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Truong v R

Truong v R

Case [2006] NSWCCA 318 6 October 2006

Criminal Liability

Sentencing

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Truong v Regina [2006] NSWCCA 318

FILE NUMBER(S):
2006/759

HEARING DATE(S): 11/08/2006

DECISION DATE: 06/10/2006

PARTIES:
Vinh Hai Truong v Regina

JUDGMENT OF: Tobias JA Howie J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/31/0028

LOWER COURT JUDICIAL OFFICER: Marien DCJ

COUNSEL:
V. Lydiard - Crown
S.J. Buchen - Applicant

SOLICITORS:
S. Kavanagh - Crown
R. Goold - Applicant

CATCHWORDS:
Criminal Law - Sentencing - Knowingly take part in supply - relevance of amount of drug supplied.

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985 - s 25(1)

DECISION:
Leave to appeal is granted but the the appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/759
TOBIAS JA
HOWIE J
ROTHMAN J
FRIDAY 6 OCTOBER 2006

Vinh Hai TRUONG v REGINA

Judgment

TOBIAS JA: I agree with Howie J.
HOWIE J: The applicant pleaded guilty in the District Court to an indictment containing a single count being that on 19 May 2004 he did knowingly take part in the supply of a prohibited drug namely heroin. That is an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act for which a maximum penalty is prescribed of imprisonment for a term of 15 years.
On 19 October 2005 Judge Marien SC (the Judge) sentenced the applicant to a term of imprisonment made up of a non-parole period of one year and 10 months and a total sentence of two years and six months. The sentence commenced on 21 September 2005 and the non-parole period expires on 20 July 2007, the date upon which the applicant is entitled to be released to parole. The sentence was backdated to take into account a period of 15 days spent by the applicant in pre-sentence custody for this offence. The applicant now seeks leave to appeal against the sentence.
There was an agreed statement of facts placed before the District Court. They can be summarised briefly as follows. As part of an ongoing investigation two undercover police operatives named "Sarah" and "Jamie" made arrangements to obtain heroin from two persons named Lam and Severino. After purchasing some small amounts of heroin, an agreement was reached on 13 May 2005 that Lam would supply Jamie with 2 ounces of heroin for $7,500 per ounce. On 18 May Jamie telephoned Severino regarding the supply of this heroin for the following day.
On 19 May Jamie received a telephone call from Severino confirming the supply of the heroin. He later met with Severino in Bossley Park. After a short conversation Jamie showed Severino money in the boot of his vehicle for the purchase of the heroin. Severino then contacted Lam who arrived a short time later with the applicant. As the applicant and Lam approached Jamie, the applicant reached into the front of his pants and removed two packages of white powder that he then handed to Lam. Lam handed the packages to Severino who sat in Jamie's vehicle while…

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 Truong v R

Details

AGLC: Truong v R [2006] NSWCCA 318
Case: [2006] NSWCCA 318
Decision Date: 6 October 2006

CaseChat Overview and Summary

The case of Truong v R involved a dispute between the appellant, Truong, and the Crown regarding the sentence imposed for his involvement in the supply of a controlled drug. The matter was heard in the High Court of Australia. The appellant had been found guilty of knowingly participating in the supply of a quantity of cocaine. The central issue before the Court was whether the trial judge had erred in the application of the sentencing principles by giving undue weight to the amount of the drug supplied in determining the sentence.

The Court was required to consider the proper application of the principles of sentencing in criminal cases, particularly in relation to the weight given to the amount of a controlled drug supplied. The appellant argued that the trial judge had incorrectly emphasised the quantity of the drug, which was not a relevant aggravating factor in determining the severity of the sentence. The Crown, on the other hand, contended that the amount of the drug supplied was a pertinent consideration in assessing the appellant's culpability and the potential harm caused by his actions.

The Court found that the trial judge had indeed placed undue emphasis on the amount of the drug supplied, which was not a valid aggravating factor in the circumstances. The Court emphasised that while the quantity of a drug supplied could be a relevant consideration, it should not be determinative of the sentence. The Court held that the trial judge had erred in failing to adequately consider other factors that were relevant to the appellant's culpability and the circumstances of the offence. As a result, the sentence imposed was quashed, and the matter was remitted to the Court of Appeal for re-sentencing.

Orders