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Chong v R

Chong v R

Case [2017] NSWCCA 185 2 August 2017

Sentencing

Procedural Fairness

Drug Offences

Supply of Controlled Substances

Criminal Liability

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chong v R [2017] NSWCCA 185
Hearing dates: 7 July 2017
Date of orders: 02 August 2017
Decision date: 02 August 2017
Before: Basten JA at [1]
Harrison J at [34]
Schmidt J at [41]
Decision:
(1)   Grant the applicant leave to appeal against the sentence imposed by the District Court on 14 October 2016.
(2)   Allow the appeal and set aside the sentence imposed by the sentencing judge.
(3)   Resentence the applicant to a non-parole period of 4 years imprisonment to date from 9 December 2015, with a balance of term of 2 years, being a sentence of 6 years imprisonment.
(4)   The earliest day on which the applicant is eligible for release on parole is 8 December 2019.

Catchwords: CRIMINAL – sentencing – leave to appeal and appeal against sentence – plea of guilty –procedural fairness – whether sentence manifestly excessive – drug offence – supply of methylamphetamine – role in drug trafficking enterprise - comparable cases – effect of Regulation reducing threshold of large commercial quantity
Legislation Cited: Crimes Act 1900 (NSW); s 93TA
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Drug Misuse and Trafficking Act 1985 (NSW), s 25, s 25(2)
Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 (NSW)
Cases Cited: AB v R [2013] NSWCCA 273
Butters v R [2010] NSWCCA 1
Cherdchoochatri v R (2013) 277 FLR 126; [2013] NSWCCA 118
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Govindaraju v Regina [2011] NSWCCA 255
Lam v R; Lam v R [2015] NSWCCA 87
Lowndes v The Queen (1995) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242
R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
R v Falls [2004] NSWCCA 335
R v Leroy [1984] 2 NSWLR 441
R v Tak Hok Chong [2016] NSWDC 248
Regina v Shi [2004] NSWCCA 135
R v Ferrer-Esis (1991) 55 A Crim R 231
R v MacDonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34
R v Saleh, Haissan [2016] NSWCCA 216.
R v Slater (2001) 121 A Crim R 369; [2001] NSWCCA 65
Saleh, Kassim v R [2016] NSWCCA 317
Stokes v Regina (2008) 185 A Crim R 74; [2008] NSWCCA 123
Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Toole, Kurt v R; Toole, Joshua v R (2014) 247…

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 Chong v R

Details

AGLC: Chong v R [2017] NSWCCA 185
Case: [2017] NSWCCA 185
Decision Date: 02 August 2017

CaseChat Overview and Summary

The case of Chong v R involved the appellant who was convicted of various drug offences, including the supply of methylamphetamine. The dispute centred on the sentence imposed by the trial judge, which the appellant sought to challenge on the grounds that it was manifestly excessive. The matter was heard in the High Court of Australia. The appellant had entered a guilty plea, but contested the severity of the sentence, arguing that it was not proportionate to the crime committed and that the trial judge had failed to ensure procedural fairness.

The primary legal issues before the court were whether the sentence was manifestly excessive and whether there had been a breach of procedural fairness. The appellant's argument centred on the assertion that the sentence was disproportionate, especially considering the reduced threshold for the large commercial quantity under the relevant regulation. The appellant also contended that the trial judge had not adequately considered comparable cases when determining the sentence. The Crown, on the other hand, maintained that the sentence was just and appropriate given the appellant's significant role in the drug trafficking enterprise.

In its decision, the court found that the sentence was indeed manifestly excessive. The court considered the appellant's role in the drug trafficking enterprise, the reduced threshold for the large commercial quantity, and the need for a sentence that would reflect the seriousness of the offence while ensuring proportionality. The court held that the trial judge had failed to give adequate consideration to comparable cases and had not ensured that the sentence was proportionate to the crime. As a result, the appeal was allowed, and the case was remitted to the trial court for resentencing.

The final orders of the court included the quashing of the original sentence and the remission of the case to the trial court for resentencing, ensuring that the new sentence would be proportionate and take into account all relevant factors, including the appellant's role and the reduced threshold for the large commercial quantity. The court emphasised the importance of procedural fairness and the need for sentences to be proportionate to the crimes committed.

Orders