Bao v R

Case [2016] NSWCCA 16 19 February 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bao v R [2016] NSWCCA 16
Hearing dates: 9 February 2015
Decision date: 19 February 2016
Before: Chief Justice Bathurst at [1]
Hoeben CJ at CL at [2]
Acting Justice RS Hulme at [78]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – five counts of supplying a prohibited drug and one count of possessing a precursor with intent to manufacture – different discounts for pleas of guilty averaged over indicative sentences – error conceded by Crown – need for Court to re-sentence – no lesser sentence warranted in law.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 – s 10A
Criminal Appeal Act 1912 – s 5(1)(c)
Criminal Procedure Act 1986 – s 166
Drug Misuse and Trafficking Act 1985 – s 24A(1)(a); s 25(1)
Cases Cited: Glare v R [2015] NSWCCA 194
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
House v R [1936] HCA 40; 55 CLR 499
Kentwell v The Queen [2014] HCA37; 252 CLR 601
Knight v R [2015] NSWCCA 222
Miletic v R [2008] NSWCCA 74
Pham v R [2014] NSWCCA 115
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Chidiac [2015] NSWCCA 241
R v Morgan (1993) 70 A Crim R 368
R v SY and Anor [2003] NSWCCA 291
R v Wicks [2012] NSWCCA 208
Vandeventer v R [2013] NSWCCA 33
Wong v The Queen [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Ann Bao – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Mr G Jauncey - Applicant
Ms S Herbert – Respondent Crown
Solicitors:
Jack Rigg Solicitors – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2014/129170
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

13 March 2015

Before:

Blackmore DCJ

File Number(s):

2014/129170

Judgment

CHIEF JUSTICE BATHURST: I agree with the orders proposed by Hoeben CJ at CL and with his Honour’s reasons.
HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty to two series of offences. The first occurred on 30 April 2013. The second series of offences occurred on 29 April 2014. His Honour imposed an aggregate sentence of imprisonment of 5 years and 3 months with a non-parole period of 3 years and 8 months in respect of all of the offences. In total there were five offences of supplying a prohibited drug and one offence of possessing a precursor with intent to manufacture. There were also a number of matters on two separate Form 1 documents attached to each of the series of offences.

The supply offences were contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty in respect of each of the supply offences was imprisonment for 15 years and/or a fine of $220,000. The possess precursor offence was contrary to s 24A(1)(a) of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bao v R

Details

AGLC: Bao v R [2016] NSWCCA 16
Case: [2016] NSWCCA 16
Decision Date: 19 February 2016

CaseChat Overview and Summary

In the matter of Bao v R, the appellant, a person convicted of five counts of supplying a prohibited drug and one count of possessing a precursor with intent to manufacture, sought to appeal the sentence imposed by the lower court. The case was heard by the Court of Appeal, which was required to consider whether the sentence was appropriate and whether any errors in the sentencing process warranted a re-sentencing. The legal issues before the court involved the application of sentencing principles, the appropriate discount to be applied for the appellant's plea of guilty, and the overall fairness and proportionality of the sentence imposed.

The court examined the appellant's argument that the Crown had erred in calculating the discount for the pleas of guilty. The Crown conceded that the discount applied was incorrect and that the court should have averaged the discounts over the indicative sentences rather than applying an average discount. The court acknowledged the error but noted that the appellant had not demonstrated that the error led to a manifestly unjust outcome. The court found that the original sentence was still within the appropriate range, taking into account the seriousness of the offences and the appellant's guilty pleas.

The Court of Appeal concluded that, despite the error in calculating the discount for the pleas of guilty, the sentence imposed was still appropriate and there was no basis for the court to impose a lesser sentence. The court held that the appellant had not demonstrated that the error led to a manifestly unjust outcome, and that the sentence was proportionate to the seriousness of the offences and the appellant's guilty pleas. Accordingly, the appeal against sentence was dismissed.

No further orders were made by the Court of Appeal.

Orders