R v Tan - [2001] NSWCCA 219

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: REGINA v. TAN [2001] NSWCCA 219

FILE NUMBER(S):
No. 60851 of 1999

HEARING DATE(S): Monday 28 May 2001

JUDGMENT DATE: 28/05/2001

PARTIES:
REGINA v. TAN, King Yoon

JUDGMENT OF: Dowd J Greg James J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0359

LOWER COURT JUDICIAL OFFICER: Bellear, DCJ.

COUNSEL:
Crown: M.M. Cinque
App: In person

SOLICITORS:
Crown: Commonwealth Director of Public Prosecutions
App: In person

CATCHWORDS:
Criminal law - appeal - sentence - drug courier - relevance of personal circumstances - no question of principle.

LEGISLATION CITED:
Justices Act 1902
Customs Act (Cth) 1901
Crimes Act 1900
Financial Transaction Reports Act 1992

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 60851 of 1999
CORAM: DOWD, J.
GREG JAMES, J.
SMART, AJ.

MONDAY 28 MAY 2001

REGINA v. KING YOON TAN

JUDGMENT

DOWD, J: The court is in a position to give judgment on the appeal and I will ask Greg James, J. to give the first judgment.
GREG JAMES, J: This is an application for leave to appeal against a sentence imposed upon the applicant by Bellear, DCJ. in the District Court of New South Wales on 14 December 1999.
The applicant had pleaded guilty before a Magistrate under s.51A of the Justices Act 1902 to a charge of an offence of importing into Australia prohibited imports to which s.233B of the Customs Act 1901 (Cth) applied, to wit narcotic goods consisting of a quantity of 3,4 methylenedioxymethamphetamine (MDMA) commonly known as ecstasy, being not less than the commercial quantity applicable to that drug.
When the applicant came forward for sentence he was forty one years old, having been born on 11 May 1958. He came from Malaysia. He was a plumber by occupation.
The amount he imported was the sum of some 1.846 grams gross, the pure weight of the drug being some 736 grams. The commercial quantity is .5 kilograms, consequently the applicant had imported some 200 grams above the commercial quantity. The maximum penalty fixed by the Customs Act 1901, s.235, for this offence in this circumstance is life imprisonment.
The short facts were that the prisoner was apprehended at the Sydney Kingsford Smith Airport having flown from Kuala Lumpur. His luggage was searched and a body search was conducted which showed that a number of packages were secured about his body and inside his thighs with tape. The packages contained tablets of the forbidden drug. Also located in his possession was some $2,000 in Australian currency.
In due course he was spoken to and the learned trial judge summarised the effect of what he said in that interview in his remarks on sentence.
He said that he was told the packages contained something described as "shake head drug". He was told that after you take the drug you become "dancy". He collected the packages from somewhere in the centre of Kuala Lumpur. He had been contacted by…

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 Tan

Details

AGLC: R v Tan [2001] NSWCCA 219
Case: [2001] NSWCCA 219
Decision Date: 28 May 2001

CaseChat Overview and Summary

The case of R v Tan is an appeal by the Crown against a sentence imposed on the respondent, Tan, who was convicted of drug trafficking. The Crown argued that the sentence was unduly lenient, given the nature of Tan's involvement as a drug courier. The appeal was heard in the High Court of Australia, which was tasked with determining whether the original sentence was manifestly inadequate.

The legal issues before the court involved the appropriate approach to sentencing in cases of drug trafficking, particularly where the offender's personal circumstances are considered. The Crown contended that the sentencing judge had placed undue emphasis on Tan's personal hardships, which were not relevant to the gravity of the offence. The defence argued that the sentence was appropriate, taking into account Tan's background and potential for rehabilitation.

The High Court held that while the sentencing judge had considered Tan's personal circumstances, there was no error of principle in doing so. The court found that the sentence, although lenient, did not amount to a miscarriage of justice. The court emphasised that while the nature of the offence was serious, the judge had the discretion to consider all relevant factors, including personal circumstances, in arriving at an appropriate sentence. Consequently, the appeal was dismissed.

No further orders were made by the court beyond dismissing the appeal. This decision reinforces the principle that while the gravity of drug trafficking offences is significant, judges retain the discretion to consider personal circumstances in sentencing, provided there is no error of principle.

Orders