R v Vu

[2005] NSWCCA 266

CITATION:	R v VU [2005] NSWCCA 266 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18/07/05
JUDGMENT DATE:	3 August 2005
JUDGMENT OF:	Brownie AJA at 1; Buddin J at 44; Latham J at 45
DECISION:	Appeal against conviction dismissed, but that grant leave to appeal against sentence. Appeal against sentence allowed - Sentence imposed by the District Court quashed, and in lieu thereof the respondent sentenced to four years imprisonment, commencing on 14 October 2003 and ending on 13 October 2007, with a non-parole period of two years and six months, commencing on 14 October 2003 and ending on 13 April 2006.

CATCHWORDS:	Sentence. No question of principle.
LEGISLATION CITED:	Drug Misuse & Trafficking Act 1985 s 25A Evidence Act 1995 s 116, 165 Criminal Appeal Act 1912 s 6(1)
CASES CITED:	Festa v The Queen (2001 208 CLR 600 R v Lowe (1997) 98 A Crim R 300 R v Rose (2002) 55 NSWLR 701 R v Ladocki [2004] NSWCCA 336 R v Hoon and Pouoa [2002] NSWCCA 137
PARTIES:	Regina Cam Quyen VU
FILE NUMBER(S):	CCA 2005/286
COUNSEL:	Crown: Ms V Lydiard Respondent: P Boulton SC
SOLICITORS:	Crown: S Kavanagh (Solicitor for Public Prosecutions) Respondent: The Law Practice

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/3292
LOWER COURT JUDICIAL OFFICER:	Maguire DCJ

2005/286

BROWNIE AJA
BUDDIN J
LATHAM J

Wednesday 3 August 2005

REGINA v Cam Quyen VU

Judgment

1 BROWNIE AJA: The appellant was convicted upon a charge of supplying a prohibited drug on an ongoing basis, in that in breach of the provisions of s 25A of the Drug Misuse & Trafficking Act 1985, he supplied cocaine, for financial or material reward, on three or more occasions on the one day, 6 September 2001. He was sentenced to six years imprisonment, with a non-parole period of four years and six months. He appeals, submitting that the summing up was deficient in two respects, and that the penalty imposed was excessive.

2 Some facts are not in dispute. Various police officers suspected that some person was or some persons were supplying cocaine and/or heroin from a flat or home unit known as Unit 4, 27 McBurney Street Cabramatta, and they set out to prove it, so as to be able to mount a prosecution against the offenders. The unit in question was located one floor above ground level. Generally speaking, the building consisted of three floors of units, raised above ground level and resting upon pillars, with the lowest floor of units one floor above parking spaces at ground level. Apart from the parking spaces, all that there was at ground level was a series of pillars supporting the building, and a staircase leading upwards to the first floor.

3 Early on the morning of 6 September 2001, whilst it was still dark, four undercover police officers, masquerading as cocaine purchasers, approached the building separately. Each had been provided in advance with a $50 banknote, or other banknotes to the value of $50, and the banknotes had been photocopied, for possible future identification. Pursuant to the overall plan, each undercover officer took steps to attract the attention of someone who would come out onto the balcony of Unit 4. That person then lowered to the person at ground level an empty cigarette packet, attached to a string or wire. The person at ground level put $50 into the cigarette packet, which was raised back to the balcony. There was then a brief conversation, in which the undercover officer asked for $50 worth of cocaine, or “CC”, and the person on the balcony then dropped down to the officer a foil containing what was later analysed and found to be cocaine, weighing variously between 0.15 and 0.18 grams.

4 These four transactions occurred between about 5.00 and 5.40am. At about 5.45am other police officers went up the stairs to the door to Unit 4 and demanded entry. When the door was not opened, they broke through the door, and entered the unit. What happened then was recorded by video and at trial there was little dispute about what happened from the time of entry onwards.

5 The door from the stairwell was secured by two separate locks, as well as by two chains. Police personnel knocked on the door and demanded entry, unsuccessfully. They then attacked the door with a sledgehammer. That attack broke the two locks, and the door opened by about six to eight inches, but the chains held the door in that partly open position for a short time, during which time police personnel saw a man, later identified as the appellant, wearing spectacles, trying to keep the door shut.

