Ly v R

Case [2008] NSWCCA 262 13 November 2008

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New South Wales
Court of Criminal Appeal

CITATION: Ly v R [2008] NSWCCA 262

HEARING DATE(S): 24 September 2008

JUDGMENT DATE:
13 November 2008

JUDGMENT OF: Beazley JA at 1; Hislop J at 2; Harrison J at 37

DECISION: Leave to appeal granted; appeal dismissed.

LEGISLATION CITED: Drug Misuse and Trafficking Act, 1985
Crimes (Sentencing Procedure) Act, 1999
Criminal Appeal Act, 1912

CASES CITED: GAS v The Queen (2004) 217 CLR 198
R v Blair [2005] NSWCCA 78
R v Gao & Lim [2007] NSWCCA 343
R v MacDonnell (2002) 128 A Crim R 44
R v Chan [1999] NSWCCA 103
Fahs v R [2007] NSWCCA 26
Whittaker v The King (1928) 41 CLR 230
R v Holder (1983) 3 NSWLR 245
R v Simpson (2001) 53 NSWLR 704

PARTIES: Vi Nang Ly v R

FILE NUMBER(S): CCA 2007/2986

COUNSEL: S. Buchen (Applicant)
L. Lamprati SC (Crown)

SOLICITORS: Gregory Goold (Applicant)
Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0175

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

LOWER COURT DATE OF DECISION: 18 May 2007

2007/2986

BEAZLEY JA
HISLOP J
HARRISON J
Thursday 13 November 2008

VI NANG LY v R

Judgment

1 BEAZLEY JA: I agree with Hislop J.

2 HISLOP J:

Background

Drug Misuse and Trafficking Act

Crimes (Sentencing Procedure) Act

3 On 18 May 2007 the applicant was sentenced on the above charge to imprisonment for a non parole period of eight years commencing on 5 September 2006 and expiring on 4 September 2014 with a total term of twelve years expiring on 4 September 2018. Three offences of goods in custody, being cash totalling $331,150, were taken into account on a Form 1.

4 The applicant has sought leave to appeal against that sentence on the ground that the learned sentencing judge erred by finding that the applicant’s offence ‘falls within the mid range of seriousness for offences of this type’.

5 A statement of facts prepared by the police and accepted by the applicant was tendered. The facts, shortly, are:

On 5 September 2006 the applicant was stopped and searched by police. He was found to possess $34,550 in cash and nine active mobile phones. The police then executed a search warrant at the applicant’s home. They located four plastic bags containing a substance that appeared to be methylamphetamine; a further 19 active mobile phones; two sets of scales and further amounts of cash totalling $296,600. Subsequent analysis confirmed that the substance in the plastic bags was methylamphetamine with a…

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 Ly v R

Details

AGLC: Ly v R [2008] NSWCCA 262
Case: [2008] NSWCCA 262
Decision Date: 13 November 2008

CaseChat Overview and Summary

Vi Nang Ly, the applicant, was found guilty of supplying a prohibited drug, methylamphetamine, in an amount of 1101.22 grams, which exceeded the large commercial quantity, contrary to the Drug Misuse and Trafficking Act, 1985. On 18 May 2007, the District Court sentenced Ly to a total term of twelve years, with a non-parole period of eight years. Ly appealed against the sentence, contending that the learned sentencing judge erred in finding that the offence falls within the mid-range of seriousness for offences of this type.

The Court of Criminal Appeal considered three grounds in support of Ly's submission. First, the Crown's concession that the offence may be slightly below the mid-range of seriousness did not affect the sentencing judge's independent assessment of the objective seriousness of the matter. Second, the quantity of the drugs, being very close to the large commercial quantity threshold, was a relevant factor, but not the sole or principal determinant of the sentence. Third, the fact that the drugs were not actually supplied to anyone was a relevant factor, but given the circumstances, little weight could be attached to this fact.

The Court held that the sentencing judge, in concluding that the offence falls within the mid-range of seriousness for offences of this type, gave particular weight to Ly's role, knowledge, and level of participation in the offence. The sentence imposed was in conformity with other sentencing decisions and did not lie outside the relevant range of sentences. Therefore, the appeal was dismissed, and leave to appeal was granted.

In conclusion, the Court of Criminal Appeal found no error in the sentencing judge's assessment of the objective seriousness of the offence and dismissed the appeal. The sentence imposed on Ly, with a non-parole period of eight years, was considered appropriate given the circumstances and the factors taken into account by the sentencing judge.

Orders