R v Do

Case [2005] NSWCCA 258 22 July 2005

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CITATION:
R v Do [2005] NSWCCA 258

HEARING DATE(S): 22/07/2005

JUDGMENT DATE:

22 July 2005

JUDGMENT OF:
Brownie AJA at 34; Buddin J at 1; Latham J at 35

DECISION:
Leave to appeal granted. Appeal dismissed.

CATCHWORDS:
Sentence - appeal against severity - importation of heroin - trafficable quantity - sentence after re-trial - deportation of offender - extra-curial punishment

LEGISLATION CITED:

Crimes Act 1914
Criminal Appeal Act 1912
Customs Act 1901

CASES CITED:
R v Bedford (1986) 5 NSWLR 711
R v Daetz (2003) 139 A Crim R 398
R v Gilmore (1979) 1 A Crim R 416
R v Klein [2001] NSWCCA 120
R v Kwon [2004] NSWCCA 456
R v Mas Rivadavia [2004] 61 NSWLR 63
R v MM (2002) 135 A Crim R 216
R v Pang (1998) 105 A Crim R 474
R v Pham [2005] NSWCCA 94
R v Wong and Leung (1999) 48 NSWLR 340
The Queen v Olbrich (1999) 199 CLR 270

PARTIES:
Regina
Thi Bach Tuyet Do

FILE NUMBER(S):
CCA 2005/776

COUNSEL:
LK Crowley (Crown)
H Dhanji (Applicant)

SOLICITORS:
Commonwealth Director of Public Prosecutions
S O'Connor

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0581

LOWER COURT JUDICIAL OFFICER:
Andrew ADCJ

2005/776

BROWNIE AJA
BUDDIN J
LATHAM J
FRIDAY 22 JULY 2005

REGINA v THI BACH TUYET DO

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against a sentence imposed upon her in the District Court. The applicant was sentenced to a term of 8 years imprisonment with a non-parole period of 5 years following her conviction by a jury upon a charge of having imported a trafficable quantity of heroin into Australia. The maximum penalty prescribed by the legislature for this offence is imprisonment for 25 years and/or a substantial fine.

2 The applicant had earlier been sentenced to precisely the same term of imprisonment when she had been previously convicted in respect of the same offence. Her conviction for that offence had been subsequently quashed by this Court and a retrial ordered.

3 The applicant arrived in Australia on 20 October 2002 on a flight from Vietnam. Her luggage was subjected to examination. Nothing of interest was located. The applicant then volunteered her shoes for examination. They were x-rayed and it was apparent that something was concealed within them. In due course analysis of the shoes revealed that 478.4 grams of pure heroin was concealed within them. The trafficable quantity which the legislature prescribes in respect of heroin is 2 grams.

4 The applicant was interviewed by police. She told them that she had decided to return to her native Vietnam for a visit following an argument with her husband. She said that she had purchased an airline ticket and had gone to Vietnam where she had stayed with friends. She said that just prior to returning to Australia, she had tripped on the steps of the hotel at which she was staying and had broken her shoes. She said that she had bought a replacement…

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 [2005] NSWCCA 258
Case: [2005] NSWCCA 258
Decision Date: 22 July 2005

CaseChat Overview and Summary

In the case of R v Do, the appellant was convicted of importing a trafficable quantity of heroin and was subsequently sentenced to imprisonment. Do appealed against the severity of his sentence, arguing that it was excessive given the circumstances of the case. The court was required to determine whether the sentence imposed was appropriate, considering the nature of the offence, the appellant's role in the importation, and the circumstances surrounding the re-trial and deportation of the offender.

The central legal issue before the court was the assessment of the appropriate sentence for the offence of importing a trafficable quantity of heroin. The court had to consider the principles of sentencing, including the objective of general deterrence, the need for denunciation of the offence, and the personal circumstances of the offender. Additionally, the court needed to evaluate whether the sentence was disproportionate in light of the appellant's role and the extra-curial punishment he faced.

In assessing the appeal, the court examined the circumstances of the offence and the appellant's involvement. It considered the severity of the crime, the quantity of heroin involved, and the appellant's criminal history. The court also took into account the appellant's role in the importation and any mitigating factors, such as his cooperation with authorities or the potential for rehabilitation. Ultimately, the court found that the sentence imposed was appropriate and did not constitute an error of law. The appeal was dismissed, and the original sentence was upheld.

No additional orders were made beyond the dismissal of the appeal and the affirmation of the original sentence. The court did not alter the sentence or impose any further penalties on the appellant.

Orders