R v Vu

Case [2021] ACTSC 347 4 August 2021

Type to search within this case.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Vu
Citation:	[2021] ACTSC 347
Hearing Dates:	14 May 2021, 30 July 2021
DecisionDate:	4 August 2021
Before:	Refshauge AJ
Decision:	1. Minh Tuyen Vu be convicted of trafficking in a controlled drug other than cannabis and be sentenced to 18 months imprisonment, to commence on 2 August 2021 and end on 1 February 2023. 2. The Court declines to make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT). 3. An Intensive Correction Order under s 11 of the Crimes (Sentencing) Act 2005 (ACT) be made and Minh Tuyen Vu be directed to serve the sentence of imprisonment that has been imposed by an Intensive Correction Order. 4. In addition to the core conditions of the Intensive Correction Order under s 42 of the Crimes (Sentence Administration) Act 2005 (ACT), the following conditions be made under s 11 (5)(c) of the Crimes (Sentencing) Act 2005 (ACT): a. Minh Tuyen Vu not consume alcohol; b. Minh Tuyen Vu engage in drug rehabilitation with or as directed by the Alcohol and Drug Services of Canberra Health Services; c. Minh Tuyen Vu undertake urinalysis if required by a Corrections Officer; d. Minh Tuyen Vu engage with a financial counselling service as directed by a Corrections Officer; e. Minh Tuyen Vu attend a medical practitioner as directed by a Corrections Officer and adhere to the medication regime prescribed by that medical practitioner.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Trafficking a Controlled Drug Other Than Cannabis – Rehabilitation – Drug and Alcohol Treatment Order Application – Application Denied – Intensive Correction Order
Legislation Cited:	Crimes (Sentencing Administration) Act 2005 (ACT) s 42 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 11, 12A, 33, 46J, pt 4.2A, Table 46D, 63 Criminal Code 2002 (ACT) ss 602, 603 Magistrates Court Act 1930 (ACT) s 90A
Cases Cited:	Bui v R [2015] ACTCA 5 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Kada v The Queen [2017] VSCA 339 Oliver (1982) 7 A Crim R 174 Pham v R [2013] NSWCCA 217 R v BM [2019] ACTSC 281 R v Coles [1984] 1 NSWLR 726 R v Crawford [2022] ACTSC 87 R v Davidson [2018] ACTSC 227 R v Dendic (1987) 34 A Crim R 40 R v Forrest (No 2) [2017] ACTSC 83 R v Haidar [2004] NSWCCA 350 R v Harmouche [2020] ACTSC 194 R v Hoang [2016] ACTSC 83 R v Hoang [2020] ACTSC 62 R v Johnston [2017] ACTSC 280 R vKhoder (No 2) [2020] ACTSC 76 R v Massey (No 2) [2016] ACTSC 278 R v Ngerengere (No 3) [2016] ACTSC 299 R v Walters [2017] ACTSC 177 R v Zhao [2017] ACTSC 385 Wong v The Queen [2001] HCA 64
Parties:	The Queen (Crown) Minh Tuyen Vu (Offender)
Representation:	Counsel C Muthurajah (14 May 2021); M Lucero (30 July…

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 [2021] ACTSC 347
Case: [2021] ACTSC 347
Decision Date: 4 August 2021

CaseChat Overview and Summary

Vu was convicted for trafficking in a controlled drug other than cannabis. The case was heard in the ACT Supreme Court, where the primary concern was the appropriate sentencing for the crime committed, along with the consideration of rehabilitation options through a Drug and Alcohol Treatment Order and an Intensive Correction Order. The court was tasked with balancing the punishment for the offence with the potential for rehabilitation of the offender. Specifically, the court needed to decide whether an Intensive Correction Order was more appropriate than a Drug and Alcohol Treatment Order, and if so, what conditions should be attached to the Intensive Correction Order to facilitate the rehabilitation of the offender.

In reaching its decision, the court considered the nature and circumstances of the offence, the offender's personal history, and the likelihood of rehabilitation. The court found that while the offender had a history of drug abuse and had shown some willingness to engage in rehabilitation, the seriousness of the offence warranted a custodial sentence. The court concluded that an Intensive Correction Order was more appropriate than a Drug and Alcohol Treatment Order as it would provide the necessary structure and supervision to ensure the offender's rehabilitation while also serving a sentence for the offence. The court attached specific conditions to the Intensive Correction Order to address the offender's drug abuse, financial management, and health needs.

The court convicted Vu and sentenced him to 18 months imprisonment, to be served starting on 2 August 2021 and ending on 1 February 2023. The court declined to make a Drug and Alcohol Treatment Order and instead made an Intensive Correction Order with specific conditions. These conditions included abstaining from alcohol, engaging in drug rehabilitation, submitting to urinalysis, engaging with a financial counselling service, and attending a medical practitioner as directed. The court's decision reflects a balanced approach that addresses both the punishment for the crime and the potential for the offender's rehabilitation.