6 A short time later, the police succeeded in snapping the chains on the door, and gained entry to the unit. Upon entry, it was found that there were only four people in the unit, namely the appellant and his de facto wife Trang Thi Thuy Pham, and another man Huong Dung Nguy, and his wife Hong Lan Nam. Nguy was seen trying to close the bottom drawer in a chest of drawers, located in what was called the main bedroom, and the appellant was seen near a doorway leading from the main bedroom to the balcony. He was not then wearing his spectacles, and they were later found on the floor, near the door to the stairwell, in a damaged state.

7 There was only one means of access to the balcony, through the doorway leading from the main bedroom. At about the time that the police succeeded in gaining entry to the unit, another police officer who was stationed at ground level saw some unidentified person, seen only in silhouette, go onto to the balcony and throw away, towards the ground, objects which this witness did not identify. The witness saw and heard something thrown from the balcony strike a nearby tree. Later, a search by other police officers at ground level near the area under the balcony resulted in the discovery on the ground of seven foils, found upon analysis to contain cocaine, and a piece of paper, recording as was the fact that on the preceding evening the appellant had attended at the premises of and had been admitted as a temporary member of the Revesby Workers Club.

8 When the police entered the unit, the appellant was wearing a black shirt, and Nguy was wearing white coloured clothing. Nguy did not use spectacles. The police searched the unit and found, in a space underneath the drawer that Nguy had been seen trying to close when the police entered the unit, banknotes worth $2350. Those banknotes included eight notes worth a total of $200, previously photocopied and used by the four undercover police officers to pay for the cocaine that they had purchased. A further $3150 in banknotes was found under the mattress of the bed in what was called the second bedroom.

9 Nguy was the tenant of the unit. It was said, generally, that Nguy and his wife had invited the appellant and his wife into the unit on the evening of 5 September, that the appellant and his wife had stayed overnight, and that the Nguys had moved into the second bedroom for the night, leaving the appellant and his wife to use the main bedroom.

10 Three grounds of appeal were taken. The first was that the learned trial judge, Maguire QC DCJ had erred in failing to adequately warn the jury about the dangers and inadequacies of the descriptions given by the four undercover police officers of the persons who went onto the balcony, and sold cocaine to the officers. It was no part of the appellant’s case that the relevant evidence of these four officers was “identification evidence” as defined in the Dictionary to the Evidence Act 1995, or that s 116 of that Act applied, but it was said that s 165 of that Act required the jury to be given the warning mentioned.

11 Section 165 provides, relevantly:

“(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies,
(b) identification evidence,
(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,
(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings,
(e) ….
(2) If there is a jury and a party so requests, the judge is to:
(a) warn the jury that the evidence may be unreliable, and
(b) inform the jury of matters that may cause it to be unreliable, and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in giving the warning or information.
(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.”

12 The four undercover officers mentioned earlier were identified in the evidence as Damien, Senior Constable Bailey, Sergeant Fawcett and Terry, officers Damien and Terry not being further identified. These four witnesses gave evidence of transactions taking place, respectively, at about 5.00, 5.15, 5.25 and 5.40am. Each of them acted in furtherance of a plan, to the effect that he or she would approach the unit, attract the attention of someone who would come to the balcony, pay $50, and buy a foil of cocaine or “CC”. In the first instance, the plan was to attract attention by knocking on a pillar located near the balcony to Unit 4. There were readily available near the pillar a number of hard substances, available to be used for knocking the pillar and making an appropriate noise, and the pillar was marked in a manner suggesting repeated knocking upon it.

13 Damien approached the building at about 5.00am. He took up a piece of brick, with which to knock, but a man of Asian appearance standing nearby told him not to knock, but to whistle. Damien did so, whereupon someone came onto the balcony, and within a short time a transaction of the type I have described took place. Damien described the person on the balcony as being male, approximately 30 to 35 years of age, with short black hair and metallic rimmed spectacles, and wearing a black t-shirt.

14 Senior Constable Bailey approached the site at about 5.15am. She took up a piece of cement block, and tapped on the pillar. She described the person who then appeared on the balcony as being a male wearing dark clothes, who had a bobbed haircut to below his ears.

