Chan v The Queen; Tan v The Queen - [2014] VSCA 301

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0261
CHUAN WEI CHAN	Applicant
v
THE QUEEN	Respondent
S APCR 2014 0002
HONG HOE TAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH JA and ALMOND AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 June 2014
DATE OF JUDGMENT:	27 November 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 301
JUDGMENT APPEALED FROM:	DPP v Chan and Tan (Unreported, County Court of Victoria, Judge Dean, 25 November 2013)

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CRIMINAL LAW – Sentence – Attempts to possess marketable quantities of a border-controlled drug (heroin) – First parcel 245.5 grams – Second parcel 241.4 grams – Individual sentences for Tan and Chan manifestly excessive – Current sentencing practice considered – Total effective sentence of Chan affirmed – Appeals allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Chan	Mr Jason Gullaci	Lethbridges
For the Applicant Tan	Mr John McLoughlin	Victoria Legal Aid
For the Crown	Ms Krista Breckweg	Commonwealth Director of Public Prosecutions

REDLICH JA:

ALMOND AJA:

Hong Hoc Tan (‘Tan’) and Chuan Wei Chan (‘Chan’) (‘the applicants’) were jointly prosecuted in the County Court on a Commonwealth indictment for drug offences.

Tan pleaded guilty to one charge of attempting to possess a marketable quantity of a border-controlled drug (heroin) contrary to s 307.6(1) of the Criminal Code (Cth) (‘Criminal Code’) (Charge 1 on the indictment). He was sentenced to six years’ imprisonment with a non-parole period of four years.

Chan pleaded guilty to two charges of attempting to possess a marketable quantity of a border-controlled drug contrary to s 307.6(1) of the Criminal Code (Charges 2 and 3 on the indictment). He was sentenced to seven years’ imprisonment on each charge and a total effective sentence of eight years’ and six months’ imprisonment with a non-parole period of six years and three months.

The applicants sought leave to appeal against their sentences. On 26 March 2014, Priest JA refused leave in each case. The applicants have elected to renew their applications for leave to appeal pursuant to s 315 of the Criminal Procedure Act 2009 (Vic).

Circumstances of the offending

On or around 30 May 2012, a parcel carried by TNT Air Freight arrived at Melbourne Airport from Malaysia (‘TNT parcel’). The TNT parcel contained 340.5 grams of white powder, which on analysis contained 245.5 grams of pure heroin.

The TNT parcel was consigned to ‘Kevin Koh, c/- Holiday Inn, Melbourne Airport’. TNT delivered the parcel there on 30 May 2012.

On 31 May 2012, Tan arrived in Australia from Malaysia for the purpose of collecting the TNT parcel. He had in his possession two mobile phones and a SIM card assigned with the contact number recorded for the consignee of the TNT parcel. He had a booking slip for a night’s accommodation for Kevin Koh at the Holiday Inn at Melbourne Airport. Customs officers questioned Tan at the airport and searched him and his luggage. He admitted coming to Australia to collect the TNT parcel and was detained.

On…

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: [2014] VSCA 301
Decision Date: 27 November 2014

CaseChat Overview and Summary

Chan and Tan were convicted and sentenced for their involvement in the attempted possession of significant quantities of heroin. Chan was found with 245.5 grams of heroin, while Tan had 241.4 grams. Both appealed their sentences, arguing they were excessively harsh. The court was tasked with determining whether the sentences were appropriate and if they should be adjusted. The central legal issue was whether the sentences handed down by the lower court were disproportionate to the crimes committed.

In examining the sentences, the court considered the nature and scale of the drug trafficking attempt, as well as the individual circumstances of the appellants. The court found that while the quantities of heroin were substantial, the sentences for both appellants were individually and collectively excessive. The court took into account the current sentencing practices for similar offences, and determined that the total effective sentence for Chan should be affirmed, while the appeals of both appellants were allowed in part. This meant that the sentences would be adjusted to reflect a more appropriate punishment according to current legal standards.

The court's reasoning hinged on a detailed analysis of the principles of criminal sentencing, particularly in cases involving drug trafficking. The court held that while the quantities of heroin involved warranted a significant penalty, the individual sentences for both Chan and Tan were manifestly excessive. The court adjusted the sentences to align with current sentencing practices, resulting in a more proportionate punishment. The final orders confirmed the total effective sentence for Chan, while the appeals of both appellants were allowed to some extent to ensure the sentences reflected appropriate legal standards.

Orders