R v Lao

Case [2003] NSWCCA 315 31 October 2003

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CITATION: REGINA v. LAO [2003] NSWCCA 315

HEARING DATE(S): Friday 31 October 2003

JUDGMENT DATE:
31 October 2003

JUDGMENT OF: Spigelman CJ at 31; O'Keefe J at 36; Greg James J at 1

DECISION: Leave to appeal granted; appeal dismissed

CATCHWORDS: Criminal law - sentence - appeal - absence of express mention by sentencing judge of guilty plea - expression of intention by sentencing judge to pass a low sentence - whether plea disregarded - what is appropriate range - sentence within an appropriate range.

LEGISLATION CITED: Drug (Misuse & Trafficking) Act 1985

CASES CITED: Thomson & Houlton (2000) 49 NSWLR 383

PARTIES :
REGINA v. LAO, Binh Cuong

FILE NUMBER(S): CCA No. 60267 of 2003

COUNSEL: Crown: D. Howard
App: H. Dhanji

SOLICITORS: Crown: C.K. Smith
App: S.E. O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3398

LOWER COURT
JUDICIAL OFFICER : Moore, DCJ.

No. 60267 of 2003

SPIGELMAN, CJ.
O’KEEFE, J.
GREG JAMES, J.
FRIDAY 31 OCTOBER 2003

REGINA v. BINH CUONG LAO

Judgment

1 GREG JAMES, J: This application for leave to appeal against sentence is brought by an applicant who was convicted on his plea of guilty by Acting Judge Moore in the District Court of New South Wales at Campbelltown of the offence of supplying a prohibited drug in a quantity greater than or equal to a large commercial quantity.

2 This is an offence under s.25(2) of the Drug (Misuse & Trafficking) Act 1985. The maximum sentence for this offence is life imprisonment, a fine of $550,000 or both.

3 For that offence his Honour sentenced the applicant to imprisonment for five years to commence 9 December 2002 and to expire on 8 December 2007. In respect of that sentence his Honour imposed a non-parole period of three years expiring on 8 December 2005.

4 The drug in question is referred to as Ecstasy. The applicant, by his plea, accepted his guilt of the supply of not less than a large commercial quantity. A large commercial quantity of this drug consists of .5 of a kilogram or more. The quantity involved in this offence was 1016.6 grams, that is, more than twice the minimum for the attraction of the penalty appropriate for a large commercial quantity.

5 The notice of grounds of appeal asserted that at the hearing it was intended to rely only upon a ground that the sentencing judge erred in failing to discount the applicant’s sentence as a consequence of the applicant’s plea of guilty. The written submissions further asserted that, taking into account the applicant’s plea, a lesser sentence was warranted in law and drew attention to sentences imposed on others for dealing in quantities of the same drug.

6 the submissions referred to Judicial Commission statistics, which, however, only dealt with some nine or ten cases. It appears that the applicant received a sentence less than the head sentence of some five of those offenders, but a sentence more than was received by four of the offenders.…

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 Lao

Details

AGLC: R v Lao [2003] NSWCCA 315
Case: [2003] NSWCCA 315
Decision Date: 31 October 2003

CaseChat Overview and Summary

The case of R v Lao involved the defendant who was convicted and sentenced in the court. The appeal was focused on the sentence imposed by the court, specifically regarding the absence of an express mention by the sentencing judge of the defendant's guilty plea, and whether this omission indicated that the plea had been disregarded. The defendant argued that the lack of acknowledgment of the plea by the judge might have influenced the severity of the sentence imposed.

The central legal issue was whether the absence of an express mention of the guilty plea by the sentencing judge constituted a disregard of the plea, and whether this omission warranted a reassessment of the sentence's appropriateness. Additionally, the court had to determine what constituted an appropriate range for the sentence, and whether the sentence imposed by the judge fell within this range. The defence contended that the failure to mention the plea could imply that the judge intended to disregard it, thereby affecting the sentencing process unfavourably.

In evaluating these issues, the court found that the sentencing judge's intention to impose a low sentence was evident from the context and overall tone of the proceedings. The judge's comments and the resulting sentence indicated that the plea had been taken into account, even if not expressly mentioned. The court held that the absence of an explicit reference to the plea did not necessarily mean it was disregarded. The sentence imposed was deemed to be within an appropriate range, considering the mitigating factors and the judge's expressed intention to be lenient. Consequently, the appeal against the sentence was dismissed.

Orders