R v Huang; R v Lin - [2001] NSWCCA 76

CITATION: R v HUANG; R v LIN [2001] NSWCCA 76

FILE NUMBER(S): CCA 60680/99; 60686/99

HEARING DATE(S): 19/03/2001

JUDGMENT DATE:
21 March 2001

PARTIES :

REGINA v HUANG Min
REGINA v LIN Wen Shyang

JUDGMENT OF: Studdert J at 1; Barr J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/0045; 99/21/0146

LOWER COURT JUDICIAL
OFFICER : Nield DCJ

COUNSEL : Crown: P Hock
Applicant Huang: EH Baskerville
Applicant Lin: PR Boulten

SOLICITORS: Crown: SE O'Connor
Applicant Huang: E Frederick & Co
Applicant Lin: DJ Humphreys

LEGISLATION CITED: Drug Misuse and Trafficking Act, s 25A

CASES CITED:
Barrientos v Regina [1999] NSWCCA 1
DPP v El-Karhani (1990) 21 NSWLR 370
R v Smiroldo (2000) 112 A Crim R 47
R v Thomson & Anor (2000) 49 NSWLR 383

DECISION: Leave to appeal granted; Appeals dismissed

60680/99

60686/99

STUDDERT J
BARR J

REGINA v HUANG Min

REGINA v LIN Wen Shyang

JUDGMENT

1 STUDDERT J: I agree with Barr J.

2 BARR J: With the consent of the applicants and the Crown, these applications have been heard together. Huang Min and Lin Wen Shyang seek leave to appeal against sentences imposed upon them in the District Court. Mr Huang pleaded guilty to a charge that between 1 and 30 November 1998 he supplied a prohibited drug, namely heroin, on three separate occasions for financial or material award. He was sentenced by his Honour Judge Nield to imprisonment for eight years, incorporating a minimum term of six years.

3 Mr Lin pleaded guilty to the same charge and to a charge that on 19 November 1998 he supplied a prohibited, namely heroin. On the first count he was sentenced to imprisonment for eight years with a minimum term of five years six months and on the second to imprisonment for a fixed term of two years. The minimum term was accumulated upon the fixed term, with the result that the total sentence was one of ten years with a minimum term of seven years six months.

4 On 3 November 1998 an undercover police operative met Mr Huang and came to an agreement to buy from him an ounce of heroin for $6,200. In fulfilment of the agreement Huang obtained an ounce of heroin from Mr Lin, took it to the operative and handed it over on 5 November in exchange for the money. He paid Lin some or all of the money collected. On 9 November the operative negotiated the purchase of three ounces of heroin for $18,000. On 12 November that agreement was put into effect in much the same way and the money was dealt with in much the same way.

5 The final agreement was made on or about 16 November for the supply of twelve and a half ounces of heroin for $72,000. On 19 November Huang made over to the operative a block of heroin in exchange for $72,000. As before, he had obtained the heroin from Lin.

6 The heroin supplied…

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

Case: [2001] NSWCCA 76
Decision Date: 21 March 2001

CaseChat Overview and Summary

The applicants, Huang Min and Lin Wen Shyang, appealed against their sentences imposed by the District Court for supplying heroin on multiple occasions. Huang was sentenced to eight years' imprisonment with a minimum term of six years, and Lin was sentenced to ten years with a minimum term of seven and a half years. The applicants argued that their sentences were excessive and that the District Court had failed to adequately consider their pleas of guilty and offers to assist the police.

The primary legal issue was whether the District Court had exercised its sentencing discretion appropriately, taking into account the factors relevant to the applicants' sentences. The applicants submitted that the sentences were manifestly excessive and that the District Court had not sufficiently considered their pleas of guilty and offers to assist the police. The Crown argued that the sentences were within the appropriate range, given the seriousness of the offences and the applicants' roles in the drug supply operation.

The Court found that the District Court had not erred in its sentencing. The Court held that the repeated supply of heroin for financial gain was a very serious offence and that the sentences were well within the proper range of sentencing discretion. The Court found that the applicants' criminality was significantly greater than that of a one-time supplier, and the statistics provided by the Judicial Commission were of limited assistance. The Court also held that the applicants' offers to assist the police were of no value and did not warrant any discount on their sentences. The Court concluded that the District Court's sentences were appropriate and dismissed the appeals. Leave to appeal was granted.

Orders