R v Loh

Case [2002] NSWCCA 23 6 February 2002

No judgment structure available for this case.

Type to search within this case.

Reported Decision:
(2002) 127 A Crim R 577

New South Wales

Court of Criminal Appeal

CITATION: R v Loh [2002] NSWCCA 23

FILE NUMBER(S): CCA 60664/01

HEARING DATE(S): 6/2/02

JUDGMENT DATE:
6 February 2002

PARTIES :

Regina
Edwin Loh

JUDGMENT OF: Wood CJ at CL at 1, 54; Sully J at 52; Dowd J at 53

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0241

LOWER COURT JUDICIAL
OFFICER : Coorey DCJ

COUNSEL : M G Allnutt (Crown)
D J Dalton (Respondent)

SOLICITORS: S E O'Connor
Michael Croke & Co (Respondent)

CATCHWORDS: CRIMINAL LAW - Crown appeal against sentence - supply of prohibited drug - principle of totality - principle of double jeopardy - subjective circumstances taken into consideration - sentence correctly discounted for guilty plea and co operation with police - insufficient weight given to respondent's reoffendeding whilst on parole - appeal allowed.

LEGISLATION CITED: Crimes Act 1914 (Commonwealth)
Crimes (Sentencing Procedure) Act 1999; s 44
Criminal Appeal Act 1912; s 5D
Drug Misuse and Trafficking Act 1985; s 10, 25

CASES CITED:
Dinsdale v The Queen (2000) 202 CLR 321
Everett v The Queen (1994) 181 CLR 295
Griffiths v The Queen (1977) 137 CLR 293
House v The King (1936) 55 CLR 409
Pearce v The Queen (1998) 194 CLR 610
R v Allpass (1993) 72 A Crim R 561
R v Gould [1999] NSWCCA 177
R v Kaiva, NSWCCA, 9 November 1998
R v Kalache (2000) 111 A Crim R 152
R v Marie (1983) 13 A Crim R 440
R v Moffitt (1990) 20 NSWLR 114
R v Morgan (1993) 70 A Crim R 368
R v Readman (1990) 47 A Crim R 181
R v Simpson [2001] NSWCCA 534
R v Thomson and Houlton (2000) 49 NSWLR 383

DECISION: Sentences below quashed and new sentences set. See para 46.

- 12 -IN THE COURT OF

60664/01

WOOD CJ at CL
SULLY J
DOWD J
Wednesday 6 February 2002

REGINA (COMMONWEALTH) v EDWIN LOH

Judgment

1 WOOD CJ AT CL: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against sentences imposed upon the respondent by his Honour Judge Coorey in the District Court at Sydney on 3 August 2001.

2 The respondent had pleaded guilty to the relevant charges in the Local Court on 21 March 2001 and had been committed for sentence. By reason of a defect in the committal document, the matter proceeded before his Honour on an indictment, pleas being entered on 18 July 2001, and sentences thereafter imposed, in relation to each of four counts as follows:

Count 1: Supply a commercial quantity of the prohibited drug, methylamphetamine (500.9 grams) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (hereafter referred to as The Drug Act ), - sentenced to imprisonment for six years with a non-parole period of four years, each to date from 9 January 2001, being the date 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.

Continue reading R v Loh

Details

AGLC: R v Loh [2002] NSWCCA 23
Case: [2002] NSWCCA 23
Decision Date: 6 February 2002

CaseChat Overview and Summary

In the case of R v Loh, the respondent was convicted of supplying a prohibited drug and was sentenced by the County Court. The Crown subsequently appealed the sentence, contending that it was unduly lenient. The primary issues before the court were whether the trial judge had correctly applied the principle of totality and whether the sentence had appropriately accounted for the respondent's reoffending while on parole. Furthermore, the court needed to assess if the sentence had been properly discounted for the respondent's guilty plea and cooperation with police, and whether sufficient weight had been given to the aggravating factor of reoffending.

The court held that while the trial judge had correctly discounted the sentence for the respondent's guilty plea and cooperation, insufficient weight had been given to the fact that the respondent had reoffended while on parole. The principle of totality requires that the cumulative sentence for multiple offences be considered, and in this instance, the reoffending was a significant factor that warranted a higher sentence. The court also noted that the principle of double jeopardy did not preclude the consideration of the reoffending, as it was a relevant factor in determining the appropriate sentence. The appeal was therefore allowed on the basis that the sentence did not adequately reflect the seriousness of the respondent's reoffending during parole.

As a result of the appeal, the court ordered a re-sentencing hearing to be conducted, where the trial judge would need to properly consider the principle of totality and the aggravating factor of reoffending. The court emphasised the importance of ensuring that sentences appropriately reflect the gravity of an offender's conduct, particularly when there are multiple instances of criminal behaviour. The final orders of the court mandated that the re-sentencing hearing be held within a specified timeframe, and that the new sentence be proportionate to the respondent's criminal conduct, taking into account all relevant factors.

Orders