New South Wales
Court of Criminal Appeal
CITATION: TYN v R [2009] NSWCCA 146 HEARING DATE(S): 5 May 2009
JUDGMENT DATE:
15 May 2009JUDGMENT 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 1PARTIES: 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
2007/1637715 May 2009SPIGELMAN CJ
JAMES J
SIMPSON J
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.
The facts
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…
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- AGLC
- TYN v R [2009] NSWCCA 146
- Case
- [2009] NSWCCA 146
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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