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Cheng v The Queen

Cheng v The Queen

Case [2020] NSWCCA 252 2 October 2020

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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
Regina v Cramp [2004] NSWCCA 264

Category: Principal judgment
Parties: Kwong Leung Cheng (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr A Moutasallem (Applicant)
Ms S Traynor (Respondent)
Solicitors:
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.
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

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 Cheng v The Queen

Details

AGLC: Cheng v The Queen [2020] NSWCCA 252
Case: [2020] NSWCCA 252
Decision Date: 02 October 2020

CaseChat Overview and Summary

The matter of Cheng v The Queen was heard in the High Court of Australia, where the respondent, The Queen, appealed against the sentence given to the appellant, Cheng, who was found guilty on five counts of importing a commercial quantity of methylamphetamine. The appellant was sentenced to a total of 20 years imprisonment, with a non-parole period of 15 years. The Crown sought a harsher sentence, arguing that the totality principle was not properly applied. The appellant, on the other hand, submitted that the sentence was excessive and did not take into account the degree of overlapping criminality.

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