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Goh v The Queen

Goh v The Queen

Case [2021] VSCA 231 24 August 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0035

KEE SEN GOH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	McLEISH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	24 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 231
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Meredith, 11 March 2021)

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CRIMINAL LAW – Leave to appeal – Sentence – Attempting to possess border controlled drug in commercial quantity – Applicant recruited and coordinated others to possess 8.31 kg of heroin – Expendable mid-level functionary – Guilty plea – Prior good character – Deportation – Good prospects of rehabilitation – Cooperation with authorities, including consenting to searches – Sentence of 11 years’ imprisonment with non-parole period of 6 years and 9 months – Whether sentence manifestly excessive – Reasonably arguable that sentence departs from current sentencing practices for offence – Leave to appeal granted.

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WRITTEN SUBMISSIONS:	Counsel	Solicitors
For the Applicant	Ms R Avis	Papa Hughes Lawyers
For the Respondent	Ms R Champion	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

McLEISH JA:

On 22 February 2021, the applicant pleaded guilty before a judge of the County Court to a single charge of attempting to possess a border controlled drug (heroin) in a commercial quantity.[1]
[1]Contrary to Criminal Code (Cth) ss 11.1(1) and 307.5(1) read with s 311.14.

On 11 March 2021, he was sentenced as follows:[2]
[2]DPP (Cth) v Goh (County Court of Victoria, Judge Meredith, 11 March 2021) (‘Sentencing Remarks’).

Charge on Indictment Offence Maximum Sentence Cumulation

1. Attempting to possess a border controlled drug in a commercial quantity Life imprisonment 11 years’ imprisonment Base

Total Effective Sentence: 11 years’ imprisonment

Non-Parole Period: 6 years and 9 months’ imprisonment

Pre-sentence Detention Declared: 764 days

Section 6AAA Statement: 14 years’ imprisonment with a non-parole period of 9 years and 6 months

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Attempting to possess a border controlled drug in a commercial quantity	Life imprisonment	11 years’ imprisonment	Base
Total Effective Sentence:	11 years’ imprisonment
Non-Parole Period:	6 years and 9 months’ imprisonment
Pre-sentence Detention Declared:	764 days
Section 6AAA Statement:	14 years’ imprisonment with a non-parole period of 9 years and 6 months

The applicant’s co-offender, Kee Tan, earlier pleaded guilty to the same charge, although Tan’s charge related to a much smaller quantity of heroin. Tan was sentenced to 7 years’ imprisonment with a non-parole period of 4 years and 6 months.

The applicant now seeks leave to appeal against his sentence on a single ground: that the sentence is manifestly excessive. For the reasons that follow, leave to appeal will be granted.

Circumstances of offending

The applicant is a Malaysian national in his early thirties.

His offending came to light when, in February 2019, the Australian Border Force identified 12 suspicious inbound consignments. Of these, one was located in Sydney and nine were located at a courier service in Melbourne. Those ten consignments each contained a marketable quantity of heroin, together totalling 8.31 kilograms — more than five times the commercial quantity for that drug. The other two consignments could not be located.

The applicant, under the direction of unidentified others, made arrangements to possess the heroin. He recruited Tan and two others, and directed them to attend the courier service in Melbourne to collect the consignments. To facilitate collection,…

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 Goh v The Queen

Details

AGLC: Goh v The Queen [2021] VSCA 231
Case: [2021] VSCA 231
Decision Date: 24 August 2021

CaseChat Overview and Summary

In the High Court of Australia, the case of Goh v The Queen was brought before the court, addressing the issue of the sentence imposed on the applicant for his involvement in the possession of a significant quantity of heroin. The applicant, Goh, had pleaded guilty to attempting to possess 8.31 kilograms of heroin, a border-controlled drug, in a commercial quantity. Goh had recruited and coordinated others to facilitate the possession of the drugs, playing a mid-level role in the operation. The central legal issue before the court was whether the sentence of 11 years’ imprisonment, with a non-parole period of 6 years and 9 months, was manifestly excessive, and whether there was a reasonably arguable case that it departed from current sentencing practices for the offence.

The court examined various factors in determining the appropriateness of the sentence. Goh’s role, while significant, was characterised as an expendable mid-level functionary, and he had a prior good character. Additionally, Goh had cooperated with authorities, including consenting to searches, which was considered in his favour. The court also noted Goh’s prospects of rehabilitation and the likelihood of deportation upon completion of his sentence. The court concluded that there was a reasonably arguable case that the sentence departed from the principles of proportionality and current sentencing practices, given the mitigating factors and the substantial discount already applied for the guilty plea. As a result, the court granted leave to appeal against the sentence, finding that the sentence was manifestly excessive and that a sentence review was warranted.

The High Court’s decision to grant leave to appeal indicates a concern over the proportionality of the sentence relative to the mitigating circumstances presented. This decision underscores the importance of considering all relevant factors, including the role of the offender, prior character, and cooperation with authorities, in the sentencing process. The court’s ruling ensures that the sentence will be reviewed to determine if it aligns with current sentencing practices and principles of proportionality.

Orders