R v Leung

Background

HIS HONOUR: For further background of this case, see my decisions in R v Leung; R v Webster (No. 1) [2022] NSWDC 137, R v Leung; R v Webster (No. 2) [2022] NSWDC 138, R v Leung; R v Webster (No. 3) [2022] NSWDC 139, and R v Leung; R v Webster (No. 4) [2022] NSWDC 553.
On Tuesday 5 April 2022 I commenced a criminal trial by Judge alone. There were two accused, Ms Canny Leung ("the Defendant") and Mr Cameron Stewart Webster ("the co-accused").
The indictment presented contained eight counts. The first and eighth counts were solely against the co-accused, the second and third counts were solely against the Defendant, the fourth, fifth, sixth and seventh counts were against each of the Defendant and the co-accused. The trial commenced before me on Tuesday 5 April 2022. The trial was completed yesterday, 9 May 2022 when I found the Defendant not guilty of each of the charges contained in the indictment that were referable to her, and I acquitted her of those charges.

Sentence

As such, the Defendant stands for sentence as a consequence of my finding an offence that on 4 September 2019, at Birchgrove, she did have in her possession a prohibited drug, namely cocaine. The amount of the drug was 0.31 grams of cocaine. If this matter were in the Local Court of New South Wales, one would expect the maximum penalty imposed by that Court to be a small monetary fine, and perhaps a stern lecture.
The Defendant had been arrested by the NSW Police on 4 September 2019 and remained in custody until being granted bail on 11 December 2019. It is agreed that she spent in custody three months and eight days when, in the end result, she ought to have spent no time in custody at all. Prior to committing the offence for which she now stands for sentence, she was a lady of prior good character. I am asked by learned Counsel to apply s 10 of the Crimes (Sentencing Procedure) Act 1999. Under s 10(3), in deciding whether to make an order under s 10, I can have regard to the following factors: the person's character; antecedents; age; health and mental condition; the trivial nature of the offence; any extenuating circumstances in which the offence was committed, and any other matter that the Court thinks proper to consider.
Here she was a lady of prior good character. At the time of the offence she was 38 years old, and she is now 41 years old. The latter half of 2019, the whole of 2020, the whole of 2021, and the first half of 2022, have been taken up by her having to face the consequences of trial on indictment, which she has successfully defended. The period she spent in gaol was far in excess of whatever penalty would be likely to be imposed for the trivial offence which she has committed. I refer to the trivial nature of the offence, not because possession of illicit drugs is trivial, but because the amount found was not any large quantity of the drug. Indeed, the small quantity of the drug is 1 gram, the traffickable quantity of the drug is 3 grams, the indictable quantity is 5 grams, and the commercial quantity is 250 grams. Here we are dealing with 0.31 grams, or less than a third of the small quantity of drug.
In the circumstances, I accede to the application that has been made and, because of the offender's prior good character, and because of the relatively trivial nature of the offending, and because of the imposition that the law has imposed upon her over the period since 4 September 2019, under S.10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, without proceeding to a conviction, but having regard to the good character, the trivial nature of the offence and the extenuating circumstances, I am satisfied that it is inexpedient to inflict any punishment. I order that the charge be dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 November 2022

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