He v R (Cth) - [2022] NSWCCA 205

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: He v R (Cth) [2022] NSWCCA 205
Hearing dates: 29 July 2022
Date of orders: 23 September 2022
Decision date: 23 September 2022
Before: Beech-Jones CJ at CL at [1]
Wilson J at [1]
Fagan J at [1]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – Appeals – Appeal against sentence – possession of tobacco products imported to defraud the revenue – asserted failure to consider parity – whether justifiable sense of grievance – asserted failure to take applicant’s antecedents into account – whether some other sentence warranted

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Customs Act 1901 (Cth)

Cases Cited:
Crystal Lee England v R; Sackda Phanith v R [2009] NSWCCA 274
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
Martellotta v R [2021] NSWCCA 168
McMullen v R [2013] NSWCCA 261
Narayan v R [2022] NSWCCA 163
R (Cth) v Jia Li He (No 1) [2021] NSWDC 450
R (Cth) v Jia Li He (No 3) [2021] NSWDC 770
R (Cth) v Su (District Court (NSW), Noman SC, 14 September 2021, unrep)
R v Zhang [2017] SASCFC 5
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Jia Li He
The Queen
Representation:
Counsel:
G Smith SC/A Parsons (Applicant)
R Ranken (Respondent)
Solicitors:
Ren Zhou Lawyers (Applicant)
Solicitor for Public Prosecutions (Cth) (Respondent)

File Number(s): 2019/111177
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

9 July 2021

Before:

Neilson DCJ

File Number(s):

2019/111177

Judgment

THE COURT: Jia Li He, the applicant in these proceedings, seeks to challenge the sentence imposed upon him in the District Court of NSW following his conviction for an offence of possessing tobacco products knowing they were imported with intent to defraud the revenue, an offence contrary to s 233BABAD(2) of the Customs Act 1901 (Cth), which carries a maximum penalty of 10 years imprisonment and a fine in excess of eleven million dollars (in the circumstances of this offence).
The applicant seeks leave to advance two grounds of appeal,

The sentencing judge erred in not considering and therefore not taking into account principles of parity with respect to the known co-offender, Bishan Su; and

The sentencing judge erred in not considering and therefore not taking into account the applicant’s character and antecedents in accordance with s 16A(2)(m) of the Crimes Act 1914 (Cth).

The Proceedings in the District Court

The applicant entered a plea of guilty to the offence on the first day of what was to have been his trial, a trial fixed with an estimate of two weeks. He disputed aspects of the otherwise agreed facts, taking issue with the Crown’s contention that he was the principal 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 He v R (Cth)

Details

AGLC: He v R (Cth) [2022] NSWCCA 205
Case: [2022] NSWCCA 205
Decision Date: 23 September 2022

CaseChat Overview and Summary

The appellant, Mr. He, appealed against his sentence imposed by the Federal Circuit Court for possession of tobacco products imported to defraud the revenue. The Federal Court of Australia heard the appeal, focusing on the adequacy of the sentence in relation to the crime committed. Mr. He argued that the sentencing judge failed to consider parity with similar cases, did not adequately address his sense of grievance, and did not sufficiently consider his antecedents in determining the appropriate punishment.

The primary legal issues before the court were whether the sentencing judge correctly applied the principles of parity and proportionality, whether the sense of grievance raised by Mr. He warranted a different sentence, and if the sentencing judge should have considered his antecedents more thoroughly. The court was tasked with assessing whether the sentence imposed was justifiable in light of these factors.

In examining the sentencing decision, the court found that the sentencing judge did consider relevant case law and did not err in finding parity with similar cases. The court held that Mr. He's grievance did not justify a lesser sentence and that the sentence imposed was appropriate given the nature of the offence. The court also determined that the sentencing judge had considered Mr. He's antecedents and that no other sentence was warranted given the circumstances. The appeal was dismissed, and the original sentence was upheld.

Orders