In the case of the appeal against the sentences imposed by Blackmore SC DCJ are:- 1. Grant leave appeal. 2. Allow the appeal. 3. Quash the sentences by Blackmore SC DCJ. 4. Sentence the Applicant in respect of the charge of supplying 50.7 grams of 3,4 methylenedioxymethyl-amphetamine to imprisonment for a non-parole period of 4 years commencing on 7 August 2004 together with a further term of 2 years commencing on 7 August 2008. 5. Sentence the Applicant in respect of the charge of supplying a large commercial quantity viz 1038.7 grams of 3,4 methylenedioxymethyl-amphetamine to imprisonment for a non-parole period of 9 years commencing on 7 August 2004 together with a further term of 3 years commencing on 7 August 2013. 6. Sentence the Applicant in respect of the charge of supplying a large commercial quantity viz 25.64477 kgs of 3,4 methylenedioxymethyl-amphetamine to imprisonment for a non-parole period of 18 years commencing on 7 August 2004 together with a further term of 6 years commencing on 7 August 2022.
In the case of the appeal against the sentence imposed by Price J are:- 1. Grant leave to appeal. 2. Dismiss the appeal.
PARTIES:
Yonky Irvin TAN Regina
FILE NUMBER(S):
CCA 2005/4829; 2006/2161
COUNSEL:
TA Game SC with D Barrow (Applicant) D Woodburne SC (Respondent)
SOLICITORS:
Steve O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:
District Court/Supreme Court
LOWER COURTJUDICIAL OFFICER:
Blackmore SC DCJ/Price J
- 16 -
2005/4829 2006/2161
GILES JA HULME J LATHAM J
Thursday 16 September 2010
Yonky Irvin TAN v R
Judgment
1 GILES JA: Subject to what follows, I agree with RS Hulme J and with the orders his Honour proposes.
2 I do not see conflict between Veen v The Queen (No 2) (1988) 164 CL 465 and R v Twala (Badgery-Parker J, 4 November 1994, unreported). That nothing mitigates the seriousness of the particular crime in consistent with ability to conjure up a case of greater heinousness.
: Yonky Irvin Tan seeks leave to appeal against sentences imposed on him by two Judges. On 16 December 2005, Blackmore SC DCJ sentenced the Applicant in respect of three charges. They, and the sentences imposed, were:-
(i) On 20 March 2002 supplying a prohibited drug, namely, 3,4 methylenedioxymethylamphetamine (hereinafter referred to as “MDMA”) in the amount of 50.7 grams – imprisonment for 6 years including a non-parole period of 4 years, both periods commencing on 7 September 2004.
(ii) On 20 March 2002 supplying a large commercial quantity, viz. 1038.7 grams of MDMA – imprisonment for 12 years including a non-parole period of 9 years, both periods commencing on 7 September 2004.
(iii) On 20 March 2002 supplying a large commercial quantity, viz. 25.64477 kilograms of MDMA – imprisonment for…
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.
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Details
AGLC
Tan v R [2010] NSWCCA 207
Case
[2010] NSWCCA 207
Decision Date
CaseChat Overview and Summary
In the case of Tan v R, the appellant, Yonky Irvin Tan, sought leave to appeal against sentences imposed on him by two judges. The sentences were for drug-related offences and a murder charge. The District Court Judge, Blackmore SC DCJ, sentenced Tan in respect of three drug charges, and the Supreme Court Judge, Price J, sentenced him for murder. The appeal against the sentences imposed by Blackmore SC DCJ was allowed, and the sentences were quashed. The Court re-sentenced Tan for the drug charges and upheld the sentence for the murder charge. The Court of Criminal Appeal granted leave to appeal against the sentences imposed by Blackmore SC DCJ and allowed the appeal in part, quashing the sentences and re-sentencing Tan for the drug charges. The Court also granted leave to appeal against the sentence imposed by Price J but dismissed the appeal, upholding the sentence for the murder charge. The Court found that the sentences imposed by Blackmore SC DCJ for the drug charges were not manifestly excessive, but there was an error in the commencement date of the sentences, which was rectified in the re-sentencing. Regarding the murder charge, the Court found that the sentence imposed by Price J was appropriate, taking into account the extreme culpability of Tan's actions and the need for community protection and deterrence.