AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
24
Court of Criminal Appeal 22 June 2006

VU v. REGINA

[2006] NSWCCA 188

Drugs
STANDARD NON PAROLE PERIODS WHERE PLEA OF GUILTY APPROACH TO BE TAKEN RELEVANT MATTERS IN ASSESSMENT MITIGATING FACTORS WHETHER TAKEN INTO ACCOUNT

Citation: VU v. REGINA [2006] NSWCCA 188
Court: Court of Criminal Appeal, New South Wales
Date: 22 June 2006
Judge(s): James J, Buddin J, Hall J

Background

The appellant was convicted in the District Court on two counts of serious drug offences under the Drug Misuse and Trafficking Act 1985. The first count involved an offer to supply heroin in excess of the large commercial quantity (approximately 1,575 grams), which carried a maximum penalty of life imprisonment. The second count involved an actual supply of heroin at the commercial quantity level, carrying a maximum of 20 years imprisonment. A further supply offence was taken into account on a Form 1.

The District Court sentenced the appellant to a total effective term of 14 years imprisonment with a non-parole period of 11 years. The sentencing judge assessed both offences as falling in the middle range of objective seriousness and applied the maximum 25% discount for guilty pleas in accordance with the guideline in R v Thomson and Houlton.

The appellant sought leave to appeal to the Court of Criminal Appeal, arguing errors in the sentencing approach, including the treatment of his gambling and drug addiction, the equivalence drawn between an offer to supply and an actual supply, the use of other offences in assessing objective seriousness, the treatment of mitigating factors, and the failure to find special circumstances warranting a longer parole period.

  • Whether the sentencing judge correctly assessed both offences as falling in the middle range of objective seriousness for the purposes of the standard non-parole period provisions
  • Whether gambling and drug addiction were relevant mitigating factors and, if so, whether they were properly assessed
  • Whether an offer to supply heroin is objectively as serious as an actual supply of heroin at the same quantity
  • Whether it was an error to take other offences into account when assessing the objective seriousness of the offences on the indictment
  • Whether mitigating factors were adequately taken into account
  • Whether a finding of special circumstances was warranted, so as to increase the proportion of the sentence spent on parole

Decision

The Court of Criminal Appeal upheld the appeal, but only on the limited basis that the sentencing judge erred in failing to find special circumstances. The Court confirmed that the sentences were not manifestly excessive and that the finding of middle-range objective seriousness was open on the facts.

On the question of special circumstances, the Court found that such a finding was warranted in this case. A finding of special circumstances allows a court to depart from the standard ratio between the non-parole period and the total sentence, typically to extend the period of supervised release on parole. The absence of such a finding in the original sentence was identified as an error.

The Court restructured the sentences to give effect to the special circumstances finding. The non-parole period on Count 1 was reduced from nine years to seven years, with the balance of term extended accordingly. The total non-parole period was reduced by two years, with the earliest parole eligibility date brought forward from 24 July 2014 to 24 July 2012.

The Court otherwise declined to disturb the original sentencing approach. The assessment of objective seriousness, the treatment of the guilty plea discount, and the overall weight given to the relevant sentencing factors were all found to be within the range available to the sentencing judge.

Orders Made

  • Leave to appeal granted
  • Appeal upheld in relation to the total non-parole period
  • Original District Court sentences set aside and the appellant re-sentenced as follows:
  • Count 2: fixed term of six years and nine months, commencing 25 July 2003 and expiring 24 April 2010
  • Count 1 (including Form 1 offence): non-parole period of seven years commencing 25 July 2005 and expiring 24 July 2012, with a balance of term of five years commencing 25 July 2012 and expiring 24 July 2017, on a partial cumulation basis
  • Earliest date of eligibility for release on parole: 24 July 2012

Key Takeaways

  • The Court of Criminal Appeal confirmed that a finding of middle-range objective seriousness for large commercial drug supply offences is a matter open to a sentencing judge on appropriate facts, and will not readily be disturbed on appeal.
  • Where special circumstances exist, the court has the power to restructure the balance between the non-parole period and the balance of term, resulting in a longer period of supervised release on parole. The failure to make such a finding where warranted constitutes a sentencing error.
  • A guilty plea attracting the maximum 25% discount under R v Thomson and Houlton operates as a significant mitigating factor but does not, of itself, require a finding below the middle range of objective seriousness.
  • The standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 functions as a guide or reference point rather than a mandatory minimum, calibrated to offences in the middle of the range of objective seriousness.
  • In dismissing the broader grounds of appeal, the Court confirmed that the sentences imposed, assessed against the gravity of organised commercial heroin trafficking involving multiple transactions and large quantities, were not manifestly excessive.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(2)(a), 33(3)(a), Schedule 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A
- Criminal Appeal Act 1912 (NSW)

Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Way (2004) 60 NSWLR 168
- Markarian v The Queen (2005) 215 ALR 213
- Wong v The Queen (2001) 207 CLR 584
- R v Henry (1999) 46 NSWLR 346
- R v Pellew (2004) 150 A Crim R 575
- R v Davies [2004] NSWCCA 319
- R v Porteous [2005] NSWCCA 115
- R v Sangalang [2005] NSWCCA 171
- R v Misiepo [2005] NSWCCA 405
- Douglas v The Queen (1995) 56 FCR 465
- R v Spiero (1979) 22 SASR 543
- R v Qutami (2001) 127 A Crim R 369
- R v Nassif [2005] NSWCCA 38
- R v Selim [1998] NSWSC 165
- R v Smith [2002] NSWCCA 378
- R v Ambatsidis [2002] NSWCCA 125
- R v Higgins (CCA, unreported, 15 December 1993)