He v R [2016] NSWCCA 220

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: He v R [2016] NSWCCA 220 Hearing dates: 7 October 2016 Decision date: 07 October 2016 Before: Meagher JA at [1]; Harrison J at [2]; R A Hulme J at [3] Decision: 1. Leave to appeal granted and appeal allowed. 2. Sentences imposed in the District Court on 14 September 2015 quashed. 3. The applicant be re-sentenced as follows: Possess prohibited drug: sentenced to imprisonment for a fixed term of 12 months dating from 15 July 2014 and expiring on 14 July 2015. Import tier 1 good without approval: sentence to imprisonment for 2 years 6 months dating from 15 January 2015 and direct that the applicant be released on recognizance upon giving security in the sum of $100 without surety on the condition that he be of good behaviour after having served 1 year 6 months. Catchwords: CRIMINAL LAW – appeal against sentence – drug (ephedrine) importation and possession – judge erred by giving weight to the likely deportation of the applicant so as to deny him a period of parole or equivalent – error in failure to give effect to a finding of special circumstances – applicant resentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 44 Criminal Appeal Act 1912 (NSW) s 6(3) Criminal Procedure Act 1986 (NSW) s 166 Customs Act 1901 (Cth) s 233 BAA(4) Drugs Misuse and Trafficking Act 1985 (NSW) s 10 Cases Cited: Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 The Queen v Shrestha (1991) 173 CLR 48; [1991] HCA 26 Category: Principal judgment Parties: Peidong He (Applicant) Regina (Respondent) Representation: Counsel: Ms J Paingakulam (Applicant) Mr T Anderson (Crown)