Kha v R [2019] NSWCCA 215

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kha v R [2019] NSWCCA 215 Hearing dates: 1 April 2019 Decision date: 13 September 2019 Before: Bathurst CJ at [1]; Ierace J at [2]; Hidden AJ at [72] Decision: (1) Grant the applicant leave to appeal.

(2) Appeal allowed.

(3) Quash the sentence imposed on 7 August 2017.

(4) Sentence the applicant to an aggregate non-parole period of 6 years commencing on 25 June 2015 and expiring on 24 June 2021 with a balance of term of 3 years expiring on 24 June 2024.

(5) The earliest date upon which the applicant will be eligible for release is 24 June 2021. Catchwords: CRIME – Appeals – Appeal against sentence – Denial of procedural fairness – Whether sentencing judge erred in omitting to adjust the non-parole period to reflect a finding of special circumstances – Re-sentence

CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in failing to make a finding in relation to the objective seriousness of the offence

CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in not indicating a non-parole period for the offence of supplying a large commercial quantity of prohibited drug Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 53A, 54B Cases Cited: Brennan v R [2018] NSWCCA 22 Button v R [2010] NSWCCA 264 Dang v R [2014] NSWCCA 47 House v The King (1936) 55 CLR 499; [1936] HCA 40 Obeid v R [2017] NSWCCA 221 R v Dashti [2016] NSWCCA 251 R v Fidow [2004] NSWCCA 172 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Van Ryn [2016] NSWCCA 1 Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318 Weir v R [2011] NSWCCA 123 Category: Principal judgment Parties: Binh Thanh Kha (Applicant) Regina (Respondent) Representation: Counsel: A Evers (Applicant) K Ratcliffe (Respondent)