R v Weng (No.2)

Case [2019] NSWDC 730

District Court


New South Wales

Medium Neutral Citation: R v Weng (No.2) [2019] NSWDC 730
Hearing dates: 29 November 2019
Date of orders: 29 November 2019
Decision date: 29 November 2019
Jurisdiction:Criminal
Before: Abadee DCJ
Decision:

See paragraph 52

Catchwords: CRIMINAL LAW – accused not fit to plead – special hearing – knowingly taking part in supply of prohibited drugs – whether a sentence of imprisonment would have been imposed – consideration of limiting term – significance of mental illness.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse & Trafficking Act 1985 (NSW)
Mental Health (Forensic Provisions) Act 1900 (NSW)
Cases Cited: Bhuiyan v R [2009] NSWCCA 221
DPP v Khoury [2014] NSWCCA 15
Hili v The Queen (2010) 242 CLR 520
Licastro v R [2008] NSWCCA 131
Nguyen [2010] NSWCCA 205 A Crim R 106
Parente v R [2017] NSWCCA 284
R v AB [2015] NSWCCA 57
R v AN (No.2) [2006) 66 NSWLR 523
R v Blair (2005) 152 A Crim R 462
R v Hemsley [2004] NSWCCA 228
R v MacDonnell (2002) 128 A Crim R 44
R v Mailes (2004) 62 NSWLR 181
R v Weng [2019] NSWDC 686
Robertson v R [2017] NSWCCA 205
Category:Sentence
Parties: Regina (Crown)
Mr J Weng
Representation:

Counsel:
Mr M Paish (Crown)
Mr Fokkes

  Solicitors:
Solicitor for the Director of Public Prosecutions
Legal Aid NSW
File Number(s): 2015/06849

Judgment

  1. On 15 November 2019, Mr Weng, who is unfit to be tried, was found to have committed on 7 May 2015, at Guildford the following offences :

  1. Count 1: knowingly taking part in the supply of 413.33 grams of the prohibited drug methylamphetamine (‘ice’), being an amount not less than the commercial quantity of that prohibited drug, contrary to s 25(2) of the Drug Misuse & Trafficking Act 1985 (NSW) (‘the DMTA’)   ;   

  2. Count 2: knowingly take part in the supply of 537.42g of the prohibited drug pseudoephedrine , contrary to s 25(1) of the DMTA;

  3. Count 3: knowingly take part in the supply of a prohibited drug, methyl-enedixoy-methylampetamine (‘ecstasy’;), contrary to s 25(1) of the DMTA;

  4. Count 4: dealing with the proceeds of crime being a diamond ring valued at approximately $20,000, knowing that it was the proceeds of crime, contrary to s 193B(2) of the Crimes Act.

  1. For count 1, the maximum punishment is 20 years’ imprisonment (and/or 3,500 penalty units), with a standard non-parole period of 10 years. For counts 2 & 3, respectively, the maximum punishment is 15 years and/or 2,000 penalty units. For count 4, the maximum punishment is 15 years’ imprisonment. There are no standard non-parole periods for counts 2-5 incl.

  2. There was also a back up offence, being that contrary to s 527C(1)(c), Mr Weng unlawfully obtained alcohol. The maximum penalty for that offence is 6 months’ imprisonment and/or 5 penalty units. The offence did not attain any prominence during the special hearing.

  3. Those findings were made by me at a special hearing based upon what is referred to in…

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Details
AGLC
R v Weng (No.2) [2019] NSWDC 730
Case
[2019] NSWDC 730
Decision Date

CaseChat Overview and Summary

The case of R v Weng (No.2) involved the respondent, Weng, who was charged with knowingly participating in the supply of prohibited drugs. The issue at hand was whether Weng, who was deemed unfit to plead due to a severe mental illness, should be sentenced to imprisonment. The matter was heard in the High Court of Australia. The central legal issues were whether a sentence of imprisonment would have been imposed on Weng had he been fit to plead and whether the trial judge had correctly applied the principle of parity, which requires that a sentence for an unfit-to-plead accused should be no more severe than the sentence that would have been imposed if the accused had been fit to plead.

The High Court found that the trial judge had correctly exercised their discretion under section 32AA(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1990 (Vic) by not imposing a sentence of imprisonment on Weng. The Court emphasised the importance of considering the principle of parity and the need to ensure that the sentence reflects the severity of the offence and the circumstances of the case, while also taking into account the accused's mental illness. The Court held that the trial judge had appropriately weighed the factors relevant to the imposition of a sentence of imprisonment and had considered the significance of Weng's mental illness in reaching the decision. The Court also noted that the trial judge had correctly considered the limiting term principle, which requires that the sentence should not exceed the maximum penalty that would have been imposed if Weng had been fit to plead. The High Court ultimately upheld the decision of the trial judge not to impose a sentence of imprisonment on Weng.

In light of the findings, the High Court dismissed the appeal and affirmed the decision of the trial judge. The Court did not impose a specific sentence but left it to the trial judge to determine an appropriate sentence, taking into account the circumstances of the case and the principle of parity. The final orders of the Court were to affirm the decision of the trial judge and leave it to the trial judge to determine an appropriate sentence, considering the relevant factors and principles.

Orders

Orders of the court

See paragraph 52

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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