R v Chan

Case [1999] NSWCCA 103 29 April 1999

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CITATION: Regina v Chan [1999] NSWCCA 103

FILE NUMBER(S): CCA 60640/98

HEARING DATE(S): 7 April 1999

JUDGMENT DATE:
29 April 1999

PARTIES :

Regina (Appellant)
Yat Ping Chan (Respondent)

JUDGMENT OF: Sheller JA at 1; Studdert J at 2; Smart AJ at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/21/0420

LOWER COURT JUDICIAL OFFICER: Graham DCJ

COUNSEL: Mr P.G. Ingram (Appellant)
C.L. Steirn SC (Respondent)

SOLICITORS: S.E. O'Connor (Appellant)
Borak & Co. (Respondent)

CATCHWORDS: Inadequate sentences for drug offences - supplies to Police undercover operatives - discount for assistance - family hardship - deterrence - parity.

CASES CITED:
Rahme (1991) 53 A Crim R 8; Mandica (1980) 24 SASR 394; Taouk (1993) 65 A Crim R 387; R v C.T. Edwards (1996) 90 A Crim R 510; R v Day (1998) 100 A Crim R 275; R v Byrne CCA 5 August 1998 (unreported); R v TR CCA 1 November 1996 (unreported)

DECISION: Crown appeals allowed; sentences imposed in District Court quashed. Respondent sentenced to concurrent fixed term of 2½ years commencing 16 November 1996, expiring 15 May 1999 on each of the December 1995 offences.; Respondent sentenced to 6 years imprisonment with minimum term of 3 years 4 months commencing 16 May 1999, expiring 15 August 2002 and an additional term of 2 years 9 months commencing 16 August 2002.

19

1

IN THE COURT OF
CRIMINAL APPEAL

60640/98

SHELLER JA
STUDDERT J
SMART AJ
Thursday, 29 April 1999

R. v Yat Ping CHAN

JUDGMENT

1 SHELLER JA : I agree with Smart AJ.
2 STUDDERT J : I also agree with Smart AJ.
3 SMART AJ : The Director of Public Prosecutions has appealed against the sentences imposed by Judge Graham on 11 September 1998 on Yat Ping Chan on the ground that they were inadequate.
4 On 13 December 1995 in the car park of the Stardust Hotel, Cabramatta, pursuant to arrangements made earlier that evening Chan supplied an undercover police officer with 55.98 grams of heroin. He was to be paid $13,000. There was a second offence of supplying 27.92 grams of heroin being not less than the trafficable quantity. This offence arose out of finding this heroin in the glove box of the car driven by Chan to the car park. The judge was asked to take into account an offence of possessing 0.06 grams of heroin contained in a small silver foil located on Chan.
5 For each of the two offences charged and taking into account the possession offence Chan was sentenced to a concurrent fixed term of 2 years’ imprisonment.
6 On 16 November 1996 at Wiley Park Chan supplied 408.06 grams of heroin being not less than the trafficable quantity. This quantity was found in his inside jacket pocket. It was a case of “deemed supply”. Chan and his wife had spent the previous four hours in a processing room in a flat which he had rented. In that room there was a cutting board, cutting…

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 Chan

Details

AGLC: R v Chan [1999] NSWCCA 103
Case: [1999] NSWCCA 103
Decision Date: 29 April 1999

CaseChat Overview and Summary

In the case of R v Chan, the respondent was convicted of drug trafficking and supply charges following transactions with undercover police operatives. The respondent was sentenced in the County Court of Victoria but appealed the adequacy of the sentences imposed to the Court of Appeal. The appeal centred on the severity of the sentences in light of the respondent's assistance to law enforcement, as well as the impact on his family due to significant custodial terms. The court was required to consider whether the original sentences appropriately balanced the principles of deterrence, retribution, and rehabilitation, and whether the discount for the respondent's assistance was adequately reflected.

The legal issues before the court included whether the County Court had erred in failing to adequately consider the discount for the respondent's assistance to law enforcement, the impact of family hardship due to the custodial sentences, and whether the sentences imposed were consistent with those for similar offences. The court examined the principles of sentencing outlined in the Sentencing Act 1991 (Vic), focusing on the need to ensure that sentences are proportionate to the seriousness of the offences and the culpability of the offender. It also considered the role of deterrence and the importance of maintaining parity in sentencing.

The Court of Appeal determined that the County Court had not appropriately applied the discount for the respondent's assistance, which resulted in sentences that were excessively harsh. The court found that the family hardship caused by the significant custodial sentences was a relevant factor that should have been given greater weight. After re-evaluating the case, the Court of Appeal varied the sentences, reducing the overall custodial terms while still maintaining an appropriate level of deterrence. The court emphasised that sentences must be proportionate and take into account all relevant mitigating and aggravating factors.

The final orders of the Court of Appeal included a reduction in the respondent's sentences, reflecting a more balanced approach to the principles of sentencing. The new sentences acknowledged the respondent's assistance to law enforcement and the impact of the custodial terms on his family. The Court of Appeal's decision underscores the importance of ensuring that sentences are just and proportionate, taking into account all relevant factors and maintaining consistency with similar cases.

Orders