Regina v Minh Duong

[1999] NSWCCA 448

CITATION:	Regina v Minh Duong [1999] NSWCCA 448 revised - 27/06/2000
FILE NUMBER(S):	CCA 60513/99
HEARING DATE(S):	Wednesday 8 December 1999
JUDGMENT DATE:	8 December 1999
PARTIES :	Appellant- Regina Respondent- Minh Duong
JUDGMENT OF:	Meagher JA at 1; Newman J at 7; James J at 8

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/3059; 99/21/3060
LOWER COURT JUDICIAL OFFICER:	Ford ADCJ

COUNSEL:	Appellant - P Berman Respondent - P Segal
SOLICITORS:	Appellant - S E O'Conner Respondent - Low and Associates
CATCHWORDS:	Sentencing - Receiving- Crown appeal against inadequacy of sentence
CASES CITED:	R v Peuna (unreported, Court of Criminal Appeal, 15 & 23- 7-92) Pearce v R (1998) 194 CLR 610
DECISION:	1. Appeal allowed; 2. sentence as follows-; Count 1 - Fixed term of imprisonment of two years 11 months to commence on 8 December 1999 and expire on 7 december 2002.; Count 6 -Minimum term of imprisonment of 1 month to commence on 8 December 2002 and to expire on 7 december 2002, with an additional term of two years 11months to commence on 8 December 2002 and that during the currency of the parole order he be subject to the supervision prescribed by the Regulations for the period prescribed by the regulations.; Counts 2-5 & 7-10 both inclusive in each case. Fixed term of imprisonment of one year to commence on 8 december 1999 and to expire on 7 december 2000.

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IN THE COURT OF
CRIMINAL APPEAL

CCA 60513/99

MEAGHER JA
NEWMAN J
GREG JAMES J

WEDNESDAY 8 DECEMBER 1999

REGINA v MINH DUONG

JUDGMENT

1   MEAGHER JA:: The Court is in a position to give judgment. 2   The respondent, Mr Vi Minh Duong, was a hairdresser by trade at Cabramatta who supplemented the income he derived from the trade by dealing in stolen goods. He purchased stolen goods from known shop lifters and known drug addicts and in large quantities. Police found such goods at his barber shop, at his house and his defacto's house. He bought these goods for about one third of their value. We do not know what the precise value of these goods were but it exceeds $200,000. He knew some of the goods were stolen, as to other goods he suspected it. His ultimate aim was to own an emporium which would sell the goods, no doubt at a handsome profit. He pleaded guilty to ten charges of receiving. He was arraigned before Ford ADCJ at Campbelltown District Court on 30 July 1999. There was taken into account a further batch of 25 charges of goods in custody. His Honour sentenced him to 400 hours community service in relation to the first charge of receiving and to 1 hour of community service for each the remaining 9 charges. This is a Crown appeal on the grounds of leniency.
3   To my mind the appeal must succeed. The principles which should be applied are not in much doubt. There is an exposition of them by Badgery-Parker J in R v Peuna (unreported, Court of Criminal Appeal,15 and 23 July 1992) which I shall repeat:

“It is trite to say that without receivers there would be no thieves. This man was not a casual or impulsive receiver; he was a professional receiver, contributing to the prevalence in this community of the crime of theft, a source of grave concern and huge expense to all owners of property. The seriousness of the offences, being the large number of them, the repetition of them, the repetition of them whilst subject to a recognisance and on bail and the sum of money involved as well as the degree of premeditation and organisation which is revealed demonstrate the need for various substantial custodial sentences to be imposed”.

4 I have altered his Honour's words to account for the fact that this is not a case involving receiving of motor vehicles but the words are none the less appropriate to the present case. His Honour, in Mr Duong's case, did not apply these principles. He apparently did not take into account that Mr Duong committed 5 of the ten offences whilst on bail. He regarded as a mitigating circumstance the fact that Mr Duong had made improvident investments of $40,000 worth of the stolen property. He found unusual even exceptional circumstances where none existed. He apparently did not take into account that Mr Duong, by the very nature of his profession, encouraged drug dealing and shoplifting. Subjective matters in Mr Duong's favour are few in number. He pleaded guilty. He had no prior convictions for anything. I have taken into account the principles of double jeopardy. I have taken into account the amount of community service he has performed. I have taken into account the principles laid down by the High Court in Pearce -v- R (1998) 194 CLR 610. In my view the court ought to make the following orders.

(1) appeal allowed;
(2) Sentences imposed in the Court below quashed and in lieu thereof the respondent is sentenced as follows:-
COUNT 1. Fixed term of imprisonment of two years 11 months to commence on 8 December 1999 and to expire on 7 November 2002.
COUNT 6. Minimum term of imprisonment of 1 month to commence on 8 November 2002 and to expire on 7 December 2002, with an additional term of two years 11 months to commence on 8 December 2002 and to expire on 7 November 2005. The court directs the respondent be released to parole on 8 December 2002 and that during the currency of the parole order he be subject to the supervision prescribed by the Regulations for the period prescribed by the Regulations.
COUNTS 2-5 and 7-10 both inclusive in each case. Fixed term of imprisonment of one year to commence on 8 December 1999 and to expire on 7 December 2000.

5   We have taken into account special circumstances arising out of the accumulation of sentences and the necessity for a long period of supervision in view of his behaviour of committing offences after arrest. The matters on the schedule have been taken into account on count 1.

6   NEWMAN J: I agree.

7   GREG JAMES J: I also agree.

8   MEAGHER JA: The orders are as proposed.

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