R v Trung - [2022] NSWDC 186

District Court

New South Wales

Medium Neutral Citation: R v Trung [2022] NSWDC 186
Hearing dates: 4/3/22
Date of orders: 4/3/22
Decision date: 04 March 2022
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Convicted and sentenced to an aggregate term of imprisonment of 4 years 2 months with a NPP of 2 years 6 months (2/6/21-1/12/23). I find special circumstances.
The indicative sentences (after a 25 percent discount for the pleas) are:
Seq 3 Possess unauthorised firearm – 36 months with a NPP of 21 months (Form 1 taken into account).
Seq 4 Supply heroin – 22 months
Seq 2 Possess baton (on s166 certificate) – 7 months
Seq 5 Proceeds of crime (on s166 certificate) – 5 months
I make the confiscation orders sought in the Short Minute of Consent Order and Consent Order.

Catchwords:
Crime – Sentence – Possess unauthorised prohibited firearm – Supply indictable quantity of heroin – Possess prohibited weapon – Deal with proceeds of crime

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Weapons Prohibition Act 1998

Cases Cited:
Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act [2002] NSWCCA 518
Rv Farrell [2014] NSWCCA 30

Category: Sentence
Parties: NSW DPP – Crown
Hieu Truong Trung - Offender
Representation: Mr S Jaeger for Crown
Mr R Keller for Offender

File Number(s): 2020/308136, 2021/6407

ex tempore sentence

Mr Hieu Trung is for sentence today on two offences. One being an offence of possess unauthorised prohibited firearm, an offence under s 7(1) of the Firearms Act 1996 which carries a maximum penalty of 14 years imprisonment and a standard non-parole period of four years. In sentencing him for that offence he also asks that I take into account three offences on a Form 1 document.
Secondly, he is for sentence on an offence of supply indictable quantity of heroin, that being an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of 15 years imprisonment.
In addition, there are two offences on a s 166 Criminal Procedure Act 1986 certificate which are related or back up offences that I am asked to deal with under s 167 of that Act but of course subject to the Local Court jurisdictional limit.
The maximum penalties are important guideposts in the sentencing exercise to which I have had regard.
The offender pleaded guilty at the earliest opportunity and he is therefore entitled to a 25% discount by reason of that early plea.

FACTS

There are two sets of agreed facts for the offences listed for sentence and for those on the Form 1 and s 166 certificate. I intend to describe the facts in chronological order. On 28 October 2020, the offender was driving a black Audi A7 in Cabramatta. Police conducted a search of the car and in the boot they found an extendable baton. Although the offender initially denied any knowledge of the baton,…

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 Trung

Details

AGLC: R v Trung [2022] NSWDC 186
Case: [2022] NSWDC 186
Decision Date: 04 March 2022

CaseChat Overview and Summary

The appellant, Trung, appeared before the court to face charges of possessing an unauthorised prohibited firearm, supplying a large quantity of heroin, possessing a prohibited weapon, and dealing with proceeds of crime. The case was heard in a court of criminal jurisdiction. The prosecution presented evidence of Trung's involvement in the illegal activities, which included the possession of a firearm, the supply of a significant quantity of heroin, and the possession of a baton, which was a prohibited weapon. Furthermore, the prosecution sought to demonstrate that Trung had engaged in dealing with the proceeds of his criminal activities.

The primary legal issues that the court needed to address were whether the prosecution had proven the charges beyond reasonable doubt and, if so, what the appropriate sentences and confiscation orders should be. The court had to consider the severity and nature of the offences, the role of the appellant in the criminal activities, and the potential impact of the confiscation orders on the proceeds of crime. The court also needed to assess whether any special circumstances existed that would warrant a departure from the usual sentencing guidelines.

The court found the appellant guilty on all counts and proceeded to determine the appropriate sentences. The court noted the significant nature of the offences, including the possession of a firearm, the supply of a large quantity of heroin, and the possession of a prohibited weapon. The court also considered the appellant's role in the criminal activities and the potential impact of the confiscation orders on the proceeds of crime. The court concluded that special circumstances existed, warranting a departure from the usual sentencing guidelines. Consequently, the court imposed an aggregate term of imprisonment of 4 years and 2 months, with a non-parole period of 2 years and 6 months. The court also made the confiscation orders sought by the prosecution.

The court ordered that the appellant be imprisoned for an aggregate term of 4 years and 2 months, with a non-parole period of 2 years and 6 months. The court made the confiscation orders sought in the Short Minute of Consent Order and Consent Order, ensuring that the proceeds of the criminal activities would be confiscated. The sentences and confiscation orders reflect the seriousness of the offences and the need to deter future criminal activities.

Orders

Orders of the court

Convicted and sentenced to an aggregate term of imprisonment of 4 years 2 months with a NPP of 2 years 6 months (2/6/21-1/12/23). I find special circumstances.

The indicative sentences (after a 25 percent discount for the pleas) are:

Seq 3 Possess unauthorised firearm – 36 months with a NPP of 21 months (Form 1 taken into account).

Seq 4 Supply heroin – 22 months

Seq 2 Possess baton (on s166 certificate) – 7 months

Seq 5 Proceeds of crime (on s166 certificate) – 5 months

I make the confiscation orders sought in the Short Minute of Consent Order and Consent Order.

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 Trung [2022] NSWDC 186
Hearing dates:	4/3/22
Date of orders:	4/3/22
Decision date:	04 March 2022
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Convicted and sentenced to an aggregate term of imprisonment of 4 years 2 months with a NPP of 2 years 6 months (2/6/21-1/12/23). I find special circumstances. The indicative sentences (after a 25 percent discount for the pleas) are: Seq 3 Possess unauthorised firearm – 36 months with a NPP of 21 months (Form 1 taken into account). Seq 4 Supply heroin – 22 months Seq 2 Possess baton (on s166 certificate) – 7 months Seq 5 Proceeds of crime (on s166 certificate) – 5 months I make the confiscation orders sought in the Short Minute of Consent Order and Consent Order.
Catchwords:	Crime – Sentence – Possess unauthorised prohibited firearm – Supply indictable quantity of heroin – Possess prohibited weapon – Deal with proceeds of crime
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Weapons Prohibition Act 1998
Cases Cited:	Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act [2002] NSWCCA 518 Rv Farrell [2014] NSWCCA 30
Category:	Sentence
Parties:	NSW DPP – Crown Hieu Truong Trung - Offender
Representation:	Mr S Jaeger for Crown Mr R Keller for Offender
File Number(s):	2020/308136, 2021/6407