Orders

Orders of the court

1. Minh Tuyen Vu be convicted of trafficking in a controlled drug other than cannabis and be sentenced to 18 months imprisonment, to commence on 2 August 2021 and end on 1 February 2023.

2. The Court declines to make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT).

3. An Intensive Correction Order under s 11 of the Crimes (Sentencing) Act 2005 (ACT) be made and Minh Tuyen Vu be directed to serve the sentence of imprisonment that has been imposed by an Intensive Correction Order.

4. In addition to the core conditions of the Intensive Correction Order under s 42 of the Crimes (Sentence Administration) Act 2005 (ACT), the following conditions be made under s 11 (5)(c) of the Crimes (Sentencing) Act 2005 (ACT):

a. Minh Tuyen Vu not consume alcohol;

b. Minh Tuyen Vu engage in drug rehabilitation with or as directed by the Alcohol and Drug Services of Canberra Health Services;

c. Minh Tuyen Vu undertake urinalysis if required by a Corrections Officer;

d. Minh Tuyen Vu engage with a financial counselling service as directed by a Corrections Officer;

e. Minh Tuyen Vu attend a medical practitioner as directed by a Corrections Officer and adhere to the medication regime prescribed by that medical practitioner.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Vu [2021] ACTSC 347

Most Recent Citation

R v O'Neil [2021] ACTSC 345

Cases citing this decision · 1 of 1 shown

R v O'Neil
[2021] ACTSC 345 Para 1

…In R v Vu [2021] ACTSC 347 the Court explained the notion of a dealer in illicit drugs and assessed the seriousness of that criminality in order to impose a sentence to punish and denounce the unacceptable conduct and deter others from behaving in the same way.…

View all 1 citing cases →

Cases cited in this decision · 21 of 21 shown

R v Carey
[2024] NSWCCA 90 Para 1

…oles [1984] 1 NSWLR 726 at 733), it has been accepted as not including mere delivery to the actual owner or a deposit for safekeeping ( R v Carey (1990) 20 NSWLR 292 at 294–5), nor an offer which is not intended to be regarded as genuine by the offeree ( R v Dendic (1987) 34 A Crim R 40 at 44). The definition in s 602…
R v Crawford
[2022] ACTSC 87

…v The Queen [2017] VSCA 339 Oliver (1982) 7 A Crim R 174 Pham v R [2013] NSWCCA 217 R v BM [2019] ACTSC 281 R v Coles [1984] 1 NSWLR 726 R v Crawford [2022] ACTSC 87 R v Davidson [2018] ACTSC 227 R v Dendic (1987) 34 A Crim R 40 R v Forrest (No 2) [2017] ACTSC 83 R v Haidar [2004] NSWCCA 350 R v Harmouche [2020] A…
R v Harmouche
[2020] ACTSC 194 Para 1

…distribution chain that Mr Vu occupied. It is, it appears, about the medium range of purity shown by the Illicit Drug Data Report: see R v Harmouche [2020] ACTSC 194 at [10]. Many of the cases referred to by the Crown involved drugs which were of significant levels of purity greater than in this case: see, for exa…
R v Khoder (No 2)
[2020] ACTSC 76 Para 1

…rugs which were of significant levels of purity greater than in this case: see, for example, R v Walters, [2017] ACTSC 177 at [26]; R v Khoder (No 2) [2020] ACTSC 76 at [4]. Thus, greater purity would be an aggravating factor because of the increased damage from the wider consumption of the drug: R v Johnston [201…
R v Stott (No 2)
[2020] ACTSC 62 Para 1

…ases and an assessment and understanding of the sentencing remarks. The Crown suggested that four decisions might be considered comparable: R v Hoang [2020] ACTSC 62, R v Zhao [2017] ACTSC 385, R v BM [2019] ACTSC 281, and R v Davidson [2018] ACTSC 227.…
R v BM
[2019] ACTSC 281 Para 1

…tencing remarks. The Crown suggested that four decisions might be considered comparable: R v Hoang [2020] ACTSC 62, R v Zhao [2017] ACTSC 385, R v BM [2019] ACTSC 281, and R v Davidson [2018] ACTSC 227.…
R v Davidson
[2018] ACTSC 227 Para 1

…d that four decisions might be considered comparable: R v Hoang [2020] ACTSC 62, R v Zhao [2017] ACTSC 385, R v BM [2019] ACTSC 281, and R v Davidson [2018] ACTSC 227.…
R v Zhao
[2017] ACTSC 385 Para 1

