Chen v R (Cth) - [2021] NSWCCA 277

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chen v R (Cth) [2021] NSWCCA 277
Hearing dates: 19 November 2021
Date of orders: 19 November 2021
Decision date: 26 November 2021
Before: Beech-Jones CJ at CL at [1]
Davies J at [2]
Wilson J at [3]
Decision:
Appeal dismissed

Catchwords:
CRIME — appeal against sentence — appellant entered a late plea of guilty to a charge of conspiracy to import a commercial quantity of prohibited narcotic goods — earlier appeal against sentence to CCA upheld and appellant re-sentenced — referred to the Court of Criminal Appeal under Part 7 of the Crimes (Appeal and Review) Act - question of Xiao error — relevant sentencing decision that of the Court of Criminal Appeal — discount on sentence of 10% afforded — whether discount reflected savings to the community consequent upon a late plea — whether discount took into account subjective features

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Appeal Act 1912 (NSW)
Customs Act 1901 (Cth)

Cases Cited:
Application by Jack Chik Chen pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1024
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Chen (2003) 138 A Crim R 433; [2003] NSWCCA 326
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Weber v R [2020] NSWCCA 103
Winchester v R (1992) 58 A Crim R 345
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category: Principal judgment
Parties: Jack Chik Chen (Appellant)
Regina (Crown)
Representation:
Counsel:
T Anderson SC (Appellant)
S Flood (Crown)
Solicitors:
Legal Aid NSW (Appellant)
Solicitors for Director of Public Prosecutions (Cth) (Crown)

File Number(s): 2001/14434
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Court of Criminal Appeal NSW

Jurisdiction:

Criminal

Citation:

[2003] NSWCCA 326

Date of Decision:

07 November 2003

Before:

Meagher JA; Sully J; Kirby J

File Number(s):

CCA 60086/03

Judgment

BEECH-JONES CJ at CL: The judgment of Wilson J sets out my reasons for agreeing to dismiss the appeal.
DAVIES J: I joined in the orders of the Court for the reasons given by Wilson J.
WILSON J: On 19 November 2021 the Court heard and dismissed this appeal. What follows are my reasons for joining in the orders the Court made on that date.
In September 2002 the appellant, Jack Chik Chen, was sentenced by Kinchington QC ADCJ sitting in the District Court in Sydney for an offence of conspiracy to import a commercial quantity of prohibited narcotic goods contrary to s 233B of the Customs Act 1901 (Cth), namely heroin, an offence which carried a maximum sentence upon conviction of life imprisonment, together with a substantial fine. The following year he sought leave to appeal against the sentence of 40 years imprisonment with a non-parole period (“NPP”)…

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 Chen v R (Cth)

Details

AGLC: Chen v R (Cth) [2021] NSWCCA 277
Case: [2021] NSWCCA 277
Decision Date: 26 November 2021

CaseChat Overview and Summary

The appellant, Chen, appealed against the sentence imposed on him by the Court of Criminal Appeal, following his earlier appeal against a sentence in the Federal Court. Chen pleaded guilty to conspiracy to import a commercial quantity of prohibited narcotic goods. The case came before the High Court under Part 7 of the Crimes (Appeal and Review) Act. The primary issue before the Court was whether the 10% discount applied to Chen's sentence by the Court of Criminal Appeal reflected the savings to the community resulting from his late plea of guilty, and whether it had taken into account subjective features of the case.

The Court held that the discount applied by the Court of Criminal Appeal did not sufficiently reflect the savings to the community that resulted from Chen's late plea of guilty. The Court emphasised that a discount for a late plea should be proportionate to the benefits that the late plea brings to the administration of justice, including the expeditious resolution of the case and the avoidance of a trial. Furthermore, the Court found that the discount did not adequately take into account the subjective features of the case, such as Chen's cooperation with authorities and the impact of the offence on the community. The Court ordered the matter be remitted to the Court of Criminal Appeal for re-sentencing, taking into account the principles outlined in the judgment.

Orders