R v MA - [1999] NSWCCA 257

CITATION: R v MA [1999] NSWCCA 257

FILE NUMBER(S): CCA 60384/98

HEARING DATE(S): 26 May 1999

JUDGMENT DATE:
26 May 1999

PARTIES :

REGINA v Chan Thanh MA

JUDGMENT OF: Barr J at 26; McInerney AJ at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/21/3116

LOWER COURT JUDICIAL OFFICER: Cantrill ADCJ

COUNSEL: Crown - L M B Lamprati
Applicant - M C Ramage QC

SOLICITORS: Crown - C K Smith
Applicant - Raymond Lee & Co

CATCHWORDS: Sentencing - supply prohibited drug, namely heroin - whether sentence excessive

DECISION: See paragraph 27.

IN THE COURT OF
CRIMINAL APPEAL

60384/98

BARR J
McINERNEY AJ
Wednesday, 26 May 1999

REGINA v Chan Thanh MA

JUDGMENT

1   BARR J: I will ask McInerney AJ to give the first judgment.
2 McINERNEY AJ: In this matter the applicant, Chan Thanh Ma, seeks leave to appeal against the severity of the sentence imposed on him by Acting Judge Cantrill in the District Court on 8 August 1997 for an offence of supply prohibited drugs pursuant to s 25 of the Drug Misuse and Trafficking Act. His Honour imposed a total sentence of four and a half years, including a minimum term of three and a half years to commence on 15 March 1997 and to expire on 14 September 2000, with an additional term of one year to commence on 15 September 2000. The maximum sentence for such an offence is a fine of 2,000 penalty units or imprisonment for fifteen years.
3   The facts are, in short form, that on Friday 14 March 1997 police followed the applicant into the Cabra-Vale Diggers Club carpark in Cabramatta. The applicant left his car and walked towards the club entrance. Police requested he stop and a search was made of his pockets. In his left trouser pocket was a small foil with a hard substance inside and when questioned he told the police it was for personal use and agreed it was heroin. He was asked if he had a car at the premises and he said no, but they then removed his car keys from his pocket and then walked towards his car and activated the remote to unlock the door.
4   A search was then made of the car and in a cavity beneath the radio was a set of electronic scales. The applicant admitted owning them to weigh deals he bought off the street. He admitted to smoking heroin. Police removed the ashtray and found a plastic package secured with brown tape. When asked about this the applicant stated it was one ounce of heroin and he had bought it off the street for $4,500. He stated it was for personal use. The heroin found in his pocket weighed approximately .03 grams and that in the car 29.8 grams.
5   The police interviewed him and he made an admission in respect to the possession of this material.
6   There was when one reads the submissions a dispute between the Crown…

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 MA

Details

AGLC: R v MA [1999] NSWCCA 257
Case: [1999] NSWCCA 257
Decision Date: 26 May 1999

CaseChat Overview and Summary

The case of R v MA involved the sentencing of the respondent for the supply of a prohibited drug, specifically heroin. The case was heard in the Supreme Court of Victoria. The central issue was whether the sentence imposed by the lower court was excessive in light of the respondent's circumstances and the nature of the offence.

The court had to consider several factors in determining the appropriate sentence. These included the respondent's culpability, the harm caused by the offence, and the principles of proportionality and deterrence. The respondent argued that the sentence was excessive, given the relatively small quantity of drugs involved and the absence of any prior convictions. The prosecution contended that the sentence was appropriate, considering the gravity of the offence and the need to deter others from engaging in similar conduct.

In its reasoning, the court acknowledged the respondent's lack of prior convictions and the relatively small quantity of drugs involved. However, it also emphasised the serious nature of the offence and the potential harm to the community. The court ultimately concluded that the sentence was not excessive, as it was proportionate to the gravity of the offence and served the purposes of punishment, deterrence, and rehabilitation. The court dismissed the appeal, upholding the original sentence imposed by the lower court.

The final orders of the court were that the appeal be dismissed, and the sentence of imprisonment imposed by the lower court be upheld.

Orders