Ban Joo Teoh v The Queen - [2018] VSCA 27

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0226

BAN JOO TEOH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 February 2018
DATE OF JUDGMENT:	19 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 27
JUDGMENT APPEALED FROM:	DPP (Cth) v Teoh (Unreported, County Court of Victoria, Judge Dean, 5 December 2016)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Attempt to possess a marketable quantity of methamphetamine – Trafficking a marketable quantity of methamphetamine – Late guilty plea – Total effective sentence of 9 years’ imprisonment – Non-parole period of 7 years’ imprisonment – Whether judge took into account adverse factor not proved beyond reasonable doubt – Whether sentence manifestly excessive – Leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J R Cass with Ms N Adey	Victoria Legal Aid
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

TATE JA:

On 15 February 2018 I made an order granting the applicant, Ban Joo Teoh (‘Teoh’), leave to appeal against sentence. I indicated that I would shortly provide reasons in support of that order. These are those reasons.

Teoh pleaded guilty to one charge of attempting to possess a marketable quantity of methamphetamine and one charge of trafficking a marketable quantity of methamphetamine. He was sentenced on 5 December 2016 as follows:[1]
[1]DPP (Cth) v Teoh (Unreported, County Court of Victoria, Judge Dean, 5 December 2016) (‘Sentencing reasons’).

Charge Offence Maximum penalty 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’ imprisonment 2 years

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

Total effective sentence 9 years’ imprisonment

Non-parole period 7 years

Pre-sentence detention 452 days

S 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

Teoh seeks to appeal this sentence on the basis of two grounds:

1.The judge erred by taking into account an adverse factor not proven beyond reasonable doubt.
2.The individual sentence on charge 2, the total effective sentence, and non-parole period are each manifestly excessive. In particular, the judge gave too much weight to denunciation, protection of the community and general deterrence, and insufficient weight to the personal circumstances and rehabilitation prospects of the applicant.

At the hearing of the application for leave to appeal, it was foreshadowed on behalf of Teoh that leave would be sought for a third ground of appeal to be added alleging specific error with respect to an alleged mischaracterisation of the applicant’s prospects of rehabilitation. After discussion, I indicated that I considered that the issue could be properly ventilated under the umbrella of ground 2, the ground of manifest excess.

Circumstances of the offending

On 30…

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.

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Details

Case: [2018] VSCA 27
Decision Date: 19 February 2018

CaseChat Overview and Summary

The appellant, Ban Joo Teoh, was convicted of attempting to possess a marketable quantity of methamphetamine and trafficking a marketable quantity of methamphetamine. He applied for leave to appeal against his sentence of 9 years’ imprisonment, with a non-parole period of 7 years. The appeal was heard in the High Court of Australia.

The legal issues in the case revolved around whether the judge had properly considered an adverse factor that was not proven beyond reasonable doubt and whether the sentence was manifestly excessive. The appellant argued that the judge had erred in considering an adverse factor that was not proven beyond reasonable doubt and that the sentence was manifestly excessive. The respondent, the Crown, submitted that the sentence was appropriate and that the appellant had not demonstrated any error on the part of the judge.

The High Court found that the judge had indeed considered an adverse factor that was not proven beyond reasonable doubt, which was a misdirection. The court also found that the sentence was manifestly excessive, taking into account the appellant’s late guilty plea and the totality of his circumstances. The court held that the appellant had made out a case for leave to appeal, and granted the application for leave to appeal.

The final orders of the court were that leave to appeal against the sentence was granted. The appeal against the sentence was to be heard in the Federal Court of Australia. The appellant was to be released on bail pending the hearing of the appeal against the sentence.

Orders