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Court of Criminal Appeal 3 August 2005

VU v R

[2005] NSWCCA 266

Drugs
SENTENCE. NO QUESTION OF PRINCIPLE.

Citation: VU v R [2005] NSWCCA 266
Court: NSW Court of Criminal Appeal
Date: 3 August 2005
Judge(s): Brownie AJA, Buddin J, Latham J

Background

The appellant was convicted in the District Court of supplying a prohibited drug on an ongoing basis under s 25A of the Drug Misuse and Trafficking Act 1985. The charge arose from four separate cocaine sales made from the balcony of a Cabramatta unit in the early hours of 6 September 2001, each involving an undercover police officer who exchanged $50 for a small foil of cocaine via a string-and-cigarette-packet method.

Police entered the unit shortly after the transactions. They found the appellant near the balcony doorway, recovered marked banknotes used by the undercover officers among $2,350 found in the unit, and located seven further cocaine foils on the ground below the balcony. The appellant, who had no prior criminal history, was sentenced by Maguire DCJ to six years imprisonment with a non-parole period of four years and six months.

The appellant appealed on three grounds: two relating to the adequacy of the trial judge's directions to the jury, and one challenging the sentence as manifestly excessive.

  • Whether the trial judge was required under s 165 of the Evidence Act 1995 to warn the jury about the potential unreliability of the undercover officers' descriptions of the person on the balcony
  • Whether the trial judge adequately directed the jury on the significance of certain circumstantial evidence
  • Whether the six-year sentence with a four-and-a-half-year non-parole period was manifestly excessive for an offence of ongoing drug supply

Decision

On the first ground, the Court considered whether the descriptions given by the four undercover officers attracted a warning obligation under s 165 of the Evidence Act 1995. The appellant accepted that the evidence was not formal "identification evidence" within the meaning of the Act, but argued s 165 still required a reliability warning. The Court rejected this ground, finding no error in the trial judge's handling of this evidence.

The second ground, concerning the adequacy of the jury directions on circumstantial evidence, was also rejected. The Court was satisfied the summing-up, taken as a whole, did not miscarry in any manner that would warrant setting aside the conviction. The conviction appeal was dismissed.

On sentence, the Court found the six-year term was manifestly excessive and significantly discordant with sentences imposed on other offenders for comparable offences under s 25A. The Court noted relevant mitigating factors, including the appellant's lack of criminal history, his migration from Vietnam, his interrupted education, and his young family. Against those factors, the Court weighed the well-organised and systematic nature of the supply operation and the absence of any contrition.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • Sentence imposed by the District Court quashed
  • In lieu, the appellant sentenced to four years imprisonment commencing 14 October 2003 and ending 13 October 2007, with a non-parole period of two years and six months commencing 14 October 2003 and ending 13 April 2006

Key Takeaways

  • Under s 165 of the Evidence Act 1995, a reliability warning to the jury is not automatically required for descriptive evidence given by undercover officers, at least where that evidence does not constitute formal "identification evidence" as defined in the Act.
  • A conviction for ongoing drug supply under s 25A of the Drug Misuse and Trafficking Act 1985 turns on the concepts of repetition, system, and organisation, with objective criminality assessed by reference to those features rather than merely the number or quantity of individual supply instances.
  • In reducing the sentence, the Court of Criminal Appeal confirmed that sentencing for s 25A offences must remain proportionate to, and broadly consistent with, sentences imposed for comparable offences; a significant departure from that range can constitute manifest excess.
  • Mitigating factors such as the absence of a criminal record, personal hardship, and family responsibilities remain relevant to sentencing for serious drug offences, even where the offending was organised and there is no expression of contrition.
  • No question of principle was identified by the Court; the case turned entirely on its particular facts, and the decision's precedential weight is therefore limited.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Evidence Act 1995 (NSW), ss 116, 165
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- Festa v The Queen (2001) 208 CLR 600
- R v Lowe (1997) 98 A Crim R 300
- R v Rose (2002) 55 NSWLR 701
- R v Ladocki [2004] NSWCCA 336
- R v Hoon and Pouoa [2002] NSWCCA 137