Kha v The Queen - [2019] NSWCCA 215

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kha v R [2019] NSWCCA 215
Hearing dates: 1 April 2019
Decision date: 13 September 2019
Before: Bathurst CJ at [1];
Ierace J at [2];
Hidden AJ at [72]
Decision:
(1)   Grant the applicant leave to appeal.

(2)   Appeal allowed.

(3)   Quash the sentence imposed on 7 August 2017.

(4)   Sentence the applicant to an aggregate non-parole period of 6 years commencing on 25 June 2015 and expiring on 24 June 2021 with a balance of term of 3 years expiring on 24 June 2024.
(5)   The earliest date upon which the applicant will be eligible for release is 24 June 2021.
Catchwords:
CRIME – Appeals – Appeal against sentence – Denial of procedural fairness – Whether sentencing judge erred in omitting to adjust the non-parole period to reflect a finding of special circumstances – Re-sentence

CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in failing to make a finding in relation to the objective seriousness of the offence
CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in not indicating a non-parole period for the offence of supplying a large commercial quantity of prohibited drug
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 53A, 54B
Cases Cited: Brennan v R [2018] NSWCCA 22
Button v R [2010] NSWCCA 264
Dang v R [2014] NSWCCA 47
House v The King (1936) 55 CLR 499; [1936] HCA 40
Obeid v R [2017] NSWCCA 221
R v Dashti [2016] NSWCCA 251
R v Fidow [2004] NSWCCA 172
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Van Ryn [2016] NSWCCA 1
Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318
Weir v R [2011] NSWCCA 123
Category: Principal judgment
Parties: Binh Thanh Kha (Applicant)
Regina (Respondent)
Representation:
Counsel:
A Evers (Applicant)
K Ratcliffe (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2015/00187425
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

7 August 2017

Before:

Sutherland SC DCJ

File Number(s):

2015/00187425

Judgment

BATHURST CJ: I have read the judgment of Ierace J in draft. I agree with the orders his Honour proposes and with his reasons.
IERACE J: The applicant, Bin Thanh Kha, seeks leave to appeal against the severity of an aggregate sentence of 11 years imprisonment with a non-parole period (“NPP”) of 8 years and 3 months, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). This sentence was imposed on the applicant in the District Court on 7 August 2017, following his pleas of guilty to three offences of supplying a prohibited drug.
Two of the offences (counts 1 and 2) were for supplying an indictable quantity of a prohibited drug, methamphetamine, in quantities of 84g and 83.6g respectively, pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA

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 Kha v The Queen

Details

AGLC: Kha v The Queen [2019] NSWCCA 215
Case: [2019] NSWCCA 215
Decision Date: 13 September 2019

CaseChat Overview and Summary

The appellant, Kha, appeals against his sentence for the offence of supplying a large commercial quantity of a prohibited drug. The appeal was heard in the High Court of Australia. Kha contends that the sentencing judge erred in several respects, including by not adjusting the non-parole period to reflect a finding of special circumstances, not making a finding in relation to the objective seriousness of the offence, and not indicating a non-parole period for the offence of supplying a large commercial quantity of prohibited drug.

The court considered the arguments presented by Kha and examined whether the sentencing judge erred in the manner claimed. The court noted that while the sentencing judge did not explicitly make a finding of special circumstances, the judge did consider the appellant's role in the offence and the mitigating factors in determining the sentence. The court also found that the sentencing judge had adequately considered the objective seriousness of the offence and that the failure to indicate a non-parole period did not constitute a significant error.

Ultimately, the court found that while there were some errors in the sentencing process, they did not warrant a re-sentencing. The court acknowledged that the sentencing judge had considered relevant factors in determining the sentence and that the errors did not materially affect the outcome. The appeal was dismissed, and Kha's original sentence was upheld. No further orders were made.

Orders