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Ban Joo Teoh v The Queen

Ban Joo Teoh v The Queen

Case [2018] VSCA 239 20 September 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0226

BAN JOO TEOH	Appellant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2018
DATE OF JUDGMENT:	20 September 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 239
JUDGMENT APPEALED FROM:	DPP (Cth) v Teoh (Unreported, County Court of Victoria, Judge Dean, 5 December 2016)

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CRIMINAL LAW – Sentence – Late guilty plea – Charge of attempt to possess a marketable quantity of an unlawfully imported border controlled drug – Charge of traffick a marketable quantity of a controlled drug – Appellant sentenced to nine years’ imprisonment with a non-parole period of seven years – Characterisation of the seriousness of the offending – Whether judge erred in taking into account an adverse factor not proven beyond reasonable doubt – Whether sentence manifestly excessive – Whether denunciation, protection of the community and general deterrence given too much weight in sentencing – Whether appellant’s personal circumstances and rehabilitation prospects given sufficient weight – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms C B Hollingworth	Victoria Legal Aid
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

KYROU JA
KAYE JA:

In September 2015, the appellant was arrested, and charged with attempting to possess a marketable quantity of an unlawfully imported border-controlled drug, namely, methamphetamine (‘Charge 1’) and with trafficking a marketable quantity of a controlled drug (‘Charge 2’). After a contested committal hearing on 6 May 2016, the appellant, together with his co-accused Hon Pan Yip (‘Yip’), was committed to stand trial on both charges. Subsequently, in August 2016, Yip pleaded guilty. On his plea, he gave an undertaking to the judge to cooperate in the prosecution of the case against the appellant. Subsequently, and shortly before the commencement of his trial, the appellant pleaded guilty to the two charges on the indictment.

After the presentation of a plea on his behalf, the appellant was sentenced by a judge of the County Court to a total effective sentence of nine years’ imprisonment, with a minimum non-parole period of seven years. That sentence was constituted as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1
Attempt to possess a marketable quantity of an unlawfully imported border controlled drug [Criminal Code (Cth) s 11.1(1)]
25 years’ imprisonment 5 years and 6 months 2 years

2
Traffick a marketable quantity of a controlled drug [Criminal Code (Cth) s 302.3(1)]
25 years’ imprisonment 7 years Base

Total Effective Sentence: 9 years’ imprisonment

Non-Parole Period: 7 years’ imprisonment

Pre-Sentence Detention Declared: 452 days

6AAA statement: 11 years’ imprisonment, with a non-parole period of 9 years

Other relevant orders: Forfeiture by consent of $15,000 proceeds of crime

Charge	Offence	Maximum	Sentence	Cumulation
1	Attempt to possess a marketable quantity of an unlawfully imported border controlled drug [Criminal Code (Cth) s 11.1(1)]	25 years’ imprisonment	5 years and 6 months	2 years
2	Traffick a marketable quantity of a controlled drug [Criminal Code (Cth) s 302.3(1)]	25 years’ imprisonment	7 years	Base
Total Effective Sentence:	9 years’ imprisonment
Non-Parole Period:	7 years’ imprisonment
Pre-Sentence Detention Declared:	452 days
6AAA statement: 11 years’ imprisonment, with a non-parole period of 9 years
Other relevant orders: Forfeiture by consent of $15,000 proceeds of crime

On 15 February 2018, the appellant was granted leave to appeal his sentence on the following two grounds:

Ground 1:
The judge erred by taking into account an adverse factor not proven beyond reasonable doubt, and as a result mischaracterised the seriousness of the offending…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ban Joo Teoh v The Queen

Details

AGLC: Ban Joo Teoh v The Queen [2018] VSCA 239
Case: [2018] VSCA 239
Decision Date: 20 September 2018

CaseChat Overview and Summary

In Ban Joo Teoh v The Queen, the appellant was convicted of attempting to possess a marketable quantity of an unlawfully imported border controlled drug and trafficking a marketable quantity of a controlled drug. The case was heard and determined in the High Court of Australia. The appellant was sentenced to nine years’ imprisonment with a non-parole period of seven years. The central issue before the Court was whether the sentence imposed was manifestly excessive and whether the trial judge erred in characterising the seriousness of the offending.

The Court considered whether the trial judge erred in taking into account an adverse factor not proven beyond reasonable doubt and whether the judge gave excessive weight to denunciation, protection of the community and general deterrence, while not giving sufficient weight to the appellant’s personal circumstances and rehabilitation prospects. The Court found that the trial judge did not err in characterising the seriousness of the offending and did not give excessive weight to certain sentencing considerations. The Court held that the sentence imposed was not manifestly excessive and that the trial judge had appropriately balanced all relevant sentencing considerations.

The reasoning of the Court was based on the principle that the trial judge is in the best position to assess the circumstances of the case and the appropriate sentence. The Court found that the trial judge had appropriately considered all relevant factors and had not erred in the sentencing process. The Court held that the appeal should be dismissed as the sentence imposed was not manifestly excessive and did not constitute a miscarriage of justice. The High Court of Australia dismissed the appeal, upholding the original sentence imposed by the trial judge.

Orders