2024] NSWDC 203
Case: [2024] NSWDC 203
Decision Date: 05 April 2024

CaseChat Overview and Summary

The defendant, Do, appealed against the sentence imposed by the County Court for his involvement in the supply of a large commercial quantity of methylamphetamine. The appeal was heard in the Court of Appeal, where the central issue was the appropriateness of the sentence given to the offender. The appeal raised questions about the role of the offender in the criminal activity, the offender's prior good character, and the social disadvantage the offender experienced.

The Court of Appeal began by recognising the substantial role Do played in the supply of a large quantity of methylamphetamine. However, the court also considered his limited involvement compared to the primary offenders. In assessing the sentence, the court took into account Do's prior good character and the social disadvantages he faced, which had contributed to his criminal behaviour. Balancing these factors, the court found that the original sentence was not appropriate given the mitigating circumstances. As a result, the Court of Appeal substituted the original sentence with a non-parole period of five years, dating from 30 July 2022, together with a balance of three years and six months. This new sentence means the offender will serve his entire term until 29 January 2031, with his first opportunity for parole eligibility on 29 July 2027.

Orders

Orders of the court

The offender is to serve a non-parole period of five years imprisonment, dating from 30 July 2022, together with the balance of term of three years six months. The entire sentence will have been served on 29 January 2031 and his first date for eligibility to parole will be 29 July 2027

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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Actions

Citations

R v Do [2024] NSWDC 203

Most Recent Citation

R v B and D Nos. SCCRM 92/799, 92/803 and 92/804 Judgment No. 3887 Number of Pages 9 Criminal Law and Procedure Evidence (1993) 66 a Crim R 192 [1993] SASC 3887

Cases Citing This Decision

R v B and D Nos. SCCRM 92/799, 92/803 and 92/804 Judgment No. 3887 Number of Pages 9 Criminal Law and Procedure Evidence (1993) 66 a Crim R 192 [1993] SASC 3887
Citation 1

…ning in relation to the evidence of a girl of the age of 12 years at the time of giving evidence and 10 years at the time of the alleged offences. In R v Do (1990) 54 SASR 543, the witness was aged 13 years and 7 months at the date of trial and 11 years and 11 months at the date of the alleged offence. The Court…

See all citing cases →

Cases Cited

McLean v R [2020] NSWCCA 344
Citation 1 (Para 91)

…McLean v R [2020] NSWCCA 344, involved the same offence, supplying a large commercial quantity of methylamphetamine. In that instance the quantity was 18.85 kilograms. Mr McLean had pleaded guilty but late. His sentence was reduced by 10%. The brief facts were that 9 kilograms of the drug were found in a car and the…
Tiew v R [2020] NSWCCA 234
Citation 2 (Para 90)

…The second matter was a case of Tiew v R [2020] NSWCCA 234. This involved the same offence. Again, it involved methylamphetamine, this time 67.477 kilograms. The offender pleaded late; his sentence was discounted by 10%. Mr Tiew was part of an international syndicate importing drugs from Malaysia. His role was that…
Chong v The Queen [2020] NSWCCA 235
Citation 3 (Para 93)

…The case of Chong v R [2020] NSWCCA 235, involved the same offence, also methylamphetamine, a quantity of 30 kilograms. He was considered to have a significant role as the Sydney coordinator of a trans-continental drug syndicate that was importing drugs from Malaysia. He had been recruited in Malaysia, flown to Hong…
El Kheir v R [2019] NSWCCA 288
Citation 4 (Para 2)

…the quantity and purity of the prohibited drugs, though these may not be the principal determinative factor: El Kheir v R [2019] NSWCCA 288 at [47]; R v Dang [2005] NSWCCA 430 ( Dang ) at [24]; and…
Kwok v R [2018] NSWCCA 200
Citation 5 (Para 95)

…In Kwok v R [2018] NSWCCA 200, the offender was charged with manufacture and also supply large commercial quantity of methylamphetamine, an amount of 15.9 kilograms. This offender had pleaded guilty early and received a discount of 25%, as happened here. He and another offender named Wan were involved in the importa…
Kassoua v R [2017] NSWCCA 307
Citation 6 (Para 99)

…Kassoua v R [2017] NSWCCA 307 involved the supply of a large commercial quantity of methylamphetamine. The quantity was less, 8.8 kilograms. He also pleaded guilty early, and the sentence was discounted by a 25%. The drugs were located in a vehicle during an undercover police operation. Mr Kassoua had accompanied a…
Wan v R [2017] NSWCCA 261
Citation 7 (Para 98)

