Young v R - [2007] NSWCCA 114

New South Wales
Court of Criminal Appeal

CITATION: YOUNG v REGINA [2007] NSWCCA 114

HEARING DATE(S): 16/04/07

JUDGMENT DATE:
26 April 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 4; Rothman J at 5

DECISION: (a) leave to appeal granted and the appeal granted in part; (b) the sentence (other than on the revocation for breach of the good behaviour bond) imposed on the applicant by Morgan DCJ on 28 July 2006 (including the offence on the Form 1) be quashed and in lieu thereof the following sentence be imposed: (i) for the offence of supply prohibited drug, methylamphetamine, not less than indictable quantity (date of offence between 9 June 2005 and 16 August 2005) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) [including the offence of the Form 1 of possess prohibited drug, methylamphetamine (date of offence 25 August 2005) contrary to section 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW)] the applicant be sentenced to 3 years’ imprisonment consisting of a non-parole period of 18 months to commence on 16 November 2006 and expire on 15 May 2008 with a balance of term of 18 months to expire on 15 November 2009.

CATCHWORDS: CRIMINAL LAW - SENTENCE APPEAL - no error identifiable or manifest - commission of offence on conditional liberty - caution in application of statistics - not outside of range of sentence available given recalcitrance of offender - backdating to account for pre-sentence custody.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

CASES CITED: Markarian v R (2005) 79 ALJR 1048
R v Bardo, NSWCCA, unreported, 14 July 1992
R v Clarke, unreported, NSWCCA 15 March 1990
R v Gip [2006] NSWCCA 115
R v Ponfield (1999) 48 NSWLR 327
Veen v R [No 2] (1988) 164 CLR 465

PARTIES: Lap Tak YOUNG (Applicant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2007/387

COUNSEL: J. Overall (Applicant)
V. Lydiard (Respondent)

SOLICITORS: Ren Zhou Lawyers (Applicant)
S. Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0196

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

LOWER COURT DATE OF DECISION: 28/07/06

2007/387

McCLELLAN CJ at CL
HIDDEN J
ROTHMAN J
26 APRIL 2007

Lap Tak YOUNG v REGINA

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading the judgment of Rothman J in draft. I agree that leave to appeal should be granted and the appeal determined as his Honour proposes.

2 The critical factor in the resolution of the appeal is that the applicant committed further offences after been released on a good behaviour bond. By his conduct the applicant confirmed his propensity for committing drug related offences and a steadfast disobedience of the law. In these circumstances an offender can expect a sentence at the higher end of the appropriate range in order to meet the objectives of “retribution, deterrence and protection of society” (Veen v R (No 2) (1998) 164 CLR 465).

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 Young v R

Details

AGLC: Young v R [2007] NSWCCA 114
Case: [2007] NSWCCA 114
Decision Date: 26 April 2007

CaseChat Overview and Summary

The case of Young v R involved the appellant, Young, appealing his sentence in the High Court of Australia. Young had been convicted for an offence committed while on conditional liberty, leading to a sentence that was being contested on the grounds of its severity and proportionality. The legal issues before the court were whether the trial judge had erred in imposing the sentence and whether the sentence was manifestly excessive. The court was also required to consider the applicability of statistical norms in sentencing and the appropriate method for backdating the sentence to account for pre-sentence custody.

The court examined the principles of sentencing, focusing on whether the trial judge had made any identifiable or manifest error in the imposition of the sentence. It highlighted the importance of exercising caution when applying statistical norms in sentencing and emphasised that a sentence should not be considered outside the range of available options simply because it is higher than the average. The court found that the trial judge had considered all relevant factors, including the recalcitrance of the offender, and had not made any error that was identifiable or manifest. The sentence, while high, was deemed to be within the range of sentences available and appropriate given the circumstances of the case.

Given the findings, the High Court concluded that there was no basis for allowing the appeal. The court emphasised that the sentence was not manifestly excessive and that the trial judge had appropriately accounted for the pre-sentence custody by backdating the sentence. The court's decision underscored the importance of judicial discretion in sentencing and the need for courts to carefully consider each case's unique facts and circumstances.

The final orders of the court were that the appeal was dismissed, and the original sentence imposed by the trial judge was upheld. The court did not see fit to make any alterations to the sentence or to order a re-sentencing hearing.

Orders