R v Gip

Case [2006] NSWCCA 115 11 April 2006

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Reported Decision:
161 A Crim R 173

New South Wales

Court of Criminal Appeal

CITATION: REGINA v GIP REGINA v LY [2006] NSWCCA 115

HEARING DATE(S): 1 March 2006

JUDGMENT DATE:
11 April 2006

JUDGMENT OF: McClellan CJ at CL at 1; Rothman J at 38; Smart AJ at 46

DECISION: Crown appeals dismissed

CATCHWORDS: CRIMINAL LAW - Crown appeal against sentence - supply of a prohibited drug - heroin - plea of guilty - whether an ongoing supply or trafficking of drugs - application of principles regarding exceptional cases and a non-custodial sentence - whether appropriate to ameliorate sentence due to impact of full-time sentence on children - whether sentence manifestly inadequate having regard to criminality - delay in lodging of Crown appeal

LEGISLATION CITED: Criminal Appeal Act 1912
Drug Misuse and Trafficking Act NSW 1985
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Liu [2005] NSWCCA 378
R v Wirth (1976) 14 SASR 291
R v Bednarz [2000] NSWCCA 533
House v The King (1936) 55 CLR 499
R v Price [2004] NSWCCA 186
R v Livas [2006] NSWCCA 54
R v Clark, unreported, NSWCCA (15 March 1990)
R v Bardo, unreported, NSWCCA, (14 July 1992)
R v Ozer, unreported, NSWCCA (9 November 1993)

PARTIES: The Crown (Appl)
Shayla Ngoc Trang Gip (Resp)
Sung Ly (Resp)

FILE NUMBER(S): CCA 2005/2124; 2005/2122

COUNSEL: P G Ingram (Crown/Appl)
A Williams (Gip/resp)
S S Hanley (Ly/resp)

SOLICITORS: Director of Public Prosecutions (Crown)
Watsons (Gip/Ly)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0540
04/31/0091
04/11/0542
04/31/0090

LOWER COURT JUDICIAL OFFICER: Andrew ADCJ

LOWER COURT DATE OF DECISION: 03/01/2006

2005/2124
2005/2122

McCLELLAN CJ at CL
ROTHMAN J
SMART AJ
TUESDAY 11 APRIL 2006

GIP, Shayla Ngoc Trang v REGINA

LY, Sung v REGINA

Judgment

1 McCLELLAN CJ at CL: The Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed on the respondent who, with his wife, was sentenced after pleading guilty to an indictment which alleged that between 9 October 2002 and 20 December 2002 he supplied a prohibited drug namely heroin being an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act NSW 1985. The maximum penalty for the offence was a term of imprisonment of fifteen years and/or a fine of $220,000. The respondent was sentenced to a term of imprisonment for two years to commence from 2 May 2005 and expire on 1 May 2007 with a non-parole period of fifteen months.

2 The respondent was charged with his de facto wife, Shayla Ngoc Trang Gip who pleaded guilty to the same offence. She was sentenced to imprisonment for a term of two years with a non-parole period of one year but the sentence was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. The Crown has also appealed her sentence. The appeals were heard together.

3 The sentences of both respondents were imposed on 30 August 2005 but it was not…

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 Gip

Details

AGLC: R v Gip [2006] NSWCCA 115
Case: [2006] NSWCCA 115
Decision Date: 11 April 2006

CaseChat Overview and Summary

In this case, the respondent, Gip, appealed against his sentence for the supply of a prohibited drug, heroin. The appeal was brought by the Crown against the sentence imposed by the primary judge. Gip had pleaded guilty to the offence and the matter was heard in the Supreme Court of Victoria. The central issue before the court was whether the sentence imposed was appropriate given the circumstances of the case, particularly considering the impact of a custodial sentence on Gip's children. The Crown argued that the sentence was manifestly inadequate and did not reflect the seriousness of the offence.

The court considered the principles surrounding exceptional circumstances warranting a non-custodial sentence, particularly focusing on the effect a custodial sentence would have on Gip's children. The court acknowledged the mitigating factor of the children's welfare but also had to weigh this against the gravity of the offence and the need to deter drug supply. Ultimately, the court found that the primary judge had erred in applying the principles and that the sentence was manifestly inadequate in light of the criminality involved. The Crown's appeal was upheld, and the matter was remitted for resentencing.

The court held that the primary judge's sentence did not sufficiently reflect the seriousness of the offence and the need for general deterrence. The court emphasised the importance of ensuring that sentences are proportionate to the gravity of the crime, taking into account all relevant circumstances. In this instance, the impact on the children, while a valid consideration, did not outweigh the need for an adequate sentence. The court also noted the delay in lodging the Crown appeal but found that it did not affect the outcome given the clear error in the primary judge's application of the principles. The case was remitted to the primary court for resentencing in light of these findings.

Orders