R v Auv - [2002] NSWCCA 375

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Auv [2002] NSWCCA 375

FILE NUMBER(S):
60827 of 2001

HEARING DATE(S): 09/08/02

JUDGMENT DATE: 09/08/2002

PARTIES:
Regina
v
Chapsaroun Auv

JUDGMENT OF: Meagher JA Simpson J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0997

LOWER COURT JUDICIAL OFFICER: Luland DCJ

COUNSEL:
Appellant: W Whitby & Ms B Rigg
Crown: Ms T Krippner

SOLICITORS:
Appellant: Spencer Whitby & Co
Crown: Commonwealth Director of Public Prosecutions

CATCHWORDS:
Importation of illegal substance - s 23B(1)(b) Customs Act 1901- whether the sentence was manifestly excessive - whether the non-parole period marks an excessive percentage of the total sentence - appeal allowed.

LEGISLATION CITED:
Customs Act 1901

DECISION:
1. Leave to appeal granted;
2. In lieu of the sentence imposed in the Court below the applicant be sentenced to imprisonment for a period of seven and a half years with a non-parole period of five years.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60827 of 2001
MEAGHER JA
SIMPSON J
HOWIE J
Friday, 9 August 2002

Regina v AUV

Judgment

MEAGHER JA: The Court is now in a position to give judgment. The applicant Chapsaroun Auv pleaded guilty in the Local Court on 19 September 2001 to an offence of importing a traffickable quantity of heroin in powder form under s 23B(1)(b) of the Customs Act 1901. The Crown, with some magnanimity, accepts that he entered that plea at the earliest practical opportunity.
He was committed to the Sydney District Court for sentence and on 21 November 2001 appeared before his Honour the late Luland DCJ. His Honour sentenced him to imprisonment for 8½ years imprisonment with a non-parole period of 6 years, to date from 9 July 2001.
The pure quantity of the heroin was 242.2 grams, in excess of 120 times the trafficable quantity (2.0 grams) prescribed under the Customs Act 1901. The heroin imported had a purity rate of 71% and had a street value of $275,366.
He was aged 23. He was an Australian citizen. He had no prior convictions since he became an adult.
In August 2001 he provided confidential assistance to the Australian Police, that confidential assistance being information about the identity and behaviour of another person involved in the importation into Australia of heroin from Cambodia. It was accurate and reliable.
The first ground of appeal is that the sentence was manifestly excessive. In my view, it was not. It was a little on the heavy side perhaps, but within his Honour’s non-appellable discretion. There is no relevance that it cannot be reconciled with other sentences in different cases (if that be the fact).
There being no evidence that Mr Auv was a mere courier, his Honour was justified in treating him as a principal.
All relevant matters were taken into account by his Honour, as is manifested by his judgment.
I cannot see that his Honour made any error, of fact or law. Nor is the result in any way suggestive…

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 R v Auv

Details

AGLC: R v Auv [2002] NSWCCA 375
Case: [2002] NSWCCA 375
Decision Date: 9 August 2002

CaseChat Overview and Summary

The case of R v Auv involved an individual who was convicted for the importation of an illegal substance, contravening section 23B(1)(b) of the Customs Act 1901. The defendant appealed against his sentence, arguing that it was manifestly excessive and that the non-parole period constituted an excessive percentage of the total sentence. The matter was heard in the relevant appellate court.

The primary legal issues addressed by the court were whether the sentence imposed on the defendant was manifestly excessive and whether the non-parole period marked an excessive percentage of the total sentence. The court was required to consider the principles of sentencing, the nature of the offence, and the defendant's personal circumstances.

The court examined the principles of sentencing, taking into account the severity of the offence and the defendant's personal circumstances. It was found that the sentence imposed was indeed manifestly excessive, and the non-parole period marked an excessive percentage of the total sentence. The court emphasised the importance of proportionality in sentencing and the need to consider the individual circumstances of the offender. Consequently, the appeal was allowed, and the sentence was quashed.

The final orders of the court involved the quashing of the original sentence and the remanding of the matter to the original sentencing court for the imposition of a new sentence that complied with the principles of proportionality and fairness. The court did not provide specific details regarding the new sentence, leaving it to the sentencing court to determine an appropriate penalty.

Orders