R v Mauai - [2005] NSWCCA 207

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 Mauai

Details

AGLC: R v Mauai [2005] NSWCCA 207
Case: [2005] NSWCCA 207
Decision Date: 9 June 2005

CaseChat Overview and Summary

The case of R v Mauai involved a dispute over sentencing between the Crown and the defendant, Mauai, in the Supreme Court of Queensland. The defendant, along with two co-offenders, had been involved in a serious criminal activity, resulting in the death of a victim. The Crown sought to impose a harsh sentence on Mauai, while he argued for a more lenient penalty, arguing parity with his co-offenders. One of the co-offenders had been found to have special circumstances, which resulted in a reduced sentence. Mauai contended that he should also benefit from a similar reduction due to parity considerations.

The primary legal issue before the court was whether the sentencing judge had erred in not applying the principle of parity between co-offenders when imposing sentences. This involved determining whether the special circumstances found in one co-offender's case should be extended to Mauai, given the similarities in their roles and the nature of their criminal conduct. The court had to balance the principle of parity with the individual culpability and the specific circumstances of each offender.

The court held that the sentencing judge did not err in failing to apply the principle of parity between co-offenders. The principle of parity was not an absolute rule and had to be balanced against other considerations, such as the individual culpability of each offender and the specific circumstances of the case. The court found that while there were similarities between the roles of the co-offenders, there were also significant differences in their levels of culpability and the presence of special circumstances in one case. Therefore, the court upheld the original sentence imposed on Mauai, finding that the sentencing judge had appropriately considered the principle of parity and the individual circumstances of each offender.

The final orders of the court were that the appeal by Mauai against his sentence was dismissed, and the original sentence imposed by the sentencing judge was upheld. The court's decision reinforced the understanding that while the principle of parity between co-offenders is an important consideration in sentencing, it must be balanced against other relevant factors, including the individual culpability and specific circumstances of each offender.

Orders