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Court of Criminal Appeal 22 October 1999

Regina v Vi Cuong Tu

[1999] NSWCCA 357

Drugs
POSSESS HEROIN SENTENCE EXCESSIVE

Citation: Regina v Vi Cuong Tu [1999] NSWCCA 357
Court: NSW Court of Criminal Appeal
Date: 22 October 1999
Judge(s): Meagher JA; James J; Kirby J

Background

The appellant was found in a sparsely furnished unit alongside approximately 880 grams of heroin with a purity level of 68 to 70 percent, yielding around 670 grams of pure heroin. The flat contained little more than a bed, a table, and a chair. On those facts, the sentencing judge found that the appellant was acting as a "minder" for the drugs rather than as a higher-level participant in the drug trade.

The appellant was convicted in the District Court before Rummery J, who imposed a non-parole period of six years (with the sentence backdated to 21 March 1997). The appellant sought leave to appeal, contending that the sentence was excessive and that insufficient weight had been given to his personal circumstances.

  • Whether the starting point for the head sentence was too high given the objective and subjective features of the offence
  • Whether the sentencing judge gave adequate consideration to the appellant's personal circumstances
  • Whether the reduction applied under section 16G of the Crimes Act 1914 (Cth) was sufficient

Decision

The sentencing judge had adopted a starting point of 13 to 14 years, reduced it to 12 years to account for subjective features, and then reduced it further to nine years under section 16G of the Crimes Act 1914 (Cth). That provision required a reduction to account for the fact that the offence was prosecuted federally. The resulting non-parole period was six years.

The Court of Criminal Appeal accepted the appellant's argument, with some hesitation, that both the starting point and the section 16G reduction were out of step with comparable cases. The Crown had itself supplied comparable cases to the Court, and those cases suggested a post-reduction head sentence in the range of five to seven years was more appropriate for an offender in the appellant's position.

The Court noted a number of significant subjective features that weighed in the appellant's favour: he was a Chinese-Vietnamese refugee with most of his family remaining in Vietnam, he was not an English speaker, his health had been poor, his de facto relationship had broken down, and he had become a heroin user. Against those factors, the Court acknowledged that he had offered no assistance to police and had expressed no contrition. His prior conviction, while relevant, related to deemed rather than actual possession.

Meagher JA (with James J and Kirby J agreeing) concluded that a head sentence of six years was appropriate, with a non-parole period of four years applying the conventional one-third rule.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence allowed
  • Sentences imposed below quashed
  • Term of imprisonment fixed at six years, commencing 21 March 1997 and expiring 20 March 2003
  • Non-parole period fixed at four years, commencing 21 March 1997 and expiring 20 March 2001

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a sentencing judge fails to give due weight to an offender's personal circumstances, the resulting sentence may be excessive and warrant intervention on appeal.
  • A finding that an offender was a "minder" rather than a principal or organiser in a drug possession matter is a significant objective factor that bears on the appropriate starting point for sentencing.
  • Under section 16G of the Crimes Act 1914 (Cth), sentences for federal offences require a reduction to reflect the absence of remissions available in the state system; the quantum of that reduction can itself be a ground of appeal if inadequately applied.
  • Subjective features such as refugee status, language barriers, poor health, family separation, and personal drug dependency were recognised by the Court as relevant mitigating considerations, even where an offender offers no cooperation with police and shows no contrition.
  • Comparable sentences drawn from other decided cases formed part of the appellate analysis, with the Crown's own case references helping to anchor the appropriate sentencing range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16G

Cases
- No specific cases were cited by name in the provided judgment text.