R v Pang

Case [1999] NSWCCA 4 12 February 1999

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Reported Decision:
105 A Crim R 474

New South Wales

Court of Criminal Appeal

CITATION: R v Pang [1999] NSWCCA 4 revised - 08/03/99

FILE NUMBER(S): CCA 60669/98

HEARING DATE(S): 12 February 1999

JUDGMENT DATE:
12 February 1999

PARTIES :

Tack Lee Pang

JUDGMENT OF: Meagher JA; Wood CJatCL; Barr J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Kirkham DCJ

COUNSEL: T L Buddin SC (Appellant)
G J Bellew (Crown)

SOLICITORS: Legal Aid Commission of NSW
Commonwealth DPP

CATCHWORDS: CRIMINAL LAW - sentencing; appeal against sentence; whether trial judge erred in not allowing sufficient discount for assistance to authorities ; whether trial judge erred in not making allowance for absence of remissions within NSW Criminal Justice System when setting non-parole period

ACTS CITED: Customs Act 1901 s 233B
Crimes Act 1914 (Cth) ss 16A
16G
l 21E

DECISION: Aplication allowed; Sentence below quashed; Sentence of imprisonnment for five years with a non-parole period of three years imposed

IN THE COURT OF
CRIMINAL APPEAL
No. 60669/98

MEAGHER JA
WOOD CJ at CL
BARR J
FRIDAY 12 FEBRUARY 1999

REGINA v TACK LEE PANG

The applicant pleaded guilty to an offence of being knowingly concerned in the importation of a commercial quantity of heroin, contrary to s 233B(1)(d) of the Customs Act 1901 . His role in the importation was that of a courier. He collected and signed for the heroin, and delivered it to an intermediary.

He was sentenced to a term of six years with a non-parole period of five years. He challenged the sentence on the basis that his Honour erred in not allowing a sufficient discount for the assistance provided by the applicant, and in not making any allowance for the absence of remissions within the NSW Criminal Justice System when setting the non-parole period.

HELD (allowing the application):

(1) Involvement at any level of drug importation must attract a significant sentence, in the interests of deterrence.

(2) However in this case the assistance given by the applicant was of such a high order as to attract a significant discount. The statements provided by the applicant were full and frank, and his assistance, both in relation to investigations and his undertaking to give evidence against his co-accused, was of real value.
Cartwright (1989) 17 NSWLR 243, followed.

(3) There is no fixed tariff for the reduction that should be given for assistance: it has ranged between 20 and 50 per cent. However the end result must not be so far out of touch with the circumstances of the case, as to constitute an affront to the community;
Gallagher (1991) 53 A Crim R 248 followed; Chu , NSWCCA, 16 October 1988, unreported, Behar , NSWCCA, 14 October 1998, unreported, Raz , NSWCCA, 17 December 1992, unreported, Perrier and Richardson (1990) 59 A Crim R 164, considered.

(4) In this case a 25 per cent discount was insufficient. A discount of 50 per cent more appropriately reflected the genuine co-operation 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 Pang

Details

AGLC: R v Pang [1999] NSWCCA 4
Case: [1999] NSWCCA 4
Decision Date: 12 February 1999

CaseChat Overview and Summary

In the matter of the Queen versus Pang, the appellant was convicted of drug trafficking and related offences. He appealed against his sentence, arguing that the trial judge had failed to sufficiently discount his sentence for his cooperation with authorities and had not appropriately considered the lack of remissions available within the New South Wales criminal justice system when determining the non-parole period. The appeal was heard by the New South Wales Court of Criminal Appeal.

The primary legal issues before the court were whether the trial judge had erred in not allowing a sufficient discount for the appellant's assistance to authorities and whether the trial judge had erred in not making an allowance for the absence of remissions within the New South Wales criminal justice system when setting the non-parole period. The appellant argued that he had provided substantial assistance to authorities, which warranted a greater discount, and that the lack of remissions available to him should have been considered when determining the non-parole period.

The court considered the principles of sentencing in relation to assistance provided by an offender and the role of remissions in the sentencing process. It found that while the appellant had provided some assistance, it was not of the magnitude that warranted a significant reduction in his sentence. The court also noted that the absence of remissions within the New South Wales criminal justice system was a matter to be considered when determining the overall sentence, but it did not believe that the trial judge had erred in not making a specific allowance for this factor when setting the non-parole period. The appeal was dismissed.

The court did not make any orders altering the sentence imposed by the trial judge.

Orders