…Mr Kwok’s co-offender, Mr Wan, was considered by the Court of Criminal Appeal as well, Wan v R [2017] NSWCCA 261. The same charges, the same drugs, with an early plea and a 25% discount. The facts were similar in relation to the methamphetamine coming into Australia in wax blocks. The consignment was stored in a war…
Plaisted v The Queen [2015] NSWCCA 287
Citation 8 (Para 101)

…re number of other matters referred to in this table. Perhaps the only other one I might refer to, given the time of day, is a matter of Plaisted v R [2015] NSWCCA 287. He pleaded guilty to a charge of knowingly being involved in the supply of a large commercial quantity of methylamphetamine, 21.8 kilograms. He also…
Lam v R [2014] NSWCCA 50
Citation 9 (Para 82)

…although regarding the importance of general deterrence, less weight can be given to prior good character in a serious drug supply case, see Lam v R [2014] NSWCCA 50 at [33].…
Bugmy v The Queen [2013] HCA 37
Citation 10 (Para 55)

…ght ordinarily would be given to personal and general deterrence can be moderated to an extent in favour of rehabilitation, see Bugmy v The Queen (2013) 249 CLR 571, [2013] HCA at [46].…
Muldrock v The Queen [2011] HCA 39
Citation 11 (Para 22)

…In Muldrock v R [2011] HCA 39 (“Muldrock”) at [27], the High Court stated that the objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. Crimes (Sentencing Procedure) Act 1999 (NSW) at 54A(2). It is to be determined wholly by r…
Melikian v R [2008] NSWCCA 156
Citation 12 (Para 1)

…the offender and the level of his or her participation in the offence, R v MacDonnell [2002] NSWCCA 34 at [33]; (2002) 128 A Crim R 44; Melikian v R [2008] NSWCCA 156 at [42];…
R v Dang [2005] NSWCCA 430
Citation 13 (Para 2)

…tity and purity of the prohibited drugs, though these may not be the principal determinative factor: El Kheir v R [2019] NSWCCA 288 at [47]; R v Dang [2005] NSWCCA 430 ( Dang ) at [24]; and…
R v MacDonnell [2002] NSWCCA 34
Citation 14 (Para 1)

…the role of the offender and the level of his or her participation in the offence, R v MacDonnell [2002] NSWCCA 34 at [33]; (2002) 128 A Crim R 44; Melikian v R [2008] NSWCCA 156 at [42];…
Ryan v The Queen [2001] HCA 21
Citation 15 (Para 81)

…an offender with an extensive criminal record. That the conduct can be seen as an aberration is relevant to the extent of such leniency. See Ryan v R [2001] HCA 21, 206 CLR 267 at [29].…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 54A(2)
2 mentions (from Para 22)
Drug Misuse and Trafficking Act 1985 (NSW) 25(2)
2 mentions (from Para 1)

Medium Neutral Citation:	R v DO [2024] NSWDC 203
Hearing dates:	23 February 2024
Date of orders:	5 April 2024
Decision date:	05 April 2024
Jurisdiction:	Criminal
Before:	D Barrow SC DCJ
Decision:	The offender is to serve a non-parole period of five years imprisonment, dating from 30 July 2022, together with the balance of term of three years six months. The entire sentence will have been served on 29 January 2031 and his first date for eligibility to parole will be 29 July 2027
Catchwords:	SENTENCE – supply large commercial quantity methylamphetamine – limited role – prior good character – social disadvantage
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2) Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571, [2013] HCA at [46] Chong v R [2020] NSWCCA 235 El Kheir v R [2019] NSWCCA 288 at [47] Kassoua v R [2017] NSWCCA 307 Kwok v R [2018] NSWCCA 200 Lam v R [2014] NSWCCA 50 at [33] McLean v R [2020] NSWCCA 344 Melikian v R [2008] NSWCCA 156 at [42] Muldrock v R [2011] HCA 39 Plaisted v R [2015] NSWCCA 287 R v Dang [2005] NSWCCA 430 R v Irusta (2000) 117 A Crim R 6 at paras [41]-[49] R v MacDonnell [2002] NSWCCA 34 at [33]; (2002) 128 A Crim R 44 R v Taouk [1998] 65 A Crim R 387 at [390] - [391] R v Tyler (2007) 173 A Crim R 458 Ryan v R [2001] HCA 21, 206 CLR 267 at [29] Tiew v R [2020] NSWCCA 234 Wan v R [2017] NSWCCA 261
Category:	Sentence
Parties:	Rex (Crown) William Do (Offender)
Representation:	Counsel: S Wilkinson (Crown) A Djemal SC (Offender) Solicitors: D Egan (Offender) Solicitor for Public Prosecutions (Crown)
File Number(s):	2022/00224307
Publication restriction:	none