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Court of Criminal Appeal 16 September 2010

TAN v R

[2010] NSWCCA 207

HomicideDrugs

Citation: TAN v R [2010] NSWCCA 207
Court: New South Wales Court of Criminal Appeal
Date: 16 September 2010
Judge(s): Giles JA; Hulme J; Latham J

Background

The appellant was convicted of three drug supply offences relating to events on 20 March 2002, involving MDMA (commonly known as ecstasy). The quantities were substantial: approximately 50.7 grams, 1,038.7 grams, and 25.64 kilograms. A co-offender was found in possession of the drugs, but sentencing findings established that the appellant was the principal in a highly organised drug supply and distribution network.

The appellant was separately convicted of murder and sentenced to life imprisonment by Price J in the Supreme Court. He sought leave to appeal against both the drug sentences imposed by Blackmore SC DCJ in the District Court and the life sentence imposed for murder.

The Court of Criminal Appeal heard full argument on both appeals. Although the life sentence for murder would, if it stood, render the drug sentences practically academic, the Court proceeded to address both matters fully given the extent of argument already heard.

  • Whether the sentences imposed by Blackmore SC DCJ for the three drug supply offences were manifestly excessive or otherwise in error
  • Whether the commencement date of those sentences required correction
  • Whether Price J erred in imposing a sentence of life imprisonment for murder, having regard to the nature of the crime and the applicable sentencing principles under the relevant statutory provision (s 61(1))

Decision

On the drug supply sentences, the Court allowed the appeal against the sentences imposed by Blackmore SC DCJ. The principal adjustment concerned the commencement date: the original sentences had been recorded as commencing 7 September 2004, but the correct date was 7 August 2004. The Court quashed the original sentences and re-sentenced the appellant, maintaining the same non-parole periods and further terms but correcting the commencement date accordingly. All three sentences remained concurrent.

The sentencing findings from the District Court, including that the appellant was the principal in a highly organised operation, were not challenged on appeal and were accepted by the Court of Criminal Appeal. Hulme J noted that he would not have taken the view, as the sentencing judge had, that the case fell outside the most serious category of offending, but proceeded on that assumption for the purposes of the appeal.

On the murder sentence, the Court dismissed the appeal. Hulme J observed that once the crime and all relevant circumstances were fully appreciated, the question of whether Price J was entitled to impose a life sentence was largely one of impression. The Court was not persuaded that Price J had erred in arriving at that sentence, and Latham J agreed with Hulme J's reasons and proposed orders.

Giles JA agreed with the orders proposed and added a brief observation that there was no conflict between the High Court's decision in Veen v The Queen (No 2) and the unreported decision in R v Twala on the question of whether a mitigating consideration affects the seriousness of a particular crime.

Orders Made

Appeals against sentences imposed by Blackmore SC DCJ (drug offences):
- Leave to appeal granted
- Appeal allowed
- Original sentences quashed
- Re-sentenced on charge of supplying 50.7 grams of MDMA: non-parole period of 4 years from 7 August 2004, further term of 2 years from 7 August 2008
- Re-sentenced on charge of supplying 1,038.7 grams of MDMA (large commercial quantity): non-parole period of 9 years from 7 August 2004, further term of 3 years from 7 August 2013
- Re-sentenced on charge of supplying 25.64477 kg of MDMA (large commercial quantity): non-parole period of 18 years from 7 August 2004, further term of 6 years from 7 August 2022

Appeal against life sentence imposed by Price J (murder):
- Leave to appeal granted
- Appeal dismissed

Key Takeaways

  • In dismissing the murder appeal, the Court of Criminal Appeal confirmed that where a sentencing judge has clearly articulated the facts and circumstances supporting a life sentence, the appellate question of whether that sentence was open is largely one of impression rather than strict formula.
  • A sentence for drug supply offences may be corrected on appeal where an error in the commencement date is established, even where the non-parole periods and further terms are otherwise upheld.
  • Where a sentencing judge's factual findings are not challenged on appeal, the Court of Criminal Appeal proceeds on the basis of those findings, even where individual judges may have assessed the facts differently at first instance.
  • The fact that a life sentence for murder renders concurrent drug sentences practically academic does not preclude the Court from resolving the drug sentence appeal where full argument has already been heard.
  • No conflict was identified between the High Court's approach in Veen v The Queen (No 2) and the principle that the absence of a factor making an offence worse does not affirmatively mitigate its seriousness.

Legislation and Cases Referenced

Legislation:
- Relevant New South Wales drug supply legislation (provisions creating the offence of supplying a large commercial quantity of a prohibited drug, and establishing quantity thresholds)
- Section 61(1) of the applicable New South Wales sentencing legislation (governing sentences of life imprisonment for murder)

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Twala (Badgery-Parker J, 4 November 1994, unreported)
- R v McCafferty (Wood J, 15 October 1991, unreported)
- R v Petroff (Hunt CJ at CL, 12 November 1991, unreported)
- R v Chung (1999) NSWCCA 330
- R v Harris (2000) 50 NSWLR 409
- R v Merritt (2004) 59 NSWLR 557
- Knight v R (2006) 164 A Crim R 126