R v Duong - [1997] QCA 395

COURT OF APPEAL

[1997] QCA 395

DAVIES JA
LEE J

CULLINANE J

CA No 328 of 1997
THE QUEEN
v.

HAI THANH DUONG

Applicant

BRISBANE
..DATE 09/10/97
091097 T2/BP M/T COA227/97
DAVIES JA: The applicant was convicted on his own plea of
guilty in the Supreme Court on 26 August last on six counts of
supplying heroin and one count of possession of a motor vehicle
used in connection with those offences. He was sentenced to
five years imprisonment in respect of each of the six counts of
supply and 12 months concurrently for the other count. He seeks
leave to appeal against those sentences; that is, effectively,
against the sentence of five years imprisonment.

The applicant is 47, having been born on 22 September 1950. Prior to the commission of these offences, which occurred between 20 June 1996 and 11 September 1996, the applicant had a small but in one respect significant criminal history. He had been convicted of burglary and attempted burglary in 1991 for which he had been sentenced to six months imprisonment which was wholly suspended. He then had some other minor convictions for theft, unlawful possession and possession of suspected stolen property for which he had been fined. But, significantly, for present purposes, he was convicted on 30 January 1995 on six counts of supplying a dangerous drug namely heroin and was sentenced to a total term of two and a half years imprisonment with a recommendation for parole after six months. The offences the subject of this application commenced within that term of imprisonment, presumably while the applicant was on parole.

Unsurprisingly the applicant is a heroin addict, the motive for his supply on each occasion being the opportunity to take a proportion of the amount supplied for his own use. All supplies were to an undercover police officer. Each transaction was for 091097 T2/BP M/T COA227/97

$600, the total sum involved being $3,600.

The offences for which the applicant had been convicted in 1995 involved heroin of low grade. Those the subject of the present application involved heroin varying between approximately 38 per cent purity and approximately 65 per cent purity. Three of the supplies involved heroin of a purity over 60 per cent. However it is not at all clear to me what relevance this has for the purpose of sentencing. Recent sentences do appear to indicate that heroin now being sold on the street has a higher percentage of purity than that which commonly existed in such heroin a few years ago. In any event a safer indication on the scale of the operation, in my view, is the number of supplies and the value in each case.

A number of matters were advanced in the applicant's favour below. It was said that he had served in the South Vietnamese Army and that in the course of that service he had been injured and hospitalised, during which period he had become addicted to heroin. He has been in employment interrupted, it…

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: [1997] QCA 395
Decision Date: 9/10/1997

CaseChat Overview and Summary

In the case of The Queen v. Hai Thanh Duong, the applicant was convicted and sentenced by the Supreme Court for six counts of supplying heroin and one count of possessing a motor vehicle used in connection with those offences. The applicant, who is a heroin addict, had previously been convicted of similar offences in 1995 and was on parole when the current offences occurred. The court was tasked with determining whether the sentence of five years imprisonment, imposed for each of the six counts of supplying heroin and 12 months concurrently for the possession charge, was appropriate. The applicant sought leave to appeal against the sentence of five years imprisonment.

The primary legal issue before the court was whether the sentence imposed was excessive given the mitigating factors presented, including the applicant's cooperation with police, which led to beneficial results for the community, and his plea of guilty. The court considered whether these factors warranted a reduction in the sentence from the five-year term imposed.

The Court of Appeal found that the sentence was indeed towards the higher end of the appropriate range, but the applicant's substantial cooperation with police, which had significant community benefits, warranted a discount. The court acknowledged that the applicant's addiction played a role in his reoffending, but this did not negate the seriousness of his actions. After considering all factors, the Court of Appeal decided that a sentence of three years imprisonment, with the pre-sentence custody period taken into account, was more appropriate. The appeal was thus allowed, and the sentence was reduced accordingly.

Orders