Cheun v The Queen - [2009] NSWCCA 116

New South Wales
Court of Criminal Appeal

CITATION: Cheun v R [2009] NSWCCA 116

HEARING DATE(S): 17 April 2009

JUDGMENT OF: Giles JA at 19; Grove J at 1; Hall J at 20

EX TEMPORE JUDGMENT DATE: 17 April 2009

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - "Discount" for past and future assistance - Figures in authorities referring to "combined discount" including allowance for plea of guilty - No error in assessment by sentencing judge

LEGISLATION CITED: Crimes Act 1914

CATEGORY: Principal judgment

CASES CITED: SZ v Regina [2007] 168 A Crim R 249
R v El Hani [2004] NSWCCA 162
R v Mostyn [2004] 145 A Crim R 304
R v Sukkar [2006] 172 A Crim R 151
R v Thomson (2000) 49 NSWLR 383

PARTIES: Minh CHUEN - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2007/15367

COUNSEL: C Bruce SC - Applicant
W Abraham QC - Respondent/Crown

SOLICITORS: Legal Aid Commission - Applicant
Commonwealth Director of Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/11/0166

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 7 March 2008

CCA 2007/15367

GILES JA
GROVE J
HALL J
17 April 2009

Minh CHEUN v R

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Hulme DCJ at Sydney District Court. On the day scheduled for commencement of trial, the applicant pleaded guilty to a single count of attempting to possess a commercial quantity of an unlawfully imported controlled drug. The substance consisted of tablets of methlylenedioxymethamphetamine (MDMA) commonly called ecstasy. A prescribed maximum penalty of imprisonment for life is available for such an offence. His Honour sentenced the applicant to imprisonment for 17 years 6 months with a non-parole period of 11 years.

2 The facts found by the learned sentencing judge are not in dispute and, given the limited challenge in the ground of appeal to which I will turn, an abbreviated summary extracted from the remarks on sentence will suffice for present purposes.

3 On 5 June 2006 a container arrived in Melbourne from Canada containing cardboard boxes labelled as ink or toner. Secreted within a large number of the boxes were 2,572 vacuum sealed bags each containing about 100 ecstasy tablets, in all some 257,200 tablets. Police seized these and substituted inert replacements. An estimated street value of the drug of $40 million was made.

4 The boxes were moved from storage eventually unpacking being commenced at premises in Yagoona in New South Wales.

5 The applicant arrived in Australia on 21 June 2006. He was born in China and had become a Canadian citizen and travelled on a Canadian passport. Police were monitoring activity concerning the boxes by visual surveillance and authorized use of listening devices and telephone interception. The applicant made calls concerning the removal of the boxes from storage and their relocation. In other calls he spoke of needing a rest, of a preference…

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 Cheun v The Queen

Details

AGLC: Cheun v The Queen [2009] NSWCCA 116
Case: [2009] NSWCCA 116
Decision Date: 17 April 2009

CaseChat Overview and Summary

Cheun v The Queen is a decision of the High Court of Australia, which dealt with the sentencing of the appellant, Cheun, who was convicted of drug trafficking. The primary issue before the court was the extent to which the sentencing judge should consider both past and future assistance provided by the defendant when determining the discount to be applied to the sentence. The appellant argued that the sentencing judge incorrectly assessed the level of discount for future assistance and that the combined discount for both past and future assistance, including the plea of guilty, was inappropriate.

The court was required to determine whether the sentencing judge erred in calculating the discount for future assistance, and if the combined discount, including the plea of guilty, was correct. The appellant contended that the sentencing judge should have applied a more substantial discount for future assistance, while the respondent, the Crown, argued that the judge's assessment was correct. The court examined the principles surrounding sentencing discounts for past and future assistance and whether the sentencing judge had erred in applying these principles.

The High Court held that the sentencing judge did not err in assessing the discount for future assistance, nor in calculating the combined discount. The court found that the sentencing judge appropriately considered the relevant factors, including the appellant's willingness to provide future assistance and the extent to which this assistance would benefit law enforcement agencies. The court emphasised that the sentencing judge had the discretion to determine the appropriate level of discount and that there was no error in the assessment of the combined discount, including the allowance for the plea of guilty. The appeal was therefore dismissed.

The High Court's decision in Cheun v The Queen affirms the sentencing judge's discretion in determining the appropriate discount for past and future assistance, including when considering a plea of guilty. The court's ruling reinforces the importance of a fair and balanced approach to sentencing, taking into account all relevant factors and the individual circumstances of the case.

Orders