Fong v R [2011] NSWCCA 283

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Fong v R [2011] NSWCCA 283 Hearing dates: 6 December 2011 Decision date: 16 December 2011 Before: Bathurst CJ at [1] Simpson J at [2] Adamson J at [63] Decision: 1. Leave to appeal granted; 2. Appeal allowed, sentence quashed; 3. In lieu thereof the applicant be sentenced to imprisonment for 5 years and three months, to commence on 18 April 2009 and expire on 18 July 2014, with a non-parole period of 2 years and 6 months, expiring on 17 October 2011. Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - single count ongoing supply of prohibited drug - heroin - s 25A(1) Drug Misuse and Trafficking Act 1985 - Form 1 offences of supply and possession - plea of guilty - finding of special circumstances - co-offenders pleaded guilty to knowingly taking part in supply of not less than commercial quantity of prohibited drug - offence of money laundering taken into account on Form 1 against both co-offenders - error in assessment of objective gravity - error in application of proportionality principle - greater disparity between sentences warranted - leave granted - appeal allowed - applicant re-sentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: Georgopolous v R [2010] NSWCCA 246 Muldrock v The Queen [2011] HCA 39 R v Andrew John Sivell [2009] NSWCCA 286 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Category: Principal judgment Parties: Ian Hin Lau Fong (Applicant) Regina (Respondent) Representation: Counsel A Frances (Applicant) V Lydiard (Crown) Solicitor Hardinlaw Lawyers (Applicant) DPP (Respondent) File Number(s): 09/160547 Decision under appeal Citation: N/A Date of Decision: 2010-11-04 00:00:00 Before: Freeman DCJ File Number(s): 09/160547