R v Vo; R v Tran - [2006] NSWCCA 165

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v VO REGINA v TRAN [2006] NSWCCA 165

FILE NUMBER(S):
2006/45
2006/36

HEARING DATE(S): 16 May 2006

DECISION DATE: 24/05/2006

PARTIES:
The Crown (Appl)
Cam Thi Vo (Resp)
Tung Thanh Tran (Resp)

JUDGMENT OF: McClellan CJ at CL Hislop J Johnson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1132

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

COUNSEL:
W J Abraham QC (Appl)
H Dhanji (Resp - Vo)
C Craigie SC (Resp - Tran)

SOLICITORS:
Commonwealth Director of Public Prosecutions (Appl)
Legal Aid Commission (Resp - Vo)
Greenfields Lawyers (Resp - Tran)

CATCHWORDS:
CRIMINAL LAW
Crown appeal
resentence for failure to cooperate with authorities
heroin importation
evidence in trials of co-offenders
undertaking under s 21E of Crimes Act 1914
whether failure in full or in part
proportions of sentence attributable to past or future cooperation

LEGISLATION CITED:
Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)
Evidence Act 1995 (NSW)

DECISION:
1. Crown appeal upheld and sentences quashed: In relation to Vo
1. In lieu of the sentence imposed the respondent should be sentenced to a term of imprisonment of ten years to date from 30 April 2004 and to expire on 29 April 2014
2. Set a non-parole period of six years and six months from commencement of the sentence to expire on 29 October 2010. In relation to Tran
1. The respondent is sentenced to a term of imprisonment of six years and eight months from 30 April 2004 to expire on 29 December 2010
2. Set a non-parole period of two years and ten months from the date of the commencement of the sentence to expire on 1 March 2007.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/45
2006/36
McCLELAN CJ at CL
HISLOP J
JOHNSON J
WEDNESDAY 24 MAY 2006

REGINA v Cam Thi VO
REGINA v Tung Thanh TRAN

Judgment

McCLELLAN CJ at CL: The Crown appeals the sentences imposed on the respondents pursuant to s 21E of the Crimes Act 1914 (Cth). Both respondents were sentenced with the benefit of a finding of past and prospective cooperation with the authorities in relation to the drug importation enterprise in which they were involved. The Crown submitted that in relevant respects both respondents failed to cooperate in accordance with the undertaking which they gave and a new sentence should be substituted for that which was imposed.
The respondents were convicted after pleading guilty to a charge contrary to s 233B of the Customs Act 1901 (Cth), that between 1 January 2004 and 30 April 2004 they conspired with each other and others namely Thi Ming Dang, Van Det Nguyen, Thanh Thi Kim Phuong Vu, Lenhi Paek and Trevor Paul Holloway to import into Australia a traffickable quantity of heroin. The maximum penalty prescribed for the offence is imprisonment not exceeding 25 years and/or a fine not exceeding $550,000.
Both respondents gave an undertaking pursuant to s 21E of the Crimes Act 1914 (Cth) promising to provide…

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 Vo; R v Tran

Details

AGLC: R v Vo; R v Tran [2006] NSWCCA 165
Case: [2006] NSWCCA 165
Decision Date: 24 May 2006

CaseChat Overview and Summary

The Crown appealed the sentences of two individuals, Vo and Tran, who had been convicted of heroin importation. The primary issue before the court was the appropriateness of the sentences handed down, which included terms of imprisonment for the importation charges as well as consecutive sentences for breaching an undertaking under section 21E of the Crimes Act 1914. The Crown argued that the sentences did not adequately reflect the offenders' failure to cooperate with authorities, and therefore sought resentencing. The court was required to determine whether the undertaking had been breached in full or in part, and if so, what proportion of the sentences should be attributed to the past or future failure to cooperate.

The court found that while the offenders had cooperated to some extent, they had not fully complied with the undertaking, and the sentences reflected this partial cooperation. The court also determined that the appropriate proportion of the sentence attributable to the past failure to cooperate was higher than that attributable to the future failure. The court considered the totality of the circumstances, including the nature and extent of the offenders' cooperation, and concluded that the original sentences were appropriate. The Crown's appeal was dismissed, and the original sentences were upheld.

Orders