Chun Chieh Wang v The Queen - [2016] VSCA 292

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0152

CHUN CHIEH WANG	Applicant
v
THE QUEEN	Respondent

---

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

---

JUDGES:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	25 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 292
JUDGMENT APPEALED FROM:	DPP (Cth) v Wang (Unreported, County Court of Victoria, Judge McInerny, 8 July 2016)

---

CRIMINAL LAW – Application for leave to appeal against sentence – Import a commercial quantity of a border controlled drug (methamphetamine) – Sentence 10y – Non-parole period 7y – Leave refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Turnbull Lawyers
For the Respondent	No appearance	Mr John Cain, Solicitor for Public Prosecutions

WHELAN JA:

On 4 July 2016 the applicant pleaded guilty to one ‘rolled up’ charge of importing a commercial quantity of a border controlled drug, an offence under s 307.1(1) of the Criminal Code (Cth). The maximum sentence prescribed for this offence is life imprisonment. On 8 July 2016 he was sentenced to a term of imprisonment of 10 years. A non-parole period of 7 years was fixed.

The particular offence charged was referred to as ‘rolled up’ because it covered five separate importations of methamphetamine over the period from 28 December 2015 to 21 January 2016. A total of 3.653 kilograms of methamphetamine was imported, which is 4.87 times the threshold for a commercial quantity. The value of the drug imported was significant. The Crown estimate in the plea was between $1.01m and $1.4m at the wholesale level, and $3.4 to $4.6m at the street level. The applicant’s motive was financial gain. The amount of the gain put to the sentencing judge by his counsel, on the basis of instructions, was very low. The sentencing judge did not accept it.

The five separate importations were in consignments sent by post, two to the applicant’s address, and three to the address of a co-accused who the applicant directed to collect the consignments. All five consignments were intercepted by Australian Border Force officers and transferred to the Australian Federal Police. Three of the consignments were re-constituted with inert substances. Listening devices were inserted into two of them. These three consignments were collected by the applicant’s co-offender and taken by him to the applicant. The listening devices recorded the applicant and his co-offender opening the consignments, discussing their contents, and referring to the need ‘to arrange the money transfer’.

The applicant is a foreign national. He was present in Australia on a student visa. He was 29 years of age at the time of the offence and at the time of sentence. He has no prior convictions.

The applicant seeks leave to appeal on two proposed grounds. They are:

1.The learned sentencing judge erred in the use of comparative sentences and current sentencing practices.
2.The learned sentencing judge erred by imposing a head…

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 Chun Chieh Wang v The Queen

Details

AGLC: Chun Chieh Wang v The Queen [2016] VSCA 292
Case: [2016] VSCA 292
Decision Date: 25 November 2016

CaseChat Overview and Summary

Chun Chieh Wang sought leave to appeal against his conviction and sentence for importing a commercial quantity of methamphetamine. Wang was convicted in the Supreme Court of Victoria and sentenced to 10 years' imprisonment, with a non-parole period of 7 years. The primary legal issue before the Court was whether Wang's appeal against his sentence should be allowed. Specifically, the Court had to determine if the sentence imposed by the primary judge was manifestly excessive, oppressive, or inappropriate in all the circumstances.

The Court held that Wang's sentence was not manifestly excessive, oppressive, or inappropriate. The primary judge had carefully considered the relevant principles and Wang's personal circumstances, including his role in the importation, which was significant. The Court emphasised that the importation of a commercial quantity of a dangerous drug such as methamphetamine warranted a substantial custodial sentence to deter and protect the community. The Court concluded that the sentence was within the range of penalties that could be considered appropriate for the offence and the offender's circumstances.

Accordingly, the Court dismissed Wang's application for leave to appeal against his sentence. The appeal was not successful, and the original sentence of 10 years' imprisonment with a non-parole period of 7 years was upheld. The Court found no grounds to interfere with the primary judge's sentencing decision.

Orders