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…

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 Vu

Details

AGLC: R v Vu [2005] NSWCCA 266
Case: [2005] NSWCCA 266
Decision Date: 3 August 2005

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent, Vu, against a sentence imposed by the Supreme Court of South Australia. Vu was convicted on various charges including drug trafficking and possession. The appeal centred around the severity of the sentence imposed by the trial judge, which Vu argued was excessive.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive, thus warranting a reduction or an order for a re-sentencing. The court considered whether the sentence was disproportionate to the nature and circumstances of the offences, and whether it failed to adequately reflect the principles of sentencing.

The court found that the trial judge had carefully considered the relevant aggravating and mitigating factors and had imposed a sentence that was within the range of appropriate penalties for the crimes committed. The court concluded that the sentence was not manifestly excessive and did not constitute a substantial miscarriage of justice. The appeal was dismissed, and the original sentence was upheld. The court emphasised that the principles of no question of principle were applicable, and accordingly, Vu's appeal was unsuccessful.

Orders