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
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…
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- AGLC
- Ban Joo Teoh v The Queen [2018] VSCA 239
- Case
- [2018] VSCA 239
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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