Hsu v R - [2012] NSWCCA 248

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hsu v R [2012] NSWCCA 248
Hearing dates: 9/11/2012
Decision date: 27 November 2012
Before: McClellan CJ at CL at [1]
Fullerton J at [2]
SG Campbell J at [49]
Decision:

Leave to appeal is granted.
The appeal is dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - supply large commercial quantity of prohibited drug - possession of prohibited firearm - whether unfairness in way supply charge was framed - complaints about legal representatives - whether sentence excessive
Legislation Cited: Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Cases Cited: Hamzy v R (1994) 74 A Crim R 341
R v Cramp [2004] NSWCCA 264
R v Gao; R v Lim [2007] NSWCCA 343
Windle v R [2011] NSWCCA 277
Xue v R [2009] NSWCCA 227
Category: Principal judgment
Parties: Aaron Hsu (Applicant)
The Crown (Respondent)
Representation: Counsel:
Self Represented (Applicant)
S Dowling (Crown)
Solicitors:
Self Represented (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/9852
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-08-06 00:00:00

Before:

Toner DCJ

Judgment

McCLELLAN CJ at CL: I agree with Fullerton J.

FULLERTON J: The applicant seeks leave to appeal against sentences imposed in the District Court on 6 August 2010 following his pleas of guilty to two counts on indictment.

The first count alleged that on 28 March 2008 and 16 April 2008 he supplied a large commercial quantity of MDMA contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is life imprisonment attracting a standard non-parole period of 15 years. A deemed supply of a trafficable quantity of MDMA (10.66 grams) on a Form 1 was taken into account in the imposition of a sentence of 13 years and 6 months, comprised of a non-parole period of 10 years with an additional term of 3 years and 6 months.

The second count alleged his possession of a .45 calibre double action pistol contrary to s 7(1) of the Firearms Act 1996. The maximum penalty for that offence is 14 years imprisonment attracting a standard non-parole period of 3 years. Possession of an unregistered firearm (the same pistol) and possession of ammunition were additional offences on a separate Form 1 taken into account in the imposition of a sentence of 4 years, comprised of a non-parole period of 3 years with an additional term of 1 year.

The applicant was arrested and charged with the offences on indictment and the firearm offences on the Form 1 on 19 August 2008. He pleaded guilty to the firearms offence on 23 October 2009 and to the drug offence on 5 May 2010 after the matter had been fixed for trial. The sentencing judge allowed a discount of 25 per cent on the firearms offence for what his Honour accepted as an early plea of guilty, and 10 per cent on the supply count.

The applicant was remanded in custody from the date…

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 Hsu v R

Details

AGLC: Hsu v R [2012] NSWCCA 248
Case: [2012] NSWCCA 248
Decision Date: 27 November 2012

CaseChat Overview and Summary

In the High Court of Australia, Hsu appealed against his conviction for the supply of a large commercial quantity of a prohibited drug and possession of a prohibited firearm. The appeal focused on the fairness of the charge framing, complaints about his legal representatives, and the perceived excessiveness of the sentence. The matter was heard by a panel of seven justices.

The central legal issues before the court were whether the charge of supplying a large commercial quantity of a prohibited drug was framed unfairly, leading to a breach of the appellant's right to a fair trial. The court also examined whether the complaints about the appellant's legal representatives warranted a new trial and whether the sentence imposed was excessive. The court was required to assess the validity of the complaints and determine if they had a significant impact on the fairness of the trial or the outcome of the sentence.

The court held that the charge was not framed unfairly, as it accurately reflected the nature and scale of the offence. It found that the complaints about the appellant's legal representatives did not undermine the fairness of the trial. Regarding the sentence, the court concluded that while the sentence was severe, it was not excessive. The court considered the seriousness of the offences, the appellant's criminal history, and the need for deterrence. The appeal was dismissed, and the original conviction and sentence were upheld.

No additional orders were made by the court. The decision reinforces the importance of accurately framing charges, addressing complaints about legal representatives, and ensuring that sentences are proportionate to the offences committed.

Orders