Heng v R

Case [2019] NSWCCA 317 23 December 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Heng v R [2019] NSWCCA 317
Hearing dates: 1 November 2019
Date of orders: 23 December 2019
Decision date: 23 December 2019
Before: Macfarlan JA at [1];
Harrison J at [60];
Cavanagh J at [61]
Decision:
(1) Grant the applicant an extension of time to file his application for leave to the date upon which the application was filed.
(2) Leave to appeal against sentence granted.
(3) Appeal against sentence dismissed.

Catchwords: CRIME – sentence – importation of commercial quantity of border controlled drug – assessment of objective gravity – whether primary judge found that objective seriousness of offender’s offence was “right at the utmost upper end of the upper range” – whether manifest excess – appeal dismissed
Legislation Cited: Crimes Act 1914 (Cth), ss 16BA, 16G
Criminal Code (Cth), ss 11.2, 305.3, 307.1
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270
Lin v R; Ng v R [2016] NSWCCA 200
Obiekwe v R [2018] NSWCCA 55
R v Kilic (2016) 259 CLR 256; [2016] HCA 48
R v Lee [2007] NSWCCA 234
R v Nguyen and Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
Teng, Lam, Tan and Wong (2009) 22 VR 706
Xiao v The Queen (2018) 96 NSWLR 1; [2018] NSWCCA 4
Yuan v The Queen [2015] NSWCCA 198
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Chan v The Queen [2010] NSWCCA 153
Category: Principal judgment
Parties: Chan Heng (Applicant)
Regina (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
G Wright (Respondent)
Solicitors:
Matouk Joyner Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2013/2018300; 2014/259113
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

29 June 2018

Before:

Lakatos SC DCJ

File Number(s):

2013/2018300; 2014/259113

Judgment

MACFARLAN JA: On 29 June 2018 the applicant was sentenced in the District Court for an offence, to which he had pleaded guilty, of importing a commercial quantity of a border controlled drug, namely methylamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth) (“the Code”).
The applicant had requested the Court, on sentencing him, to take into account, pursuant to s 16BA of the Crimes Act 1914 (Cth), an additional offence, namely aiding and abetting the manufacture of a commercial quantity of a border controlled drug, contrary to ss 11.2(1) and 305.3(1) of the Code. Both the principal offence and the additional offence carried a maximum penalty of life imprisonment.
The sentence imposed on the applicant was 23 years and 9 months imprisonment with a non-parole period of 15 years and 9 months, commencing on 9 July 2014. Approximately two years earlier the same judge had sentenced three co-offenders of the applicant, namely, Mr Yuk Ho Kwok, Mr Wai…

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 Heng v R

Details

AGLC: Heng v The Queen [2019] NSWCCA 317
Case: [2019] NSWCCA 317
Decision Date: 23 December 2019

CaseChat Overview and Summary

The case of Heng v R involved an appeal against the sentence imposed on Heng for the importation of a commercial quantity of a border controlled drug. The High Court of Australia was tasked with determining whether the primary judge's assessment of the objective gravity of the offence was excessive. The appeal centred on the sentencing principles and the appropriate weight given to the objective seriousness of the offence. The primary judge had found that the objective seriousness of Heng's offence was "right at the utmost upper end of the upper range," a finding that Heng argued was manifestly excessive.

The court was required to consider whether the primary judge's assessment of the objective seriousness of the offence was correct and whether it was appropriate for the offence to be at the utmost upper end of the upper range. The appeal hinged on the interpretation of the sentencing principles and the balancing of the objective seriousness of the offence against other relevant factors. The court needed to determine if the primary judge's assessment was in line with the principles established in previous cases and whether the sentence imposed was proportionate to the gravity of the offence.

The High Court found that the primary judge's assessment of the objective seriousness of the offence was not manifestly excessive. The court held that the primary judge had appropriately considered the relevant sentencing principles and had balanced the objective seriousness of the offence with other factors. The court rejected the argument that the sentence was disproportionate to the gravity of the offence. Consequently, the appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court in light of the decision.

Orders