AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 11 July 2016

Vu v R

[2016] NSWCCA 136

Drugs
CRIMINAL LAW CONVICTION APPEAL APPEAL ALLOWED AND CONVICTION QUASHED REMAINING GROUNDS OF APPEAL NOT PRESSED

Citation: Vu v R [2016] NSWCCA 136
Court: Court of Criminal Appeal, NSW
Date: 11 July 2016
Judges: Bathurst CJ; Ward JA; Payne JA

Background

The appellant was convicted by jury in the District Court of supplying 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 to seven years imprisonment with a non-parole period of four years and nine months.

The Crown case was that police intercepted phone communications between the appellant and a third party, and observed the appellant receive a bag of tortilla chips containing the heroin at a convenience store in Newtown. The appellant had travelled from Melbourne to Sydney to acquire the drugs. The heroin had a street value of between $90,000 and $150,000 and was found to be 47% pure, suggesting it was intended to be cut further before on-supply.

The appellant pleaded not guilty at trial and appealed his conviction on three grounds, including that the trial judge failed to direct the jury on an essential element of the offence and that a physical demonstration allowed during trial caused a miscarriage of justice.

  • Whether the trial judge erred by failing to direct the jury that they needed to be satisfied beyond reasonable doubt that the appellant knew he was in possession of a commercial quantity of heroin (an essential element of the s 25(2) offence).
  • Whether a physical demonstration involving a bag weighted to 352g was improperly admitted and caused a miscarriage of justice.
  • Whether the jury directions on circumstantial reasoning reversed or obscured the onus and standard of proof.

Decision

The Court found that ground 2, concerning the jury direction on knowledge of quantity, was made out. The Crown conceded the error: under Fung v R [2007] NSWCCA 250, knowledge that the drug involved was a commercial quantity is an essential element of the s 25(2) offence, and the trial judge failed to direct the jury accordingly. The Crown initially suggested the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) might apply but did not press that argument at the hearing.

Both parties agreed at the hearing that the appropriate course was to quash the s 25(2) conviction and substitute a verdict under the statutory alternative, s 25(1), for supplying an indictable quantity. The appellant did not press grounds 1 and 3 on that basis and invited the Court to re-sentence him rather than remit the matter to the District Court.

On re-sentencing, the Court accepted the Crown's submission that the appellant should be sentenced on the basis that the quantity supplied was close to, but not exceeding, 250g (the threshold for a s 25(1) offence). The Court noted the planned and organised nature of the offending, the appellant's role beyond that of a mere courier, and his intention to take the drugs to Melbourne for further distribution. Against that, the Court gave weight to the appellant's lack of significant criminal history, his productive conduct in custody, family support, and improved rehabilitation prospects evidenced by his solicitor's affidavit. Special circumstances were found, warranting a shorter non-parole period relative to the total sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Conviction for supplying a prohibited drug in an amount not less than the commercial quantity (s 25(2)) quashed.
  • Conviction substituted for supplying an indictable quantity of a prohibited drug (s 25(1)).
  • Appellant re-sentenced to a non-parole period of 3 years and 5 months commencing 15 March 2013 and expiring 14 August 2016, with a balance of term of 1 year and 1 month expiring 14 September 2017.
  • Grounds 1 and 3 of the appeal noted as not pressed.

Key Takeaways

  • Under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), knowledge that the quantity of drug involved reaches the commercial threshold is an essential element of the offence, and a trial judge must direct the jury accordingly.
  • Where that direction is omitted, a conviction for the higher-level offence cannot stand, even where the underlying facts may otherwise support it.
  • The Court of Criminal Appeal exercised its power under s 7(2) of the Criminal Appeal Act 1912 (NSW) to substitute a conviction on a statutory alternative charge rather than ordering a retrial, where both parties agreed that course was appropriate and the jury's verdict supported it.
  • Re-sentencing on the substituted offence involved the Court recalibrating the quantity of drug, the applicable maximum penalty (15 years for s 25(1), with no standard non-parole period), and updated evidence of rehabilitation not available at the original sentencing.
  • An appellant's cooperation in agreeing to a manner of resolution that avoids a retrial can be treated as a factor that facilitates the course of justice, relevant to sentencing.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Criminal Appeal Act 1912 (NSW), ss 6(1), 7(2)

Cases:
- Fung v R [2007] NSWCCA 250; (2007) 174 A Crim R 169