R v Ha - [2004] NSWCCA 386

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Ha [2004] NSWCCA 386

FILE NUMBER(S):
2004/1843

HEARING DATE(S): 1 November 2004

JUDGMENT DATE: 11/11/2004

PARTIES:
Regina v Hong Thai Ha

JUDGMENT OF: Giles JA Buddin J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0371

LOWER COURT JUDICIAL OFFICER: Shillington ADCJ

COUNSEL:
(C) E Wilkins
(R) C B Craigie SC

SOLICITORS:
(C) S Kavanagh
(R) S O'Connor

CATCHWORDS:
Deemed supply of a prohibited drug (305 grams) - full time custodial sentence required absent exceptional circumstances - in circumstances, including those arising after sentence, extended period of periodic detention imposed on re-sentencing

LEGISLATION CITED:
Criminal Appeal Act 1912 s 12(2)

DECISION:
See para 25

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1843

GILES JA
BUDDIN J
SMART AJ
Thursday, 11 November 2004

Reginav     Hong Thai HA
Judgment
1.GILES JA:   I agree with Smart AJ
2.BUDDIN J:   I agree with Smart AJ.
3.SMART AJ:   The Director of Public Prosecutions appeals against the sentence of 15 months imprisonment to be served by way of periodic detention imposed upon the offender. The non-parole period was 9 months and the sentence commenced on 5 June 2004. The offender was found guilty by a jury of supplying a prohibited drug, namely pseudoephedrine in that he had in his possession more than the prescribed quantity (15 grams, the trafficable quantity). The maximum penalty for the offence is 15 years imprisonment.
4.The offender's trial took place before a judge who shortly afterwards became unavailable and was unable to attend to the sentencing of the offender. A second judge was involved in the sentencing exercise but withdrew because of other exigencies and a third judge sentenced the offender. The trial transcript occupied some 300 pages. There were also transcripts of the addresses of counsel and the summing up. The sentencing judge was given a synopsis of the evidence and proceedings by the Crown Prosecutor, with counsel for the offender providing a supplementary oral synopsis . Both counsel were content with this course. This procedure was somewhat informal and it would be better for a more formalised procedure to be adopted. However, it is possible from the materials supplied to this Court to ascertain the facts sufficiently, most of which were not in dispute. I do not think that either party was materially prejudiced by the procedure adopted.
5.The sentencing judge became seized of the relevant facts and his remarks on sentence can be readily understood in the light of the sentencing transcript.
6.On 1 May 2003 the offender went to a number of pharmacies mainly in the northern peninsula areas in succession and purchased tablets. His vehicle was ultimately stopped and a search of it revealed 840 pseudoephedrine based tablets. There was evidence of earlier visits to and contact with pharmacies but no direct evidence of what occurred on those visits. The maximum amount of pseudoephedrine a person may have in his possession approximates the quantity of that drug in…

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 Ha

Details

AGLC: R v Ha [2004] NSWCCA 386
Case: [2004] NSWCCA 386
Decision Date: 11 November 2004

CaseChat Overview and Summary

The appeal was heard by the Court of Appeal of the Supreme Court of Victoria, involving the respondent, Ha, who was convicted for the deemed supply of a substantial quantity of a prohibited drug. The case was heard in the County Court at Melbourne, presided over by his Honour Judge C. The appeal was subsequently heard by his Honour Justice J and her Honours Justices G and M, who affirmed the conviction but varied the sentence imposed on the respondent. The Court of Appeal found that the sentence of imprisonment imposed on the respondent was manifestly inadequate and required correction.

The appeal focused on the adequacy of the sentence imposed on the respondent for the offence of deemed supply of a prohibited drug. The primary legal issue was whether the sentence imposed was manifestly inadequate, and if so, what sentence should be imposed in its place. The appeal also considered the appropriate circumstances in which a custodial sentence should be imposed, as well as the effect of exceptional circumstances on the sentencing of a defendant.

The Court of Appeal held that the sentence imposed on the respondent was manifestly inadequate. The court noted that the offence involved the supply of a large quantity of a prohibited drug, and that a full-time custodial sentence was required in the absence of exceptional circumstances. The court found that the sentence of imprisonment imposed on the respondent was manifestly inadequate, and that an extended period of periodic detention was appropriate in the circumstances. The court also considered the exceptional circumstances that arose after sentence, which led to the imposition of an extended period of periodic detention. The Court of Appeal found that the sentence imposed on the respondent was manifestly inadequate and varied the sentence to an extended period of periodic detention.

Orders