Fung v The Queen - [2018] NSWCCA 216

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Fung v R [2018] NSWCCA 216
Hearing dates: 19 September 2018
Date of orders: 05 October 2018
Decision date: 05 October 2018
Before: White JA at [1];
Price J at [2];
Wilson J at [75]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIME – appeal against sentence - dealing with money in excess of $1,000,000 with the intention it would become an instrument of crime contrary to s 400.3(1) of the Criminal Code –utilitarian considerations not taken into account when allowing a discount for the plea of guilty – re-sentence – sentencing guidance for s 400.3(1) of the Criminal Code – offences on a s 16BA document – whether the applicant’s prior criminal history was an aggravating factor – specific deterrence – general deterrence – no lesser sentence warranted
Legislation Cited: Crimes Act 1914 (Cth), ss 16A, 16BA
Criminal Code 1995 (Cth), ss 372.2, 400.3, 400.9
Cases Cited: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
Huang v R [2018] NSWCCA 57
Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Kim v The Queen; Fang v The Queen [2016] VSCA 238
R v Van Lai Nguyen [2010] NSWCCA 226; (2010) 204 A Crim R 246
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Category: Principal judgment
Parties: Siu Ki Raymond Fung (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Lange (Applicant)
L Fernandez (Respondent)
Solicitors:
Fusion Legal (Applicant)
Solicitor for Commonwealth Public Prosecutions (Respondent)

File Number(s): 2015/247979
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

18 July 2017

Before:

Whitford SC DCJ

File Number(s):

2015/247979

Judgment

WHITE JA: I agree with Price J.
PRICE J: Siu Ki Raymond Fung (“the applicant”) pleaded guilty in the Local Court to a charge of dealing with money in excess of $1,000,000 with the intention it would become an instrument of crime, contrary to s 400.3(1) of the Criminal Code 1995 (Cth). The maximum penalty for an offence contrary to s 400.3(1) of the Criminal Code is 25 years imprisonment and/or a fine of 1,500 penalty units.
The applicant adhered to his plea in the District Court before Whitford SC DCJ (“the judge”), and asked his Honour to take into account on sentence a further two offences pursuant to s 16BA of the Crimes Act 1914 (Cth). These offences were:

Dealing with money in excess of $100,000, it being reasonable to suspect that the money was proceeds of crime, contrary to s 400.9(1) of the Criminal Code, which carries a maximum penalty of 3 years imprisonment and/or 180 penalty units; and

Possession of identification information relating to 11 persons with the intention to engage in…

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 Fung v The Queen

Details

AGLC: Fung v The Queen [2018] NSWCCA 216
Case: [2018] NSWCCA 216
Decision Date: 05 October 2018

CaseChat Overview and Summary

In the case of Fung v The Queen, the appellant was convicted for dealing with money in excess of $1,000,000 with the intention it would become an instrument of crime, contrary to section 400.3(1) of the Criminal Code. The case was heard in the High Court of Australia, where the appellant sought to appeal against his sentence. The appellant had pleaded guilty to the charge and argued for a sentence reduction based on the plea. The Crown, however, opposed the reduction, arguing that the appellant's prior criminal history should be considered an aggravating factor.

The central legal issue that the court had to decide was whether the appellant's prior criminal history should be considered an aggravating factor in sentencing. Additionally, the court had to determine the appropriate sentencing guidance for section 400.3(1) of the Criminal Code, especially in cases where the offences were listed on a s 16BA document. The court also had to consider whether the appellant's prior criminal history warranted a lesser sentence.

The High Court held that the appellant's prior criminal history could be considered an aggravating factor in sentencing. The court noted that while utilitarian considerations were not to be taken into account when allowing a discount for the plea of guilty, they could be considered when determining the overall sentence. The court further held that the appellant's prior criminal history warranted a higher sentence to achieve specific and general deterrence. The court also noted that the sentencing guidance for section 400.3(1) of the Criminal Code should be based on the gravity of the offence and the culpability of the offender. In this case, the court held that no lesser sentence was warranted.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence was upheld. The court noted that the sentence imposed by the primary judge was appropriate and reflected the gravity of the offence and the culpability of the offender. The court further held that the appellant's prior criminal history warranted a higher sentence to achieve specific and general deterrence.

Orders