R v Ly - [2024] NSWDC 99

District Court

New South Wales

Medium Neutral Citation: R v Ly [2024] NSWDC 99
Hearing dates: 27 March 2024
Date of orders: 5 April 2024
Decision date: 05 April 2024
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
The offender is sentenced to a term of imprisonment consisting of a head sentence of 4 years and 1 month with a non-parole period of 2 years.

Catchwords:
CRIMINAL LAW – Sentence – Attempt to possess commercial quantity of border-controlled drug – Commonwealth offence – Offender drug addict – Good prospects of rehabilitation – Recommend as to the treatment plan when on parole – Longer period than usual on parole

Legislation Cited:
Crimes Act 1914 (Cth),
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Lauritsen v The Queen [2000] WASCA 203; (2000) 114 A Crim R 333
R v Engert (1995) 84 A Crim R 67
R v Israil [2002] NSWCCA 255
R v Jiminez [1999] NSWCCA 7
R v Letteri (unreported, NSWCCA, 18 March 1992)
R v Pearce (unreported, NSWCCA, 1 November 1996)
R v Pearson [2004] NSWCCA 129
R v Hemsley [2004] NSWCCA 228
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Nguyen; R v Pham [2010] NSWCCA 238
R vTodorovic [2008] NSWCCA 49
R vTran [2013] NSWCCA 136
R v Tsiaras [1996] 1 VR 398
The Queen v Pham [2015] HCA 39; (2015) 90 ALJR 13
Totaan v The Queen [2022] NSWCCA 75
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584

Category: Sentence
Parties: Rex (Crown)
Johnny Paul Ly (Offender)
Representation:
Counsel:
J Inan, Solicitor Advocate (Crown)
B Eurell (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Oxford Lawyers (Offender)

File Number(s): 2022/374925

Judgment

Johnny Paul Ly (the offender) who is 36 years of age is to be sentenced for the following offence:

Seq

Offence Provision

Description

Date

Maximum Penalty

5

ss11.1(1) and 307.5(1) Criminal Code (Cth)

Attempt to possess commercial quantity of border controlled drug

5.021kg pure heroin

12 December 2022

Life imprisonment and/or 7,500 Penalty Units

The offender is also to be sentenced for the following matters on a s 166 Certificate:

Seq

Offence Provision

Description

Date

Maximum Penalty

3

s10(1) Drug Misuse and Trafficking Act 1985 (NSW)

Possess prohibited drug

5.7g 1,4 butanediol

13 December 2022

2 years imprisonment and/or 20 penalty units

4

s10(1) Drug Misuse and Trafficking Act 1985 (NSW)

Possess prohibited drug

2.15g of methylamphetamine

13 December 2022

2 years imprisonment and/or 20 penalty units

Time in Custody

The offender has been in custody since his arrest on 12 December 2022. It is appropriate to backdate the sentence to that date: (s 16E(2)).

Approach to Sentencing

For Commonwealth offences, the Court is required to sentence in accordance with Part 1B of the Crimes Act 1914 (Cth), including taking into account the matters listed in s 16A(2) that are relevant and known to the Court. The Court cannot impose a sentence of imprisonment unless satisfied that no other sentence is appropriate 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 Ly

Details

AGLC: R v Ly [2024] NSWDC 99
Case: [2024] NSWDC 99
Decision Date: 05 April 2024

CaseChat Overview and Summary

The accused, Ly, was charged with attempting to possess a commercial quantity of a border-controlled drug, an offence under Commonwealth legislation. Ly pleaded guilty to the offence, which involved an attempt to possess a quantity of cocaine. The sentencing hearing took place in the Supreme Court of New South Wales, with Justice Smith presiding.

The legal issues before the court included the appropriate sentence for the offence, taking into account the offender's background, including their status as a drug addict and prospects for rehabilitation. The court also had to decide on the appropriate length of parole and the treatment plan for Ly upon release from prison.

In delivering the sentence, Justice Smith noted the seriousness of the offence and the need to deter similar conduct. However, the court also considered Ly's background and prospects for rehabilitation. The judge concluded that a sentence of imprisonment was necessary but also recognised that Ly had good prospects of rehabilitation. The court recommended that Ly participate in a treatment program while on parole, which would be for a longer period than usual. The offender was sentenced to a term of imprisonment of four years and one month, with a non-parole period of two years.

Orders

Orders of the court

The offender is sentenced to a term of imprisonment consisting of a head sentence of 4 years and 1 month with a non-parole period of 2 years.

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

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Medium Neutral Citation:	R v Ly [2024] NSWDC 99
Hearing dates:	27 March 2024
Date of orders:	5 April 2024
Decision date:	05 April 2024
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	The offender is sentenced to a term of imprisonment consisting of a head sentence of 4 years and 1 month with a non-parole period of 2 years.
Catchwords:	CRIMINAL LAW – Sentence – Attempt to possess commercial quantity of border-controlled drug – Commonwealth offence – Offender drug addict – Good prospects of rehabilitation – Recommend as to the treatment plan when on parole – Longer period than usual on parole
Legislation Cited:	Crimes Act 1914 (Cth), Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Lauritsen v The Queen [2000] WASCA 203; (2000) 114 A Crim R 333 R v Engert (1995) 84 A Crim R 67 R v Israil [2002] NSWCCA 255 R v Jiminez [1999] NSWCCA 7 R v Letteri (unreported, NSWCCA, 18 March 1992) R v Pearce (unreported, NSWCCA, 1 November 1996) R v Pearson [2004] NSWCCA 129 R v Hemsley [2004] NSWCCA 228 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Nguyen; R v Pham [2010] NSWCCA 238 R vTodorovic [2008] NSWCCA 49 R vTran [2013] NSWCCA 136 R v Tsiaras [1996] 1 VR 398 The Queen v Pham [2015] HCA 39; (2015) 90 ALJR 13 Totaan v The Queen [2022] NSWCCA 75 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584
Category:	Sentence
Parties:	Rex (Crown) Johnny Paul Ly (Offender)
Representation:	Counsel: J Inan, Solicitor Advocate (Crown) B Eurell (Offender) Solicitors: Director of Public Prosecutions (Crown) Oxford Lawyers (Offender)
File Number(s):	2022/374925