Ho v R

Case [2013] NSWCCA 174 29 July 2013

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ho v R [2013] NSWCCA 174
Hearing dates: 1 July 2013
Decision date: 29 July 2013
Before: Emmett JA at [1]
Fullerton J at [6]
Schmidt J at [7]
Decision:
1. Leave to appeal out of time is granted.
2. Leave to appeal is granted.
3. The appeal is dismissed.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - application for leave to appeal out of time - whether error in determining non-parole period which offended the parity principle - special circumstances - leave to appeal out of time granted - leave to appeal granted - appeal dismissed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Administration of Sentences) Regulation 2008
Drug Misuse And Trafficking Act 1985
Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Baghdadi v R [2012] NSWCCA 212
Caristo v R [2011] NSWCCA 7
England v R [2009] NSWCCA 274
Jiang v R [2010] NSWCCA 277
Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
Lau v R [2010] NSWCCA 43
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
R v Ceissman [2004] NSWCCA 466
R v Cramp [2004] NSWCCA 264
R v Do [2005] NSWCCA 209
R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90
R v Fidow [2004] NSWCCA 172
R v Thomas [2007] NSWCCA 269
R v Wahabzadah [2001] NSWCCA 253
Sevastopoulos v R [2011] NSWCCA 201
Tatana v R [2006] NSWCCA 398
Category: Principal judgment
Parties: Hue Pham Ho (Applicant)
Regina (Respondent)
Representation: Counsel:
F D Coyne (Applicant)
J Girdham SC (Respondent)
Solicitors:
Matthew Hammond Solicitors (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/62211
Publication restriction: None
Decision under appeal

Date of Decision:

2012-07-27 00:00:00

Before:

Arnott DCJ

File Number(s):

2011/00062211

Judgment

EMMETT JA: This proceeding is an application for leave to appeal against sentence imposed on the applicant by the District Court on 27 July 2012. The applicant pleaded guilty to one count of supplying a commercial quantity of a prohibited drug and one count of knowingly allowing premises to be used as drug premises, exposing a child to prohibited drugs. The offences are created by the Drug Misuse and Trafficking Act 1985. The applicant was sentenced to a term of imprisonment of nine years, comprising a non-parole period of six years and a balance of term of three years. The only ground of appeal pressed was that the sentencing judge erred in determining the non-parole period on the basis that the sentence offended the parity principle.

The applicant pleaded guilty to the offences in the Local Court and a co-offender was dealt with on the same day, who also pleaded guilty to the offences with which he was charged. Both the applicant and the co-offender received a 25% discount for early…

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 Ho v R

Details

AGLC: Ho v R [2013] NSWCCA 174
Case: [2013] NSWCCA 174
Decision Date: 29 July 2013

CaseChat Overview and Summary

The appellant, Ho, appealed against his conviction and sentence in the Supreme Court of South Australia. The appeal was against his conviction for two counts of aggravated sexual assault and one count of deprivation of liberty, as well as the sentence imposed by the Supreme Court. The appeal was lodged out of time and required special circumstances to be established for the application for leave to appeal out of time to be granted. The appellant's application for leave to appeal was also dependent on whether there had been an error in the determination of the non-parole period which offended the parity principle.

The primary legal issues before the court were whether the appellant had established special circumstances to justify the late filing of his application for leave to appeal, and whether there had been an error in the determination of the non-parole period which offended the parity principle. The court found that the appellant had established special circumstances in that he had been unaware of the need to lodge an application for leave to appeal out of time until he had received legal advice some time after the relevant time period had expired. The court also found that there had been an error in the determination of the non-parole period which offended the parity principle.

The court granted the appellant leave to appeal out of time and leave to appeal. The court found that the error in the determination of the non-parole period was a significant one which warranted the intervention of the Court of Appeal. The appeal was ultimately dismissed, but the court ordered that the appellant's non-parole period be reduced to reflect the correct calculation. The decision provides guidance on the circumstances in which leave to appeal out of time may be granted and the factors which will be taken into account in determining whether the parity principle has been offended.

Orders