Hsu v R [2012] NSWCCA 248

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hsu v R [2012] NSWCCA 248 Hearing dates: 9/11/2012 Decision date: 27 November 2012 Before: McClellan CJ at CL at [1] Fullerton J at [2] SG Campbell J at [49] Decision: 1. Leave to appeal is granted. 2. The appeal is dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - supply large commercial quantity of prohibited drug - possession of prohibited firearm - whether unfairness in way supply charge was framed - complaints about legal representatives - whether sentence excessive Legislation Cited: Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Cases Cited: Hamzy v R (1994) 74 A Crim R 341 R v Cramp [2004] NSWCCA 264 R v Gao; R v Lim [2007] NSWCCA 343 Windle v R [2011] NSWCCA 277 Xue v R [2009] NSWCCA 227 Category: Principal judgment Parties: Aaron Hsu (Applicant) The Crown (Respondent) Representation: Counsel: Self Represented (Applicant) S Dowling (Crown) Solicitors: Self Represented (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2009/9852 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-08-06 00:00:00 Before: Toner DCJ

Judgment 1McCLELLAN CJ at CL: I agree with Fullerton J. 2FULLERTON J: The applicant seeks leave to appeal against sentences imposed in the District Court on 6 August 2010 following his pleas of guilty to two counts on indictment. 3The first count alleged that on 28 March 2008 and 16 April 2008 he supplied a large commercial quantity of MDMA contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is life imprisonment attracting a standard non-parole period of 15 years. A deemed supply of a trafficable quantity of MDMA (10.66 grams) on a Form 1 was taken into account in the imposition of a sentence of 13 years and 6 months, comprised of a non-parole period of 10 years with an additional term of 3 years and 6 months. 4The second count alleged his possession of a .45 calibre double action pistol contrary to s 7(1) of the Firearms Act 1996. The maximum penalty for that offence is 14 years imprisonment attracting a standard non-parole period of 3 years. Possession of an unregistered firearm (the same pistol) and possession of ammunition were additional offences on a separate Form 1 taken into account in the imposition of a sentence of 4 years, comprised of a non-parole period of 3 years with an additional term of 1 year. 5The applicant was arrested and charged with the offences on indictment and the firearm offences on the Form 1 on 19 August 2008. He pleaded guilty to the firearms offence on 23 October 2009 and to the drug offence on 5 May 2010 after the matter had been fixed for trial. The sentencing judge allowed a discount of 25 per cent on the firearms offence for what his Honour accepted as an early plea of guilty, and 10 per cent on the supply count. 6The applicant was remanded in custody from the date of his arrest. Four months of his pre-sentence custody related to a sentence for unrelated drug matters imposed after his remand. His Honour accepted that were the applicant to have been sentenced for the subject offences at that time the sentences would likely have been partially accumulated, which allowed for some adjustment to the commencement date of the sentences he was to impose. He fixed 19 October 2008 as the commencement date for the non-parole period on the second count (to expire on 18 October 2011) with the non-parole period of 10 years on the first count to commence on 19 April 2009 (to expire on 18 April 2019). In the result, an effective sentence of 14 years was imposed comprised of a non-parole period of 10 years and 6 months and an additional term of 3 years and 6 months. The statutory ratio between the head sentence and non-parole period was preserved by reason of the partial accumulation of the two sentences.