Chin v The King - [2024] WASCA 17

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CHIN -v- THE KING [2024] WASCA 17
CORAM:   BUSS P
HALL JA

HEARD:   29 JANUARY 2024
DELIVERED          :   13 FEBRUARY 2024
FILE NO/S:   CACR 84 of 2023
BETWEEN:   YOKE CHENG CHIN
Appellant
AND
THE KING
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   FIANNACA J
File Number            :   INS 332 of 2016

Catchwords:

Criminal law - Appeal against sentence - Possession of commercial quantity of border controlled drugs (methamphetamine) - Where role and personal circumstances comparable with co‑offender - Where appellant pleaded guilty but co‑offender convicted after trial - Where difference in other mitigating factors - Whether sentence breached parity principle - Whether sentence manifestly excessive

Legislation:

Criminal Code (Cth), s 307.8

Result:

Extension of time refused
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	D Renton SC

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Garlett-Exell v The State of Western Australia [2020] WASCA 179
Gaskill v The State of Western Australia [2018] WASCA 8
Giangiulio v The State of Western Australia [2022] WASCA 77
Gray v The State of Western Australia [2023] WASCA 188
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342
Ho v The State of Western Australia [2023] WASCA 160
Kabambi v The State of Western Australia [2019] WASCA 44
Law v The Queen [2020] WASCA 196
Luo v The Queen [2020] WASCA 184
McKay v The State of Western Australia [2023] WASCA 140
Siskopoulos v The State of Western Australia [2022] WASCA 138
Tang v The Queen [2020] WASCA 194
Wong v The Queen [2020] WASCA 195

JUDGMENT OF THE COURT:

This is an application for leave to appeal against sentence.
The appellant was convicted on his plea of guilty of one count of possession of a commercial quantity of a border controlled drug, namely methamphetamine, that was reasonably suspected of having been unlawfully imported, contrary to s 307.8 of the Criminal Code (Cth) (the Code). He was sentenced to 15 years' imprisonment with a non‑parole period of 9 years 8 months.
The appellant was sentenced on 23 March 2017. He filed an appeal notice on 13 July 2023. Accordingly, he is more than six years out of time and requires an extension. In an affidavit in support of his application for an extension of time, the appellant states that one of his grounds raises the parity principle in relation to a co‑offender who was sentenced on 9 June 2021 and that he only became aware of the sentence imposed on that co‑offender 'recently'. The delay is not adequately explained but an extension may be granted if a miscarriage justice would be caused if an extension of time was denied. This requires a consideration of the merits…

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 Chin v The King

Details

AGLC: Chin v The King [2024] WASCA 17
Case: [2024] WASCA 17
Decision Date

CaseChat Overview and Summary

In this case, the appellant, Yoke Cheng Chin, appeals against his sentence for possession of a commercial quantity of methamphetamine. The appeal is heard by the Supreme Court of Western Australia. The appellant pleaded guilty to one count of possession of a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.8 of the Criminal Code (Cth). He was sentenced to 15 years' imprisonment with a non-parole period of 9 years 8 months. The appellant claims that the sentence imposed on him was manifestly excessive, unreasonable, and unjust, and that it breached the parity principle. The Court was required to decide whether the appellant's sentence breached the parity principle, and whether it was manifestly excessive.

The Court found that the disparity between the appellant's sentence and that of his co-offender, BG, did not infringe the parity principle or the principle of equal justice. The Court found that the disparity in the sentencing outcomes was not insufficient or unreasonable, and that it did not give rise to a legitimate or justifiable sense of grievance on the appellant's part, or to give the appearance in the mind of an objective observer that justice was not done as between the appellant, on the one hand, and BG on the other. The Court found that the appellant received a materially lesser sentence relative to BG and it was not arguable that the difference should have been greater. The Court also found that the appellant's sentence was not manifestly excessive independent of any breach of the parity principle.

In conclusion, the Court found that the grounds of appeal had no reasonable prospect of succeeding. The application for an extension of time was refused, leave to appeal was refused, and the appeal was dismissed.

Orders