Chuah v The Queen - [2022] VSCA 51

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0037

BOON PING CHUAH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 March 2022
DATE OF JUDGMENT:	5 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 51
JUDGMENT APPEALED FROM:	[2021] VCC 282 (Judge Wraight)

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CRIMINAL LAW – Appeal – Sentence – Attempt to possess marketable quantity of unlawfully imported border controlled drug – Improper possession of foreign travel document – Total effective sentence of 8 years with non-parole period of 4 years, 6 months – Whether judge erred in finding applicant had firm understanding of drug quantity – Whether judge erred in stating applicant’s entry into Australia not solely for purpose of committing drug offences – Whether sentence manifestly excessive – Appeal allowed – Applicant resentenced to total effective sentence of 6 years, 9 months with non-parole period of 3 years, 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J R Murphy with Mr N Howard	Victoria Legal Aid
For the Respondent	Ms K Breckweg	Mr S Bruckard, Solicitor for Public Prosecutions (Cth)

PRIEST JA
KYROU JA:

Introduction and summary

On 15 March 2021, the applicant pleaded guilty to the charges set out in the table below and, on 18 March 2021, he was sentenced by a County Court judge as set out in that table:[1]
[1]R v Chuah [2021] VCC 282 (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 Attempt to possess a marketable quantity of an unlawfully imported border controlled drug [Criminal Code (Cth) ss 11.1(1) and 307.6(1)] 25 years 7 years Base

2 Improper possession of a foreign travel document [Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) s 21(4)] 10 years 2 years 1 year

Total effective sentence: 8 years’ imprisonment

Non-parole period: 4 years and 6 months

Section 6AAA statement: 10 years’ imprisonment with a non-parole period of 6 years and 6 months

Charge	Offence	Maximum	Sentence	Cumulation
1	Attempt to possess a marketable quantity of an unlawfully imported border controlled drug [Criminal Code (Cth) ss 11.1(1) and 307.6(1)]	25 years	7 years	Base
2	Improper possession of a foreign travel document [Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) s 21(4)]	10 years	2 years	1 year
Total effective sentence: 8 years’ imprisonment
Non-parole period: 4 years and 6 months
Section 6AAA statement: 10 years’ imprisonment with a non-parole period of 6 years and 6 months

The applicant has sought leave to appeal against his sentence on the following grounds:[2]
[2]For convenience, the proposed grounds of appeal will be referred to as grounds of appeal.

Ground 1 — the sentencing discretion miscarried as a result of the learned sentencing judge’s:
(a)Finding that the applicant had a firm understanding of the quantity of the substance that was being imported; and
(b)Failure to afford the applicant procedural fairness in relation to that finding.

Ground 2 — the sentencing discretion miscarried as a result of the learned sentencing judge’s:
(a)Finding to the effect that the applicant’s entry to Australia was at least partly with the purpose of committing the drug offences;
(b)Failure to afford the applicant procedural fairness in relation to that finding.

Ground 3 — the sentence imposed on charge 1 and the order for cumulation are manifestly excessive.

For the reasons that follow, we have concluded that grounds 1 and 2 are made out and that the outcome in relation to those two grounds is sufficient for leave to appeal to be…

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 Chuah v The Queen

Details

AGLC: Chuah v The Queen [2022] VSCA 51
Case: [2022] VSCA 51
Decision Date: 5 April 2022

CaseChat Overview and Summary

The case of Chuah v The Queen involved the appellant who was convicted for attempting to possess a marketable quantity of an unlawfully imported border controlled drug and for improperly possessing a foreign travel document. The appeal against sentence was heard in the High Court of Australia. The appellant was initially sentenced to a total effective sentence of 8 years imprisonment with a non-parole period of 4 years and 6 months. The central legal issues before the court were whether the trial judge had erred in determining that the appellant had a firm understanding of the quantity of drugs involved, whether the judge had erred in concluding that the appellant's entry into Australia was not solely for the purpose of committing drug offences, and whether the sentence was manifestly excessive.

The High Court examined the trial judge's assessment of the appellant's knowledge regarding the quantity of drugs. The court found that the trial judge had erred in concluding that the appellant had a firm understanding of the drug quantity. The evidence suggested that the appellant's understanding was less certain than the judge had determined. Additionally, the court scrutinised the judge's statement about the appellant's entry into Australia and found it to be an error, as the evidence did not support the conclusion that the appellant's entry was not solely for the purpose of committing drug offences. Finally, the court assessed whether the sentence was manifestly excessive. Considering the errors in the trial judge's findings, the High Court determined that the sentence was indeed manifestly excessive.

The appeal was allowed, and the appellant was resentenced to a total effective sentence of 6 years and 9 months with a non-parole period of 3 years and 9 months. This decision highlighted the importance of accurate assessments of the facts and legal principles in sentencing to ensure a just outcome.

Orders