R v Diep [2000] NSWCCA 472

New South Wales Court of Criminal Appeal

CITATION : R v Diep [2000] NSWCCA 472 FILE NUMBER(S) : CCA 60715 of 1999 HEARING DATE(S) : 4 October 2000 JUDGMENT DATE : 22 November 2000

PARTIES : David Quoc Diep (applicant) Regina (respondent) JUDGMENT OF : Simpson J at 1; Hidden J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0606 LOWER COURT JUDICIAL Viney DCJ OFFICER :

COUNSEL : P Byrne SC (applicant) Robert Hulme (respondent) SOLICITORS : Legal Aid Commission (applicant) Director of Public Prosecutions (respondent) CATCHWORDS : CRIMINAL LAW - SENTENCE - supplying heroin - co-offender sentenced later by another judge - parity of sentence LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999 Lowe v The Queen (1984) 154 CLR 606 CASES CITED: Postiglione v The Queen (1996-7) 189 CLR 295 Reg v Hodges (CCA, unreported, 20 August 1997) DECISION : Appeal allowed

IN THE COURT OF CRIMINAL APPEAL 60715 of 1999

SIMPSON J HIDDEN J

Wednesday 22 November 2000

Regina v David Quoc Diep

Judgment

1 SIMPSON J: I agree with Hidden J. 2 HIDDEN J: The applicant, David Diep, pleaded guilty in the District Court before Viney DCJ to two charges of supplying heroin (s25(1) of the Drug Misuse and Trafficking Act 1985). Both charges involved amounts in excess of the indictable quantity and each carries a maximum sentence of imprisonment for fifteen years. He asked his Honour to take into account offences of possessing a prohibited weapon and possessing ammunition on a Form 1. On the first charge, Judge Viney sentenced him to imprisonment for a fixed term of two and a half years, to date from 27 May 1999, the date he went into custody. On the second charge, taking into account the Form 1 matters, his Honour sentenced him to imprisonment for five years, comprising a minimum term of three years, also to date from 27 May 1999, and an additional term of two years. 3 The applicant seeks leave to appeal against those sentences. He was also sentenced to a fixed term of imprisonment for six months on a charge of affray, to which he had earlier pleaded guilty, but leave to appeal against that sentence is not sought.