Hung v The Queen - [2019] NSWCCA 303

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hung v R [2019] NSWCCA 303
Hearing dates: 30 October 2019
Date of orders: 18 December 2019
Decision date: 18 December 2019
Before: Gleeson JA at [1]
Harrison J at [2]
Cavanagh J at [3]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords: CRIME — appeals — leave to appeal against sentence — four counts of supplying not less than the commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) — two offenders — whether sentencing judge erred in failing to take account of applicant's mental illness — parity — whether justifiable sense of grievance when comparing sentence imposed on co-offender — appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Cases Cited: Bell v R [2019] NSWCCA 271
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Fenech v R [2018] NSWCCA 160
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Postiglione v R (1997) 189 CLR 295; [1997] HCA 26
R v Engert (1995) 84 A Crim R 67
R v Hemsley [2004] NSWCCA 228
R v Van Ryn [2016] NSWCCA 1
R v Wright (1997) 93 A Crim R 48
Category: Principal judgment
Parties: Hing Sum Hung (Applicant)
Crown (Respondent)
Representation:
Counsel:
L Fernandez (Applicant)
D Patch (Crown)
Solicitors:
Gregory Goold Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2016/274105
Publication restriction: None
Decision under appeal

Court or tribunal:

Parramatta District Court

Jurisdiction:

Criminal

Date of Decision:

13 November 2018

Before:

Bennett SC DCJ

File Number(s):

2016/274105

Judgment

GLEESON JA: I agree with Cavanagh J.
HARRISON J: I agree with Cavanagh J.
CAVANAGH J: By a notice of application for leave to appeal filed 2 August 2019 the applicant, Hing Sum Hung, seeks leave to appeal from a sentence imposed by the District Court of New South Wales at Parramatta on 13 November 2018 with respect to four counts of supplying a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).
The applicant was sentenced jointly with Michael Tong, a co-offender in respect of the same offences. All four counts are in respect of s 25(2) of the Drug Misuse and Trafficking Act.
The applicant pleaded guilty to each offence. The maximum penalty in each case is imprisonment for life with a standard non-parole period of 15 years. The applicant received a 25 per cent discount on account of the utilitarian value of his plea of guilty. The applicant was sentenced to an aggregate sentence of 13 years with a non-parole period of 7 years. The sentence commenced on 12 September 2016 and the applicant is eligible for release on parole on 11 September 2023. The total sentence will expire on 11 September 2029. The…

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 Hung v The Queen

Details

AGLC: Hung v The Queen [2019] NSWCCA 303
Case: [2019] NSWCCA 303
Decision Date: 18 December 2019

CaseChat Overview and Summary

In the matter of Hung v The Queen, the applicant sought leave to appeal against the sentence imposed by the Supreme Court of New South Wales. Hung was convicted of four counts of supplying a commercial quantity of a prohibited drug, as defined by section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The case involved a joint criminal enterprise with a co-offender, who received a lesser sentence. The primary legal issues for the court were whether the sentencing judge erred in failing to consider Hung's mental illness, and if there was a justifiable sense of grievance when comparing the sentence imposed on the co-offender.

The court considered the evidence of Hung's mental illness and determined that the sentencing judge had adequately assessed the mitigating factor, though it did not amount to an excusing factor. Regarding the comparison to the co-offender's sentence, the court found that the disparity was not sufficient to warrant a justifiable sense of grievance, given the differing roles and culpability of each offender. The court held that the sentencing judge had appropriately exercised their discretion, taking into account all relevant mitigating and aggravating factors.

As a result, the application for leave to appeal was dismissed. The court concluded that the sentence imposed was appropriate in the circumstances and that there was no basis for interference on appeal. Therefore, Hung's appeal was unsuccessful, and the original sentence stands.

Orders