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Choy v The King

Choy v The King

Case [2023] NSWCCA 23 22 February 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Choy v R [2023] NSWCCA 23
Hearing dates: 22 July 2022
Date of orders: 22 February 2023
Decision date: 22 February 2023
Before: Beech-Jones CJ at CL at [1]
Price J at [2]
Lonergan J at [3]
Decision:
(1) Extend the time for appeal to 8 April 2022.
(2) Leave to appeal granted.
(3) Appeal allowed.
(4) The sentence imposed on the applicant by the District Court on 19 August 2016 is quashed and in lieu thereof the following sentence is imposed: 21 years imprisonment to date from 9 July 2013 to 8 July 2034 with a non-parole period of 14 years to expire on 8 July 2027.

Catchwords:
CRIMINAL LAW – appeal – sentence appeal – serious Commonwealth offences regarding importation of commercial quantity of border-controlled drug and aid and abet manufacture of methamphetamine – late guilty plea – withdrawal and then reinstatement of guilty plea – failure to take into account the utilitarian value of guilty plea – sentenced in August 2016 prior to NSWCCA decision in Xiao v R – error conceded
CRIMINAL LAW – appeal – sentence appeal – parity – whether applicant has a justifiable sense of grievance in light of sentence imposed on co-offender because of the unexplained difference in the ratio of the non-parole period to head sentence – error conceded – resentenced

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Aslan v R [2014] NSWCCA 114
Diaz v R [2019] NSWCCA 216
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
House v R (1936) 55 CLR 499; [1936] HCA 40
Huang v R [2018] NSWCCA 57
Khalid v R [2020] NSWCCA 73
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lam v R (Cth); Lay v R (Cth); To v R (Cth) [2021] NSWCCA 242
R v Thomson and Houlton (2000) 29 NSWLR 383; [2000] NSWCCA 309
Singh v R [2018] NSWCCA 60
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category: Principal judgment
Parties: Ka Ho Choy (Applicant)
Regina (Respondent)
Representation:
Counsel:
N Steel (Applicant)
G Wright SC / S McGee (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2013/00208428
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

19 August 2016

Before:

Lakatos SC DCJ

File Number(s):

2013/00208428

JUDGMENT

BEECH-JONES CJ at CL: I have read the reasons of Lonergan J. Save for one matter I agree with her Honour’s reasons. However, in light of the conceded error that flows from this Court’s decision in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 it is not necessary to consider further the Crown’s concession that error is made out…

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 Choy v The King

Details

AGLC: Choy v The King [2023] NSWCCA 23
Case: [2023] NSWCCA 23
Decision Date: 22 February 2023

CaseChat Overview and Summary

The appellant was convicted for serious Commonwealth offences, including the importation of a commercial quantity of a border-controlled drug and aiding and abetting the manufacture of methamphetamine. The appellant entered a guilty plea at a late stage, which was subsequently withdrawn and then reinstated. The appellant appealed against the sentence imposed, arguing that the trial judge had failed to take into account the utilitarian value of the guilty plea and that there was a disparity in the sentence imposed on the appellant compared to a co-offender. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the trial judge erred in failing to consider the utilitarian value of the appellant's guilty plea and whether the appellant had a justifiable sense of grievance due to the unexplained difference in the ratio of the non-parole period to head sentence compared to the co-offender. The appellant conceded that the trial judge had made an error in not considering the utilitarian value of the guilty plea, as per the decision in Xiao v R. The appellant also argued that there was a disparity in the sentence imposed on them compared to the co-offender.

The court held that the trial judge had indeed erred in not considering the utilitarian value of the appellant's guilty plea. The court also found that there was a justifiable sense of grievance due to the unexplained difference in the ratio of the non-parole period to head sentence compared to the co-offender. As a result, the appellant's sentence was quashed, and the matter was remitted to the Court of Appeal for re-sentencing. The court emphasised the importance of considering the utilitarian value of a guilty plea and ensuring parity in sentencing between co-offenders.

The final orders of the court were that the appellant's sentence was quashed, and the matter was remitted to the Court of Appeal for re-sentencing. The court also directed that the appellant's guilty plea be taken into account in the re-sentencing process and that the issue of parity between the appellant and the co-offender be considered. The court did not make any further orders or comments on the matter.

Orders