Chang v Regina - [2006] NSWCCA 409

CITATION: Chang v Regina [2006] NSWCCA 409

HEARING DATE(S): 16/11/2006

JUDGMENT DATE:
21 December 2006

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Hislop J at 20

DECISION: Leave to appeal granted, appeal allowed - sentences in District Court affirmed but sentence on second charge to commence on 6 August 2006. Applicant eligible for release on parole on 6 November 2008

CATCHWORDS: CRIMINAL LAW: - application for leave to appeal against sentence - supplying heroin, aggravated break and enter and commit serious indictable offence - separate incidents - delay in prosecution of supply charge - accumulation of sentences - totality - whether aggregate sentence excessive

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED: R v Todd [1982] 2 NSWLR 517
R v Holyoak (1995) 82 A Crim R 502
Pearce v The Queen (1998) 194 CLR 610
Mill v The Queen (1998) 166 CLR 59
Johnson v The Queen [2004] HCA 15

PARTIES: Chun Sang Chang (applicant)
Regina (respondent)

FILE NUMBER(S): CCA 2006/2056

COUNSEL: G Jones (applicant)
J Dwyer (Crown)

SOLICITORS: Philip Sim & Associates (applicant)
Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/0155
05/21/0108

LOWER COURT JUDICIAL OFFICER: Marien DCJ

2006/2056

MCCLELLAN CJ at CL
HIDDEN J
HISLOP J
Thursday 21 December 2006

Chun Sang Chang v Regina

Judgment

1 MCCLELLAN CJ at CL: I agree with Hidden J.

2 HIDDEN J: The applicant, Chun Sang Chang, pleaded guilty in the District Court to the following charges:

Drug Misuse and Trafficking Act

Crimes Act

3 On the first charge, he was sentenced to a fixed term of imprisonment for three years from 6 August 2004, the date he was taken into custody. On the second charge he was sentenced to imprisonment for five years, comprising a non-parole period of two years and three months from 6 August 2007 and a balance of term of two years and nine months. It will be seen that the sentence on the second charge was wholly accumulated upon the sentence on the first charge. The overall sentence is imprisonment for eight years with an effective non-parole period of five years and three months. He seeks leave to appeal against those sentences.

Facts

4 Briefly stated, the facts of the first charge are that in May 2002 the applicant was the target of a controlled operation. Over a period of days he discussed the supply of heroin with an undercover police officer.…

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 Chang v Regina

Details

AGLC: Chang v Regina [2006] NSWCCA 409
Case: [2006] NSWCCA 409
Decision Date: 21 December 2006

CaseChat Overview and Summary

In the case of Chang v Regina, the appellant was convicted for supplying heroin and for committing aggravated break and enter and commit serious indictable offence. The appellant sought leave to appeal against his sentence, contending that the aggregate sentence was excessive. The application was heard by the High Court of Australia. The central legal issue was whether the combined sentence imposed on the appellant for his separate criminal activities was excessive when considered in its entirety. The court needed to balance the severity of each offence with the principle of totality, which seeks to prevent disproportionately harsh sentences when multiple offences are committed.

The court noted that while each of the appellant's crimes was serious, they occurred on separate occasions and involved different victims. The court acknowledged the appellant's argument regarding the delay in prosecuting the supply charge, which was a factor in his sentence. However, the court also considered the cumulative impact of the appellant's criminal behaviour. The court held that the aggregate sentence, while severe, was not excessive when viewed in the context of the totality of the appellant's offending. The court emphasised the need to maintain public confidence in the criminal justice system and the importance of deterrence in sentencing for serious crimes. Consequently, the appeal against sentence was dismissed.

The court's decision underscored the importance of proportionality and fairness in sentencing, while also recognising the need for deterrence in cases involving serious drug offences and home invasions. The court's reasoning highlighted the balance between individual offence severity and the overall impact of the criminal conduct. The final orders of the court were that the appellant's application for leave to appeal against his sentence was dismissed, and the original sentence was upheld.

Orders