R v Truong - [2003] NSWCCA 314

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. TRUONG [2003] NSWCCA 314

FILE NUMBER(S):
No. 60230 of 2003

HEARING DATE(S): Friday 31 October 2003

JUDGMENT DATE: 31/10/2003

PARTIES:
REGINA v. TRUONG, Lan Van

JUDGMENT OF: Spigelman CJ O'Keefe J Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3417

LOWER COURT JUDICIAL OFFICER: Sides, DCJ.

COUNSEL:
Crown: D. Howard
App: P. Boulten, SC.

SOLICITORS:
Crown: C.K. Smith
App: M. Klees1

CATCHWORDS:
Criminal Appeal - sentence - offence of ongoing supply of drugs - rejection of applicant's account of motivation - questions of credibility for primary judge.

LEGISLATION CITED:
Criminal Appeal Act 1912

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 60230 of 2003
SPIGELMAN, CJ.
O’KEEFE, J.
GREG JAMES, J.
FRIDAY 31 OCTOBER 2003

REGINA v. LAN VAN TRUONG

Judgment

SPIGELMAN CJ: I invite Greg James J to give the first judgment.
GREG JAMES J: Lan Van Truong seeks leave to appeal against the sentence passed on him by His Honour Judge Sides, QC. in the District Court of New South Wales at Campbelltown, following his conviction on his plea of guilty to one count of supplying prohibited drugs on an ongoing basis for financial reward.
That offence is punishable by a maximum penalty of 20 years imprisonment, a fine of $385,000, or both.
The applicant had been arraigned on an indictment, which also contained a second count alleging an offence of supplying a prohibited drug, but upon that arraignment, when the applicant pleaded guilty to the ongoing supply count, the Crown Prosecutor accepted that plea in full discharge of the indictment on the basis that the count alleging the second offence, alleged matter which was properly part of the facts underlying the ongoing supply offence.
His Honour sentenced the applicant to imprisonment for three and a half years, to commence 21 June 2002 and to expire 20 December 2005. In respect of that sentence, his Honour imposed a non-parole period of two years, commencing 21 June 2002 and expiring on 20 June 2004.
The applicant had been arrested on 21 June 2002 and had been in continuous custody in respect of this matter since that date.
His Honour found that the matter had come to the court by way of a s.51A committal for sentence on one count of ongoing supply, and a second count of supply. The allegation in that second count was that the applicant had agreed to supply drugs. When his Honour had raised a date error in the s.51A documents, it became apparent that the second count in those documents related to an event which had in fact taken place at the time of the commission of the last of the drug transactions to which the first count related. It was in those circumstances that his Honour adverted in his remarks on sentence to that event being “part and parcel of the ongoing supply count and allegations”.
In substitution for the s.51A documents,…

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 Truong

Details

AGLC: R v Truong [2003] NSWCCA 314
Case: [2003] NSWCCA 314
Decision Date: 31 October 2003

CaseChat Overview and Summary

The case of R v Truong involved the appellant, who was convicted for the offence of ongoing supply of drugs. The conviction and sentence were appealed to the court. The central issue was whether the primary judge had erred in rejecting the appellant's account of motivation, which the appellant argued should have led to a more lenient sentence. The court was tasked with evaluating the credibility of the appellant's explanations and assessing whether the sentence imposed was appropriate.

The court examined the primary judge's assessment of the appellant's credibility and the weight given to the appellant's account of motivation. It was determined that the primary judge had properly exercised his discretion in assessing the credibility of the evidence presented. The court held that the primary judge was entitled to reject the appellant's account of motivation as not credible, and this finding was consistent with the evidence and the principles of sentencing in drug supply cases.

In reaching its decision, the court emphasised that the primary judge's assessment of credibility was not open to challenge on appeal, provided it was based on the evidence and followed legal principles. The court further noted that the sentence imposed was within the appropriate range for the offence, taking into account all relevant factors. Therefore, the appeal against sentence was dismissed.

The final orders of the court were to dismiss the appeal against sentence, affirming the conviction and the sentence imposed by the primary judge.

Orders