R v Chen - [2003] NSWCCA 327

CITATION: Regina v David Chang [2003] NSWCCA 327 revised - 13/11/2003

HEARING DATE(S): 14 October 2003

JUDGMENT DATE:
14 October 2003

JUDGMENT OF: Sheller JA at 31; Sully J at 1; Howie J at 32

DECISION: Leave to appeal granted; Appeal dismissed

LEGISLATION CITED: Drug Misuse and Trafficking Act
Justices Act
Criminal Appeal Act

PARTIES :
Regina
David Chang

FILE NUMBER(S): CCA 60215/03

COUNSEL: D. Arnott - Crown
A. Francis - Appellant

SOLICITORS: C. K. Smith - Crown
B. Sandland - Appellant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0906

LOWER COURT
JUDICIAL OFFICER : Stewart ADCJ

60215/03
SHELLER JA
SULLY J
HOWIE J

14 October 2003

REGINA v DAVID CHANG

Judgment

1 SULLY J: The applicant Mr Chang, pleaded guilty before a Local Court Magistrate to two drug-related offences. One offence charged him with having supplied, between 25 and 28 February 2002, a prohibited drug, namely heroin, on three or more occasions. Such an offence contravenes s 25A of the Drug Misuse and Trafficking Act and it attracts, upon conviction, a statutory maximum penalty of, relevantly imprisonment for 20 years.

2 The second offence charged against the applicant was that he had, on 30 May 2000, supplied a quantity of heroin contrary to s 25(1) of the same Act. Such a contravention attracts, upon conviction, a statutory maximum penalty of, relevantly, imprisonment for 15 years.

3 The applicant was committed upon his pleas; and he was remanded, pursuant to s 51A of the Justices Act, to the District Court for sentence in that Court. Proceedings on sentence took place on 25 October 2002, and the applicant stood eventually for sentence on 6 December 2002.

4 In respect of the s 25A matter, the applicant was sentenced to imprisonment for four years and four months with a non-parole period of three years and three months. On the s 25(1) matter, he was sentenced to a period of imprisonment for a period of three years with a non-parole period of one year and three months. There was a partial accumulation of the sentences, and its effect was to pass upon him sentences effectively totalling six years and three months, with non-parole periods effectively totalling four years and six months.

5 Originally two grounds of appeal were notified. They are:

"1. The learned sentencing judge erred by giving insufficient weight to the applicant's disclosure of otherwise undetectable guilt.

Criminal Appeal Act

6 Yesterday there was notified to the Registry of the Court a further ground of appeal. It says,

“The sentencing judge erred in finding in respect of count 2 that the applicant was guilty of the deemed supply of 14.9 grams of heroin. The correct amount being 4.9 grams as per the attached analyst's certificate of Wendy Chorng-Wen Charng".

7 When the applicant stood for sentence he asked that there be taken into account two matters on a Form 1 schedule.…

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 Chen

Details

AGLC: R v Chen [2003] NSWCCA 327
Case: [2003] NSWCCA 327
Decision Date: 14 October 2003

CaseChat Overview and Summary

In the case of Regina v David Chang, the defendant was convicted on two counts of drug-related offences, namely, the supply of heroin on multiple occasions and the supply of heroin in breach of bail and bond conditions. The case was heard and determined by the NSW Court of Criminal Appeal on 14 October 2003, with Sheller JA, Sully J, and Howie J presiding. The central legal issues revolved around the adequacy of the sentence imposed by the sentencing judge, particularly whether the sentence was manifestly excessive and whether sufficient weight was given to the defendant's disclosure of otherwise undetectable guilt.

The Court of Criminal Appeal examined the grounds of appeal, which included the claim that the sentencing judge did not adequately consider the defendant's full disclosure of his drug dealing activities, which might not otherwise have come to light. The judges found that the sentencing judge had indeed acknowledged the defendant's disclosure but emphasised that such disclosures do not necessarily warrant a significant reduction in sentence. The Court held that while the defendant's disclosures were a relevant mitigating factor, they did not justify a sentence that did not reflect the seriousness of the offences.

Additionally, the Court addressed the issue of the weight of the heroin involved in the offences. The defendant argued that the discrepancy between the gross weight of the heroin and its pure content was so significant as to render the sentence manifestly excessive. However, the Court ruled that while the weight of the drugs is a relevant consideration, it is not determinative of the appropriate sentence. The judges concluded that the severity of the offences, particularly considering the breaches of bail and bond conditions, warranted a severe sentence. They found that the sentences imposed were within the permissible range and did not constitute a manifest excess.

Ultimately, the Court granted leave to appeal but dismissed the appeal, affirming the original sentence. The judges unanimously agreed that the sentences were appropriate given the nature and gravity of the defendant's criminal conduct.

Orders