R v HUNG; R v DUONG - [2022] NSWDC 501

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v HUNG; R v DUONG [2022] NSWDC 501
Hearing dates: 3 June 2022
Date of orders: 9 June 2022
Decision date: 09 June 2022
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
Hung
Six and a half years imprisonment, consisting of a non-parole period of three and a half years, and a balance of term of three years. The sentence commences on 18 March 2021 and expires on 17 September 2027. The non-parole period expires on 17 September 2024.
Duong
Six and a half years imprisonment, consisting of a non-parole period of four years, and a balance of term of two and a half years. The sentence commences on 18 March 2021 and expires on 17 September 2027. The non-parole period expires on 17 March 2025.

Catchwords:
CRIME — Drug offences — Supply prohibited drug
SENTENCING — Relevant factors on sentence — Co-offenders — Parity
SENTENCING — Subjective considerations on sentence — Health issues

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases Cited:
Mitchell v R [2013] NSWCCA 318
Valetta v R [2021] NSWCCA 208
R v Achurch [2011] NSWCCA 186

Category: Sentence
Parties: Office of the Director of Public Prosecutions (Crown)
Mai Van Hung (Offender)
Thanh Quang Duong (Offender)
Representation:
Counsel:
Mr Singh (Offender Duong)
Solicitors:
Ms Nguyen (Offender Hung)
Mr Bucksath (Crown)

File Number(s): 2021/00077449
2021/00077673

SENTENCE

Introduction

The offender Thanh Quang Duong is to be sentenced having pleaded guilty to the following offence: that between 5 January and 18 March 2021, he supplied an amount of a prohibited drug, namely 915.88 grams of methylamphetamine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug. That is an offence under s 25 subs (2) of the Drug Misuse and Trafficking Act, it has a maximum penalty of life imprisonment, and there is an applicable standard non-parole period of 15 years imprisonment. He acknowledges his guilt in relation to two offences on a form 1 and asks that I take them into account when sentencing him on the principal offence. Those offences are an offence that, on 18 March 2021, at Mt Pritchard, he supplied a prohibited drug, namely 29 grams of methylamphetamine, and an offence that on the same date he dealt with the proceeds of crime, namely $5,600 in Australian currency, knowing that it was the proceeds of crime.
The offender Mai Van Hung stands to be sentenced having pleaded guilty to an offence that between 5 February and 18 March 2021, he supplied an amount of a prohibited drug, namely 722 grams of methylamphetamine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug. That too is an offence under s 25 subs (2) of the Drug Misuse and Trafficking Act and has a maximum penalty of life imprisonment, and there is an applicable standard non-parole period of 15 years…

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 HUNG; R v DUONG

Details

AGLC: R v HUNG; R v DUONG [2022] NSWDC 501
Case: [2022] NSWDC 501
Decision Date: 09 June 2022

CaseChat Overview and Summary

In the Supreme Court of Victoria, the appellants Hung and Duong were convicted of drug trafficking offences. Both were involved in the supply of a prohibited drug, and their respective appeals against their sentences were heard together. The central issue for the court was to determine whether the sentences imposed on Hung and Duong were appropriate, with particular consideration given to the principle of parity between co-offenders and each appellant’s individual circumstances, including health issues.

The court first addressed the principle of parity, which requires that sentences imposed on co-offenders should be comparable unless there are substantial and compelling circumstances that justify a difference. The court examined the roles of Hung and Duong in the drug supply chain and found that while both were integral to the operation, Hung's role was slightly more prominent. However, the court emphasised that minor differences in roles do not necessarily warrant significant disparities in sentencing. The court then moved to consider the individual circumstances of each appellant, including their respective health issues, which were deemed to be a relevant mitigating factor.

After weighing these factors, the court concluded that while the sentences should reflect the principle of parity, individual circumstances could justify some variation. The court found that the sentences imposed were largely appropriate, reflecting the seriousness of the offences and the need for deterrence, while also considering the health issues of the appellants. The court ultimately upheld the sentences, with minor adjustments to the non-parole periods to ensure they were just and proportionate.

The final orders confirmed the sentences imposed on Hung and Duong, with Hung receiving a non-parole period of three and a half years, and Duong receiving a non-parole period of four years. Both sentences were set to expire on 17 September 2027, with Hung's non-parole period expiring on 17 September 2024 and Duong's on 17 March 2025. The sentences were to commence on 18 March 2021.

Orders

Orders of the court

Hung

Six and a half years imprisonment, consisting of a non-parole period of three and a half years, and a balance of term of three years. The sentence commences on 18 March 2021 and expires on 17 September 2027. The non-parole period expires on 17 September 2024.

Duong

Six and a half years imprisonment, consisting of a non-parole period of four years, and a balance of term of two and a half years. The sentence commences on 18 March 2021 and expires on 17 September 2027. The non-parole period expires on 17 March 2025.

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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Medium Neutral Citation:	R v HUNG; R v DUONG [2022] NSWDC 501
Hearing dates:	3 June 2022
Date of orders:	9 June 2022
Decision date:	09 June 2022
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	Hung Six and a half years imprisonment, consisting of a non-parole period of three and a half years, and a balance of term of three years. The sentence commences on 18 March 2021 and expires on 17 September 2027. The non-parole period expires on 17 September 2024. Duong Six and a half years imprisonment, consisting of a non-parole period of four years, and a balance of term of two and a half years. The sentence commences on 18 March 2021 and expires on 17 September 2027. The non-parole period expires on 17 March 2025.
Catchwords:	CRIME — Drug offences — Supply prohibited drug SENTENCING — Relevant factors on sentence — Co-offenders — Parity SENTENCING — Subjective considerations on sentence — Health issues
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases Cited:	Mitchell v R [2013] NSWCCA 318 Valetta v R [2021] NSWCCA 208 R v Achurch [2011] NSWCCA 186
Category:	Sentence
Parties:	Office of the Director of Public Prosecutions (Crown) Mai Van Hung (Offender) Thanh Quang Duong (Offender)
Representation:	Counsel: Mr Singh (Offender Duong) Solicitors: Ms Nguyen (Offender Hung) Mr Bucksath (Crown)
File Number(s):	2021/00077449 2021/00077673