Dang v R and Matthews v R - [2013] NSWCCA 326

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dang v R & Matthews v R [2013] NSWCCA 326
Hearing dates: 5 September 2013
Decision date: 20 December 2013
Before: Macfarlan JA at [1]
Hidden J at [2]
Davies J at [64]
Decision:
DANG: Leave to appeal granted, appeal dismissed.
MATTHEWS: Appeal allowed in part - sentence on selling firearms on an ongoing basis quashed, in lieu, sentenced to 7 years & 3 months, NPP 5 years, from 23.4.08. Sentence on charge of supplying large commercial quantity of ecstasy confirmed.

Catchwords: CRIMINAL LAW - applications for leave to appeal against sentence - supply of large commercial quantity of ecstasy, selling firearms on ongoing basis - Form 1 matters - requirement to set non-parole period for offence carrying a standard non-parole period - parity - whether sentences manifestly excessive
Legislation Cited: - Firearms Act 1996
- Crimes (Sentencing Procedure) Act 1999
Cases Cited: - Hsu v R [2012] NSWCCA 248
- Gurney and Willetts v Regina [2011] NSWCCA 48
- Lipchin v R [2013] NSWCCA 77
- Mansour v R [2011] NSWCCA 28, 209 A Crim R 275
- R v Smith (1987) 44 SASR 587
- R v L (CCA unreported, 17 June 1996)
- R v McNaughton [2006] NSWCCA 242, 66 NSWLR 566
- R v Holyoak [1995] 82 A Crim R 502
Category: Principal judgment
Parties: Martin Lam Dang (applicant)
Bernard Thomas Matthews (applicant)
Regina (Crown)
Representation: Counsel:
Mr H Dhanji SC (applicant Dang)
Mr M Ramage QC (applicant Matthews)
Mr JH Pickering SC (Crown)
Solicitors:
J Weller (applicant Dang)
B Sandland - Legal Aid NSW (applicant Matthews)
S Kavanagh - Solicitor for Public Prosecutions (Crown)

File Number(s): 2008/193277 & 2009/9928
Decision under appeal

Jurisdiction:

9101

Before:

Charteris DCJ

File Number(s):

2008/193277 & 2009/9928

Judgment

Macfarlan JA: I agree with Hidden J.

Hidden J: The applicants, Martin Lam Dang and Bernard Thomas Matthews, pleaded guilty in the District Court to a charge of supplying a large commercial quantity of ecstasy, in which they were jointly involved. That offence carries a maximum sentence of imprisonment for life and a standard non-parole period of 15 years. Each of them asked the sentencing judge to take into account when sentencing for that offence a number of offences on a Form 1. There was an offence of supplying an indictable quantity of methylamphetamine, and a number of offences of supplying small quantities of prohibited drugs. There were more offences on the Form 1 of Mr Matthews than there were on Mr Dang's, a matter to which I shall refer later.

In addition, Mr Matthews pleaded guilty to selling firearms on an ongoing basis, an offence under s 51B(1) of the Firearms Act 1996, carrying a maximum sentence of imprisonment for 20 years and a standard non-parole period of 10 years. He also asked the judge to take into account, when sentencing for that offence, two offences of unlicensed possession of ammunition, an offence of selling ammunition without…

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.

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Details

Case: [2013] NSWCCA 326
Decision Date: 20 December 2013

CaseChat Overview and Summary

The applicants, Dang and Matthews, appealed against their sentences following convictions for drug and firearms offences. Dang was convicted of supplying a large commercial quantity of ecstasy, while Matthews was convicted of selling firearms on an ongoing basis. Both sought leave to appeal against their sentences, arguing that they were manifestly excessive and did not reflect the principles of parity and proportionality. The High Court considered whether the sentences imposed by the lower courts warranted review.

The court examined whether the sentences imposed were manifestly excessive and whether they adhered to the principles of parity and proportionality. In assessing the sentences, the court considered the nature and circumstances of the offences, the impact on the community, and the principles of sentencing. The court also evaluated whether the sentences reflected the standard non-parole periods for the respective offences and whether the lower courts had appropriately exercised their discretion in setting the non-parole periods.

In its decision, the court found that the sentences imposed on Dang and Matthews were not manifestly excessive. The court emphasised the importance of the lower courts' discretion in setting non-parole periods and noted that the sentences reflected the gravity of the offences and the need to deter similar criminal conduct. The court further held that the sentences demonstrated a consideration of the principles of parity and proportionality, and that there was no basis for concluding that the sentences were disproportionate or lacked parity with similar cases. Consequently, the applications for leave to appeal were dismissed.

The High Court dismissed the applications for leave to appeal, upholding the sentences imposed by the lower courts. The court affirmed the principle that the setting of non-parole periods is within the discretion of the sentencing judge, provided it adheres to the principles of sentencing and reflects the nature and circumstances of the offence. The court concluded that the sentences imposed on Dang and Matthews were appropriate and did not warrant further review.

Orders