Regina v Vi Cuong Tu

[1999] NSWCCA 357

CITATION:	Regina v Vi Cuong Tu [1999] NSWCCA 357
FILE NUMBER(S):	CCA 60231/98
HEARING DATE(S):	Friday 22 October 1999
JUDGMENT DATE:	22 October 1999
PARTIES :	A: Vi Cuong Tu R: Regina
JUDGMENT OF:	Meagher JA at 1; James J at 10; Kirby J at 11

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0405
LOWER COURT JUDICIAL OFFICER:	Rummery J

COUNSEL:	A: Greg Scragg R: Frank Veltro
SOLICITORS:	A: Stephen Tully Tully & Co R: Joanne Philipson Commonwealth Director of Public Prosecutions
CATCHWORDS:	possess heroin; sentence excessive; no due consideration to appellants circumstances
ACTS CITED:	Crimes Act 1914 (Commonwealth)
DECISION:	Appeal against sentence allowed, that the sentances imposed below are quashed, the term of the imprisonment be six years, and the non-parole period four years

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60231/98

MEAGHER JA
B JAMES J
KIRBY J

FRIDAY 22 OCTOBER 1999

REGINA v CUONG TU

JUDGMENT

1   MEAGHER JA: The present applicant seeks leave to appeal from the sentence of his Honour Judge Rummery in the District Court in which the term of imprisonment was for a non-parole period of six years, sentence backdated to 21 March 1997. 2   The facts are exceedingly simple. The police looked into a unit which was occupied by the applicant and located two parcels which contained approximately 440 grams of heroin and also there were some lesser amount, the upshot was the total quantity was 880 grams with a purity level of between 68 and 70 percent, giving a pure amount of 670 grams. 3   The flat in which the appellant and the heroin were found was partially furnished containing no more than a bed with a mattress in it, a table and a chair. In the circumstances his Honour found, and on those facts it is difficult to see what other finding to be made, that the applicant was nothing more than a minder. 4   In these circumstances it is submitted by his counsel that the sentences which his Honour imposed was too severe. His Honour reached the figures he did reach by the following process: he took a starting point of 13 to 14 years imprisonment as the head sentence. He reduced it to 12 years and gave weight to certain subjective features. He then reduced that 12 years to nine years under s 16G of the Crimes Act 1914 (Commonwealth) and thus appeared to arrive at his final figures. 5   His Honour presumably took a fairly high starting point because of many of the objective facts of the case. The applicant was of no assistance to the police. He cannot, in any sense, be said to have expressed any contrition. 6   The matter was not a trivial one and there was no absence of prior convictions although, as Mr Scragg pointed out to the Court, the prior conviction that he did have was one of the deemed possession not of actual possession. 7   It is perhaps not entirely inexplicable that his Honour chose a higher starting point. The subjective features which caused his Honour to reduce 13 to 14 down to 12 were the fact that the applicant was a refugee, that he is Chinese Vietnamese with most of his family left in Vietnam. He had an unfortunate employment history, that he can not speak English, that his health has not been good, that his de facto marriage has collapsed and he has drifted into a situation where he is a user of heroin. 8   Nonetheless, considering all the features, his counsel, Mr Scragg, in a very able argument, has suggested that the starting point was too high and that the s 16G reduction should have been greater. He has submitted to the Court that in conformity with the other cases which have been supplied to the Court, in fact by the Crown, it would be more sensible to have a head sentence, after s 16G deductions, of the range of five and seven years. 9   With some hesitation I would agree and I would propose that there be a head sentence of six years. In the circumstances if one applies a one-third rule for non-parole that there should a non-parole period of four years. 10   JAMES J: I agree with the judgment of the presiding Judge and with the orders proposed by his Honour. 11   KIRBY J: I also agree. 12   MEAGHER JA: The orders of the Court is application is granted, that the appeal against sentence allowed, that the sentences imposed below are quashed, that the term of the imprisonment be six years commencing 21 March 1997 and expiring on 20 March 2003, that the non-parole period be four years commencing on 21 March 1997 and expiring on 20 March 2001. Those are the orders of the Court.