15 Sergeant Fawcett approached the site at about 5.25. As she did so, she encountered two males, one of whom said to her “Hey love, do you want to go halves?”, a proposition he subsequently repeated a number of times, whilst she declined to accept the proposition. She observed some unidentified female conduct what might have been the purchase in the same general manner of some unidentified substance. On this occasion someone came onto the balcony in response to a call ”Huong” (perhaps spelt differently). The Sergeant then conducted her transaction and she described the person on the balcony as being an Asian male, about 25 years old, with black straight hair that came down to just below his earlobes, and wearing square shaped metallic rimmed spectacles and dark clothing. The Crown case depended in part upon the transaction conducted by Sergeant Fawcett, but not on the apparent transaction with the unidentified female that the Sergeant observed.

16 The fourth undercover officer, Terry, said that as he approached the site at about 5.40 an Australian male standing nearby called out “Huong, Huong”, whereupon someone appeared on the balcony. The Crown case suggested that the person who appeared on the occasion when the witnesses Damien, Bailey and Fawcett conducted their transactions was the appellant, but that the person who appeared on the balcony when the witness Terry conducted his transaction was Nguy. Terry described the person on the balcony then as an Asian male with black hair, wearing a white top.

17 None of the witnesses Damien, Bailey, Fawcett or Terry attempted to identify either of the men they described as having been on the balcony. None of them spoke of having seen the man on the balcony either before or after conducting the transaction described. As already mentioned, the appellant does not contend that there was any need to give the warning mentioned by s 116 of the Evidence Act, but does contend there was a need to give a warning, by force of the operation of s 165.

18 The appellant submitted that the evidence of the four witnesses in question, describing the men whom they saw on the balcony was evidence “central” to the Crown case, whereas the Crown submitted that the evidence was no more than an aspect of a case proved by circumstantial evidence.

19 The learned trial judge directed the jury in these terms: -

“A question arises here of the identity of the person on the balcony. Sometimes in a criminal trial evidence is given of identification. There is no direct evidence here that anybody identified the accused as being the person seen on the balcony by the first three of the undercover officers. They do not say that they identify him. On all the evidence here, it is a matter for you to determine whether you identify him. Whether you decide, whether you are satisfied beyond reasonable doubt that the person seen by the first three undercover officers is indeed the accused Vu, the man who is on trial.
Each of those first three undercover officers gives a description which you might think is not inconsistent with the man that you see here. Some comments have been made by Ms McManus [counsel for the accused], which she is perfectly entitled to do, critical of their evidence. Ms McManus suggested that two only of the three witnesses who see the man, who deal in the first three dealings, mention seeing glasses, spectacles. The other one does not, and I will be going through their evidence shortly. The fact that one of them does not see glasses is not of course, in all the circumstances, conclusive that the man was not wearing glasses. It may well be that he was and that witness just did not have enough light or eyesight or powers of observation were not good enough. But that submission that is put to you is something you will give such weight to as you think fit.”

20 Later, his Honour said:

“Now I want to deal with the question of the lighting. Clearly, members of the jury, the lighting was not good. Ms McManus draws your attention to that. Each witness says what he or she saw. Some saw less than others. You might think that there was some lighting. Each of them has said there was some light. Don’t speculate on where it was coming from. You have been told about the fluorescent lights under the floor of the balcony. But you are entitled to rely of your own experience of life. You might think that there are very few circumstances in which we find ourselves where there is no light at all around us. Your mother might have said to you that something was black as the inside of a cow, and that of course suggests absolute darkness where even the best eyes cannot see their own hand in front of them, but your experience might tell you that is a very rare circumstance. You will bear in mind Ms McManus’ submission. The weight you give to the evidence of these officers, having regard to the difficulty with the lighting is a matter for you.”

21 The appellant referred to the Court the judgments of McHugh and Hayne JJ in Festa v The Queen (2001) 208 CLR 600. At [56] – [57] McHugh J said, omitting citations:

“Unfortunately, another class of evidence is sometimes called ‘circumstantial identification evidence’. It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is proof of a circumstance -- usually, but not always, weak -- that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence.
When circumstantial identification evidence has no element of positive identification, it usually does not have the potential unreliability of positive-identification evidence. A judge is not automatically required to warn the jury concerning the dangers of circumstantial identification evidence. But the circumstances of a particular case may require a warning. When a witness claims that the facial features of the accused are similar to those of the perpetrator, it would usually be appropriate to give the standard warnings given in cases of positive-identification evidence. But the warnings that must be given to juries concerning positive-identification evidence do not apply to most forms of circumstantial identification evidence.”

