R v Truong & Nguyen - [2001] QCA 98

[2001] QCA 98

COURT OF APPEAL

McMURDO P
McPHERSON JA
BYRNE J

CA No 278 of 2000
CA No 308 of 2000

THE QUEEN

DUNG VAN TRUONG and
HANH THI MY NGUYEN Applicants

BRISBANE

..DATE 15/03/2001

JUDGMENT

THE PRESIDENT: On 13 October 2000, the applicant Nguyen pleaded guilty to one count of trafficking in a dangerous drug heroin, one count of possession of heroin in excess of two grams and two counts of possession of money obtained from trafficking. She was sentenced to eight years' imprisonment on the count of trafficking, 59 days in pre-sentence custody was declared to be time served under the sentence. There was no early recommendation for parole but no declaration was made under Part 9A of the Penalties and Sentences Act 1992.

The applicant Truong pleaded guilty to one count of trafficking in a dangerous drug, heroin, two counts of possession of a dangerous drug, heroin, in excess of two grams and two counts of possession of a sum of money obtained from trafficking. Truong was sentenced to 18 years' imprisonment. The provisions of s.161B of the Penalties and Sentences Act 1992 have automatic application. It seems that this was the highest sentence imposed for trafficking since the provisions of Part 9A of the Penalties and Sentences Act 1992 have come into force.

Both applicants claim the sentences imposed were manifestly excessive. The maximum sentence for trafficking in heroin is 25 years' imprisonment.

Truong trafficked in heroin from September 1998 to August 1999. The first particular of the trafficking was that on 10 September 1998 he sold to an undercover police officer at the Hamilton Hotel car park eight small packets of heroin for $900. The packets contained 1.576 grams of powder of which 1.170 grams was pure, 74 per cent. A week later the same undercover police officer purchased four foils of heroin for $450 from the applicant. The foils contained 8.861 grams of powder of which .565 grams was pure, 65 per cent. On a further four occasions between 21 January 1999 and 18 February 1999, the applicant sold another undercover police officer in the Darra area 28 grams of heroin for $8400 with a purity of about 55 per cent.

Police then lost contact with Truong until 2 July 1999 when they received information about suspected drug activity at a South Brisbane motel. A vehicle being used by Truong and Nguyen was searched and the police located .42 grams of heroin with a purity of 70 per cent and a mobile phone.

A search of the applicants' motel unit located heroin powder weighing 34.572 grams of which 24.231 grams was pure, $109,659.30 cash was also located together with business cards which contained the applicants' phone number. The cash was hidden in various locations around the unit. Included amongst the property found was $445 in David Jones gift vouchers, a poignant reminder of the horrors of the drug trade, most probably a gift from friends or relatives of some heroin addict who…

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.

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Details

Case: [2001] QCA 98
Decision Date: 15/03/2001

CaseChat Overview and Summary

In the case of R v Truong & Nguyen, Dung Van Truong and Hanh Thi My Nguyen appealed against the sentences imposed by the lower court. Nguyen pleaded guilty to trafficking in heroin, possession of heroin in excess of two grams, and possession of money obtained from trafficking, and was sentenced to eight years' imprisonment on the trafficking count. Truong pleaded guilty to trafficking in heroin, possession of heroin in excess of two grams, and possession of money obtained from trafficking, and was sentenced to 18 years' imprisonment. The applicants claimed the sentences imposed were manifestly excessive.

The court was required to decide whether the sentences imposed were manifestly excessive and whether the sentencing judge had adequately taken into account the mitigating factors, such as the plea of guilty and the time spent in custody, when determining the appropriate sentence.

The court found that the sentencing judge did not adequately take into account the mitigating factors in Truong's case, and that an appropriate discount for the plea of guilty and the substantial period spent in custody would have been four years' imprisonment. The court substituted a sentence of 16 years' imprisonment for the 18 years imposed in respect of Truong. In Nguyen's case, the court found that the sentencing judge did not adequately take into account the mitigating factors, and that a discount of three years was appropriate. The court substituted a sentence of seven years' imprisonment for the eight years' imprisonment imposed by the learned sentencing judge.

The court allowed both applications for leave to appeal against sentence, allowed the appeals, vacated the sentences imposed below and in Nguyen's case, substituted a sentence of seven years' imprisonment and in Truong's case substituted a sentence of 16 years' imprisonment.

Orders