Ma v R

Case [2010] NSWCCA 320 17 December 2010

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New South Wales
Court of Criminal Appeal

CITATION: Ma v R [2010] NSWCCA 320
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 5 November 2010

JUDGMENT DATE:
17 December 2010

JUDGMENT OF: Simpson J at 1; Schmidt J at 2; Howie AJ at 67

DECISION: Leave to appeal granted.
Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - leave to appeal sentence - whether discount given for assistance was too low compared with discount allowed for co-offender - whether there was an error in the assessment of discount to which the applicant was entitled for her assistance - no error established - whether sentence is manifestly excessive - not established - leave to appeal granted - appeal dismissed

LEGISLATION CITED: Criminal Code 1995 (Cth)
Crimes Act 1914 (Cth)

CATEGORY: Principal judgment

CASES CITED: Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Chan, Lo and Nguyen v R [2010] NSWCCA 153
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Lowndes v R [1999] HCA 29; (1999) 195 CLR 665
R v El Hani [2004] NSWCCA 162
R v Louis Sukkar [2005] NSWCCA 55 at [52] and Alchikh v The Queen [2007]
R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151
R v Z [2006] NSWCCA 342; (2006) 167 Crim R 436
NSWCCA 345
SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim 249
Tyler v The Queen; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458
Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584

PARTIES: Yue Ma (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2009/4158

COUNSEL: Applicant - Ms A Francis
Respondent - Ms S McNaughton

SOLICITORS: Applicant - City Law Solicitors
Respondent - Commonwealth Director of Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/11/0170

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

LOWER COURT DATE OF DECISION: 26 August 2008

- 24 -

IN THE COURT OF

CRIMINAL APPEAL

2009/4158

SIMPSON J

SCHMIDT J

HOWIE AJ

FRIDAY, 17 DECEMBER 2010

MA v R

JUDGMENT

1 SIMPSON J: I agree with Schmidt J.

2 SCHMIDT J: The applicant seeks leave to appeal from a sentence imposed by Blackmore DCJ, in respect of a charge brought pursuant to ss 11.1 and 307.5(1) of the Criminal Code 1995 (Cth), of attempting to possess an unlawfully imported commercial quantity of a border controlled drug, cocaine. The applicant pleaded guilty and was sentenced under s 21E of the Crimes Act 1914 (Cth) to 15 years imprisonment, with a non parole period of 9 years commencing 11 March 2008.

3 A commercial quantity of cocaine is prescribed to be 2kg. The maximum penalty for the offence was life imprisonment and/or a fine of $825,000. The applicant received a combined discount of 35% for her guilty plea and assistance, of which 6% was specified as relating to future assistance.

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 Ma v R

Details

AGLC: Ma v R [2010] NSWCCA 320
Case: [2010] NSWCCA 320
Decision Date: 17 December 2010

CaseChat Overview and Summary

In the matter of Ma v R, the dispute arose from the sentencing of the appellant, who was convicted of participating in a criminal enterprise. The case was heard in the High Court of Australia, which was asked to determine whether the appellant's sentence was appropriate and whether the discount given for her assistance was sufficiently aligned with that provided to her co-offender. The appellant sought leave to appeal against her sentence, arguing that the discount for her assistance was too low compared to the discount allowed for her co-offender and that the overall sentence was manifestly excessive.

The primary legal issues before the court were whether there was an error in the assessment of the discount to which the appellant was entitled for her assistance, and whether the sentence imposed was manifestly excessive. The appellant argued that the discount she received for her assistance was inadequate, considering the extent of her cooperation and the comparative discount received by her co-offender. Additionally, she contended that the sentence imposed was manifestly excessive, given the totality of the circumstances and the discount she should have received.

The court reviewed the evidence and submissions regarding the discount for assistance and the overall sentence. The court found no error in the assessment of the discount to which the appellant was entitled for her assistance, as the trial judge had considered relevant factors such as the degree of involvement, the extent of cooperation, and the impact of her actions. The court also concluded that the sentence was not manifestly excessive, as it was within the range of sentences typically imposed for such offences and took into account the discount for the appellant's assistance. Consequently, the court granted leave to appeal but dismissed the appeal on the grounds that no error was established in the assessment of the discount or the sentence.

The final orders of the court were to grant leave to appeal the sentence but dismiss the appeal as no error was established in the assessment of the discount or the overall sentence.

Orders