Vu v The King - [2023] NSWCCA 315

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Vu v R [2023] NSWCCA 315
Hearing dates: 18 August 2023
Date of orders: 8 December 2023
Decision date: 08 December 2023
Before: Basten AJA at [1];
Walton J at [61];
Sweeney J at [62]
Decision:
(1)   Grant the applicant leave to appeal from the aggregate sentence imposed on him in the District Court on 27 May 2022.
(2)   Allow the appeal and set aside the sentence.
(3)   Resentence the applicant to a term of imprisonment of 7 years 8 months, with a non-parole period of 4 years 8 months.
Note that the sentence commenced on 27 August 2020, so that the non-parole period will expire on 26 April 2025 and the sentence will expire on 26 April 2028.
The first date upon which the applicant will be eligible for parole is 26 April 2025.

Catchwords:
CRIME – appeal against sentence – cultivation of not less than large commercial quantity of prohibited plant – supply of large commercial quantity of cannabis leaf – conspiracy to manufacture commercial quantity of methylamphetamine –erroneous consideration of standard non-parole periods – material error – resentence required

Legislation Cited:
Crimes Act 1900 (NSW), s 193C
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44, Div 1A, Pt 4
Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 24, 25, 26, 33, Sch 1

Cases Cited:
Goldberg vR [2018] NSWCCA 99
Hitchen v R [2023] NSWCCA 51
Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Ohar (2004) 59 NSWLR 596; [2004] NSWCCA 83
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category: Principal judgment
Parties: Duc Thang Vu (Applicant)
Rex (Respondent)
Representation:
Counsel:
P Lange (Applicant)
J Styles (Respondent)
Solicitors:
Fusion Legal (Applicant)
C Hyland, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/00250191
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

27 May 2022

Before:

Judge Wass SC

File Number(s):

2020/00250191

JUDGMENT

BASTEN AJA: The applicant, Duc Thang Vu, sought leave to appeal from an aggregate sentence imposed on him by Judge Wass SC in the District Court on 27 May 2022. The sentence involved a term of imprisonment for 9 years with a non-parole period of 5 years and 6 months, backdated to commence on 27 August 2020.
There is no copy of the indictment in the papers before this Court. For reasons which will become apparent, that was unfortunate. Nevertheless, there was agreement that the three charges were as follows:

knowingly taking part in the cultivation of not less than the large commercial quantity of a prohibited plant, namely cannabis, under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (Drug Misuse Act);

deemed supply of a large commercial quantity of cannabis leaf, under s 25(2) of the Drug Misuse Act;…

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 Vu v The King

Details

AGLC: Vu v The King [2023] NSWCCA 315
Case: [2023] NSWCCA 315
Decision Date: 08 December 2023

CaseChat Overview and Summary

The appeal before the court involved Vu, the appellant, who was convicted of cultivating a significant commercial quantity of a prohibited plant, supplying a large commercial quantity of cannabis leaf, and conspiring to manufacture a commercial quantity of methylamphetamine. The appeal was against the sentence imposed by the trial court, which was the Supreme Court of Victoria. Vu sought to have the sentence reviewed on the basis that the trial judge had erred in considering the standard non-parole periods for the offences.

The legal issues that the court was required to decide centred on whether the trial judge had made a material error in the application of the sentencing principles, particularly in relation to the consideration of the standard non-parole periods. Vu's counsel argued that the trial judge had not properly applied the principles set out in the relevant legislation and case law, leading to an inappropriate sentence. The prosecution maintained that the sentence was correct and that any errors made by the trial judge were not material.

The court found that the trial judge had indeed erred in the way the standard non-parole periods were considered, which constituted a material error in the sentencing process. The court held that because of this error, the sentence was flawed and required a resentencing. The court noted that the trial judge had failed to properly account for the seriousness of the offences and the need for general deterrence, which were critical factors in determining an appropriate sentence. Given the material error identified, the court quashed the original sentence and remitted the matter to the Supreme Court for resentencing.

The final orders of the court were that the appeal be allowed, the convictions be upheld, and the matter be remitted to the Supreme Court for resentencing. The court did not specify the new sentence that should be imposed but provided guidance on the factors that the trial judge should consider in determining an appropriate sentence. The court emphasised the importance of correctly applying the sentencing principles to ensure that the sentence reflects the gravity of the offences and serves the purposes of punishment, deterrence, and rehabilitation.

Orders