DPP (Cth) v Peng (Unreported, County Court of Victoria, Judge Nicholson, 13 September 2013)
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CRIMINAL LAW – Director’s appeal – Sentence – Importing a commercial quantity of a border controlled drug (methamphetamine) – Sentenced to 11 years’ imprisonment with a non-parole period of seven years six months – Whether plea of guilty ‘at the earliest opportunity’ – Whether anxiety caused by uncertainty about deportation mitigatory – Guden v The Queen (2010) 28 VR 288, TAN v The Queen (2011) 35 VR 109 followed – Burden of isolation in custody – Whether mitigatory – Foreign offender had come to Australia for the sole purpose of committing a very serious crime – R v Adams [2007] VSCA 37 followed, Lau v The Queen [2011] VSCA 324, Tsang v DPP (Cth) (2011) 35 VR 240 doubted.
CRIMINAL LAW – Director’s appeal – Sentence – Manifest inadequacy – Respondent’s sentence significantly lower than relevant comparators – Hili v The Queen (2010) 242 CLR 520, Ashdown v The Queen (2011) 219 A Crim R 454 cited – Parity – Sentence of co-offender toward bottom of available range – Co-offender’s sentence may not have such a constraining effect as to require new sentence that remains wholly inappropriate or disproportionate in the circumstances – Difference between conduct and level of involvement of co-offenders substantial – Respondent within category 3 in De La Rosa (2010) 79 NSWLR 1 – Nguyen v The Queen (2011) 31 VR 673 cited – Appeal allowed – Respondent re-sentenced to 13 years’ imprisonment with a non-parole period of 10 years.
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APPEARANCES:
Counsel
Solicitors
For the Director
Mr R Bromwich SC DPP (Cth)
Solicitor for the Commonwealth Director of Public Prosecutions
For the Respondent
Mr C B Boyce with Mr M D Stanton
Lethbridges
NETTLE JA REDLICH JA:
This is an appeal by the Commonwealth Director of Public Prosecutions against the sentence imposed upon Po Lung Peng for importing a commercial quantity of a border controlled drug (methamphetamine) contrary to s 307.1(1) of the Commonwealth Criminal Code.[1] Following a plea in the County Court on 2 September 2013, Peng was sentenced as follows:
Importing a commercial quantity of a border controlled drug [Criminal Code Act 1995 (Cth) s 307.1(1)]
Life imprisonment
11 years
N/A
Total Effective Sentence:
11 years
Non-Parole Period:
7 years, 6 months
Pre-sentence Detention Declared:
312 days
6AAA Statement:
12 years, 6 months with a non-parole period of 9 years
Other orders: N/A
Peng’s co-offender, Taiyuan Zheng, pleaded guilty to one count of attempting to possess a commercial quantity of a…
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.
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Details
AGLC
DPP (Cth) v Peng [2014] VSCA 128
Case
[2014] VSCA 128
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions (Cth) appealed against the sentence given to the respondent, Peng, who had been convicted of importing a commercial quantity of methamphetamine. The Federal Circuit and Family Court of Australia originally sentenced Peng to 11 years in prison with a non-parole period of seven years and six months. The appeal raised two primary issues: whether Peng's guilty plea 'at the earliest opportunity' warranted a mitigating consideration and whether the anxiety caused by uncertainty about potential deportation could also be considered as a mitigating factor.
The court examined the principle established in Guden v The Queen and TAN v The Queen, which indicated that a plea of guilty should generally be made at the earliest opportunity. However, the court acknowledged that Peng's anxiety due to deportation uncertainty could potentially mitigate his sentence, although this was not determinative. The court also considered the burden of isolation in custody and the respondent's background, including his purpose for coming to Australia to commit a serious crime. Drawing on R v Adams, Lau v The Queen, and Tsang v DPP (Cth), the court concluded that the sentence was manifestly inadequate compared to relevant comparators.
The court found that the original sentence was significantly lower than what was appropriate for the gravity of the offence and the respondent's level of involvement. The sentencing judge had not sufficiently accounted for the substantial difference between Peng's conduct and that of his co-offender. The court noted that the co-offender's sentence, which was toward the bottom of the available range, did not necessarily constrain the court from imposing a more appropriate sentence. Consequently, the appeal was allowed, and Peng was re-sentenced to 13 years’ imprisonment with a non-parole period of 10 years.