Tabuan v R - [2013] NSWCCA 143

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tabuan v R [2013] NSWCCA 143
Hearing dates: 11 June 2013
Decision date: 25 June 2013
Before: Hoeben CJ at CL at [1]; Harrison J at [2]; Beech-Jones J at [30].
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.

Catchwords: CRIMINAL LAW - appeal - appeal against sentence - whether sufficient evidence to support findings relating to applicant's knowledge of drug transaction - whether evidence capable of supporting findings adverse to applicant beyond reasonable doubt - error found - whether lesser sentence warranted - parity - whether applicant entitled to have justifiable sense of grievance
Legislation Cited: Drug Misuse and Trafficking Act 1985
Cases Cited: Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Category: Principal judgment
Parties: Mario Guiang Tabuan (Appellant)
Crown (Respondent)
Representation: Counsel:
R Mathur (Appellant)
N Noman SC (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/25529
Publication restriction: Nil
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-08-03 00:00:00

Before:

Frearson DCJ

File Number(s):

2010/25529

Judgment

HOEBEN CJ at CL: I agree with Harrison J.

HARRISON J: The applicant seeks leave to appeal against a sentence imposed upon him by Frearson DCJ on 3 August 2012 after his conviction following a jury trial on a single count that he knowingly took part in the supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. His Honour sentenced the applicant to a term of imprisonment of 2 years and 2 months commencing on 18 June 2012 and expiring on 17 August 2014 with a non-parole period of 16 months expiring on 17 October 2013. The applicant was acquitted by the same jury on a charge that he knowingly took part in the supply of 460 grams of methylamphetamine, being an amount not less than the commercial quantity, contrary to s 25(2) of the Act.

This application raises the difficult issue of the extent to which a sentencing judge can legitimately make findings consistent with a jury's verdict where the evidence does not necessarily establish all of the facts required by the judge for that purpose. That issue is reflected in the first two of the applicants grounds of appeal, all of which are as follows:

Ground 1: The sentencing judge erred in finding that the applicant was aware that the drug transaction was "substantial" and in the order of 150 grams of methylamphetamine.

Ground 2: His Honour erred in placing too much weight on the quantity being "substantial"/150 grams in reaching the appropriate sentence.

Ground 3: His Honour erred in failing to allow procedural fairness to the applicant by finding that the quantity involved was substantial and in the order of 150 grams, without providing the applicant the opportunity to make submissions to the contrary.

Ground 4: The applicant has a legitimate sense of grievance due to the disparity of his…

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 Tabuan v R

Details

AGLC: Tabuan v R [2013] NSWCCA 143
Case: [2013] NSWCCA 143
Decision Date: 25 June 2013

CaseChat Overview and Summary

The appellant, Tabuan, appealed against the sentence imposed by the Supreme Court of Queensland. The appellant was convicted of a drug trafficking offence and sentenced to imprisonment. The primary issue for the court was whether there was sufficient evidence to support the findings that the appellant had knowledge of the drug transaction and whether the evidence was capable of supporting those findings beyond reasonable doubt. The court also considered whether a lesser sentence was warranted and whether the appellant was entitled to have a justifiable sense of grievance.

The court found that there were errors in the trial judge's assessment of the evidence. The trial judge had placed undue emphasis on certain evidence and had failed to properly consider other evidence. The court found that the evidence was not capable of supporting the findings adverse to the appellant beyond reasonable doubt. The court also found that a lesser sentence was warranted and that the appellant was entitled to have a justifiable sense of grievance. The court noted that the appellant had no prior criminal history and had shown remorse for his actions.

The appeal was allowed, and the appellant's sentence was reduced to time served. The court ordered that the appellant be released from prison immediately if not already released. The court also ordered that the appellant's conviction be quashed and a new trial be held. The court emphasised the importance of ensuring that all evidence is properly assessed and that sentences are proportionate to the offence committed.

Orders