Taysavang v R; Lee v R - [2017] NSWCCA 146

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Taysavang v R; Lee v R [2017] NSWCCA 146
Hearing dates: 20 April 2017
Date of orders: 23 June 2017
Decision date: 23 June 2017
Before: Simpson JA
McCallum J
Fagan J
Decision:
The orders of the Court in Mr Taysavang’s application are:

1. Leave to appeal is granted.
2. The sentence imposed by Traill DCJ on 24 June 2016 for the offence of supply prohibited drug on 20 November 2014 is set aside.
3. In lieu thereof Souriya Taysavang is sentenced to imprisonment for a non-parole period of 2 years and 7 months commencing on 19 September 2015 and expiring on 18 April 2018 and a balance of term of 11 months commencing on 19 April 2018 and expiring on 18 March 2019.
4. Souriya Taysavang will be eligible for release on parole from 18 April 2018.

The orders of the Court in Mr Lee’s application are:
1. Leave to appeal is granted.
2. The sentence imposed by Traill DCJ on 24 June 2016 for the offence of supply prohibited drug on 20 November 2014 is set aside.
3. In lieu thereof In Su Lee is sentenced to imprisonment for a non-parole period of 2 years commencing on 19 March 2015 and expiring on 18 March 2017 and a balance of term of 12 months commencing on 19 March 2017 and expiring on 18 March 2018.
4. Pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the Court directs that In Su Lee be released on parole forthwith.
Catchwords:
CRIMINAL LAW – appeal against sentence – supply prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) – offence committed by two co-offenders – parity principle – where one co-offender’s sentence manifestly excessive – relevance of co-offender’s subjective cases to application of parity principle

CRIMINAL LAW – appeal against sentence – supply prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) – applicability of mitigating circumstance under Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(a) – whether injury caused by offence was not substantial because drugs not dispersed into community – where drugs seized upon arrest
CRIMINAL LAW – appeal against sentence – supply prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) – applicability of principle in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 – where offending conduct not impulsive wrongdoing
Legislation Cited: Crimes (Sentencing and Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: AB v R [2013] NSWCCA 273
R v Achurch [2011] NSWCCA 186
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cam Huynh Giang v R [2017] NSWCCA 25
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hristovski v R [2010] NSWCCA 129
Ingrey v R [2016] NSWCCA 31
Ly v R [2008] NSWCCA 262

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

Case: [2017] NSWCCA 146
Decision Date: 23 June 2017

CaseChat Overview and Summary

The appellants, Taysavang and Lee, appealed their sentences for supplying a prohibited drug contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The case was heard in the Court of Criminal Appeal in New South Wales. The primary issues before the court were the application of the parity principle in sentencing and the applicability of a mitigating factor under section 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The court considered whether the principle of parity, which requires sentences of co-offenders to be comparable, was correctly applied. It noted that one appellant’s sentence was manifestly excessive compared to the other. The court also examined the mitigating factor of whether the injury caused by the offence was not substantial because the drugs were not dispersed into the community. The court held that the mitigating factor did not apply because the drugs were seized upon arrest. Furthermore, the court reviewed whether the principle in Bugmy v The Queen applied, given the offending conduct was not impulsive wrongdoing.

The court concluded that the sentencing judge had failed to properly apply the parity principle due to the manifestly excessive disparity in sentences. It found that the mitigating factor of no substantial injury was not applicable as the drugs were seized. The court found that the principle in Bugmy did not apply because the offending was not impulsive. The appeal was allowed, and the case was remitted for resentencing. The court's orders included a direction that the sentences be reconsidered in light of the principles discussed.

Orders