COUNSEL: W. Dawe SC - Crown T. Game SC - Respondent
SOLICITORS: S. Kavanagh - Crown Kings Lawyers - Respondent
CATCHWORDS: Criminal Law - Crown appeal against sentence - supply commercial quantity of cocaine - relevance of standard non-parole period after plea of guilty - whether offence is mid range of seriousness - sentence manifestly inadequate - respondent resentenced.
DECISION: Appeal is allowed, the sentence imposed in the District Court quashed and the Respondent is sentenced to a non-parole period of imprisonment for 5 years to date drom 9 September 2004 and to expire on 8 September 2009. There is to be a balance of the term of 4 years to expire on 8 September 2013.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
2005/1346
STUDDERT J WHEALY J HOWIE J
WEDNESDAY 14 DECEMBER 2005
R v Ngoc Hiep DANG
STUDDERT J: I agree with Howie J.
WHEALY J: I agree with the reasons of Howie J and the orders that he proposes.
HOWIE J: The respondent to this Crown appeal under s 5D of the Criminal Appeal Act pleaded guilty before a magistrate to an offence of supplying not less than the commercial quantity of a prohibited drug, being cocaine. This is an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act. It carries relevantly a maximum penalty of imprisonment for 20 years. The respondent was committed to the District Court for sentence.
On 26 May 2005, because of some deficiency in the committal document, the respondent was arraigned on that charge before Judge Sorby (the Judge) and pleaded guilty. He also asked the Judge to take into account an offence of possessing a prohibited drug on a Form 1 under the provisions of the Criminal Procedure Act. On 20 June 2005 the Judge sentenced the applicant to a term of imprisonment consisting of a non-parole period of 4 years and a balance of the term of 2 years 6 months. The non-parole period is to expire on 8 September 2008. The Crown appealed against this sentence by notice dated 19 July 2005.
The facts can be adequately stated from the statement of facts tendered by the Crown and adopted by the Judge in his sentencing remarks:
On 6, 7 and 9 September 2004, Ngoc Hiep Dang spoke, by telephone, with a supplier and a buyer in relation to the supply of a prohibited drug. These calls were intercepted by police pursuant to telephone intercept…
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.
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Details
AGLC
R v Dang [2005] NSWCCA 430
Case
[2005] NSWCCA 430
Decision Date
CaseChat Overview and Summary
The case of R v Dang involved an appeal by the Crown against the sentence imposed on the respondent, Dang, who had pleaded guilty to supplying a commercial quantity of cocaine. The appeal was heard in the court of appeal, where the Crown argued that the sentence was manifestly inadequate. The primary focus of the appeal was on the relevance of the standard non-parole period and whether the offence warranted a mid-range sentence given its seriousness.
The legal issues before the court included determining the appropriate non-parole period for an offence involving the supply of a commercial quantity of drugs and assessing whether the original sentence was manifestly inadequate. The court had to consider the gravity of the offence, the offender's culpability, and the need for deterrence and denunciation. Additionally, the court examined the sentencing principles outlined in the relevant legislation and case law to ensure that the sentence reflected the seriousness of the offence and served the purposes of punishment and rehabilitation.
In delivering the judgment, the court found that the original sentence did not adequately reflect the seriousness of the offence or serve the purposes of punishment and deterrence. The court held that the standard non-parole period was relevant in determining the appropriate sentence for an offence of this nature. It was concluded that the offence warranted a mid-range sentence, and therefore, the original sentence was manifestly inadequate. The court resentenced the respondent to a term of imprisonment with a specified non-parole period, ensuring that the sentence aligned with the principles of sentencing in cases involving the supply of commercial quantities of dangerous drugs.
The final orders of the court included the resentencing of the respondent to a term of imprisonment with a new non-parole period, reflecting the seriousness of the offence and the need for an adequate sentence. The court's decision underscored the importance of considering the standard non-parole period and the mid-range sentencing principles in cases involving the supply of commercial quantities of drugs.