Vu v R [2016] NSWCCA 136

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Vu v R [2016] NSWCCA 136 Hearing dates: 6 July 2016 Date of orders: 06 July 2016 Decision date: 11 July 2016 Before: Bathurst CJ; Ward JA; Payne JA Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the conviction of the appellant of the offence of supplying a prohibited drug (heroin) in an amount not less than the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). (4) Pursuant to the power under s 7(2) of the Criminal Appeal Act 1912 (NSW), convict the appellant of one count of supplying an indictable quantity of a prohibited drug (heroin) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). (5) Sentence the appellant to a non-parole period of 3 years and 5 months commencing 15 March 2013 and expiring 14 August 2016 and a balance of term of 1 year and 1 month expiring 14 September 2017. (6) Note that grounds 1 and 3 of the appellant's grounds of appeal are not pressed. Catchwords: CRIMINAL LAW – conviction appeal – supply prohibited drug (heroin) in an amount not less than the commercial quantity – Crown conceded that trial judge failed to direct jury in relation to an essential element of the offence, namely knowledge of the quantity of drugs in the appellant's possession – appeal allowed and conviction quashed – substituted conviction on statutory alternative charge – remaining grounds of appeal not pressed – appellant sentenced on count of supplying an indictable quantity of a prohibited drug on the basis that the amount was close to but not exceeding the commercial quantity Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 6(1), 7(2) Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2) Cases Cited: Fung v R [2007] NSWCCA 250; (2007) 174 A Crim R 169 Category: Principal judgment Parties: Hung Vu (Appellant) Crown (Respondent) Representation: Counsel: T Game SC and Ms L-C Hutchinson (Appellant) Ms N Noman SC (Respondent)