Chen v R - [2009] NSWCCA 157

New South Wales
Court of Criminal Appeal

CITATION: Chen v R [2009] NSWCCA 157

HEARING DATE(S): 29 May 2009

JUDGMENT DATE:
10 June 2009

JUDGMENT OF: Giles JA at 1; Buddin J at 2; Harrison J at 28

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - sentencing - on-going supply of methylamphetamine and supply methylamphetamine - possession of a prohibited weapon without a permit - significance of factual error in Agreed Statement of Facts - whether remarks on sentence disclosed error - whether sentence manifestly excessive

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: Adams v R (2008) 244 ALR 270
Ibbs v The Queen (1987) 163 CLR 447
R v Kamminga [2003] NSWCCA 337
R v Smiroldo [2000] NSWCCA 120
Veen v The Queen (No2) (1988) 164 CLR 465

PARTIES: Chen Chien Chen (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/9182

COUNSEL: G Walsh (Applicant)
J Dwyer (Crown)

SOLICITORS: Greg Walsh & Co (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0565

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

LOWER COURT DATE OF DECISION: 29/08/2008

2008/9182

GILES JA
BUDDIN J
HARRISON J
WEDNESDAY 10 JUNE 2009

CHEN CHIEN CHEN v R

Judgment

1 GILES JA: I agree with Buddin J.

2 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court. The applicant originally pleaded guilty to three offences in the Local Court and adhered to those pleas when he appeared for sentence.

3 Count 1 alleged that the applicant on 3 or more separate occasions during a period of 30 consecutive days did supply methylamphetamine (commonly known as ice). That offence, which constituted a contravention of s 25A(1) of the Drug Misuse and Trafficking Act 1985, attracts a maximum penalty of 20 years imprisonment. Two further offences on a Form 1 document of supplying methylamphetamine were taken into account when the applicant was sentenced in respect of count 1. Count 2 alleged that the applicant supplied methylamphetamine by operation of the deeming provisions of the same legislation. That offence attracts a maximum penalty of 15 years imprisonment. Count 3 alleged that the applicant possessed a prohibited weapon (namely a Taser gun) without a permit. That offence attracts a maximum penalty of 14 years imprisonment and a standard non-parole period of 3 years is applicable to it. In respect of Count 1, and taking into account the Form 1 matters, the applicant was sentenced to a non-parole period of 4 years with a total term of imprisonment of 6 years 3 months. Fixed terms of 2 years imprisonment were imposed upon the applicant in respect of each of counts 2 and 3. Those sentences were ordered to be served concurrently with each other and with the sentence imposed in respect of count 1.

4 The matter proceeded by way of an Agreed Statement of Facts. It revealed that on 3 May 2007 investigators attached to…

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 Chen v R

Details

AGLC: Chen v The Queen [2009] NSWCCA 157
Case: [2009] NSWCCA 157
Decision Date: 10 June 2009

CaseChat Overview and Summary

The appellant, Chen, was convicted of being part of a conspiracy to supply methylamphetamine and of possessing a prohibited weapon without a permit. The appeal was against his sentence. The appellant was sentenced to a term of imprisonment with a non-parole period. The appeal was heard in the High Court of Australia. The central issue in the appeal was whether the sentence was manifestly excessive. The appellant argued that the remarks made by the sentencing judge in relation to the sentence revealed that there was a factual error in the Agreed Statement of Facts. This error had the effect of increasing the seriousness of the appellant’s offending, which meant that the sentence was manifestly excessive.

The High Court considered whether the remarks made by the sentencing judge were sufficient to disclose the factual error. The Court held that the remarks did not clearly indicate that there had been a factual error. The Court also considered whether the sentence was manifestly excessive. The Court held that the sentence was not manifestly excessive. The Court found that the remarks made by the sentencing judge did not have the effect of increasing the seriousness of the appellant’s offending. The Court also found that the sentence was not manifestly excessive because it was within the range of sentences that could be imposed for the offences committed.

Orders