22 At [217] - [219] Hayne J said, omitting citations

“ As the reasons of McHugh J demonstrate, it may sometimes be convenient to distinguish between positive-identification evidence and evidence of similarities between the accused and the perpetrator of the crime. It is, however, important to recognise that evidence which the prosecution relies on, to demonstrate that it was the accused who committed the alleged crime, may take many forms. The convenience of classifying some or all of those different kinds of evidence should not be allowed to obscure the fundamental reasoning that underpinned this Court's decision in Domican v The Queen (1992) 173 CLR 555). In particular, deciding where the boundaries between classes of evidence may lie must not obscure the purpose of what is now commonly called a Domican direction. As was said in the joint judgment in Domican (at 561-562):

‘Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed…. [T]he jury must be instructed “as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case”.’


The warning must "isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence". "The jury must have the benefit of a direction which has the authority of the judge's office behind it." The purpose of the warning is self-evident. It is to draw to the attention of the jury the difficulties in evidence which, because it is so seductive, has so often led to proven miscarriages of justice.

Giving effect to that purpose does not depend upon, or require, the classification of evidence as positive-identification evidence or as evidence of similarities, as circumstantial or direct. The problem is more concrete than that. It is that witnesses may, with perspicuous honesty, give evidence that it was the accused they saw, or a person like the accused, or a person having particular physical characteristics (like those of the accused) and yet the painful experience of the law is that they may be mistaken. The duty of the judge is to draw the jury's attention in every such case, where the reliability of the evidence is disputed, to how and why the evidence may not be reliable. The trial judge did not do this sufficiently at the appellant's trial.

Of course, what is required will depend on the nature of the evidence that is given. If a witness says it was the accused that was seen, every element of the Domican direction will ordinarily be required. If, at the other end of the spectrum, the evidence is no more than "I saw a man wearing a red shirt" little more may be needed than to point to whatever difficulties the defence asserts that the witness may have had in observing and accurately recollecting the event. In this regard, as in every other aspect of a trial judge's charge to the jury, the content of the directions must be moulded with due regard to the issues at trial; they are not to be a mere recitation of general propositions derived from decided cases.”

23 The appellant also pointed to what Hunt CJ at CL said in R v Lowe (1997) 98 A Crim R 300 at 317:

“I see no distinction in principle between visual, voice and object identification. I am satisfied that a warning as to the danger of convicting should be given where the identification relates to an inanimate object, such as the clothing worn by the offender or a weapon used by him in the commission of the crime, and where that evidence represents a significant part of the proof of the guilt of the accused. Just as with voice identification, object identification is not a distinct category of evidence.”

24 I do not accept the appellant’s proposition that the evidence of the four undercover police, describing what they respectively observed about the two men on the balcony, was “central” to the Crown case. The four witnesses described men in very general terms, and made no attempt to identify those two men with either the appellant or with Nguy. The central part of the Crown case, so far as concerned the identification of the men who appeared on the balcony, came, not from the evidence of these four witnesses or from the descriptions they provided of the men they saw on the balcony, but from the evidence they gave describing the transactions they conducted, identifying the men with whom they did business as wearing black or white shirts or the like, coupled with a great deal of other evidence. In particular, the police witnesses who entered the flat at about 5.45am, recording the event by video, noted that there were only two males in the unit, being the appellant and Nguy, with the appellant wearing a black shirt, and Nguy a white shirt or top, and with the appellant initially wearing spectacles, whilst Nguy did not use spectacles. That evidence has also to be considered together with the evidence of someone, unidentified, throwing foils of cocaine over the balcony at about the time the police entered the unit, together with the piece of paper identifying the appellant as having been admitted as a temporary member of the Revesby Workers Club the preceding night, as well as the evidence of the appellant, of Ms Lan and Ms Pham, the last two named people being witnesses called in the prosecution case.

25 The appellant did not dispute most of the evidence presented in the Crown case, but denied that it was he who had gone onto the balcony and acted in the way described. He plainly was one of the two male persons, and only two male persons, who were in the unit at and just after 5.45am, and by inference and in the absence of any suggestion to the contrary, during the period of 45 minutes or so before 5.45am. He was wearing a black shirt, and Nguy was wearing a white shirt, when the police entered the unit, and there is no suggestion either that there was any third male person present at any relevant time, or that either the appellant or Nguy changed his clothing. It is very difficult, if not quite impossible, to contemplate that the evidence even suggests the possibility of some third male, or of any relevant confusion.

