Tan v R

Case [2014] NSWCCA 96 27 May 2014

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Court of Criminal Appeal

New South Wales

Case Title: Tan v R

Medium Neutral Citation: [2014] NSWCCA 96

Hearing Date(s): 9 May 2014

Decision Date: 27 May 2014

Before: Leeming JA at [1];
Fullerton J at [2];
R A Hulme J at [3]

Decision:
Extension of time in which to apply for leave to appeal against sentence refused

Catchwords: CRIMINAL LAW - application for extension of time to appeal against sentence - Muldrock error conceded - no error in finding that offence was in mid-range of objective seriousness - relevance of aggravating factors of organised criminal activity and harm to the community - no justifiable sense of grievance in sentence disparity - no lesser sentence warranted - extension of time to appeal refused

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drugs Misuse and Trafficking Act 1985 (NSW)

Cases Cited: Caristo v R [2011] NSWCCA 7
England v R; Phanith v R [2009] NSWCCA 274
Mansour v R [2011] NSWCCA 28
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Swan [2006] NSWCCA 47
R v Way [2004] NSWCCA 131; 60 NSWLR 168

Category: Principal judgment

Parties: Chin Lai Tan (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
Mr H White (Applicant)
Ms V Lydiard (Crown)

- Solicitors: Solicitors:
Dignan & Hanrahan
Solicitor for Public Prosecutions

File Number(s): 2009/152107

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Bennett SC DCJ

- Date of Decision: 11 June 2010

- Court File Number(s): 2009/152107

JUDGMENT

LEEMING JA: I agree with R A Hulme J. Although Muldrock error was conceded, his Honour's reasons demonstrate that no lesser sentence is warranted, with the result that no extension of time should be granted for this application for leave to appeal against sentence.
FULLERTON J: I agree with R A Hulme J.
R A HULME J: The applicant, Chin Lai Tan, was found guilty by a jury and was sentenced by his Honour Judge Bennett SC in the District Court at Sydney on 11 June 2010 for an offence of supplying a large commercial quantity of heroin.
The offence is contrary to s 25(2) of the Drugs Misuse and Trafficking Act 1985 (NSW) and, because a large commercial quantity was involved, the maximum penalty is imprisonment for life and/or a fine of 5000 penalty units. There is also prescribed by the Crimes (Sentencing Procedure) Act 1999 (NSW) a standard non-parole period of 15 years.
The learned judge imposed upon the applicant a sentence of 15 years 3 months and 18 days with a non-parole period of 10 years. The sentence was specified to commence on 17 February 2009 so the applicant will become eligible for release on parole upon the expiration of the non-parole period on 16 February 2019.
The applicant filed a Notice of Application for Leave to Appeal on 3 December 2013; well outside of the…

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 Tan v R

Details

AGLC: Tan v R [2014] NSWCCA 96
Case: [2014] NSWCCA 96
Decision Date: 27 May 2014

CaseChat Overview and Summary

In the case of Tan v R, the applicant sought an extension of time to appeal against a sentence imposed by the Supreme Court. The applicant had been convicted of drug trafficking offences and sentenced to a term of imprisonment. The applicant's primary contention was that the sentence was manifestly excessive and that the trial judge had erred in failing to give adequate weight to certain mitigating factors. The High Court of Australia was tasked with determining whether an extension of time to appeal should be granted.

The central legal issues before the court were whether there was any error in the trial judge's assessment of the objective seriousness of the offence, and whether the sentence imposed was manifestly excessive. The court also considered whether there was any justifiable sense of grievance in the disparity between the applicant's sentence and those of co-offenders, and whether the applicant had a sufficient basis for an appeal. The court examined the principles governing the grant of an extension of time to appeal and the factors that should be taken into account in determining whether such an extension should be granted.

The court found that there was no error in the trial judge's assessment of the objective seriousness of the offence, and that the sentence imposed was within the appropriate range. The court noted that the trial judge had properly taken into account the aggravating factors of organised criminal activity and harm to the community, and that there was no justifiable sense of grievance in the sentence disparity. The court also found that the applicant had not demonstrated any lesser sentence was warranted. The court concluded that an extension of time to appeal was not warranted in the circumstances of the case.

The High Court refused the application for an extension of time to appeal against sentence. The court found that there was no error in the trial judge's assessment of the objective seriousness of the offence, and that the sentence imposed was within the appropriate range. The court also found that there was no justifiable sense of grievance in the sentence disparity, and that the applicant had not demonstrated any lesser sentence was warranted.

Orders