Tabuan v R [2013] NSWCCA 143

Tabuan v R [2013] NSWCCA 143

The evidence did not permit findings beyond reasonable doubt that the applicant knew the drug transaction was substantial or in the order of 150 grams, so grounds 1 and 2 were made out and ground 3 did not need to be considered. However, no lesser sentence was warranted because the sentence imposed for the s 25(1) offence was at the lowest end of the range and could properly have been imposed without the erroneous findings; the applicant also had no justifiable sense of grievance when compared with Joel Tongol, whose sentence was for a more serious s 25(2) offence with Form 1 matters and was, on one view, lenient.

Jurisdiction
Australia
Judgment Date
25 June 2013
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['knowingly Taking Part in Supply of Prohibited Drug' 'findings of Fact After Jury Verdict' 'proof Beyond Reasonable Doubt at Sentencing' 'parity' 'justifiable Sense of Grievance']
['criminal Law' 'sentencing'] ['knowingly Taking Part in Supply of Prohibited Drug' 'findings of Fact After Jury Verdict' 'proof Beyond Reasonable Doubt at Sentencing' 'parity' 'justifiable Sense of Grievance']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge erred in finding that the applicant was aware the drug transaction was substantial and in the order of 150 grams of methylamphetamine.' 'Whether the sentencing judge placed too much weight on the quantity being substantial or about 150 grams when fixing sentence.' 'Whether procedural fairness was denied by making the finding about quantity without giving the applicant an opportunity to make submissions.' "Whether disparity between the applicant's sentence and Joel Tongol's sentence gave the applicant a legitimate or justifiable sense of grievance." 'Whether, despite identified error, some lesser sentence was warranted in law.']

Ratio Decidendi

The evidence did not permit findings beyond reasonable doubt that the applicant knew the drug transaction was substantial or in the order of 150 grams, so grounds 1 and 2 were made out and ground 3 did not need to be considered. However, no lesser sentence was warranted because the sentence imposed for the s 25(1) offence was at the lowest end of the range and could properly have been imposed without the erroneous findings; the applicant also had no justifiable sense of grievance when compared with Joel Tongol, whose sentence was for a more serious s 25(2) offence with Form 1 matters and was, on one view, lenient.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to appeal.' 'Dismiss the appeal.']