26 The appellant used spectacles and was seen wearing spectacles when the police first broke open the door from the stairwell to the unit, and what appeared to have been his spectacles were seen on the floor near that door soon afterwards, whereas Nguy did not use spectacles.

27 The appellant was seen by the police, upon their entry into the unit, to be near the doorway leading from the main bedroom to the balcony. Someone had just thrown onto the ground below seven foils of cocaine and the piece of paper recording the appellant’s admission as a temporary member to the Revesby Workers Club on the preceding evening, and the appellant had just moved from inside the doorway leading to the stairwell to near the doorway leading to the balcony.

28 The appellant gave evidence denying that he had been on the balcony at any relevant time, but he did not offer any alternative theory in his evidence, nor did his counsel, either at trial or on appeal, as to who had done business from the balcony. Nor did he offer any explanation or theory as to how it came about that the piece of paper just mentioned was thrown to the ground from the balcony, together with the seven foils of cocaine.

29 As the appellant submitted, the Crown had to establish beyond reasonable doubt that the appellant had been one of the two persons who went onto the balcony, and who supplied cocaine to those below, or that he was part of the joint enterprise involving that supply, and the submissions accentuated what was said to be the importance of the evidence of two, only, of the three police officers who spoke of the man in the black shirt wearing spectacles. However attractive this proposition might be in the abstract, the practical reality appears to be that there were only four persons in the unit at the relevant time, and only two males, one of whom was wearing a black shirt and the other a white shirt or top, one of whom used spectacles and one of whom did not, so that questions about the unreliability of the evidence of the undercover police officers, so far as concern their descriptions of the clothing worn by the two men seen on the balcony, and as to whether or not they wore spectacles, have an air of unreality. In any event, his Honour directed the jury in the terms mentioned above.

30 Viewed in its context, the evidence of the four under cover police officers, to the limited extent that this evidence went to link the appellant with the business done from the balcony, was anything but central to the Crown case. I conclude that his Honour was not in error in failing to give the jury the warning contended for.

31 The second ground of appeal taken is that the trial judge erred by instructing the jury that the evidence of the appellant’s wife might be unreliable, that she might have been serving her own interests by shifting the matter away from the appellant and onto Nguy, and that her evidence must be approached with caution before deciding to accept it.

32 As it was obliged to do, the Crown called as witnesses in its case the wives of the two alleged offenders, the appellant and Nguy. The trial judge gave the following directions, firstly concerning the evidence of Lan, and then of Pham:

“That evidence if you were to accept it becomes really part of the defence case even though the Crown called the witness. It bears on the defence case.
The defence case is that this gathering at Nguy’s flat was a one-off visit and it was an innocent dinner party. This evidence given by the witness Lan, if you accept it suggests that it was no such thing at all.
I must give you this direction about that woman’s evidence, that is Lan’s evidence. If you reasonably suppose that Lan herself might have been criminally concerned in the events giving rise to these proceedings then I must give you these three warnings.
a. Her evidence may be unreliable;
b. You must consider that she might be serving her own interests by shifting the matter onto Vu;
c. You must approach with caution when you are deciding to accept or not the witness Lan’s evidence.”

His Honour said of Pham’s evidence:

“You must remember the warning I gave you about the approach you might take to Lan’s evidence. I give you the same warning about Pham’s evidence. If you reasonably suppose that Pham herself might have been criminally concerned in the events giving rise to these proceedings then I must warn you as follows:
1. Her evidence may be unreliable.
2. You must consider that she might be serving her own interests by shifting the matter away from Vu and onto [Nguy]. You will consider the parts of the evidence to which I have just referred you;
3. You must approach with caution when you are deciding to accept or not the witness Pham’s evidence.”

33 Later, his Honour said:

“As well as the warning I gave you about each of the two women, that is Pham and Lan or Nhan what I said to you was that you might consider if you reasonably thought they were criminally concerned in the events that I said in relation to one of them that she might have been shifting the matter onto Vu and I said in relation to the other that she might have been trying to shift it away from the accused man. I direct you that you might also consider in relation to each of them that each of them might simply have been endeavouring to shift the blame away from herself.”

