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Le v Tasmania

Le v Tasmania

Case [2017] TASCCA 21 12 October 2017

Appeal

Sentencing

Statutory Construction

Criminal Law

Statutory Interpretation

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[2017] TASCCA 21

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Le v Tasmania [2017] TASCCA 21

PARTIES:  LE, Lai
  v
  STATE OF TASMANIA

FILE NO:  1990/2017
DELIVERED ON:  12 October 2017
DELIVERED AT:  Hobart
HEARING DATE:  4 October 2017
JUDGMENT OF:  Wood, Estcourt JJ and Marshall AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Trafficking in controlled substances – No manifest excess.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  P Monk
             Respondent:  E Avery
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASCCA 21
Number of paragraphs: 38

Serial No 21/2017
File No 1990/2017

LAI LE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
ESTCOURT J
MARSHALL AJ
12 October 2017

Order of the Court

Appeal dismissed.

Serial No 21/2017
File No 1990/2017

LAI LE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WOOD J
12 October 2017

The appellant, Mr Lai Le, appeals against a sentence imposed upon him by Blow CJ on the ground that the sentence is manifestly excessive in all the circumstances. The sentence under appeal is a term of 23 months' imprisonment with a non-parole period of half of that period. Other orders made include the imposition of a pecuniary penalty of $27,300. The appellant had pleaded guilty to trafficking in a controlled substance, namely methylamphetamine involving the form crystal methylamphetamine known as Ice, and four summary charges involving contraventions of the Misuse of Drugs Act 2001 (Tas) and the Firearms Act 1996 (Tas); an offence of using a controlled drug (Ice), possessing an Ice pipe, an offence of possessing a Taser (which constitutes a firearm for which a licence may not be issued), and an offence of possessing 12 rounds of ammunition when he was not the holder of an appropriate firearm licence. The sentencing comments disclose that the sentence of 23 months' imprisonment is attributable largely to the crime of trafficking. I have had the advantage of reading the draft reasons for judgment prepared by Estcourt J and Marshall AJ. I agree with their reasons, but wish to add some comments in relation to the use made by the appellant's counsel of other sentences in "like" cases to demonstrate that the sentence in this case was manifestly excessive.
Counsel for the appellant relied heavily in her submissions on past sentences imposed in Tasmania for trafficking in methylamphetamine, committed in circumstances "broadly similar" to this case. The similarity in circumstances was identified as a relatively small scale operation arising from the offender's drug use. It was submitted that the sentence was well outside the range of past sentences imposed for crimes of that category. It was noted that the appellant's sentence of imprisonment was the highest by some three months. There was particular reference to five sentences of imprisonment of 18…

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 Tasmania

Details

AGLC: Le v Tasmania [2017] TASCCA 21
Case: [2017] TASCCA 21
Decision Date: 12 October 2017

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the respondent, Mr. Le, for trafficking in a controlled substance. The appellant, the Crown, argued that the sentence was manifestly inadequate. The matter came before the Full Court of the Supreme Court of Tasmania.

The central legal issue before the Full Court was whether the sentencing judge had erred in imposing a sentence that was so inadequate as to be outside the bounds of reasonable sentencing discretion, thereby justifying appellate intervention.

The Full Court considered the sentencing judge's reasons and the relevant sentencing principles, including the need to deter others from similar offending and the gravity of trafficking offences. The Court found that while the sentence imposed might have been at the lower end of the available range, it was not so low as to be considered manifestly inadequate or outside the proper exercise of the sentencing judge's discretion. The Court noted that the sentencing judge had taken into account relevant factors, including the respondent's plea of guilty and his personal circumstances.

Consequently, the Full Court dismissed the Crown's appeal against sentence.

Orders