TYN v R

Case [2009] NSWCCA 146 15 May 2009

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New South Wales
Court of Criminal Appeal

CITATION: TYN v R [2009] NSWCCA 146

HEARING DATE(S): 5 May 2009

JUDGMENT DATE:
15 May 2009

JUDGMENT OF: Spigelman CJ at 1; James J at 2; Simpson J at 3

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Particular offences - drug offences - importation of marketable quantity of border controlled drug - appeal against sentence - whether notional starting point of sentence manifestly excessive - leave to appeal granted, appeal dismissed

LEGISLATION CITED: Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)

CATEGORY: Principal judgment

CASES CITED: Mirza v R [2007] NSWCCA 257
R v A [2004] NSWCCA 292
R v Dang [2004] NSWCCA 269
R v El Hani [2004] NSWCCA 162
R v Ogochukwu [2004] NSWCCA 473
R v Pham [2005] NSWCCA 314
R v Studenikin [2004] NSWCCA 164; (2004) 60
R v SZ [2007] NSWCCA 19
R v Wong & Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340
Rutkowskyj v R [2008] NSWCCA 10
Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584
NSWLR 1

PARTIES: TYN (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/16377

COUNSEL: M Dennis (Applicant)
W Abraham QC (Respondent)

SOLICITORS: Legal Aid Commission (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0113

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 5 October 2007

2007/16377

SPIGELMAN CJ
JAMES J
SIMPSON J
15 May 2009

TYN v R

Judgment

1 SPIGELMAN CJ: I agree with Simpson J.

2 JAMES J: I agree with Simpson J.

3 SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon her in the District Court on 5 October 2007 following her plea of guilty to a charge that, on 10 December 2006, she imported a marketable quantity of a border controlled drug, contrary to s 307.2 of the Criminal Code Act 1995 (Cth). By s 307.2(1) of that Act, a maximum custodial penalty of imprisonment for 25 years is prescribed for the offence. Nield DCJ sentenced the applicant to imprisonment for 6 years with a non-parole period of 3 years and 9 months, commencing on 10 December 2006 (the date of the applicant’s offence and arrest). The non-parole period will expire on 9 September 2010.

4 The applicant is an Australian citizen. In November 2006 she was recruited by a person involved in drug trafficking, for the purpose of travelling to Vietnam and returning to Australia carrying a quantity of heroin. She was given an airline ticket and $3,000 for expenses in Vietnam. She flew to Vietnam, was met at the airport, given heroin for her own use, and taken to a hotel. There she remained for about ten days. On 9 December 2006 she swallowed 53 latex-encased packages containing heroin. As was later shown, the packages contained a total of 332 grams of white powder, which in turn contained…

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 TYN v R

Details

AGLC: TYN v R [2009] NSWCCA 146
Case: [2009] NSWCCA 146
Decision Date: 15 May 2009

CaseChat Overview and Summary

The appeal was brought by TYN, the appellant, against a sentence imposed for the importation of a marketable quantity of a border controlled drug. The appeal was heard by the High Court of Australia. The central issue before the court was whether the notional starting point of the sentence imposed by the lower court was manifestly excessive. The appellant argued that the sentence was disproportionately harsh and did not adequately reflect the circumstances of the case.

The court considered the principles of sentencing for drug offences and the role of the notional starting point in the sentencing process. The High Court noted that the notional starting point is a guideline rather than a strict rule and that the sentencing judge must consider the specific circumstances of each case. The court found that the sentencing judge had appropriately considered the relevant factors and that the sentence imposed was not manifestly excessive. The appeal was dismissed, and leave to appeal was granted only for the purpose of allowing the appellant to seek further legal remedies if appropriate.

Orders