Payne JA at [1]; Johnson J at [75]; Adamson J at [79]
Decision:
(1) Leave to appeal against sentence granted;
(2) Appeal dismissed.
Catchwords:
CRIME – appeal against sentence – guilty plea to three counts under Drug Misuse and Trafficking Act 1985 (NSW) – further offences taken into account on each count on Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – three co-offenders – whether sentencing judge erred in approach to indicative sentences leading to excessive aggregate sentence – parity – whether justifiable sentence of grievance when comparing sentence imposed upon one co-offender – whether sentence manifestly excessive
Counsel: S. Pararajasingham (Applicant) H. Roberts (Respondent)
Solicitors: Lyndon Nguyen Legal (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
2015/340035
Publication restriction:
None
Decision under appeal
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Crime
Citation:
N/A
Date of Decision:
05 July 2017
Before:
Sides QC DCJ
File Number(s):
2015/340035
HEADNOTE
[This headnote is not to be read as part of the judgment]
Following a police investigation into the cultivation of cannabis plants by enhanced indoor means at four premises in Sydney, the appellant pleaded guilty to an indictment containing three counts. Further offences were taken into account with respect to each count on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The sentencing judge sentenced Ms Vu together with three co-offenders, Mr Pham, Mr Vu and Mr Nguyen. The applicant was sentenced to an aggregate sentence of imprisonment for 8 years. A non-parole period of 4 years was fixed to commence on 18 November 2015 and expire on 17 November 2019.
The issues on appeal were:
(i) whether the sentencing judge erred in his approach to Ms Vu’s indicative sentences leading to…
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.
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Details
AGLC
Thiu Dieu Vu v Regina [2018] NSWCCA 122
Case
[2018] NSWCCA 122
Decision Date
CaseChat Overview and Summary
Vu appealed against his sentence following his guilty plea to three counts under the Drug Misuse and Trafficking Act 1985 (NSW). The court had to consider whether the sentencing judge made an error in determining the indicative sentences, which led to what was perceived as an excessive aggregate sentence. The matter involved three co-offenders, and the issue of parity was raised, questioning if the sentence imposed on one co-offender was justifiable when compared to Vu's sentence. Additionally, the court had to determine whether the sentence was manifestly excessive.
The legal issues before the court involved the proper application of s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which pertains to taking further offences into account on each count on Form 1. The court had to examine whether the sentencing judge applied the correct approach in determining the indicative sentences and if the aggregate sentence was justified. Furthermore, the court assessed whether there was a justifiable sentence of grievance when comparing the sentences imposed on the co-offenders, and if the sentence imposed on Vu was manifestly excessive.
In its decision, the court found that the sentencing judge did not err in determining the indicative sentences, as the evidence supported the sentencing range applied. The court acknowledged that the sentence imposed on Vu was severe but was warranted due to the nature and circumstances of the offences. The court emphasised that each case must be assessed on its own merits, and the sentence imposed on Vu was not manifestly excessive, considering the aggravating factors present in this case. The appeal was ultimately dismissed.
The court confirmed that the sentence imposed on Vu was within the appropriate range and not manifestly excessive, taking into account the aggravating factors and the need to deter drug-related crime. The court did not find any error in the sentencing judge's approach, and the appeal was dismissed.