VU v. REGINA [2006] NSWCCA 188

New South Wales Court of Criminal Appeal

CITATION: VU v. REGINA [2006] NSWCCA 188

HEARING DATE(S): Friday 17 February 2006

JUDGMENT DATE: 22 June 2006

JUDGMENT OF: James J at 1; Buddin J at 2; Hall J at 3

DECISION: (1) Leave to appeal should be granted. (2) The appeal should be upheld in relation to the total non-parole period. (3) I am of the opinion that a finding of special circumstances should be made. I am, accordingly, of the view that the sentences imposed by the District Court should be set aside and the applicant should be re-sentenced as follows: (a) as to Count 2, the applicant is sentenced to a fixed term of imprisonment of six years and nine months to commence from 25 July 2003 and to expire on 24 April 2010. The fixed term is intended to be the equivalent of the non-parole period determined by the sentencing judge; (b) as to Count 1, (including the Form 1 offence) the applicant is sentenced to a non-parole period of seven years to commence on 25 July 2005 and to expire on 24 July 2012 and a balance of term of five years commencing on 25 July 2012 and expiring on 24 July 2017. There should be a partial cumulation of the sentence to reflect the total criminality. (4) The earliest date on which the applicant will be eligible for release on parole is 24 July 2012.

CATCHWORDS: Standard non-parole periods where plea of guilty - approach to be taken - offences assessed by sentencing judge in the middle range of objective seriousness - relevant matters in assessment - whether gambling and drug addiction relevant and, if so, assessed - whether offer to supply heroin to be treated in the assessment as objectively serious as an actual supply of heroin - in assessment of objective seriousness whether error in taking into account other offences - mitigating factors - whether taken into account - error in relation to special circumstances - such a finding warranted - appeal upheld in relation to the total non-parole period - non-parole period reduced by a period of two years.