R v Do - [2000] QCA 135

[2000] QCA 135
COURT OF APPEAL

de JERSEY CJ
McMURDO P
HELMAN J

[R v DO]

CA No 342 OF 1999

THE QUEEN

SON THANH DO

BRISBANE

..DATE 14/04/2000

JUDGMENT

THE CHIEF JUSTICE: When he was 22 years old the applicant carried on a business of trafficking in heroin over a period of four months. He was arrested in April 1998, then in June 1998, while he was on bail, he provided 3.3 grams of heroin to facilitate a supply by another to be sold at $2,600 an ounce.

He was proved to have sold about $20,000 worth of heroin, about 25 grams of pure heroin, in the earlier period, to an undercover police officer, and on arrest had possession of 77 grams of rock heroin which contained 63 grams of pure heroin. In short, very substantial quantities of heroin were involved.

The learned sentencing Judge described it as an extensive commercial operation involving regular supply. The applicant was a user, but as was conceded before the learned Judge, the supply went beyond what was necessary to sustain his habit, hence the Judge's conclusion that he was motivated purely by personal gain. The Judge described him as a wholesaler. He had a runner to help him make the sales.

A very significant feature of this case was that the applicant seriously re-offended while he was on bail. He pleaded guilty. He had some prior history including offences of unlawfully using motor vehicles, but probably they did not greatly matter in the sentencing process.

The sentence of 12 years imposed will necessitate automatically his serving 80 per cent of the term. The Crown had suggested, before the Judge, a range of nine to 15 years. The applicant now suggests through his counsel a range of nine to 11 years.

The nub of the application, as presented before us, was that sufficient allowance had not been made for the plea of guilty and the admissions of involvement.

The Judge must be taken to have moderated the sentence to take account of the plea of guilty. It was a strong sentence, but people who carry on this trade cannot reasonably complain when they are subjected to strong sentences.

I agree with the sentence. It involves the sort of signal this Court should be sending in an area where the need for strong deterrence is prime. I would refuse the application.

THE PRESIDENT: I agree. The applicant pleaded guilty on
24 September 1991 to one count of trafficking in a dangerous drug heroin, six counts of supplying a dangerous drug heroin, one count of possessing a dangerous drug heroin, one count of possessing things used in connection with trafficking, and one count of possessing property obtained from trafficking.

The offences occurred between 1 February and 2 June 1998. The applicant was sentenced to 12 years imprisonment with a declaration that the conviction was for a serious violent offence under part 9A Penalties and Sentences Act 1992. The applicant claims his sentence was manifestly…

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 [2000] QCA 135
Case: [2000] QCA 135
Decision Date: 14/04/2000

CaseChat Overview and Summary

The applicant, Son Thanh Do, was convicted of trafficking in a dangerous drug, supplying a dangerous drug, possessing a dangerous drug, possessing things used in connection with trafficking, and possessing property obtained from trafficking. These offences were committed between 1 February and 2 June 1998. The applicant was sentenced to 12 years imprisonment, with the declaration that the conviction was for a serious violent offence under Part 9A of the Penalties and Sentences Act 1992. The applicant argued that his sentence was manifestly excessive.

The legal issues in this case included whether the sentence imposed by the sentencing judge was manifestly excessive, and if not, whether the sentence should be reduced due to the applicant's plea of guilty and admissions of involvement. The court was required to consider the circumstances of the offence, the applicant's criminal history, and the need for strong deterrence in drug trafficking cases.

The Court of Appeal found that the sentencing judge had taken the applicant's plea of guilty into account when imposing the sentence. The court further found that the sentence, while at the higher end of the range, was not manifestly excessive given the nature and extent of the applicant's drug trafficking activities. The court also considered the need for strong deterrence in drug trafficking cases and found that the sentence appropriately reflected this need.

The Court of Appeal refused the application, upholding the sentence of 12 years imprisonment imposed by the sentencing judge. The court found that the sentence was appropriate given the circumstances of the case, and that there was no basis for reducing the sentence further.

Orders