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 31Decision:
- 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 160Category: Principal judgment Parties: Kim Kwei Tan - Applicant
Regina - Crown RespondentRepresentation - Counsel: Counsel
G Brady / J Lee - Applicant
J Baly - Crown- Solicitors: Solicitors
Legal Aid NSW - Applicant
Solicitor for Public Prosecutions - Crown RespondentFile 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,…
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- AGLC
- Tan v R [2013] NSWCCA 164
- Case
- [2013] NSWCCA 164
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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
Established by: HOEBEN CJ, LATHAM J
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