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

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).
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…

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 Queen

Details

AGLC: Vu v The Queen [2016] NSWCCA 136
Case: [2016] NSWCCA 136
Decision Date: 11 July 2016

CaseChat Overview and Summary

The appellant, Vu, was convicted of supplying a commercial quantity of heroin and appealed the decision. The Crown conceded that the trial judge did not adequately direct the jury on an essential element of the offence, specifically the requirement for knowledge of the quantity of drugs in possession. This concession led to the appeal being allowed and the conviction being quashed. The court substituted a conviction on a statutory alternative charge, as the remaining grounds of appeal were not pursued. Vu was ultimately sentenced on a count of supplying an indictable quantity of a prohibited drug, acknowledging that the amount was near but did not exceed the commercial quantity.

The primary legal issue the court had to address was whether the trial judge's failure to properly instruct the jury on the essential element of knowledge regarding the quantity of drugs constituted a significant error. Given the Crown's concession that such an error occurred, the court needed to determine the appropriate remedy, including whether the conviction could be quashed and if a substituted conviction was permissible under the circumstances. The court also considered the appellant's sentence under the statutory alternative charge, ensuring that it was proportionate and aligned with the principles of justice.

Orders