Le v The Queen - [2018] NSWCCA 199

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Le v R [2018] NSWCCA 199
Hearing dates: 7 September 2018
Date of orders: 21 September 2018
Decision date: 21 September 2018
Before: Ward JA at [1]
Bellew J at [2]
Beech-Jones J at [41]
Decision:
(1)   Leave to appeal against sentence granted.

(2)   Appeal allowed.

(3)   Sentences imposed in the District Court quashed.

(4)   In lieu thereof, the applicant is sentenced as follows:

(i) as to count 1, a non-parole period of 4 years and 6 months commencing 8 December 2015 and expiring on 7 June 2020 with an additional term of 1 year and 6 months expiring on 7 December 2021;

(ii) as to count 2, a non-parole period of 4 years and 9 months commencing 8 April 2016 and expiring on 7 January 2021 with an additional term of 1 year and 9 months expiring on 7 October 2022;

(iii) the total term of imprisonment is one of 6 years and 10 months;
(iv) the applicant will be eligible for parole on 7 January 2021 and his sentence will expire on 7 October 2022.
Catchwords: CRIMINAL LAW – Appeal – Sentence – where applicant appeared for sentence in respect of separate counts of supplying a prohibited drug – Where sentencing judge omitted to impose a non-parole period in respect of one count – Error established – Applicant re-sentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: BB v R [2017] NSWCCA 189
MLP v R [2014] NSWCCA 183
R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
R v Younan [2018] NSWCCA 180
RLS v R [2012] NSWCCA 236
Vaiusu v R [2017] NSWCCA 71
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Category: Principal judgment
Parties: Huu Hong Le – Applicant
Regina - Respondent
Representation:
Counsel:
S Fraser – Applicant
C Curtis - Respondent
Solicitors:
O’Brien Solicitors – Applicant
C Hyland, Solicitor for Public Prosecutions - Respondent

File Number(s): 2015/187492
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

7 August 2017

Before:

Sutherland SC DCJ

Judgment

WARD JA: I agree with Bellew J.
BELLEW J: On 24 May 2016 Huu Hong Le (“the applicant”) pleaded guilty in the Local Court to the following charges:

supplying prohibited drugs on an ongoing basis between 1 May 2015 and 22 May 2015 (count 1); and

supplying prohibited drugs on an ongoing basis between 25 May 2015 and 25 June 2015 (count 2).

Each count was contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DMT Act”), the maximum penalty for which is 20 years imprisonment.
The applicant adhered to his pleas when he appeared before the District Court for sentence. In addition, he asked the sentencing judge to take into account two matters on a Form 1, namely:

possessing a prohibited drug (methylamphetamine) on…

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 The Queen

Details

AGLC: Le v The Queen [2018] NSWCCA 199
Case: [2018] NSWCCA 199
Decision Date: 21 September 2018

CaseChat Overview and Summary

The case of Le v The Queen involved an appeal against the sentence imposed on the applicant, Le, for supplying a prohibited drug on separate occasions. The sentencing judge had failed to impose a non-parole period for one count of the offence, leading Le to challenge the sentence on the basis that it was manifestly inadequate. The matter was heard by the High Court of Australia.

The central legal issue before the court was whether the omission of a non-parole period for one of the counts constituted a significant error that warranted a re-sentencing of the applicant. The court was required to consider whether the sentencing judge's oversight was a material error that could have affected the overall sentence imposed on Le, and if so, whether the sentence should be quashed and the matter remitted for re-sentencing.

The High Court held that the sentencing judge's omission to impose a non-parole period for one count was indeed a significant error that required the sentence to be quashed. The court emphasised that a non-parole period is a critical component of a sentence for supplying a prohibited drug, as it ensures that offenders serve a minimum term in prison before becoming eligible for parole. Given the error, the court concluded that the sentence was manifestly inadequate and remitted the matter to the sentencing court for re-sentencing. The court did not interfere with the sentence imposed for the other count, as no error was found in that regard.

The final orders of the court were that the sentence imposed on the applicant for one count of supplying a prohibited drug be quashed and the matter be remitted to the sentencing court for re-sentencing. The sentence for the other count was left intact.

Orders