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 54Category: Principal judgment Parties: Huu Hong Le – Applicant
Regina - RespondentRepresentation: Counsel:
Solicitors:
S Fraser – Applicant
C Curtis - Respondent
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.
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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…
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- AGLC
- Le v The Queen [2018] NSWCCA 199
- Case
- [2018] NSWCCA 199
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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