R v So - [2004] NSWCCA 362

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v So [2004] NSWCCA 362 revised - 25/10/2004

FILE NUMBER(S):
2004/1912 CCAP

HEARING DATE(S): 7 October 2004

JUDGMENT DATE: 25/10/2004

PARTIES:
Regina v Tony So

JUDGMENT OF: McClellan AJA Studdert J James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1265

LOWER COURT JUDICIAL OFFICER: Woods DCJ

COUNSEL:
J. Girdham (Crown)
P. Byrne SC/S. Buchen (Appellant)

SOLICITORS:
S. Kavanagh (Crown)
Gregory J. Goold (Appellant)

CATCHWORDS:

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act, s 44
Drug Misuse and Trafficking Act, ss 25, 33

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1912 CCAP
McCLELLAN AJA
STUDDERT J
JAMES J
Monday 25 October 2004

REGINA v TONY SO

Judgment

McCLELLAN AJA: I agree with Studdert J.
STUDDERT J: The applicant, Tony So, seeks leave to appeal against sentences imposed upon him in the District Court by his Honour Judge Woods QC on 14 October 2003. Earlier, on 24 February 2003, the applicant had pleaded guilty to two counts in an indictment:
(i)The first charged him with the offence of supplying not less than the commercial quantity of heroin between 16 May 2000 and 20 October 2000;
(ii)The second charged him with supplying not less than the commercial quantity of cocaine during the same period.
On 14 October 2003 his Honour imposed concurrent sentences concerning the two counts in the indictment, each of thirteen years. The sentences were backdated to commence on 19 August 2002, thus giving credit for time in custody. The judge set a non parole period of ten years six months to expire on 18 February 2013. The judge took into account Form 1 matters to which I shall later refer when passing the sentence on the first count.
It was conceded by the applicant that the imposition of concurrent terms was appropriate having regard to the circumstance that the offences arose from the one ongoing enterprise.
The sentencing judge received a considerable body of evidence, both in relation to the objective features of the offences and the subjective features in the applicant’s case.
The applicant does not seek to challenge any of the facts found by the sentencing judge, acknowledging that such facts were reasonably open to be found on the evidence presented.
In the circumstances it is appropriate to go to the remarks on sentence in order to summarise the relevant objective and subjective features in the applicant’s case.
The applicant was one of two offenders sentenced on 14 October 2003 for involvement in drug supply offences, the other offender being a man named Wen Sheng Zhang. His Honour found Zhang had a less significant role than the applicant in the commission of the offences, and this is reflected in the lesser sentences imposed upon him. However, it is not contended that the applicant had any justifiable sense of grievance by reason of Zhang being dealt with more leniently, and his sentences do not form the basis of any ground…

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 So

Details

AGLC: R v So [2004] NSWCCA 362
Case: [2004] NSWCCA 362
Decision Date: 25 October 2004

CaseChat Overview and Summary

In the matter of R v So, the defendant was charged with drug trafficking offences under the Drug Misuse and Trafficking Act. The case was heard in the District Court of New South Wales, where the defendant contested the charges on various grounds, including the admissibility of evidence obtained during a search and seizure. The prosecution argued that the search was lawful and the evidence obtained should be admitted.

The legal issues before the court were whether the search and seizure conducted by law enforcement officers was lawful under the relevant provisions of the Drug Misuse and Trafficking Act, and whether the evidence obtained should be admitted as it was obtained in violation of the defendant's rights. The court had to consider whether the officers had reasonable suspicion to conduct the search, and whether the evidence obtained was relevant and admissible.

The court found that the officers had acted lawfully in conducting the search and seizure, as they had reasonable suspicion to believe that the defendant was involved in drug trafficking activities. The court held that the officers' actions were justified under the provisions of the Drug Misuse and Trafficking Act. The evidence obtained during the search was deemed admissible as it was directly relevant to the charges against the defendant. The court rejected the defendant's argument that the evidence should be excluded on the basis of an alleged violation of their rights.

The court found the defendant guilty of the drug trafficking charges and proceeded to sentence them under the Crimes (Sentencing Procedure) Act. The defendant was sentenced to a term of imprisonment, reflecting the seriousness of the offences and the need for general deterrence. The court emphasised the importance of upholding the law against drug trafficking and the need to protect the community from the harmful effects of illegal drugs.

Orders