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Thach v R

Thach v R

Case [2018] NSWCCA 252 9 November 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Thach v R [2018] NSWCCA 252
Hearing dates: 29 August 2018
Date of orders: 09 November 2018
Decision date: 09 November 2018
Before: Bathurst CJ at [1]
R A Hulme J at [2]
Davies J at [3]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords: SENTENCING – appeal against sentence – non-parole period – ratio of the non-parole period and balance of term – special circumstances – whether sentencing judge wrongly focused on whether offender needed extended supervision period – whether sentencing judge assumed treatment available in custody – whether special circumstances should have been found
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s 6
Cases Cited: Caristo v R [2011] NSWCCA 7
Muldrock v The Queen (2011) 244 CLR 120
R v Fidow [2004] NSWCCA 172
R v Lulham [2016] NSWCCA 287
R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Texts Cited: Nil
Category: Principal judgment
Parties: To Hoai Thach (Applicant)
Crown (Respondent)
Representation:
Counsel:
T Game SC & A Cook (Applicant)
B Hatfield (Respondent)
Solicitors:
Carol Younes (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/7307
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

16 December 2016

Before:

English DCJ

File Number(s):

2015/7307

Judgment

BATHURST CJ: I agree with Davies J.
R A HULME J: I agree with Davies J.
DAVIES J: The applicant pleaded guilty in Campbelltown Local Court on 3 August 2016 to the following offences:

(a) Sequence 5 – supply a large commercial quantity of a prohibited drug (1,630.7 grams of methylamphetamine). The maximum penalty for this offence is life imprisonment and/or 5000 penalty units. There is a standard non-parole period of 15 years.

(b) Sequence 6 - supply a commercial quantity of a prohibited drug (705.2 grams of heroin). The maximum penalty for this offence is 20 years’ imprisonment and/or 3,500 penalty units. There is a standard non-parole period of 10 years.

(c) Sequence 16 – possess more than three unregistered firearms, one of which was prohibited. The maximum penalty for this offence is 20 years’ imprisonment. There is a standard non-parole period of 10 years.

(d) Sequence 17 - supply a large commercial quantity of a prohibited drug (7,582.79 grams of methylamphetamine).

(e) Sequence 18 - supply a large commercial quantity of a prohibited drug (14,616.99 grams of heroin).

(f) Sequence 19 – possess a precursor (30,233.10 grams of ephedrine). The maximum penalty for this offence is 10 years’ imprisonment.

(g) Sequence 33 - possess a precursor (37.9 kilograms of iodine).

(h) Sequence 37 – possess drug manufacture apparatus. The maximum penalty for this offence is 10 years’ imprisonment.

There was attached to sequence 16 a Form 1 containing four counts…

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 Thach v R

Details

AGLC: Thach v R [2018] NSWCCA 252
Case: [2018] NSWCCA 252
Decision Date: 09 November 2018

CaseChat Overview and Summary

The appellant, Thach, appealed against his sentence for a crime committed, with the appeal focusing on the length of his non-parole period. The matter was heard in the High Court of Australia. Thach contended that the sentencing judge had erred by focusing on the need for an extended supervision period, and by assuming that treatment would be available in custody. These errors, Thach argued, meant that the sentencing judge failed to properly consider whether special circumstances existed which would warrant a reduced non-parole period.

The court considered whether the sentencing judge had erred by focusing on the need for an extended supervision period and whether this focus had led to an incorrect ratio between the non-parole period and the balance of the term. The court also examined whether the sentencing judge had wrongly assumed that treatment would be available in custody, and whether this assumption impacted on the assessment of special circumstances. The court noted that the sentencing judge had considered the need for an extended supervision period, but had also considered other factors, including the nature and circumstances of the offence, and the offender’s personal circumstances. The court found that the sentencing judge had not erred in considering these factors, and that the non-parole period was appropriate.

Having considered the evidence, the court found that the sentencing judge had not erred in assessing the need for an extended supervision period or in assuming that treatment would be available in custody. The court found that the sentencing judge had appropriately considered the nature and circumstances of the offence, the offender’s personal circumstances, and other relevant factors in determining the non-parole period. The court held that the non-parole period was appropriate and dismissed the appeal. The court noted that the sentencing judge had appropriately balanced the need for punishment and deterrence with the need for rehabilitation and the protection of the community.

Orders