…understanding of the sentencing remarks. The Crown suggested that four decisions might be considered comparable: R v Hoang [2020] ACTSC 62, R v Zhao [2017] ACTSC 385, R v BM [2019] ACTSC 281, and R v Davidson [2018] ACTSC 227.…
Kada v The Queen
[2017] VSCA 339 Para 1

…ct that the supply was to a police officer was significant and appears to have moderated the sentence based on the principles in Kada v The Queen [2017] VSCA 339.…
R v Johnston
[2017] ACTSC 280 Para 1

…C 76 at [4]. Thus, greater purity would be an aggravating factor because of the increased damage from the wider consumption of the drug: R v Johnston [2017] ACTSC 280 at [17].…
St Hilliers Property Pty Limited v ACT Projects Pty Ltd and Simon Wilson
[2017] ACTSC 177 Para 1

…he cases referred to by the Crown involved drugs which were of significant levels of purity greater than in this case: see, for example, R v Walters, [2017] ACTSC 177 at [26]; R v Khoder (No 2) [2020] ACTSC 76 at [4]. Thus, greater purity would be an aggravating factor because of the increased damage from the wider…
R v Forrest (No 2)
[2017] ACTSC 83 Para 1

…icted of supplying heroin to a police undercover operative on five occasions, the single offence being a “rolled up plea”: see R v Forrest (No 2) [2017] ACTSC 83. He supplied a total of 130.572 grams for a total of $35,000. The percentage purity was in the mid-70s. The fact that the supply was to a police officer…
R v Ngerengere (No 3)
[2016] ACTSC 299 Para 1

…Nevertheless, he has been assessed as suitable for an Intensive Corrections Order. Such an order was described in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]–[28], though the provisions, especially in relation to unsuitability, in table 79 of the Sentencing Act have since been relocated as table 46D of that Act.…
R v Massey (No 2)
[2016] ACTSC 278 Para 1

…on for committing the offence. Save as legislatively mandated, the nature of the drug is not a particularly relevant consideration: R v Massey (No 2) [2016] ACTSC 278 at [19].…
R v Hoang
[2016] ACTSC 183 Para 1

…but no alcohol or drug problems. There was no reference to any prior criminal offences, but he was earlier convicted of similar offences in R v Hoang [2016] ACTSC 183. Mr Hoang was sentenced to 21 months imprisonment.…
R v Miles
[2016] ACTSC 83

…] ACTSC 227 R v Dendic (1987) 34 A Crim R 40 R v Forrest (No 2) [2017] ACTSC 83 R v Haidar [2004] NSWCCA 350 R v Harmouche [2020] ACTSC 194 R v Hoang [2016] ACTSC 83 R v Hoang [2020] ACTSC 62 R v Johnston [2017] ACTSC 280 R v Khoder (No 2) [2020] ACTSC 76 R v Massey (No 2) [2016] ACTSC 278 R v Ngerengere (No 3) [2…
Bui v The Queen
[2015] ACTCA 5 Para 1

…Such an offence as this has been subject to considerable consideration over time. In Bui v R [2015] ACTCA 5 at [41] , the Court of Appeal identified the following matters highly relevant to the sentencing of drug traffickers: the role of the offender, the weight and purity of the drug, and the motivation for comm…
Pham v R
[2013] NSWCCA 217 Para 1

…584 at 609; [67]–[70]), but it is not irrelevant, as noted in Bui v The Queen at [41]. It is relevant, but not determinative: Pham v The Queen [2013] NSWCCA 217 at [27].…
Cotter v Corvisy
[2008] ACTSC 64 Para 1

…which must be considered is hardship to third parties caused by the sentence: s 33(1)(o) of the Sentencing Act . As was explained in Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 316; [82], this will moderate the sentence only if it is a more severe or prejudicial hardship than would be inevitable and the usual…
R v Haidar
[2004] NSWCCA 350 Para 1

…er, have recognised some distinctions, also, differentiating between those who sell illicit drugs to feed their own habit and dependence ( R v Haidar [2004] NSWCCA 350 at [42]–[46]), and those who are engaged in selling drugs for pure profit.…
Wong v The Queen
[2001] HCA 64 Para 1

…In general terms, the High Court has pointed out that the weight or quantity of the drug is not to be given “chief importance” ( Wong v The Queen [2001] HCA 64; 207 CLR 584 at 609; [67]–[70]), but it is not irrelevant, as noted in Bui v The Queen at [41]. It is relevant, but not determinative: Pham v The Queen […

Legislation cited in this decision · 4

Crimes (Sentencing) Act 2005 (ACT)
10, 11, 12A, 33, 46J, 6, 63, 7 9 mentions (from Para 1)
Crimes (Sentencing Administration) Act 2005 (ACT)
42 2 mentions
Magistrates Court Act 1930 (ACT)
90A 2 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention