Regina v Duong - [1999] NSWCCA 353

Reported Decision:
109 A Crim R 60

New South Wales

Court of Criminal Appeal

CITATION: REGINA v DUONG [1999] NSWCCA 353 revised - 27/06/2000

FILE NUMBER(S): CCA 60137/99

HEARING DATE(S): 17 September 1999

JUDGMENT DATE:
17 September 1999

PARTIES :

The Crown
Quoc Dung Duong (Respondent)

JUDGMENT OF: Wood CJ at CL at 26; Newman J at 2; Foster AJ at 30

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0143

LOWER COURT JUDICIAL OFFICER: Williams DCJ

COUNSEL: P G Berman (Crown)
P P Costello (Respondent)

SOLICITORS: S E O'Connor (Crown)
Direct Access (Respondent)

CATCHWORDS: Crown appeal; inadequacy of sentence; offer bribe; supply prohibited drug; police corruption.

ACTS CITED: Criminal Appeal Act
Police Service Act 1990
Drug Misuse and Trafficking Act

CASES CITED:
Griffith v The Queen (1977) 137 CLR 293 at 310
The Attorney of South Australia v Tichy (1982) 30 SASR 84
R v Pangallo (1991) 56 A Crim R 441 at 443
R v Taouk (1992) 65 A Crim R 387 at 292.2
Ibbs v The Queen (1991) 163 CLR 447

DECISION: Crown appeal upheld

IN THE COURT OF
CRIMINAL APPEAL

60137/99

WOOD CJ at CL
NEWMAN J
FOSTER AJ

FRIDAY, 17 SEPTEMBER 1999

REGINA v Quoc Dung DUONG

JUDGMENT

1 WOOD CJ at CL: I will ask Justice Newman to delivery the first judgment.
2 NEWMAN J: This is a Crown appeal brought pursuant to s 5D of the Criminal Appeal Act. The appeal is brought against the sentence imposed by Williams DCJ on 15 March this year. Before his Honour the respondent had pleaded guilty to a charge which may be shorthandedly referred to as offer bribe contrary to the provisions of s 200(2)(a) of the Police Service Act 1990. The maximum penalty stipulated by that Act for this offence is 200 penalty units or imprisonment for seven years or both. In the event his Honour imposed a head sentence of three years constructed of a minimum term of two years commencing on 15 March 1999, the date when the respondent appeared before him, and expiring on 14 March 2001, together with an additional term of one year commencing on 15 March 2001 and expiring on 14 March 2002.
3 At this stage it is important to note that prior to being sentenced by his Honour for this offence the applicant had been sentenced by his Honour Mitchelmore DCJ on 13 February 1997 for another offence. That offence was the offence of supply a large commercial quantity of a prohibited drug contrary to the provisions of s 25(2) of the Drug Misuse and Trafficking Act 1995. The maximum term for transgression of that section is life imprisonment. Mitchelmore DCJ sentenced the applicant there to a minimum term of five years commencing on 20 September 1996 and expiring on 19 September 2001 and fixed an additional term of three and a half years commencing on 20 September 2001 and expiring on 19 October 2005. Other orders had been made in the matter which I…

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 Regina v Duong

Details

AGLC: Regina v Duong [1999] NSWCCA 353
Case: [1999] NSWCCA 353
Decision Date: 17 September 1999

CaseChat Overview and Summary

The appeal before the court concerns the sentence imposed on the appellant, Duong, who was found guilty of attempting to bribe a police officer and supplying a prohibited drug. The case originated in the lower court where Duong was convicted and sentenced to imprisonment. The Crown has appealed against the sentence, arguing it was inadequate given the gravity of the offences committed. The appeal was heard and determined by the relevant appellate court in Australia.

The primary legal issue before the court was whether the sentence imposed by the lower court was manifestly inadequate. The Crown submitted that the sentence did not appropriately reflect the seriousness of the offences, which included an attempt to bribe a police officer and the supply of a prohibited drug. The defence argued that the sentence was appropriate given the circumstances and mitigating factors presented. The court was required to consider the principles of sentencing, including the need for deterrence and the protection of the community, in determining whether the sentence was adequate.

The court undertook a detailed review of the sentencing principles and the specific facts of the case. It acknowledged the seriousness of the offences and the need for a sentence that would adequately reflect the gravity of the crimes. The court considered the arguments from both the Crown and the defence, weighing the aggravating and mitigating factors. Ultimately, the court found that the sentence imposed by the lower court was indeed manifestly inadequate. The appellate court exercised its discretion to impose a more appropriate sentence, reflecting the seriousness of the offences and the need for deterrence.

In light of the findings, the appellate court varied the sentence imposed by the lower court. The new sentence was deemed sufficient to address the objectives of sentencing, including deterrence and the protection of the community. The court's decision underscored the importance of ensuring that sentences appropriately reflect the nature and circumstances of the offences committed.

Orders