Chen v The Queen - [2018] NSWCCA 157

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Chen v R [2018] NSWCCA 157
Hearing dates: 4 July 2018
Decision date: 01 August 2018
Before: Meagher JA at [1]
Schmidt J at [2]
Button J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – asserted error of sentencing judge in finding that applicant was aware that the shipment of narcotics contained a ‘significant amount’ of illicit drugs – asserted error of sentencing judge giving excess weight to finding that applicant’s motivation for offending was financial gain – sentence imposed asserted to be manifestly excessive – discussion of other sentences imposed for drug importation – applicant appreciated quantity of drugs was significant – applicant involved himself in the importation of a very large quantity of a prohibited drug in order to benefit financially – sentence imposed not manifestly excessive – appeal dismissed
Legislation Cited: Criminal Code 1995 (Cth), ss 11.2, 307.1
Cases Cited: Chan, Lo and Nguyen v R [2010] NSWCCA 153
Obiekwe v R [2018] NSWCCA 55
R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
R v Onyebuchi; Ex parte Commonwealth Director of Public Prosecutions [2016] QCA 143
R v Tran, Tran & Nguyen [2013] NSWCCA 136; (2013) 233 A Crim R 167
Stipkovich v The Queen [2018] WASCA 63
Webber v The Queen [2014] NSWCCA 111
Xiao v R [2018] NSWCCA 4
Category: Principal judgment
Parties: Qiang James Chen (Applicant)
Regina (Respondent)
Representation:
Counsel:
I Lloyd QC (Applicant)
L Crowley (Respondent)
Solicitors:
George Sten & Co (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2014/299294
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2017] NSWDC 187

Date of Decision:

17 July 2017

Before:

Letherbarrow SC DCJ

File Number(s):

2014/299294

Judgment

MEAGHER JA: I agree with Button J.
SCHMIDT J: I agree with Button J.
BUTTON J:

Introduction

From 20 March 2017 until 29 March 2017, Mr Qiang James Chen (the applicant) stood trial before his Honour Judge Letherbarrow SC and a jury of twelve in the District Court at Sydney. At the conclusion of that trial, the applicant was found guilty of an offence of aiding and abetting the importation of a commercial quantity of a border controlled drug (namely, 14.14 kilograms of methamphetamine), contrary to ss 11.2(1) and 307.1 of the Criminal Code 1995 (Cth) (the Code). The maximum penalty was imprisonment for life and/or a fine of $1,275,000. On 17 July 2017, the applicant was sentenced to a head sentence of imprisonment for 12 years, with a non-parole period of 7 years 2 months.

Grounds of appeal

There is no appeal against the conviction. In support of an application for leave to appeal against sentence, the following grounds were notified and pressed at the hearing before us:

1. The learned sentencing judge erred in finding that the applicant was aware that the shipment…

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 The Queen

Details

AGLC: Chen v The Queen [2018] NSWCCA 157
Case: [2018] NSWCCA 157
Decision Date: 01 August 2018

CaseChat Overview and Summary

Chen has appealed against the sentence imposed by the sentencing judge in the Federal Court of Australia. The conviction for the importation of a significant quantity of a prohibited drug was not in issue. The central issue was whether the sentencing judge had erred in finding that Chen was aware of the substantial quantity of illicit drugs in the shipment, and in assigning undue weight to Chen's motivation for the crime being financial gain. The appeal also argued that the sentence was manifestly excessive compared to other sentences imposed for similar drug importation offences.

The High Court assessed whether the sentencing judge had erred in their assessment of Chen's awareness and the weight given to financial motivation. The Court held that the sentencing judge was entitled to find that Chen was aware of the significant quantity of drugs, given his active involvement in the importation process. The Court also determined that it was not an error for the sentencing judge to give weight to Chen's financial motivation, as it was a relevant factor in assessing the seriousness of the offence. The Court further concluded that the sentence imposed was not manifestly excessive when considering the gravity of the offence and the need for deterrence and denunciation.

Given the findings, the Court dismissed the appeal. The sentence imposed by the sentencing judge was upheld as appropriate given the circumstances of the case. The Court's decision affirms the importance of considering the offender's awareness and motivation, as well as the broader societal need to deter such serious criminal activities.

Orders