R v Truong - [1997] QCA 49

COURT OF APPEAL

[1997] QCA 049

FITZGERALD P
DAVIES JA

BYRNE J

Appeal No 528 of 1996
THE QUEEN
v.

SUONG THU TRUONG Applicant

BRISBANE
..DATE 27/02/97
270297 D.1 T4/DEB M/T COA130/97
THE PRESIDENT: This is an application for leave to appeal
against a sentence imposed in the Supreme Court on 18 November
1996. On that date the applicant pleaded guilty to an ex-
officio indictment charging her with one count of possession of
a dangerous drug namely heroin, the quantity of which exceeded
two grams.

The applicant committed the offence on 22 February 1996. She was sentenced to imprisonment for nine years with a recommendation that she be eligible for parole after she had served three and a half years.

The applicant is 27 years of age, born on 8 June 1969. She migrated to Australia from Vietnam when she was 12 years of age.

She is married and has two young children aged five and seven years of age. At the time when she was sentenced she was the proprietor with her husband of a take-away food shop. She has no prior criminal history and no addictions, and she spent no time in custody prior to being sentenced.

On 21 February 1996 police observed the applicant driving away from a hotel in Sydney. She was accompanied by her five year old daughter. The next day she was apprehended by police at the Brisbane Airport. Her luggage included a child’s back pack which contained a bag of powder weighing 135.143 grams containing a pure weight of 76.896 grams of heroin. The street value of the heroin was approximately $300,000.

Although she initially denied knowledge of the powder in the child's back pack the applicant participated in a record of 270297 D.1 T4/DEB M/T COA130/97

interview in which she made full admissions. On her version of events she had accepted an offer of $5000 from a man whom she met at a casino in exchange for her services as a drug courier.

The offence involved the applicant and her daughter travelling to Sydney with the applicant wearing a black jacket and her daughter carrying a red school bag. On her arrival at the Sydney destination the applicant was approached by a man whom she did not know who took her child away and returned 15 minutes later with the child.

As the applicant understood the heroin was hidden in the child's bag. Pursuant to the arrangement the applicant and her child returned to Brisbane the next day where the applicant was instructed to place the heroin in a casino locker. As the applicant was not to receive payment until the transaction was complete she did not receive any money.

After her arrest the applicant named the two men involved in the transaction but has declined to give a statement against them and at present there is insufficient evidence to charge them.

The sentencing Judge referred to factors such as the prevalence of drugs in the community, the applicant's financial motivation…

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 [1997] QCA 49
Case: [1997] QCA 49
Decision Date: 27/02/1997

CaseChat Overview and Summary

The case of R v Truong involved the applicant, Suong Thu Truong, appealing against a sentence imposed by the Supreme Court. Truong was convicted of possessing a dangerous drug, namely heroin, with a quantity exceeding two grams. The court was required to decide whether the sentence imposed by the Supreme Court was appropriate and whether it was within the sound exercise of sentencing discretion. The applicant argued that the sentence was at the high end of the range and should have been lower, as the sentencing judge did not give sufficient weight to her personal factors. These factors included her plea of guilty, her limited but substantial extent of co-operation with the police, and her remorse.

The court considered the applicant's submissions and found that, while the sentence was towards the higher end of the range, it was within the exercise of a sound sentencing discretion. The court took into account the prevalence of drugs in the community, the applicant's financial motivation, her lack of resistance to being separated from her child, and her early plea of guilty as mitigating circumstances. The court also considered the applicant's lack of prior convictions, her partial co-operation in identifying the principal offender, and the hardship and anguish endured by her family as a consequence of her offence. The court ultimately found that the sentence imposed was appropriate and refused the application for leave to appeal.

In conclusion, the Court of Appeal upheld the sentence imposed by the Supreme Court and refused the applicant's application for leave to appeal. The court found that the sentence was within the exercise of a sound sentencing discretion and took into account the relevant aggravating and mitigating factors in determining the appropriate sentence.

Orders