Chong v R - [2011] NSWCCA 182

Court of Criminal Appeal

New South Wales

Case Title: Chong v R

Medium Neutral Citation: [2011] NSWCCA 182

Hearing Date(s): 1 August 2011

Decision Date: 17 August 2011

Jurisdiction:

Before:
McClellan CJ at CL at 1
Simpson J at 2
Fullerton J at 41

Decision:
1. Leave to appeal granted;
2. Appeal allowed, sentence quashed;
3. In lieu thereof the applicant be sentenced to imprisonment for 5 years and 3 months to commence on 10 May 2009 and expire on 9 August 2014, with a non-parole period of 2 years and 9 months, the applicant to be released on parole on 9 February 2012.

Catchwords:
CRIMINAL LAW - application for leave to appeal against severity of sentence - plea of guilty - importing not less than the marketable quantity of a border controlled drug - cocaine - criminal history provided by Interpol - particular outcomes not identified - independent evidence of record of previous offences - error in introducing an 'exceptional circumstances' test to exercise of discretion - lesser sentence warranted - leave granted - appeal allowed - sentence quashed - applicant re-sentenced

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Code (Cth)

Cases Cited:
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 273 ALR 324
Hili v The Queen [2010] HCA 45; 84 ALJR 195
The Queen v Cameron [2002] HCA 6; 209 CLR 339
Wong v The Queen [2001] HCA 54; 207 CLR 584

Texts Cited:

Category: Principal judgment

Parties:
Mia Vivien Chong (Applicant)
Regina (Respondent)

Representation

- Counsel:
Counsel
P Boulten SC (Applicant)
RJ Bromwich SC (Crown)

- Solicitors:
Solicitors
Legal Aid Commission (Applicant)
Director of Public Prosecutions (Crown)

File number(s): 09/11733

Decision Under Appeal

- Court / Tribunal:

- Before: Williams DCJ

- Date of Decision: 17 December 2009

- Citation: [2009] NSWDC 377

- Court File Number(s) 09/11733

Publication Restriction:

Judgment

McCLELLAN CJ at CL : I agree with Simpson J.

SIMPSON J : The applicant seeks leave to appeal against a sentence imposed upon her in the District Court on 17 December 2009, following her plea of guilty to a single charge of importing not less than the marketable quantity of a border controlled drug (cocaine), committed on 10 May 2009.

Pursuant to s 307.2 of the Criminal Code (Cth) the offence carries a maximum custodial penalty of imprisonment for 25 years. Williams DCJ sentenced the applicant to imprisonment for 6 years, commencing on 10 May 2009, with a non-parole period of 3 years and 6 months, expiring on 9 November 2012.

The Facts

The circumstances relevant to the offence were put before the court by way of an agreed statement of facts. On 10 May 2009, the applicant flew into Sydney from Los Angeles. Concealed in her underclothing were two bags containing cocaine of a total quantity of 420.5 grams, but yielding cocaine in its pure form of 151.1 grams. Also in her possession was small vial…

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 [2011] NSWCCA 182
Case: [2011] NSWCCA 182
Decision Date: 17 August 2011

CaseChat Overview and Summary

In this case, the applicant Chong was convicted for importing not less than the marketable quantity of a border controlled drug, specifically cocaine. The matter came before the court for an application for leave to appeal against the severity of the sentence imposed. Chong had pleaded guilty to the charge. The court was required to decide whether the sentence was appropriate given the circumstances and whether there was an error in the application of the law during sentencing.

The court found that the sentencing judge had incorrectly applied an 'exceptional circumstances' test to the exercise of discretion when determining the sentence. The court noted that Chong had a criminal history, which was provided by Interpol, and there was independent evidence of previous offences. However, the particular outcomes of those offences were not identified. The court concluded that, in light of these factors, the sentence was too severe and that a lesser sentence was warranted. The court granted leave to appeal and allowed the appeal, quashing the original sentence and re-sentencing the applicant.

The final orders of the court included granting leave to appeal, allowing the appeal, quashing the original sentence, and re-sentencing the applicant. The court did not specify the exact nature of the re-sentence, leaving that matter to be determined in the resentencing hearing. The court's decision highlights the importance of correctly applying the law when determining a sentence, particularly in cases where the defendant has a criminal history.

Orders