Vu v The Queen

[2016] NSWCCA 136

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Vu v R [2016] NSWCCA 136
Hearing dates:	6 July 2016
Date of orders:	06 July 2016
Decision date:	11 July 2016
Before:	Bathurst CJ; Ward JA; Payne JA
Decision:	(1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the conviction of the appellant of the offence of supplying a prohibited drug (heroin) in an amount not less than the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). (4) Pursuant to the power under s 7(2) of the Criminal Appeal Act 1912 (NSW), convict the appellant of one count of supplying an indictable quantity of a prohibited drug (heroin) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). (5) Sentence the appellant to a non-parole period of 3 years and 5 months commencing 15 March 2013 and expiring 14 August 2016 and a balance of term of 1 year and 1 month expiring 14 September 2017. (6) Note that grounds 1 and 3 of the appellant’s grounds of appeal are not pressed.
Catchwords:	CRIMINAL LAW – conviction appeal – supply prohibited drug (heroin) in an amount not less than the commercial quantity – Crown conceded that trial judge failed to direct jury in relation to an essential element of the offence, namely knowledge of the quantity of drugs in the appellant’s possession – appeal allowed and conviction quashed – substituted conviction on statutory alternative charge – remaining grounds of appeal not pressed – appellant sentenced on count of supplying an indictable quantity of a prohibited drug on the basis that the amount was close to but not exceeding the commercial quantity
Legislation Cited:	Criminal Appeal Act 1912 (NSW), ss 6(1), 7(2) Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
Cases Cited:	Fung v R [2007] NSWCCA 250; (2007) 174 A Crim R 169
Category:	Principal judgment
Parties:	Hung Vu (Appellant) Crown (Respondent)
Representation:	Counsel: T Game SC and Ms L-C Hutchinson (Appellant) Ms N Noman SC (Respondent)   Solicitors: AXL Legal Criminal (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/00043726004
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 8 May 2013 Before: Lakatos DCJ File Number(s): 2012/00043726004

Judgment

1. THE COURT: The appellant, Mr Vu, was convicted by a jury of one count of supplying a prohibited drug (heroin) in an amount not less than the commercial quantity (352.2g), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).

2. He was sentenced by Lakatos DCJ in the District Court to a term of imprisonment for 7 years, comprising a non-parole period of 4 years and 9 months commencing on 15 March 2013 and expiring on 14 December 2017 and a balance of term of 2 years and 3 months expiring on 14 March 2010. The maximum penalty for the offence of which the appellant was convicted was 20 years imprisonment, a fine of $350,000 or both. A standard non-parole period of 10 years applied.

3. The Crown case, in summary, was that on 9 February 2012, the appellant and his co-accused (his former wife) had heroin in their possession for the purposes of supply, the heroin being found by police in a packet of tortilla chips in the footwell of the front passenger seat of a car then being driven by the appellant. The Crown case was that the appellant was given the chip bag shortly beforehand by Mr Tan Phong Le at a convenience store in Newtown. The appellant had come from Melbourne to Sydney to acquire the drug. The police had intercepted telephone communications between Mr Le and the appellant prior to the meeting at which the appellant was given the chip bag containing heroin. The quantity of heroin contained in the chip bag was subsequently certified as being 352.2g, with a purity of 47%. It had a street value of between $90,000 and $150,000.

4. The appellant pleaded not guilty.

5. On the second day of the trial, the jury forwarded the trial judge a note in which the jury expressed the desire to handle a bag with weight equivalent to 352g of heroin and a normal chip bag, as a comparison. Objection was raised by Counsel for the appellant to the demonstration, on the basis that the probative value of the demonstration was low and that it would result in unfair prejudice to the accused. The trial judge allowed the demonstration, determining that the evidence was probative, carried no attendant unfair prejudice and had little prospect of misleading or confusing if conducted in open court in front of all the parties.

6. By notice of appeal filed 8 February 2016, the appellant appealed his conviction on the following grounds:

(1)   The trial Judge erred in permitting the demonstration, which demonstration resulted in a miscarriage of justice.

(2)   The Summing Up on knowledge of the quantity of drugs alleged to have been supplied.

(3)   The directions on circumstantial reasoning and inferences reversed the onus of proof and obscured the standard of proof.

7. Written submissions were filed on behalf of both the appellant and the Crown on each of the grounds of appeal. Relevantly, the Crown accepted that knowledge of the involvement of a commercial quantity of a particular drug was an essential element of the offence in question (Fungv R [2007] NSWCCA 250; (2007) 174 A Crim R 169 at [42]) and that the trial judge erred in failing appropriately to direct the jury as to this element. Nevertheless the Crown (in its written submissions) suggested that this may be an appropriate case for the application of the proviso pursuant to s 6(1) of the Criminal Appeal Act 1912 (NSW).

8. At the outset of the hearing of the appeal, Senior Counsel for the appellant (Mr Game SC) advised the Court that the parties would be asking the Court to deal first with ground 2 (i.e., that in respect of which the Crown conceded error) and to quash the appellant’s conviction in respect of the contravention of s 25(2) of the Drug Misuse and Trafficking Act. He invited the Court to substitute a verdict of guilty on the statutory alternative charge (which he accepted was open on the jury’s verdict) of supplying a prohibited drug in an amount not less than the indictable quantity under s 25(1) of the Drug Misuse and Trafficking Act. Mr Game indicated that, in that event, the appellant would not press grounds 1 and 3 of his appeal and would ask the Court to re-sentence him rather than remitting the matter to the District Court for sentencing on the s 25(1) conviction.