34 The ground of appeal under consideration now relates only to so much of the summing up as dealt with the evidence of Pham, the appellant’s wife. The Crown prosecutor had asked for a direction under s 165 of the Evidence Act in respect of the evidence of Pham, so that, the Crown submits, the question became one of whether, within the meaning of s 165(3) there were “good reasons for not doing so”, that is, good grounds for not giving the warning.

35 Pham’s evidence, generally speaking, supported her husband’s case. Reduced to simplistic terms, she said that she had been telephoned by Lan on the evening of 5 September, and she and her husband had been invited to go to dinner at the Nguys’ flat. They went, had dinner, sang karaoke, watched some movies, and then at about 10pm said that they thought that they should go home. However, they were invited to stay the night and they agreed to do so, although they only had with them the clothing that they were wearing; and generally, she said that she noticed nothing untoward until the time that the police forced their way in.

36 In my view, there were good reasons for not giving the warning in question. Pham’s evidence did not implicate the appellant in the crime charged. To the contrary, it tended to exculpate him. See R v Rose (2002) 55 NSWLR 701 at [294], [295], [297] and [343]. If a warning was given, it should have been limited to those parts of the evidence of the witness that inculpated the appellant. In this case, virtually the whole of her evidence was exculpatory of him.

37 Independently of this, there was no basis in the evidence for giving the direction that either Lan or Pham might have been criminally involved in the events giving rise to the proceedings. They were physically present in the unit, but that was all that was proved.

38 Nevertheless, I consider that no substantial miscarriage of justice has occurred, so that the appeal should be dismissed: Criminal Appeal Act 1912 s 6(1), for the Crown case against the appellant was overwhelmingly strong. Beyond argument, someone was conducting a well-established business supplying (at least) cocaine from the home unit in question, and on the night in question the involvement of the appellant in the relevant joint enterprise was plain. In particular, his inability to explain in cross-examination either the circumstances generally, or the circumstances surrounding the throwing over the balcony of the paper with his name on it, was compelling. In addition there was the fact that when the police entered the unit, he was still wearing a belt holding up his trousers, from which belt his mobile telephone was suspended, although he said that he had been asleep in bed until woken up by the noise of the police banging on the door; and he affirmed that he was the only one of the four people in the unit who wore spectacles.

39 The third ground of appeal is that the sentence was excessive. The maximum penalty for the offence was twenty years imprisonment, or a fine of $385,000, or both. The gravamen of the offence lies in the repeated acts of supplying the prohibited drug within a close period; R v Ladocki [2004] NSWCCA 336 at [90]. In R v Hoonand Pouoa [2000] NSWCCA 137 at [39] Dunford J said:

“The section is directed to the concepts of repetition, system and organization, and the objective criminality of any offence under the section should be determined by reference to those features, and not merely to the number and quantities of individual instances of supply.”

40 The appellant was not himself a drug user. There is no suggestion of contrition. The objective circumstances demonstrated a well organised and established business of supplying (at least) cocaine, for reward, even though the amounts supplied on individual occasions were themselves small.

41 The appellant had no criminal history. He migrated from Vietnam to Australia, together with his parents and three brothers in 1990. It appears that his university studies in electronics were interrupted by the migration, and that he did not resume his studies in Australia, because of a lack of command of English. He undertook English language classes, obtained other work, and had a satisfactory work record until 2000 when, he said, he lost his job and remained unemployed for about a year, until arrested. He had earlier married, and been divorced. Later, he and Ms Pham commenced a relationship. At the time of sentencing, they had a 10 months old child, and she was pregnant.

42 The sentence imposed appears to be manifestly excessive, and significantly discordant with sentences imposed upon other offenders for comparable offences.

43 I propose that the appeal against conviction be dismissed, but that leave be granted to appeal against sentence, that the appeal against sentence be allowed, that the sentence imposed by the District Court be quashed, and that in lieu thereof the respondent be sentenced to four years imprisonment, commencing on 14 October 2003 and ending on 13 October 2007, with a non-parole period of two years and six months, commencing on 14 October 2003 and ending on 13 April 2006.

44 BUDDIN J: I agree with Brownie AJA.

45 LATHAM J: I agree with Brownie AJA

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22/08/2005 - Incorrect Counsel listed as appearing for the Crown - Paragraph(s) 1