Le v R

Case [2017] NSWCCA 26 6 March 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Le v R [2017] NSWCCA 26
Hearing dates: 24 February 2017
Date of orders: 06 March 2017
Decision date: 06 March 2017
Before: Hoeben CJ at CL at [1]
Walton J at [63]
Latham J at [64]
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – sentence appeal - trafficking a commercial quantity of a controlled drug – trafficking a marketable quantity included on a s 16BA schedule – whether sentencing judge erred in the manner in which the schedule offence was taken into account – infelicitous language but no error – whether parity principle observed – comparison of objective seriousness of offending – no error – appeal dismissed.
Legislation Cited: Crimes Act 1914 (Cth) – s 16BA
Criminal Code – ss 302.2(1), 302.3(1), s 314.1(2), (4) and (5)
Drugs Misuse and Trafficking Act 1985 (NSW) – s 25(2)
Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hoskins v R [2015] NSWCCA 245
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Lamella [2014] NSWCCA 122
R v Lulham [2016] NSWCCA 287
Category: Principal judgment
Parties: Hoang Phuong Vu Le – Applicant
Regina – Respondent Commonwealth Crown
Representation:
Counsel:
B Walker SC/S Buchen – Applicant
L Crowlly – Respondent Commonwealth Crown
Solicitors:
Zahr Partners – Applicant
Commonwealth Director of Public Prosecutions – Respondent Crown

File Number(s): 2012/2343732012/269685
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

13 July 2015

Before:

Zahra SC DCJ

File Number(s):

2012/234373
2012/269685

Judgment

HOEBEN CJ at CL:

Offences and sentence

On 13 July 2015, the applicant was sentenced in the District Court at Sydney, by Zahra SC DCJ, to a term of imprisonment of 10½ years with a non-parole period of 6 years and 9 months, in respect of an offence of trafficking a commercial quantity of a controlled drug, contrary to s 302.2(1) of the Criminal Code (Cth). The maximum penalty for the offence is life imprisonment.

When imposing the sentence, Zahra SC DCJ took into account a further offence of trafficking a marketable quantity of a controlled drug, contrary to s 302.3(1) of the Criminal Code, on a schedule pursuant to the procedure provided by s 16BA of the Crimes Act 1914 (Cth). The maximum penalty for the s 302.3(1) offence is 25 years imprisonment.
By Notice of Application for Leave to Appeal, dated 30 September 2016, the applicant seeks leave to appeal his sentence. The applicant relies upon the following grounds:

Ground 1 – The learned sentencing judge erred in the manner in which the admitted offence on the Schedule pursuant to s 16BA of…

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 Le v R

Details

AGLC: Le v R [2017] NSWCCA 26
Case: [2017] NSWCCA 26
Decision Date: 06 March 2017

CaseChat Overview and Summary

In the case of Le v R, the appellant, Le, was convicted and sentenced for trafficking a commercial quantity of a controlled drug, specifically methamphetamine. The sentence was appealed on the basis of alleged errors in the sentencing process by the trial judge. The appeal was heard in the High Court of Australia.

The primary legal issues the court needed to address were whether the sentencing judge had erred in the way the offence was considered, particularly in relation to the schedule offence of trafficking a marketable quantity of a controlled drug, and whether the parity principle was correctly observed. The court also had to determine if the comparison of the objective seriousness of the offending was appropriately executed.

The High Court found that while the language used by the sentencing judge was not ideal, it did not constitute an error that warranted interference with the sentence. The court determined that the trial judge had correctly applied the principles required for sentencing in such cases. The appeal was dismissed, and the original sentence was upheld. The court held that the sentence was appropriate given the circumstances and the comparison of the objective seriousness of the offences was correctly made.

Orders