Kha v R [2019] NSWCCA 215

Kha v R [2019] NSWCCA 215

Procedural fairness was denied where the judge failed to address or change his preliminary view on special circumstances without notifying the parties, and the applicant lost an opportunity to make helpful submissions in a context where both parties and the judge foreshadowed a finding of special circumstances. This justified quashing the sentence, re-considering special circumstances and imposing a lesser aggregate non-parole period.

Parties
Applicant: Binh Thanh Kha; Respondent: Regina
Jurisdiction
Australia
Judgment Date
13 September 2019
Procedural Posture
Criminal Appeal / Appeal Against Sentence; Re Sentencing
Outcome
Appeal allowed; sentence quashed; re-sentenced
Legal Topics
Appeal Against Sentence, Denial of Procedural Fairness, Special Circumstances, Objective Seriousness of Offence, Aggregate Sentencing, Non Parole Period, Supply of Prohibited Drug
Criminal Law Appeal Against Sentence Denial of Procedural Fairness Special Circumstances Objective Seriousness of Offence Aggregate Sentencing Non Parole Period Supply of Prohibited Drug

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Parties

Binh Thanh Kha

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence; Re Sentencing

Legal Issues

  1. 1 Whether the sentencing judge erred by omitting to adjust the non-parole period to reflect a finding of special circumstances
  2. 2 Whether the sentencing judge failed to make a finding in relation to the objective seriousness of the offence
  3. 3 Whether the sentencing judge erred in not indicating a non-parole period for the offence of supplying a large commercial quantity of prohibited drug

Ratio Decidendi

Procedural fairness was denied where the judge failed to address or change his preliminary view on special circumstances without notifying the parties, and the applicant lost an opportunity to make helpful submissions in a context where both parties and the judge foreshadowed a finding of special circumstances. This justified quashing the sentence, re-considering special circumstances and imposing a lesser aggregate non-parole period.

Court Disposition

Appeal allowed; sentence quashed; re-sentenced

Orders

  • Grant the applicant leave to appeal.
  • Appeal allowed.