Vu v R [2016] NSWCCA 136

Vu v R [2016] NSWCCA 136

The appeal succeeded because the trial judge failed to direct the jury that it had 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. With the Crown conceding the error and not pressing the proviso, the commercial quantity conviction was quashed. Because a verdict of guilty on the statutory alternative of supplying an indictable quantity was open, the Court convicted the appellant under s 25(1) and re-sentenced him on the basis that the quantity supplied was close to but not exceeding 250g of heroin, taking into account the objective seriousness, his role, lack of significant...

Jurisdiction
Australia
Judgment Date
11 July 2016
Procedural Posture
Criminal Conviction Appeal / Application for Leave to Appeal and Appeal Against Conviction; Substituted Conviction and Re Sentence
Outcome
Leave to appeal granted, appeal allowed, commercial quantity supply conviction quashed, substituted conviction for supplying an indictable quantity of heroin entered, and appellant re-sentenced.
Legal Topics
['supply Prohibited Drug' 'heroin' 'commercial Quantity' 'indictable Quantity' 'jury Directions' 'knowledge of Quantity' 'conviction Appeal' 'substituted Conviction' 're Sentencing']
['criminal Law'] ['supply Prohibited Drug' 'heroin' 'commercial Quantity' 'indictable Quantity' 'jury Directions' 'knowledge of Quantity' 'conviction Appeal' 'substituted Conviction' 're Sentencing']

Case Brief

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Procedural Posture

Criminal Conviction Appeal / Application for Leave to Appeal and Appeal Against Conviction; Substituted Conviction and Re Sentence

Legal Issues

  1. 1 ['Whether the trial judge failed to direct the jury that it had to be satisfied beyond reasonable doubt that the appellant knew he was in possession of a commercial quantity of heroin.' 'Whether the conviction for supplying a commercial quantity should be quashed and a conviction entered for the statutory alternative offence of supplying an indictable quantity of heroin.' 'What sentence should be imposed for the substituted offence under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW).']

Ratio Decidendi

The appeal succeeded because the trial judge failed to direct the jury that it had 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. With the Crown conceding the error and not pressing the proviso, the commercial quantity conviction was quashed. Because a verdict of guilty on the statutory alternative of supplying an indictable quantity was open, the Court convicted the appellant under s 25(1) and re-sentenced him on the basis that the quantity supplied was close to but not exceeding 250g of heroin, taking into account the objective seriousness, his role, lack of significant...

Court Disposition

Leave to appeal granted, appeal allowed, commercial quantity supply conviction quashed, substituted conviction for supplying an indictable quantity of heroin entered, and appellant re-sentenced.

Orders

  • ['Grant leave to appeal.' 'Allow the appeal.' '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).' 'Pursuant to the power under s 7(2) of the Criminal...