Tabuan v R [2013] NSWCCA 143

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tabuan v R [2013] NSWCCA 143 Hearing dates: 11 June 2013 Decision date: 25 June 2013 Before: Hoeben CJ at CL at [1]; Harrison J at [2]; Beech-Jones J at [30]. Decision: 1. Grant leave to appeal. 2. Dismiss the appeal. Catchwords: CRIMINAL LAW - appeal - appeal against sentence - whether sufficient evidence to support findings relating to applicant's knowledge of drug transaction - whether evidence capable of supporting findings adverse to applicant beyond reasonable doubt - error found - whether lesser sentence warranted - parity - whether applicant entitled to have justifiable sense of grievance Legislation Cited: Drug Misuse and Trafficking Act 1985 Cases Cited: Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 Category: Principal judgment Parties: Mario Guiang Tabuan (Appellant) Crown (Respondent) Representation: Counsel: R Mathur (Appellant) N Noman SC (Respondent) Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2010/25529 Publication restriction: Nil Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-08-03 00:00:00 Before: Frearson DCJ File Number(s): 2010/25529

Judgment 1HOEBEN CJ at CL: I agree with Harrison J. 2HARRISON J: The applicant seeks leave to appeal against a sentence imposed upon him by Frearson DCJ on 3 August 2012 after his conviction following a jury trial on a single count that he knowingly took part in the supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. His Honour sentenced the applicant to a term of imprisonment of 2 years and 2 months commencing on 18 June 2012 and expiring on 17 August 2014 with a non-parole period of 16 months expiring on 17 October 2013. The applicant was acquitted by the same jury on a charge that he knowingly took part in the supply of 460 grams of methylamphetamine, being an amount not less than the commercial quantity, contrary to s 25(2) of the Act. 3This application raises the difficult issue of the extent to which a sentencing judge can legitimately make findings consistent with a jury's verdict where the evidence does not necessarily establish all of the facts required by the judge for that purpose. That issue is reflected in the first two of the applicants grounds of appeal, all of which are as follows: Ground 1: The sentencing judge erred in finding that the applicant was aware that the drug transaction was "substantial" and in the order of 150 grams of methylamphetamine. Ground 2: His Honour erred in placing too much weight on the quantity being "substantial"/150 grams in reaching the appropriate sentence. Ground 3: His Honour erred in failing to allow procedural fairness to the applicant by finding that the quantity involved was substantial and in the order of 150 grams, without providing the applicant the opportunity to make submissions to the contrary. Ground 4: The applicant has a legitimate sense of grievance due to the disparity of his sentence and the sentence of Joel Tongol.