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Chan v The Queen; Kwan v The Queen

Chan v The Queen; Kwan v The Queen

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Case Copied 14 December 2020 80 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chan v R; Kwan v R [2020] NSWCCA 335
Hearing dates: 9 October 2020
Date of orders: 14 December 2020
Decision date: 14 December 2020
Before: Brereton JA at [1]
Johnson J at [2]
Davies J at [165]
Decision:
Grant the Applicant Chan leave to appeal against sentence.
Dismiss Chan’s appeal against sentence.
Grant the Applicant Kwan leave to appeal against sentence.
Dismiss Kwan’s appeal against sentence.

Catchwords:
APPEAL – sentence – applicants convicted at trial of offence of attempting to possess an unlawfully imported border controlled drug (methamphetamine) in a commercial quantity – 81.4 kg of pure methamphetamine – co-offender pleaded guilty to the same charge – whether Chan had legitimate sense of grievance arising from lesser sentence imposed on co-offender – where co-offender’s involvement in offences effectively indistinguishable – where utilitarian discount to co-offender due to guilty plea at commencement of trial – where co-offender had favourable subjective factors – no legitimate sense of grievance – whether error in assessment of Kwan’s objective criminality – whether Kwan had legitimate sense of grievance arising from lesser sentence imposed upon Chan – held that findings of fact concerning objective seriousness of offence and subjective circumstances were open to sentencing Judge – no legitimate sense of grievance – whether applicants’ sentences were manifestly excessive – consideration of other sentencing decisions regarding offences concerning importation of commercial quantities of drugs – sentences imposed were stern but within the reasonable exercise of sentencing discretion having regard to the gravity of the offence – claims of manifest excess rejected – appeals dismissed

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code (Cth)
Customs Act 1901 (Cth)
Evidence Act 1995

Cases Cited:
Adams v R [2018] NSWCCA 139
Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15
Bae v R [2020] NSWCCA 35
Bond v R [2020] NSWCCA 277
Conte v R (2018) 86 MVR 239; [2018] NSWCCA 209
Dao v R [2011] NSWCCA 183
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Director of Public Prosecutions (Cth) v Peng [2014] VSCA 128
Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hong v R [2020] NSWCCA 225
Kaurasi v R (Cth) [2020] NSWCCA 253
Kuo, Huang and Shih v R [2018] NSWCCA 270
Lam v R [2014] NSWCCA 50
Lau v R [2014] NSWCCA 179
Lloyd v R [2017] NSWCCA 303
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mulato v R [2006] NSWCCA 282
Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pham v R; Tang v R [2012] VSCA 101
R v Baker [2000] NSWCCA 85
R v Bartle; R v Roberti (2003) 181 FLR 1;

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: [2020] NSWCCA 335
Decision Date: 14 December 2020

CaseChat Overview and Summary

The appeal in Chan v The Queen and Kwan v The Queen involved the sentencing of two applicants, Chan and Kwan, who were convicted of attempting to possess an unlawfully imported border controlled drug, specifically 81.4 kg of pure methamphetamine, in a commercial quantity. The applicants sought to challenge the sentences imposed upon them by the trial court, arguing various grounds of appeal, including the legitimacy of grievances concerning the disparity in sentencing between themselves and their co-offender, and whether the sentences were manifestly excessive. The appeals were heard in the High Court of Australia.

The court was required to determine whether the applicants had a legitimate sense of grievance arising from the lesser sentence imposed on their co-offender, and whether there was an error in the assessment of the objective criminality of the offences. Additionally, the court needed to consider whether the sentences imposed on Chan and Kwan were manifestly excessive, taking into account the gravity of the offence and the sentencing decisions in similar cases.

The court held that the findings of fact concerning the objective seriousness of the offence and the subjective circumstances were open to the sentencing judge. The court found that there was no legitimate sense of grievance on the part of Chan or Kwan concerning the sentencing of their co-offender, as their involvement in the offences was effectively indistinguishable. The court also considered the utilitarian discount given to the co-offender due to the guilty plea at the commencement of the trial, and the favourable subjective factors that applied to the co-offender. The court concluded that the sentences imposed on Chan and Kwan were within the reasonable exercise of the sentencing discretion, taking into account the gravity of the offence and other sentencing decisions regarding offences concerning the importation of commercial quantities of drugs.

The appeals were dismissed, and the sentences imposed on Chan and Kwan were upheld. The court found that the sentences were stern but not manifestly excessive, and that the sentencing judge had properly exercised their discretion in light of the relevant factors.

Orders