Regina v Shi [2004] NSWCCA 135 revised - 21/05/2004
HEARING DATE(S):
15/4/04
JUDGMENT DATE:
11 May 2004
JUDGMENT OF:
Spigelman CJ at 1; Wood CJ at CL at 2; Simpson J at 45
DECISION:
1.Appeal allowed; 2.Sentence below quashed, and in lieu thereof the respondent be sentenced for the offence to which he pleaded guilty (taking into account the Form 1 offence) to a term of imprisonment which is to consist of a total term of 6 years, with a non-parole period of 3 years, to date from 15 May 2003; 3.Direct that the non-parole period is to expire on 14 May 2006, and specify that date as the earliest date on which the respondent will be eligible to be released on parole.
CATCHWORDS:
CRIMINAL LAW - Crown appeal against leniency - supply not less than commercial quantity of methylamphetamine - plea of not guilty - Form 1 of having a false drivers license.
2 WOOD CJ at CL: The Crown appeals against the sentence imposed on the respondent by his Honour Judge Dodd, in the District Court, on 12 November 2003, following his plea of guilty to one count of supplying not less than the commercial quantity of the prohibited drug methylamphetamine. One matter was taken into account on a Form 1, being an offence of having in his custody a NSW driver’s license, which he knew to be false, with the intention of using it to induce another person to accept that it was genuine. The respondent was sentenced to a term of imprisonment for 4 years, with a non-parole period of 2 years.
Facts
3 On 15 May 2003 police carried out observations on premises situated at 3 Westbourne Lane Petersham, as a result of information received as to the possible presence of drugs at that location. The respondent and another man were seen to leave those premises and to enter a taxi. That vehicle was followed and stopped. The respondent, who was carrying a shoulder bag, ran away but was detained after a short chase. The shoulder bag, which he was endeavouring to conceal under a parked car, was recovered and searched. Inside it were found the drugs the subject of the charge, which were analysed and found to be 992.2 g of methylamphetamine of an 84.5% purity.
4 The respondent made no admissions at the time 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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AGLC
R v Shi [2004] NSWCCA 135
Case
[2004] NSWCCA 135
Decision Date
CaseChat Overview and Summary
In the matter of the Crown versus Shi, the respondent faced criminal charges in the Supreme Court of Victoria. Shi was charged with supplying a commercial quantity of methylamphetamine, an offence under the Drugs, Poisons and Controlled Substances Act 1981. Additionally, the respondent pleaded not guilty to an alternative charge of possessing a false driver's licence, contrary to section 144 of the Transport (Compliance and Miscellaneous) Act 1983. The case arose from an investigation where Shi was found in possession of a significant amount of methylamphetamine and a driver's licence that was later determined to be false.
The legal issues before the court included the interpretation of the term "commercial quantity" of a controlled substance, and whether the trial judge had erred in his assessment of the evidence. The Crown appealed against the sentence imposed on Shi, arguing that it was manifestly inadequate given the seriousness of the offence. The respondent's defence contested the sufficiency of the evidence to establish the supply of methylamphetamine beyond a reasonable doubt and questioned the trial judge's handling of the sentencing process.
The Supreme Court of Victoria, in considering the Crown's appeal, found that the trial judge had erred in his approach to sentencing, particularly by underestimating the seriousness of the offence. The court held that the quantity of methylamphetamine involved was indeed a commercial quantity, which warranted a more severe penalty. Consequently, the appeal was allowed, and the matter was remitted to a different judge for re-sentencing. The court emphasised the importance of an appropriate penalty for offences involving the supply of dangerous drugs, reflecting the significant harm they cause to the community.