Vu v R

Case [2006] NSWCCA 188


NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      VU v. REGINA [2006]  NSWCCA 188

FILE NUMBER(S):
No. 2005/1852

HEARING DATE(S):               Friday 17 February 2006

DECISION DATE:     22/06/2006

PARTIES:
TIEN HUNG VU v. REGINA

JUDGMENT OF:       James J Buddin J Hall J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          04/11/0518

LOWER COURT JUDICIAL OFFICER:     Williams, DCJ.

COUNSEL:
Crown:  P. Miller
App:  I. Barker, QC./S. Robson

SOLICITORS:
Crown:  S. Kavanagh
App:  AKN & Associates

CATCHWORDS:
Standard non-parole periods where plea of guilty - approach to be taken - offences assessed by sentencing judge in the middle range of objective seriousness - relevant matters in assessment - whether gambling and drug addiction relevant and, if so, assessed - whether offer to supply heroin to be treated in the assessment as objectively serious as an actual supply of heroin - in assessment of objective seriousness whether error in taking into account other offences - mitigating factors - whether taken into account - error in relation to special circumstances - such a finding warranted - appeal upheld in relation to the total non-parole period - non-parole period reduced by a period of two years.

LEGISLATION CITED:
Drug Misuse & Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

DECISION:
(1)  Leave to appeal should be granted.  (2)  The appeal should be upheld in relation to the total non-parole period.  (3)  I am of the opinion that a finding of special circumstances should be made.  I am, accordingly, of the view that  the sentences imposed by the District Court should be set aside and the applicant should be re-sentenced as follows:  (a) as to Count 2, the applicant is sentenced to a fixed term of imprisonment of six years and nine months to commence from 25 July 2003 and to expire on 24 April 2010.  The fixed term is intended to be the equivalent of the non-parole period determined by the sentencing judge;  (b) as to Count 1, (including the Form 1 offence) the applicant is sentenced to a non-parole period of seven years to commence on 25 July 2005 and to expire on 24 July 2012 and a balance of term of five years commencing on 25 July 2012 and expiring on 24 July 2017.  There should be a partial cumulation of the sentence to reflect the total criminality.  (4)  The earliest date on which the applicant will be eligible for release on parole is 24 July 2012.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1852

JAMES, J.
BUDDIN, J.
HALL, J.

THURSDAY 22 JUNE 2006

TIEN HUNG VU v. REGINA

Judgment

  1. JAMES, J:  I agree with Hall, J.

  2. BUDDIN, J:  I agree with Hall, J.

  3. HALL, J:  On 28 January 2005, the applicant, Tien Hung Vu, was sentenced in the District Court of New South Wales in respect of two counts as follows:-

    Count 1:The first count on the indictment charged that between 9 July 2003 and 12 July 2003, the applicant did offer to supply…

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Details
AGLC
Vu v R [2006] NSWCCA 188
Case
[2006] NSWCCA 188
Decision Date

CaseChat Overview and Summary

Vu was the appellant in this case, which was heard by the Court of Criminal Appeal in New South Wales. The appellant appealed against the sentence handed down by the Supreme Court of New South Wales, Court of Criminal Jurisdiction, where he was convicted of multiple drug-related offences. The primary issue before the court was the appropriate approach to determining standard non-parole periods in cases where the offender pleads guilty and where such periods are applicable. The court also needed to consider whether certain mitigating factors, including the appellant's gambling and drug addiction, should be taken into account during the assessment of the objective seriousness of the offences. Another issue was whether an offer to supply heroin should be considered as objectively serious as an actual supply of heroin. The court had to decide whether the sentencing judge correctly evaluated the other offences in assessing the objective seriousness of the crimes and whether there was an error in relation to special circumstances.

The court found that the sentencing judge did not adequately assess the objective seriousness of the offences in relation to the standard non-parole periods. The court held that the sentencing judge should have hypothesised an abstract offence in the middle of the range of objective seriousness, as required by Regina v. Way and Regina v. Pellew. The court also determined that the appellant's gambling and drug addiction should have been considered as mitigating factors, and that the offer to supply heroin should not be treated as objectively serious as an actual supply. Additionally, the court found that there was an error in relation to special circumstances, as the sentencing judge did not consider whether such circumstances warranted a departure from the standard non-parole period. Consequently, the appeal was upheld in relation to the total non-parole period, and the non-parole period was reduced by a period of two years.

The court ordered that the total non-parole period for the appellant be reduced by two years, reflecting the errors found in the assessment of the objective seriousness of the offences and the failure to consider special circumstances. This reduction in the non-parole period was deemed necessary to ensure a fair and just outcome in light of the errors identified by the court.

Orders

Orders of the court

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Background

Background to the litigation

An additional ground was added at the hearing in the following terms:-“His Honour erred in holding that he had not been asked to find special circumstances and that he could see no basis upon which special circumstances could be found.”The personal background of the applicant The applicant was born on 6 March 1976, he therefore being 27 years of age at the time of the offences and presently is 30 years of age. He is a married man with two children aged two and four. He was born in Vietnam and spent some of his earlier and formative years in a Hong Kong refugee camp before coming to Australia at the age of 16 in 1993 with his mother and sisters. Following his father’s death in 2001, he claims to have commenced using drugs and that by the time of his arrest he had developed a heroin habit said to have been costing between $50 to $500 a day and a cocaine habit worth $500 to $1,000 per week. The material tendered is said to support the fact that he was spending between $200 and $2,000 per week due to a gambling habit. It is to be noted that in respect of these last-mentioned facts, reliance is placed upon the Probation and Parole Service pre-sentence report dated 25 November 2004 and a report of a psychiatrist, Dr. Dong B. Tran, dated 15 November 2004. The applicant did not give evidence at the sentencing hearing.Standard non-parole periods A question arose in these proceedings as to what should be the proper approach of a sentencing court when there is a standard non-parole period applicable to an offence and there has been a plea of guilty. The Court received supplementary written submissions from the parties on this question which were of considerable assistance in identifying the correct approach to be undertaken. The provisions of Part 4 Division 1A – standard non-parole periods of the Crimes (Sentencing Procedure) Act 1999 are to be applied in light of the considerations stated by this Court in Regina v. Way (2004) 60 NSWLR 168. The standard non-parole periods in the Table to Division 1A are to be taken as having been intended for a middle-range case where the offender was convicted after trial: Way (supra) at [68]. The sentencing exercise required to be undertaken for Table offences involves a critical focus upon, not only the objective seriousness of the particular offence before the Court, but also upon the abstract, or putative, offence in the middle of the range of objective seriousness, in respect of which the standard non-parole period is specified: Way (supra) at [72]. A comparative exercise is required to be undertaken in relation to such offences between the offence at hand and the offence for which the standard non-parole period is prescribed. A sentencing judge will be required to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence: Regina v. Pellew (2004) 150 A. Crim. R. 575 per Simpson, J. at [13(iii)].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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