Tan v R

Case [2013] NSWCCA 164 1 July 2013

Type to search within this case.

Court of Criminal Appeal

New South Wales

Case Title: Tan v R

Medium Neutral Citation: [2013] NSWCCA 164

Hearing Date(s): 26 April 2013

Decision Date: 01 July 2013

Before: Hoeben CJ at CL at 1
Latham J at 2
Barr AJ at 31

Decision:

Leave to appeal granted

Appeal allowed

The sentence imposed on 27 April 2012 is quashed

In lieu a non-parole period of two (2) years and two (2) months is imposed commencing 3 June 2011 expiring 2 August 2013. The balance of term is ten (10) months expiring 2 June 2014. The applicant is to be released on 3 August 2013.

Catchwords: CRIMINAL LAW - leave to appeal against sentence - offence of cultivate not less than a commercial quantity of prohibited plant - whether sentence manifestly excessive - whether sentence within appropriate range - significant remorse demonstrated - reference to previous cases and statistics of some utility - starting point of sentence outside appropriate range - leave to appeal granted - appeal allowed

Legislation Cited: Drug Misuse and Trafficking Act 1985

Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194
Hili v The Queen ; Jones v The Queen [2010] HCA 45
Hili v The Queen ; Jones v The Queen [2010] HCA 45
Jones v The Queen [2010] HCA 45
Markarian v R [2005] HCA 25
Nguyen v R [2012] NSWCCA 42
Papworth v R [2011] NSWCCA 253
Pham v R [2009] NSWCCA 266
R v Daoulas NSWCCA (28 October 1993)
R v Godden [2005] NSWCCA 160

Category: Principal judgment

Parties: Kim Kwei Tan - Applicant
Regina - Crown Respondent

Representation

- Counsel: Counsel
G Brady / J Lee - Applicant
J Baly - Crown

- Solicitors: Solicitors
Legal Aid NSW - Applicant
Solicitor for Public Prosecutions - Crown Respondent

File Number(s): 2011/184097

Decision Under Appeal

- Before: Syme DCJ

- Date of Decision: 27 April 2012

- Court File Number(s): 2011/184097

JUDGMENT

HOEBEN CJ at CL : I agree with Latham J.
LATHAM J : The applicant, Kim Tan, seeks leave to appeal against a sentence of four (4) years and six (6) months' imprisonment, including a non parole period of two (2) years and nine (9) months, imposed by Syme DCJ for an offence of cultivate not less than a commercial quantity of a prohibited plant (s 23(2)(a) Drug Misuse and Trafficking Act 1985). An offence of possess cannabis (36gms) was taken into account on a Form 1.
The offence carries a maximum penalty of 15 years' imprisonment.
The single ground of appeal asserts that the sentence is manifestly excessive in all the circumstances of the case. Taking into account the full discount afforded to the applicant for his early plea of guilty, the proposition is that the starting point of 6 years is manifestly excessive.

The Offence

On 3 June 2011 a search warrant was executed at the applicant's home. A sophisticated indoor cultivation operation, consisting of an array of filters, lamps, pumps, hoses, watering equipment, nutrients and artificial lights,…

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 [2013] NSWCCA 164
Case: [2013] NSWCCA 164
Decision Date: 01 July 2013

CaseChat Overview and Summary

In this case, the appellant, Tan, was convicted for cultivating a commercial quantity of a prohibited plant. He sought leave to appeal against his sentence, arguing that it was manifestly excessive. The appeal focused on whether the sentence was within the appropriate range and took into account the significant remorse Tan demonstrated. The Court of Appeal considered these arguments and examined relevant precedent and statistics to assess the appropriateness of the sentence.

The central legal issues were whether the sentence imposed was manifestly excessive and whether it fell within the appropriate range, considering the mitigating factor of remorse. The court was required to balance the principles of sentencing against the gravity of the offence and the appellant's remorse. It needed to determine if the starting point of the sentence was correctly identified and if the overall sentence was proportionate and appropriate.

The Court of Appeal found that the starting point of the sentence was outside the appropriate range, given the significant remorse demonstrated by the appellant. The court noted that while the offence was serious, the remorse shown was a relevant mitigating factor. The court considered relevant cases and statistics which were of some utility in determining the appropriate range of sentence. Ultimately, the Court of Appeal concluded that the sentence was manifestly excessive and granted leave to appeal. The appeal was subsequently allowed, reflecting the court's view that the sentence did not appropriately account for the mitigating factor of remorse.

Orders