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 JDecision: 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 wrongdoingLegislation 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
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- Case
- [2017] NSWCCA 146
- Decision Date
CaseChat Overview and Summary
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.
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Decision
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