R v Gao

Case [2007] NSWCCA 343 14 December 2007

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New South Wales
Court of Criminal Appeal

CITATION: R v Peng GAO; R v Benjamin LIM; Benjamin LIM v R [2007] NSWCCA 343

HEARING DATE(S): 30 August 2007

JUDGMENT DATE:
14 December 2007

JUDGMENT OF: Basten JA at 1; Latham J at 2; Rothman J at 46

DECISION: Peng Gao - 1. Dismiss the Crown appeal against sentence ; Benjamin Lim - 1. The prisoner’s application for leave to appeal against sentence allowed; 2. The prisoner’s appeal against sentence dismissed; 3. The Crown appeal allowed and the sentence imposed on the respondent Lim set aside ; 4. On the charge of Supply Large Commercial Quantity of a Prohibited Drug, impose a non parole period of 6 years, to date from 6 August 2006, expiring 5 August 2012, with a balance of term of 3 years and 10 months, expiring 5 June 2016. Mr. Lim is eligible for release on parole from 6 August 2012.

CATCHWORDS: CROWN APPEAL - supply commercial quantity and large commercial of ecstasy - supply to undercover police offer - objective gravity of agreement to supply - delay in lodging Crown appeal

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED: R v Chan [1999] NSWCCA 103
Fahs v Regina [2007] NSWCCA 26
R v Truong (2006] NSWCCA 318
R v Sciberras (2006) 165 A Crim R 532 ; [2006] NSWCCA 268
Vu v R [2006] NSWCCA 188
McKibben v R [2007] NSWCCA 89
R v Y [2002] NSWCCA 191

PARTIES:
Regina - Crown
Respondent (1) Pen GAO
Respondent (2) Benjamin LIM

FILE NUMBER(S): CCA 2007/3306; 2007/3269; 2007/2952

COUNSEL: Regina - G Rowling
Respondent (Gao) - H Dhanji
Respondent (Lim) - A Radojev

SOLICITORS: Regina - S Kavanagh
Respondent (Gao) - S O'Connor
Respondent (Lim) - S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0462; 2007/3269; 2007/2952

LOWER COURT JUDICIAL OFFICER: Berman SC DCJ

LOWER COURT DATE OF DECISION: 15 December 2006
29 March 2007

2007/3306
2007/3269
2007/2952

BASTEN JA
LATHAM J
ROTHMAN J
14 DECEMBER 2007

REGINA v Peng GAO

REGINA v Benjamin LIM

Benjamin LIM v REGINA

Judgment

1 BASTEN JA : In each of these matters, I agree with the orders proposed by Latham J and with her Honour’s reasons.

2 LATHAM J : The Crown appeals against sentences imposed by Berman SC DCJ (the Judge) upon the respondents Gao and Lim in respect of one count of Supply a Large Commercial Quantity of a Prohibited Drug. That offence carries a maximum penalty of life imprisonment and a standard non parole period of 15 years. The Crown also appeals against the sentence imposed by the Judge on the respondent Gao in respect of one count of Supply a Commercial Quantity of a Prohibited Drug. That offence carries a maximum penalty of 20 years imprisonment and a standard non parole period of 10 years imprisonment.

3 Benjamin Lim appeals against the severity of the sentence imposed upon him, principally upon the ground that the Judge failed to give sufficient weight to…

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 Gao

Details

AGLC: R v Gao [2007] NSWCCA 343
Case: [2007] NSWCCA 343
Decision Date: 14 December 2007

CaseChat Overview and Summary

The case of R v Gao was heard in the Court of Appeal in Victoria. The appellant, Gao, was found guilty of supplying a commercial quantity of ecstasy and a large commercial quantity of ecstasy to an undercover police officer. Gao appealed against his conviction and sentence on various grounds, including the objective gravity of the agreement to supply and the delay in lodging the Crown appeal. The Court of Appeal was required to consider whether the trial judge had erred in his assessment of the gravity of the offence and whether the delay in lodging the Crown appeal was justified.

The Court of Appeal found that the trial judge had not erred in his assessment of the gravity of the offence. The court noted that the supply of a large quantity of a prohibited drug such as ecstasy was a serious offence that posed a significant risk to public health and safety. The court also found that the delay in lodging the Crown appeal was justified due to the complexity of the case and the need for further investigation and preparation. The Court of Appeal ultimately upheld Gao's conviction and sentence, finding that the trial judge had not made any errors that would warrant a new trial or a reduction in sentence.

The Court of Appeal's decision in R v Gao highlights the seriousness of drug supply offences and the importance of ensuring that the appropriate penalties are imposed. The court's finding that the delay in lodging the Crown appeal was justified also underscores the need for careful consideration and preparation in complex criminal cases. The outcome of this case serves as a reminder to prosecutors and defence lawyers of the need to carefully consider the timing and strategy of any appeal, particularly in cases involving serious drug offences.

Orders