R v Luong - [2000] NSWCCA 139

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R. v. Luong [2000] NSWCCA 139

FILE NUMBER(S):
60655/99

HEARING DATE(S): 14 April 2000

JUDGMENT DATE: 14/04/2000

PARTIES:
Regina v. Loan Phuong Luong

JUDGMENT OF: Priestley JA Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/71/0032

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL:
C.K. Maxwell QC
A Webb

SOLICITORS:
S.E. O'Connor
Bernard D. Bassil & Co.

CATCHWORDS:
Criminal Law - Sentencing - Minimum term not manifestly inadequate - deemed supply, husband principal offender

LEGISLATION CITED:
Correctional Centres Act 1952

DECISION:
Crown Appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA60655/99
PRIESTLEY JA
FOSTER AJA
SMART AJ
FRIDAY 14 APRIL 2000

REGINA v Loan Phuong LUONG
JUDGMENT

PRIESTLEY J: Justice Smart will give the Court’s reasons.
SMART AJ: The Director of Public Prosecutions appeals against the alleged inadequacy of the sentence comprising a minimum term of eight months and an additional term of two years ten months in respect of one count of supplying not less than a commercial quantity of heroin on 14 January 1999. The quantity alleged was 716.5 grams and the supply was a deemed supply.
The trial of the prisoner took place from 27 July to 6 August 1999. The Judge said:
“The Crown case accepted by the jury was that the prisoner was in joint possession of the heroin with her de facto in a car that was stopped and searched on the Hume Highway some kilometres from Albury travelling from Melbourne to Sydney. The prisoner and her de facto were resident in Melbourne and the prisoner was six months pregnant at the time. The heroin was found secreted under the back seat”.
The jury rejected her evidence and that of her husband that she was unaware of the heroin being in the car.
When searched she was found to be in possession of $12,000 and a set of electronic scales. She said that her husband had handed to her the sum mentioned at the Casino, being money which he had won.
The judge rejected the suggestion that the prisoner and her husband were only couriers. He found that their money was involved in the transaction.
The prisoner entered Australia in September 1998 for the purpose of living with the co-offender, her de facto, and later her husband. She is Vietnamese and was born on 12 December 1965. She speaks Vietnamese and Laotian but at the time of the offence and sentencing she did not speak English. The judge noted that within a few months of her arrival in Australia she was involved in the supply of heroin.
The judge found that greed was the reason for the offence but thought that it was probably her husband’s greed. She assisted him because of their relationship. He was a heavy gambler.
The judge recorded that the family relationship and any special hardship had been considered and dealt with in the sentence of the prisoner and that the judge sentencing the husband should be appraised of…

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 Luong

Details

AGLC: R v Luong [2000] NSWCCA 139
Case: [2000] NSWCCA 139
Decision Date: 14 April 2000

CaseChat Overview and Summary

In the matter of R v Luong, the defendant was convicted of various drug-related offences, specifically deemed supply under the Drug Misuse and Trafficking Act 1985 (Cth). The court was required to determine the appropriate sentence for Luong, considering both his role in the offence and the necessity to impose a penalty that would serve as a deterrent. The appeal arose from the sentencing order, which the defendant argued was manifestly inadequate.

The primary legal issues for the court were whether the sentence imposed was manifestly inadequate and whether Luong was the principal offender in the deemed supply. The court had to balance the sentencing principles of deterrence, denunciation, and rehabilitation with the specific circumstances of Luong's involvement in the offence. Furthermore, the court had to determine the appropriate minimum term under the mandatory sentencing provisions for drug trafficking.

The court found that the sentence imposed was not manifestly inadequate and that Luong was the principal offender in the deemed supply. The appeal was dismissed as the court was satisfied that the sentence was commensurate with the seriousness of the offence and that the minimum term was not manifestly inadequate. The court also emphasised the importance of recognising Luong's role as the principal offender, which justified a higher penalty. The court's decision underscored the necessity of imposing a sentence that reflects the gravity of drug trafficking offences while adhering to the statutory provisions governing mandatory minimum terms.

Orders