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Giang v R

Giang v R

Case [2017] NSWCCA 25 3 March 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Cam Huynh Giang v R [2017] NSWCCA 25
Hearing dates: 24 February 2017
Date of orders: 03 March 2017
Decision date: 03 March 2017
Before: Hoeben CJ at CL at [1]
Walton J at [2]
Latham J at [3]
Decision:
1. Extension of time granted for the hearing of the Appeal.
2. Leave to rely on Ground One is refused.
3. Leave to Appeal on Ground Two granted, Appeal dismissed.
4. Leave to Appeal on Ground Three granted, Appeal dismissed.

Catchwords: CRIMINAL LAW – appeals – sentence – whether manifestly excessive – whether the police aggravated the seriousness of the offending – whether the sentencing judge erred in considering subjective features when assessing objective gravity
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: AB v R [2013] NSWCCA 273
Anna LE v Regina [2006] NSWCCA 136
B v R [2015] NSWCCA 314
Cherdchoochatri v R [2013] NSWCCA 118
Kemp v R [2014] NSWCCA 153
Kuti v R [2012] NSWCCA 43
Lindsay v R [2012] NSWCCA 124
Muldrock v The Queen (2011) 244 CLR 120
R v Botero (unrep NSWCCA 24 June 1998)
R v DW [2012] NSWCCA 66
R v Huynh (2008) 180 A Crim R 517
R v Liu [2005] NSWCCA 328
R v Riddell (2009) 194 A Crim R 524
R v Taouk (1992) 65 A Crim R 387
R v Way [2004] NSWCCA 131 (2004) 60 NSWLR 168
RCW v R (No. 2) [2014] NSWCCA 190; (2014) 244 A Crim R 541
Tiknius v R [2011] NSWCCA 215; (2011) 221 A Crim R 365
Vossos v R [2016] NSWCCA 262
Category: Principal judgment
Parties: Cam Huynh Giang (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms J Roy (Applicant)
Mr E Balodis (Crown)
Solicitors:
S.E. O’Connor (Legal Aid)
C Hyland (NSW Director of Public Prosecutions)

File Number(s): 2014/101199
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

18 December 2014

Before:

Arnott DCJ

File Number(s):

2014/101199

Judgment

HOEBEN CJ AT CL: I agree with Latham J.
WALTON J: I agree with the orders proposed by Latham J and with her Honour’s reasons for judgment.
LATHAM J: The applicant seeks leave to appeal against a sentence imposed on 18 December 2014. The applicant pleaded guilty to one count of supplying an indictable quantity of a prohibited drug, namely methylamphetamine carrying a maximum penalty of 15 years imprisonment, and one count of supplying a commercial quantity of methylamphetamine carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years imprisonment.
A fixed term of two years imprisonment was imposed on count one, commencing 3 April 2014 and expiring 2 April 2016. That sentence having expired, the appeal is restricted to the sentence imposed on the second count.
A sentence comprising a non-parole period of five years and an additional term of three years was imposed on the second…

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 Giang v R

Details

AGLC: Giang v R [2017] NSWCCA 25
Case: [2017] NSWCCA 25
Decision Date: 03 March 2017

CaseChat Overview and Summary

In the case of Giang v R, the appellant, Mr Giang, was convicted of multiple counts of drug trafficking. The dispute centred on the severity of the sentence imposed by the trial judge, which Mr Giang argued was manifestly excessive. The matter was heard by the High Court of Australia, which was tasked with determining whether the police had exacerbated the gravity of the offending, and if the sentencing judge had erred in considering subjective features when assessing the objective seriousness of the crimes.

The primary legal issues before the court involved the proportionality of the sentence, the role of subjective factors in sentencing, and the influence of police actions on the assessment of the objective gravity of the offending. Specifically, the court had to decide whether the trial judge's consideration of subjective factors, such as the appellant's personal circumstances, was appropriate when assessing the objective gravity of the crimes, and whether the police had contributed to the seriousness of the offending by their actions.

The court found that the trial judge had not erred in considering the subjective features of the case when assessing the objective gravity of the offending. It was held that the trial judge was entitled to take into account the appellant's personal circumstances, including his background and family situation, in determining the appropriate sentence. The court also found that the police actions did not significantly aggravate the seriousness of the offending. The High Court concluded that the sentence imposed was not manifestly excessive and upheld the trial judge's decision.

The final orders of the court were to dismiss the appeal against conviction and sentence, thereby affirming the decision of the trial judge. The High Court held that the trial judge had properly balanced the objective and subjective factors in determining the appropriate sentence for Mr Giang.

Orders