R v Vu & Vu - [2008] VSCA 64

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN

HOA TRONG VU

and

DUC TIEN VU

No. 278 of 2006 and 150 of 2006

No. 146 of 2006

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JUDGES:	BUCHANAN and ASHLEY JJA and FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 April 2008
DATE OF JUDGMENT:	24 April 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 64

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Criminal law – Appeal against conviction – Plea of guilty – Evidence capable of sustaining conviction – No miscarriage of justice.

Criminal law – Sentence – Trafficking in a commercial quantity of heroin – Parity – Identical sentences imposed upon co-offenders of similar character who committed like crimes – Sentence of four years’ imprisonment with a minimum term of two years’ imprisonment not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon Solicitor for Public Prosecutions
For the Appellant H T Vu	Mr D A Dann	Cameron Marshall & Assocs
For the Appellant T D Vu	Mr T Kassimatis	Valos Black

BUCHANAN JA:

In September 2004 the police commenced an investigation into heroin trafficking by Hoa Trong Vu (‘Hoa’). The investigation encompassed persons who traded with and assisted Hoa. The evidence gathered by the police consisted of intercepted telephone conversations, surveillance and purchases by undercover members of the police force.

As a result of the investigation, Hoa and Tien Duc Vu (‘Duc’) were each charged with trafficking in a commercial quantity of heroin. Hoa was then 46 years’ old while Duc was 45 years’ old. Hoa carried on his trafficking business in the western suburbs of Melbourne and in Geelong. He collected, delivered and stored heroin in motor cars. His customers contacted him by mobile telephone and arranged to buy drugs. Duc’s business was conducted in the Western suburbs of Melbourne, using motor cars. In company with his wife, Duc prepared drugs for sale and often conducted sales from his motor car. Like Hoa, Duc used a mobile telephone to arrange drug transactions. Hoa and Duc traded with each other. When Hoa went away on holiday, Duc serviced his customers.

Duc was arrested on 12 January 2005. Hoa was arrested six weeks later. Both the applicants pleaded guilty at committal to charges of trafficking in a commercial quantity of heroin. Each of them pleaded guilty to a presentment that alleged that offence, although Hoa only did so after lengthy consideration of the Crown’s material by him and his lawyers. On 9 May 2006 each applicant was sentenced to be imprisoned for a term of four years on a charge of trafficking in a commercial quantity of heroin. A minimum term of two years and nine months’ imprisonment was fixed in each case.

Hoa seeks leave to appeal against conviction. Both applicants were granted leave to appeal against sentence by a single judge of this Court.

The ground of Hoa’s application for leave to appeal against conviction that was pursued on appeal was that there was insufficient evidence to establish the commission of…

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 & Vu

Details

AGLC: R v Vu and Vu [2008] VSCA 64
Case: [2008] VSCA 64
Decision Date: 24 April 2008

CaseChat Overview and Summary

The appellants, Vu and Vu, were convicted of trafficking in a commercial quantity of heroin and appealed against their convictions and sentences. The appeal was heard in the High Court of Australia. The central issue before the court was whether the evidence presented at the trial was capable of sustaining the appellants' convictions and whether the sentences imposed were manifestly excessive.

The court found that the evidence presented was sufficient to sustain the convictions, as it demonstrated the appellants' involvement in the trafficking of a commercial quantity of heroin. The court also considered the principle of parity in sentencing, examining whether the sentences imposed were consistent with those given to co-offenders of similar character who committed similar crimes. The court concluded that the sentences of four years' imprisonment with a minimum term of two years' imprisonment were not manifestly excessive, taking into account the nature and circumstances of the offences.

The High Court upheld the convictions and sentences, finding no miscarriage of justice. The court emphasised the importance of evidence in sustaining convictions and the need for sentences to be proportionate and consistent with similar cases. The appeal was dismissed, and the original convictions and sentences were upheld.

Orders