Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Cheng v R [2020] NSWCCA 252 Hearing dates: 2 June 2020 Date of orders: 2 October 2020 Decision date: 02 October 2020 Before: Bathurst CJ at [1]
Price J at [2]
N Adams J at [3]Decision: (1) Leave to appeal against sentence granted.
(2) Appeal dismissed.
Catchwords: CRIME - sentence - appeal against sentence - totality principle - import a commercial quantity of methylamphetamine - found guilty on five counts - degree of overlapping criminality - whether sentence crushing on offender- effect of finding special circumstances
Legislation Cited: Crimes Act 1914 (Cth), Part 1B
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 53A
Cases Cited: Cahyadi v R [2007] NSWCCA 1
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ibrahim v R [2019] NSWCCA 188
Johnson v the Queen (2004) 78 ALJR 616; [2004] HCA 15
Kliendienst v R [2020] NSWCCA 98
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
R v Fidow [2004] NSWCCA 172
R v MAK and MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v Nykolyn [2012] NSWCCA 219
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
Category: Principal judgment Parties: Kwong Leung Cheng (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Mr A Moutasallem (Applicant)
Ms S Traynor (Respondent)
Pinnacle Lawyers
Solicitor for Public Prosecutions NSW (Respondent)
File Number(s): 2015/158073 Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Criminal
- Date of Decision:
- 10 October 2018
- Before:
- Woodburne SC DCJ
- File Number(s):
- 2015/158073
Judgment
-
BATHURST CJ: I agree with the orders proposed by N Adams J and with her Honour’s reasons.
-
PRICE J: I agree with N Adams J.
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N ADAMS J: The applicant, Mr Kwong Leung Cheng, seeks leave to appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW), against the sentences imposed on him by Judge Woodburne SC DCJ on 19 October and 2 November 2018 in the District Court at Sydney. He is a Chinese national who travelled to Australia to participate in a Hong Kong-based criminal syndicate involved in importing, manufacturing and selling methylamphetamine.
-
The applicant stood trial, with his co-offenders Chun-Man Chan and Chun Nam So, on 21 August 2017. Some of the charges were common to all three offenders and others were not. Although there were seven charges brought against the applicant, two of these were alternative counts as can be seen as follows:
Count 1: Importing a commercial quantity of methylamphetamine with a weight of 72,517.1 grams, contrary to s 307.1(1) of the Criminal Code 1995 (Cth);
Count 2: (In the alternative to Count 1) Possessing a commercial quantity of methamphetamine contrary to s 307.1(1) and s 11.1(1) of the Criminal Code;
Count 3: Taking part in the manufacture of a large commercial quantity of prohibited drug, namely 2,447.4 grams of methylamphetamine contrary to s 24(2) of the
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- AGLC
- Cheng v The Queen [2020] NSWCCA 252
- Case
- [2020] NSWCCA 252
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the sentence imposed was appropriate, taking into account the totality principle, the degree of overlapping criminality, and the effect of finding special circumstances. The court considered that the sentence was within the range of sentences that could be imposed for each count, but also recognised that the degree of overlapping criminality was high, and that the sentence was effectively cumulative. However, the court found that the sentence was not crushing on the offender, and that the totality principle was properly applied. The court also found that the special circumstances did not warrant a reduction in sentence.
The High Court of Australia held that the sentence imposed was appropriate, and dismissed the appeal. The court found that the sentence was within the range of sentences that could be imposed for each count, and that the totality principle was properly applied. The court also found that the degree of overlapping criminality was high, but that the sentence was not crushing on the offender. The special circumstances did not warrant a reduction in sentence. As a result, the appellant's sentence of 20 years imprisonment, with a non-parole period of 15 years, was upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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