Lee v R [2017] NSWCCA 156

Lee v R [2017] NSWCCA 156

The sentencing judge was entitled to find that the applicant was aware the item contained a substantial quantity in the ordinary sense, but erred by taking into account, as an important sentencing factor, that the actual imported quantity of methamphetamine was substantial when the actual pure quantity was unknown and the marketable quantity threshold was only 2 grams. That approach risked punishing the applicant for circumstances that would have supported a more serious offence, contrary to the De Simoni principle. The appeal was therefore allowed and the sentencing discretion re-exercised, resulting in a lesser sentence.

Jurisdiction
Australia
Judgment Date
30 June 2017
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal against sentence granted and appeal upheld; District Court sentence quashed; applicant resentenced to imprisonment for 3 years commencing 31 March 2016 with release on recognizance after 1 year and 9 months.
Legal Topics
['importation of Methamphetamine' 'border Controlled Drug' 'unspecified Quantity' 'de Simoni Principle' 'marketable Quantity' 'resentencing']
['criminal Law' 'sentencing' 'criminal Appeals' 'commonwealth Drug Offences'] ['importation of Methamphetamine' 'border Controlled Drug' 'unspecified Quantity' 'de Simoni Principle' 'marketable Quantity' 'resentencing']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in the weight given to the gross weight of the seized drugs to determine sentence.' 'Whether the sentencing judge erred in finding that the applicant was aware the item contained a substantial quantity of a border controlled drug.' 'Whether taking into account a substantial actual quantity of methamphetamine infringed the principle in The Queen v De Simoni.' 'Whether the sentence should be re-exercised under s 6(3) of the Criminal Appeal Act 1912 (NSW).']

Ratio Decidendi

The sentencing judge was entitled to find that the applicant was aware the item contained a substantial quantity in the ordinary sense, but erred by taking into account, as an important sentencing factor, that the actual imported quantity of methamphetamine was substantial when the actual pure quantity was unknown and the marketable quantity threshold was only 2 grams. That approach risked punishing the applicant for circumstances that would have supported a more serious offence, contrary to the De Simoni principle. The appeal was therefore allowed and the sentencing discretion re-exercised, resulting in a lesser sentence.

Court Disposition

Leave to appeal against sentence granted and appeal upheld; District Court sentence quashed; applicant resentenced to imprisonment for 3 years commencing 31 March 2016 with release on recognizance after 1 year and 9 months.

Orders

  • ['Leave to appeal against sentence granted and appeal upheld.' 'Quash the sentence imposed in the District Court on 19 August 2016 and in lieu impose a sentence of imprisonment for 3 years to date from 31 March 2016. The applicant is to be released on recognizance on 30 December 2017 after serving 1 year and 9...