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Chiang v R

Chiang v R

Case [2016] NSWCCA 45 1 April 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chiang v R [2016] NSWCCA 45
Hearing dates: 18 March 2016
Date of orders: 01 April 2016
Decision date: 01 April 2016
Before: Beazley P, Harrison J and R A Hulme J at [1]
Decision:
(1) Application for leave to appeal granted and the appeal allowed.
(2) Quash the sentence imposed in the District Court on 2 October 2015 and in lieu thereof sentence Mr Chiang to imprisonment for a non-parole period of 6 months with a balance of term of 3 months. The sentence is to date from 2 October 2015. The non-parole period expires on 1 April 2016 and the total term expires on 1 July 2016. The Court directs the release of Mr Chiang on parole forthwith.

Catchwords: CRIMINAL LAW – appeal against sentence – supply prohibited drug – s 25(1) Drug Misuse and Trafficking Act 1985 – whether sentencing judge entitled to be satisfied that drugs were in the possession of applicant for purposes claimed by him – whether sentence manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: AB v R [2014] NSWCCA 339
Aoun v R [2011] NSWCCA 284
Clarke v R [2015] NSWCCA 232
Colville v R [2015] NSWCCA 149; 71 MVR 259
Dinsdale v The Queen [2005] HCA 54; (2000) 202 CLR 321 at 325
Filippou v The Queen [2015] HCA 29; 89 ALJR 776
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McVittie v R [2015] NSWCCA 92
Mulato v Regina [2006] NSWCCA 282
R v Hinton (2002) 134 A Crim R 286
R v Holden [2014] NSWCCA 230
R v O’Donoghue (1968) 34 A Crim R 397
R v Taylor [2000] NSWCCA 442
R v Visconti [1982] 2 NSWLR 104
R v Zamagias [2002] NSWCCA 17
Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278
Category: Principal judgment
Parties: Michael Yui Chiang (Applicant)
Crown (Respondent)
Representation:
Counsel:
N Parsons (Applicant)
H Baker (Respondent)
Solicitors:
Ren Zhou Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/322416
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

2 October 2015

Before:

Scotting DCJ

File Number(s):

2014/322416

Judgment

THE COURT: Michael Chiang seeks leave to appeal against the sentence imposed upon him by Scotting DCJ on 2 October 2015 for the supply of ecstasy tablets, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 15 years imprisonment and/or a fine of $220,000. There is no standard non-parole period prescribed.
His Honour sentenced Mr Chiang to a term of imprisonment for 18 months to commence on 2 October 2015 and to expire on 1 April 2017 with a non-parole period of 9 months expiring on 1 July 2016. His Honour discounted the sentence by 25 percent to reflect Mr Chiang’s early guilty plea.

Background

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 Chiang v R

Details

AGLC: Chiang v R [2016] NSWCCA 45
Case: [2016] NSWCCA 45
Decision Date: 01 April 2016

CaseChat Overview and Summary

The case of Chiang v R involved the appellant, Chiang, who appealed against the sentence imposed by the Supreme Court of New South Wales. Chiang had been convicted of supplying a prohibited drug, specifically cocaine, under section 25(1) of the Drug Misuse and Trafficking Act 1985. The primary legal issue before the court was whether the sentencing judge was correct in his assessment that the drugs were in Chiang’s possession for the purposes he claimed, and whether the sentence imposed was manifestly excessive.

The court considered whether the sentencing judge had appropriately assessed the evidence regarding Chiang's possession of the drugs. The judge had to determine if Chiang was merely a conduit for the drugs or had possession for the purposes of supplying them. The court also examined whether the sentence of imprisonment, along with a fine, was appropriate given the nature and circumstances of the offence. The court acknowledged the principle that sentencing is a matter of judicial discretion, but it also noted the importance of ensuring that sentences are not manifestly excessive.

After thorough analysis, the court concluded that the sentencing judge had correctly evaluated the evidence regarding Chiang's possession and the purposes for which the drugs were held. The court found no error in the judge's decision that Chiang was not merely a conduit but had possession of the drugs for the purpose of supplying them. Regarding the sentence, the court held that while the sentence was severe, it was not manifestly excessive given the nature of the offence and the need for deterrence and denunciation. Therefore, the appeal was dismissed, and the original sentence was upheld.

Orders