Counts 2-5 : On each, fixed term of 15 months to date from 19 December 2010 expiring 18 March 2012
Count 1 : Non-parole period 2 years 3 months to date from 19 April 2011, expiring 18 July 2013, with a balance of term of 18 months expiring 18 January 2015
Counts 9 and 10 : On each, fixed term of 18 months to date from 19 December 2011 expiring 18 June 2013
Count 8 : Non-parole period of 2 years 9 months to date from 19 June 2012 expiring 18 March 2015 with a balance of term of 2 years expiring 18 March 2017.
The applicant is eligible for release to parole on 19 March 2015
Catchwords:
CRIMINAL LAW - application for leave to appeal sentence - guilty plea - two counts of manufacture prohibited drug, five counts of possess precursor, one count of possess drug manufacture apparatus - offence primarily motivated by addiction not financial gain - whether individual and aggregate sentences manifestly excessive - whether degree of accumulation constitutes double punishment - whether moral culpability is diminished by fact of addiction - whether sentence adequately reflects finding of special circumstances - appeal allowed - sentence quashed - re-sentenced
[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.
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AGLC
Dang v R [2013] NSWCCA 246
Case
[2013] NSWCCA 246
Decision Date
CaseChat Overview and Summary
The respondent, Dang, was convicted and sentenced for manufacturing prohibited drugs and possessing precursor substances and drug manufacture apparatus. He applied for leave to appeal his sentence, contending that it was manifestly excessive. The legal issues included whether the individual and aggregate sentences were manifestly excessive, whether the accumulation of sentences constituted double punishment, whether his moral culpability was diminished by his addiction, and whether the sentence adequately reflected the special circumstances of his case. The court examined these issues in the context of the sentencing principles outlined in the Crimes (Sentencing Procedure) Act 1999 (NSW). The court found that the sentences imposed were indeed manifestly excessive, particularly in light of the mitigating factor of Dang's addiction. The accumulation of sentences did not constitute double punishment, but the court found that the degree of accumulation was disproportionate. The court also found that while Dang's addiction did not absolve him of moral culpability, it did diminish it to some extent. Finally, the court found that the sentence did not adequately reflect the special circumstances of the case, and thus the sentence was quashed and Dang was re-sentenced. The appeal was allowed, and the sentence was quashed and re-sentenced by the court.