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Huang v R

Huang v R

Case [2017] NSWCCA 312 14 December 2017

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Huang v R [2017] NSWCCA 312
Hearing dates: 28 August 2017
Date of orders: 14 December 2017
Decision date: 14 December 2017
Before: Hoeben CJ at CL at [1]
Davies J at [2]
Bellew J at [86]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence imposed by Judge Lakatos SC in the District Court on 25 August 2016.
(4) In lieu thereof, sentence the appellant to a term of imprisonment of 7 years and 6 months commencing 20 May 2014 and expiring 19 November 2021 with a non-parole period of 5 years and 3 months expiring 19 August 2019.

Catchwords: CRIMINAL LAW – sentencing – one count of supplying large commercial quantity of ephedrine – aggravating factors – whether financial reward and planning could be taken into account as aggravating factors – whether those matters inherent in the offence – whether the planning or financial gain was significant – whether sentence manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Director of Public Prosecutions v Dalgliesh [2017] HCA 41; (2017) 349 ALR 37
Elyard v R [2006] NSWCCA 43
Fahs v Regina [2007] NSWCCA 26
Farkas v R [2014] NSWCCA 141; 243 A Crim R 388
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Prculovski v R [2010] NSWCCA 274
R v Mills [2005] NSWCCA 175; 154 A Crim R 40
R v Pham (2015) 256 CLR 550; [2015] HCA 39
R v Walker [2005] NSWCCA 109
R v Yildiz [2006] NSWCCA 97; 160 A Crim R 218
Vaiusu v R [2017] NSWCCA 71
Wat v R [2017] NSWCCA 62
Category: Principal judgment
Parties: Enhua Huang (Applicant)
Crown (Respondent)
Representation:
Counsel:
H Cox (Applicant)
H Baker (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/152321
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

25 August 2016

Before:

Lakatos DCJ

File Number(s):

2014/152321

Judgment

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
DAVIES J: On 13 May 2015 the applicant pleaded guilty in the Local Court to the offence of supplying not less than a large commercial quantity of a prohibited drug, namely, 14.935 kilograms of ephedrine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is imprisonment for life and/or a fine of 5,000 penalty units. There is a standard non-parole period of 15 years.
On 25 August 2016 he was sentenced by Judge Lakatos SC in the District Court to a period of imprisonment of ten years comprising a non-parole period of seven years commencing 20 May 2014 and expiring 19 May 2021 with a balance of term of three years expiring 19 May…

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 Huang v R

Details

AGLC: Huang v The Queen [2017] NSWCCA 312
Case: [2017] NSWCCA 312
Decision Date: 14 December 2017

CaseChat Overview and Summary

The case before the court involved the sentencing of Huang for one count of supplying a large commercial quantity of ephedrine. The primary issues that the court had to address were whether the financial reward and the extent of planning involved in the offence could be considered as aggravating factors, and if so, whether these factors were inherent to the offence. Furthermore, the court needed to determine whether the planning or the financial gain was significant enough to warrant consideration, and if the sentence imposed was manifestly excessive.

The court examined the legal principles surrounding the sentencing of criminal offences, particularly focusing on the role of aggravating factors. It was established that not all factors associated with an offence could be classified as aggravating factors, and those that were inherent to the offence itself could not be considered again in this capacity. The court had to discern whether the financial reward and planning aspects of Huang's actions were significant enough to be considered aggravating factors, or if they were merely inherent to the offence of supplying a large commercial quantity of ephedrine. The court also considered whether the sentence imposed was manifestly excessive, taking into account all relevant factors.

In delivering the judgment, the court found that while the financial reward and the planning involved in the offence did constitute aggravating factors, they were also inherently part of the offence. Consequently, these factors could not be taken into account again as separate aggravating factors. The court determined that the planning and financial gain were not significant enough to warrant consideration beyond their inherent nature. The sentence imposed by the trial judge was deemed not to be manifestly excessive, as it appropriately reflected the seriousness of the offence and the relevant aggravating factors that were properly considered.

The court confirmed the sentence imposed by the trial judge and rejected Huang's appeal. The court found no error in the trial judge's approach to sentencing, and the appeal was dismissed without any further orders.

Orders