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
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,…
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- AGLC
- Goh v The Queen [2021] VSCA 231
- Case
- [2021] VSCA 231
- Decision Date
CaseChat Overview and Summary
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.
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Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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