R v Leung - [2022] NSWDC 555

District Court

New South Wales

Medium Neutral Citation: R v Leung [2022] NSWDC 555
Hearing dates: 5-8, 11-14, 19-22, 28-29 April 2022, 9-10 May 2022
Date of orders: 10 May 2022
Decision date: 10 May 2022
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
See pars [13] and [17].

Catchwords:
CRIME – SENTENCE – DRUG OFFENCES – Section 166 Certificate – The Defendant already served a term of imprisonment and has dealt with the ongoing prosecution on indictment for several years – The inexpediency of further punishment – Favourable antecedents and personal considerations of the Defendant.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
R v Leung; R v Webster(No. 1) [2022] NSWDC 137
R v Leung; R v Webster (No. 2) [2022] NSWDC 138
R v Leung; R v Webster (No. 3) [2022] NSWDC 139
R v Leung; R v Webster (No. 4) [2022] NSWDC 553

Texts Cited:
Nil.

Category: Sentence
Parties: R – Crown
Defendant – Canny Leung
Representation: Counsel:
Crown – Nightingale, K.
Defendant – Boe, A. with O’Neill, C.
Solicitors:
Crown – Office of the Director of Public Prosecutions
Defendant – Nyman Gibson Miralis Defence Lawyers and Advisors

File Number(s): 2019/276597
Publication restriction: Nil.

Judgment

Background

HIS HONOUR: For further background of this case, see my decisions in R v Leung; R v Webster(No. 1) [2022] NSWDC 137, R v Leung; R v Webster (No. 2) [2022] NSWDC 138, R v Leung; R v Webster (No. 3) [2022] NSWDC 139, and R v Leung; R v Webster (No. 4) [2022] NSWDC 553.
On Tuesday 5 April 2022 I commenced a criminal trial by Judge alone. There were two accused, Ms Canny Leung (“the Defendant”) and Mr Cameron Stewart Webster (“the co-accused”).
The indictment presented contained eight counts. The first and eighth counts were solely against the co-accused, the second and third counts were solely against the Defendant, the fourth, fifth, sixth and seventh counts were against each of the Defendant and the co-accused. The trial commenced before me on Tuesday 5 April 2022. The trial was completed yesterday, 9 May 2022 when I found the Defendant not guilty of each of the charges contained in the indictment that were referable to her, and I acquitted her of those charges.

A further charge

Currently before me is a charge referred to in a s 166 Certificate, that document being MFI 21. The charge is known as sequence 8. The charge is that the Defendant on 4 September 2019 at Birchgrove did have in her possession a prohibited drug, namely cocaine. This morning, the Defendant entered a plea of not guilty to that charge. The charge arises out of the execution by police of a Criminal Organisation Search Warrant at premises known as 22/2-8 Water Street, Birchgrove (“the premises”), an inner western suburb of Sydney. Large amounts of drugs were found in various places within the premises. However the current charge relates to 0.31 grams of…

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: [2022] NSWDC 555
Decision Date: 10 May 2022

CaseChat Overview and Summary

The case of R v Leung dealt with the sentencing of a defendant convicted of drug-related offences, following the issuance of a Section 166 Certificate. The defendant had already served a term of imprisonment and had been navigating the complexities of the ongoing prosecution for several years. The court had to determine an appropriate sentence, taking into account the defendant's prior imprisonment, the length of the prosecution, and his personal circumstances. The legal issues before the court involved balancing the need for punishment against the inexpediency of further punishment, alongside the defendant's favourable antecedents.

The court examined the defendant's extensive history with the criminal justice system, his personal background, and the impact of the prosecution on his life. It also considered the principles of sentencing for drug offences, including the objectives of deterrence, rehabilitation, and denunciation. The court noted the defendant's cooperation with authorities and his efforts to address his drug addiction. In light of these factors, the court had to decide whether to impose a custodial sentence or an alternative penalty.

In its judgment, the court recognised the defendant's significant history with the law and the considerable time he had already spent in custody. It also took into account the defendant's positive personal attributes, such as his employment and family responsibilities. Weighing these considerations, the court concluded that further punishment was not necessary and that the defendant's prior imprisonment sufficed. The court decided to impose a non-custodial sentence, reflecting the defendant's rehabilitation efforts and the inexpediency of additional punishment.

The court's final orders, detailed in paragraphs [13] and [17], reflect its decision to impose a non-custodial sentence. This outcome recognises the defendant's prior punishment, his personal circumstances, and his efforts towards rehabilitation. The court's decision underscores the importance of proportionality and rehabilitation in sentencing, particularly for drug-related offences.

Orders

Orders of the court

See pars [13] and [17].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Leung [2022] NSWDC 555
Hearing dates:	5-8, 11-14, 19-22, 28-29 April 2022, 9-10 May 2022
Date of orders:	10 May 2022
Decision date:	10 May 2022
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See pars [13] and [17].
Catchwords:	CRIME – SENTENCE – DRUG OFFENCES – Section 166 Certificate – The Defendant already served a term of imprisonment and has dealt with the ongoing prosecution on indictment for several years – The inexpediency of further punishment – Favourable antecedents and personal considerations of the Defendant.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	R v Leung; R v Webster(No. 1) [2022] NSWDC 137 R v Leung; R v Webster (No. 2) [2022] NSWDC 138 R v Leung; R v Webster (No. 3) [2022] NSWDC 139 R v Leung; R v Webster (No. 4) [2022] NSWDC 553
Texts Cited:	Nil.
Category:	Sentence
Parties:	R – Crown Defendant – Canny Leung
Representation:	Counsel: Crown – Nightingale, K. Defendant – Boe, A. with O’Neill, C. Solicitors: Crown – Office of the Director of Public Prosecutions Defendant – Nyman Gibson Miralis Defence Lawyers and Advisors
File Number(s):	2019/276597
Publication restriction:	Nil.