He v R - [2016] NSWCCA 220

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: He v R [2016] NSWCCA 220
Hearing dates: 7 October 2016
Decision date: 07 October 2016
Before: Meagher JA at [1];
Harrison J at [2];
R A Hulme J at [3]
Decision:
1. Leave to appeal granted and appeal allowed.
2. Sentences imposed in the District Court on 14 September 2015 quashed.
3. The applicant be re-sentenced as follows:
Possess prohibited drug: sentenced to imprisonment for a fixed term of 12 months dating from 15 July 2014 and expiring on 14 July 2015.
Import tier 1 good without approval: sentence to imprisonment for 2 years 6 months dating from 15 January 2015 and direct that the applicant be released on recognizance upon giving security in the sum of $100 without surety on the condition that he be of good behaviour after having served 1 year 6 months.

Catchwords: CRIMINAL LAW – appeal against sentence – drug (ephedrine) importation and possession – judge erred by giving weight to the likely deportation of the applicant so as to deny him a period of parole or equivalent – error in failure to give effect to a finding of special circumstances – applicant resentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 44
Criminal Appeal Act 1912 (NSW) s 6(3)
Criminal Procedure Act 1986 (NSW) s 166
Customs Act 1901 (Cth) s 233 BAA(4)
Drugs Misuse and Trafficking Act 1985 (NSW) s 10
Cases Cited: Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
The Queen v Shrestha (1991) 173 CLR 48; [1991] HCA 26
Category: Principal judgment
Parties: Peidong He (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms J Paingakulam (Applicant)
Mr T Anderson (Crown)
Solicitors:
Legal Aid NSW
Commonwealth Director of Public Prosecutions

File Number(s): 2014/209210
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

14 September 2015

Before:

Maiden SC DCJ

File Number(s):

2014/209210

Judgment

MEAGHER JA: I agree with R A Hulme J and the orders as he proposes.
HARRISON J: I also agree with R A Hulme J.
R A HULME J: Peidong He ("the applicant") applies for leave to appeal in respect of sentences imposed by his Honour Judge Maiden SC in the District Court at Sydney on 14 September 2015 as set out below:

Offence

Statutory provision

Maximum penalty

Sentence

Importation of a tier 1 good (ephedrine) without approval at Padstow on 15 July 2014

S 233BAA(4) of the Customs Act 1901 (Cth)

5 years imprisonment and/or a fine of 1000 penalty units

3 years imprisonment from 15 July 2014 with release on recognizance after serving 2…

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 He v R

Details

AGLC: He v The Queen [2016] NSWCCA 220
Case: [2016] NSWCCA 220
Decision Date: 07 October 2016

CaseChat Overview and Summary

The appeal against sentence heard by the High Court of Australia involved a person, referred to as the applicant, who had been convicted for importing and possessing the drug ephedrine. The primary issue before the court was whether the trial judge had erred in sentencing the applicant by improperly taking into account the prospect of deportation following the completion of the sentence, and whether this consideration influenced the decision to deny the applicant a period of parole or its equivalent. Additionally, the court examined if there was a failure to properly apply the concept of special circumstances, which could have resulted in a more lenient sentence for the applicant.

In examining these issues, the court found that the trial judge had indeed erred by giving undue weight to the likely deportation of the applicant in the sentencing process. The court emphasised that the prospect of deportation should not influence the decision on parole or the length of the sentence. Moreover, the court concluded that the judge's failure to give effect to a finding of special circumstances, which could have mitigated the sentence, was also an error. The court determined that these errors necessitated a reconsideration of the applicant's sentence to ensure it was just and appropriate.

Consequently, the High Court ordered that the applicant be resentenced by the trial court, taking into account the errors identified. The court directed that the resentence must appropriately reflect the legal principles and findings of special circumstances, without the improper influence of deportation considerations. This ensures that the sentencing process adheres to the legal standards required and that the applicant's rights are fully considered.

Orders