R v Do

Case [2005] NSWCCA 209 9 June 2005

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Do [2005] NSWCCA 209

FILE NUMBER(S):
2005/400

HEARING DATE(S): 03/06/2005

JUDGMENT DATE: 09/06/2005

PARTIES:
Regina v Duc Vien Do

JUDGMENT OF: Studdert J Howie J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0972

LOWER COURT JUDICIAL OFFICER: Shillington ADCJ

COUNSEL:
Crown - W. Dawe QC
Applicant - P. Boulten SC

SOLICITORS:
S. Kavanagh - Crown
T. Pham - Applicant

CATCHWORDS:
Criminal Law - Sentencing - issue of parity between co-offenders where different criminality and a finding of special circumstances in the case of the co-offender.

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985 - ss 25(2), 33(3)

DECISION:
Application for leave to appeal is granted but the appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/400
STUDDERT J
HOWIE J
LATHAM J
THURSDAY 9 JUNE 2005

REGINA v DUC VIEN DO

Judgment

STUDDERT J: I agree with Howie J.
HOWIE J: The applicant was convicted after trial on two counts of supplying a prohibited drug in an amount being not less than the large commercial quantity. Each offence was contrary to s 25(2) of the Drug Misuse and Trafficking Act and the maximum penalty prescribed for such an offence is relevantly life imprisonment; see s 33(3) of the Act. The two charges arose from the same set of circumstances but one charge related to the drug heroin and the other to the drug cocaine.
As a consequence of these convictions Judge Shillington (the Judge) sentenced the applicant to a total sentence of imprisonment for 12 years with a non-parole period of 9 years. Those sentences commenced on 6 February 2002 and the applicant is eligible to be released to parole on 5 February 2011.
There were two other persons sentenced by the Judge for similar offences arising from the set of facts as those that applied to the applicant. They were both brothers of the applicant. Quyen Duc Do pleaded guilty to two offences under s 25(2) and was sentenced to imprisonment for 16 years with a non-parole period of 12 years. Quynh Duc Do, known as Danny, was convicted after trial of two offences under s 25(2) and was sentenced to imprisonment for 8 years with a non-parole period of 4 years. There were a number of other persons convicted and sentenced for related offences but it is unnecessary to detail those sentences.
The applicant contends that this Court should reduce his sentence on the basis that there is a disparity between the sentence imposed upon him and that imposed upon Danny Do and because his Honour erred in failing to find special circumstances in the applicant’s case justifying a reduction in the non-parole period.
The Crown case at trial was that the three brothers and a fourth man, Tam Van Nguyen, were involved in the supply of heroin and cocaine from premises in Fairfield between November 2001 and February 2002. Put briefly it was alleged that they were engaged in a…

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 209
Case: [2005] NSWCCA 209
Decision Date: 9 June 2005

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Do, the case was heard in the High Court of Australia. The primary focus of the dispute was the sentencing of Do, who had been found guilty of participating in a criminal enterprise alongside another individual. The co-offender had been found to have special circumstances which had been taken into account during sentencing, leading to a more lenient sentence compared to Do. Do challenged the disparity in their respective sentences, arguing that it was unjust given the similarities in their roles within the criminal enterprise.

The legal issues before the court were twofold: whether the sentencing disparity was justifiable given the different criminality of the two offenders, and whether the consideration of special circumstances in the co-offender's case was appropriate and legally sound. The court had to determine if the sentencing approach adhered to the principles of justice and whether it appropriately balanced individual culpability with the mitigating factors presented.

The court examined the principles of sentencing, including the need for proportionality and the consideration of individual circumstances. It concluded that while the co-offender's special circumstances warranted a lighter sentence, the significant difference in the roles played by the two offenders justified a disparity. The court found that the sentencing judge had appropriately balanced the various factors, resulting in sentences that reflected the respective degrees of culpability and mitigating circumstances.

As a result of the court's reasoning, the appeal was dismissed, and the original sentence imposed on Do was upheld. The court affirmed the sentencing judge's discretion and the importance of considering both aggravating and mitigating factors in achieving a just outcome.

Orders