9. The Crown agreed with that approach and indicated that it would not be pressing the proviso point in relation to the error the subject of ground 2 of the grounds of appeal. Insofar as leave was required to raise ground 2 (because it had not been the subject of a complaint at trial as to the trial judge’s directions to the jury), the Crown did not raise any objection to such leave being granted.

10. For the appellant, an affidavit sworn 6 July 2016 by his solicitor was read, without objection, going to the re-sentencing issue. Mr Game also helpfully provided the Court with notes on re-sentence.

Determination

11. The Court, having had the opportunity prior to the hearing of the appeal to read and consider the submissions of both parties in relation, inter alia, to ground 2, was satisfied that there was error established in that the trial judge failed to direct the jury that they needed to be satisfied beyond a reasonable doubt that the appellant knew that he was in possession of a commercial quantity of the drug in question. Ground 2 was therefore made good (and was quite properly so conceded to be by the Crown). For completeness, the Court proceeded on the basis that leave to raise ground 2 as a ground of appeal was not opposed.

12. As to the re-sentencing, Mr Game indicated to the Court that the Court could proceed on the basis that there was no contest as to the matters referred to by the sentencing judge in his remarks on sentence (though submitting that on re-sentencing the Court would not treat the planned and organised nature of the criminal activity as an aggravating feature).

13. For the appellant, it was submitted that the Court should proceed to re-sentence him on the basis that the quantity of the drug involved was substantial but not exceeding 250g (the threshold for the s 25(1) offence). The Crown’s position was that the Court should accept that the quantity was close to but not exceeding 250g. The Crown submitted that this was at the upper end of the indictable offence pursuant to s 25(1).

14. The Court adjourned following the hearing of the submissions for both the appellant and the Crown and then proceeded on 6 July 2016 to re-sentence the appellant as follows, indicating that reasons would be provided in due course:

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the conviction of the appellant for the offence of supplying a prohibited drug (heroin) in an amount not less than the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).

4. Pursuant to the power under s 7(2) of the Criminal Appeal Act 1912 (NSW), convict the appellant of one count of supplying an indictable quantity of a prohibited drug (heroin) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW).

5. Sentence the appellant to a non-parole period of 3 years and 5 months commencing 15 March 2013 and expiring 14 August 2016 and a balance of term of 1 year and 1 month expiring 14 September 2017.

6. Note that grounds 1 and 3 of the appellant’s grounds of appeal are not pressed.

Reasons

15. At the hearing of the appeal Mr Game asked the Court to note that the appellant was content for the Court to provide brief remarks only on sentence. The following are the Court’s reasons (in brief compass) for making the above orders.

16. The maximum penalty for the s 25(1) offence is 15 years. There is no applicable standard non-parole period. Having regard to the evidence at the trial as to the quantity of heroin in the chip bag, the appellant should be re-sentenced on the basis submitted by the Crown, namely that he supplied close to but not exceeding 250g of heroin. That is, on any view, a substantial quantity. The street value of that amount of heroin at the relevant time may be assumed (by extrapolating from the value of the larger quantity of drugs as found by the trial judge) to have been somewhere in the range between $64,000 and $105,000.

17. There was no issue taken by the appellant with the finding by the trial judge as to the probability that he proposed to take the drugs to Melbourne and deal with them in some manner; nor as to the conclusion (based on the purity of the drug) that it was the intention of the appellant or his associates further to cut the heroin prior to its on-supply; nor as to the appellant’s role being more than that of a mere courier and being part of a planned and organised criminal activity. There was no evidence of money changing hands or that this was other than an isolated incident, but the trial judge concluded (and again the appellant does not cavil with this conclusion) that since the appellant was not a drug user he was involved to further the supply enterprise.

18. As to the appellant’s subjective circumstances, the evidence before the trial judge was that the appellant did not have any significant criminal history and was largely a person of good character. The trial judge considered that there was not sufficient material to make a reliable forecast as to the likelihood of re-offending or prospects of rehabilitation. However, before this Court, there is evidence (in the form of his solicitor’s affidavit) that while in custody the appellant has participated productively in work and has completed a course in construction work, from which it may be concluded that there are favourable prospects of rehabilitation. The evidence also supports the conclusion that the appellant has the support of his family, who regularly travel some distance to visit him in prison. He is now 45 years of age and, when released from custody, will reside with his partner and two younger children in Melbourne. His solicitor has deposed that the appellant intends to complete further studies and, in due course, seek employment as an electrician.

19. The finding of special circumstances in the appellant’s case is warranted, for the reasons given by the trial judge. Further, it should be noted that, by proposing and submitting to this manner of resolution of his appeal, the appellant is facilitating the course of justice.

20. Balancing the above matters, the Court concluded that the sentence to be imposed on the appellant for the s 25(1) offence should be as stated above.

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Decision last updated: 11 July 2016