Hong v The Queen - [2020] NSWCCA 225

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Hong v R [2020] NSWCCA 225
Hearing dates: 3 August 2020
Decision date: 04 September 2020
Before: McCallum JA at [1];
Button J at [2];
Ierace J at [59]
Decision:
(1) Leave to appeal out of time granted.
(2) Appeal allowed.
(3) The sentence imposed by Judge Cogswell SC on 27 June 2012 is quashed.
(4) The applicant, Boon Piau Hong, is sentenced to imprisonment for 14 years, to date from 12 May 2011 and to expire on 11 May 2025, with a non-parole period of 9 years that expired on 11 May 2020.

Catchwords:
CRIMINAL LAW – appeal against sentence – attempted importation of a commercial quantity of a border controlled drug – 25 kilograms of pure heroin – discount for utilitarian value of plea of guilty to Commonwealth offence not given – “Xiao error” established – excellent progress in custody since imposition of sentence many years ago – lesser sentence warranted – applicant re-sentenced

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW), s 6(3)

Cases Cited:
Diaz v R [2019] NSWCCA 216
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category: Principal judgment
Parties: Boon Piau Hong (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Anderson (Applicant)
A McGrath (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2012/41928
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

27 June 2012

Before:

Cogswell SC DCJ

File Number(s):

2012/41928

Judgment

McCALLUM JA: I agree with Button J.
BUTTON J:

Introduction

On 27 June 2012, Mr Boon Piau Hong (the applicant) was sentenced by Judge Cogswell SC in the District Court sitting at Sydney.
The applicant had pleaded guilty to a single count: the Commonwealth offence of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, namely heroin. That offence carried and carries a maximum penalty of imprisonment for life, and a very large fine.
In a sentencing judgment that was, with respect, unimpeachable in terms of the law of sentencing for federal offences as it was then understood, the learned sentencing judge explained why a head sentence of imprisonment for 15 years with a non-parole period of 10 years, to date from 12 May 2011, was to be imposed.
In the sentencing judgment, his Honour referred to the applicant facilitating the administration of justice by his plea of guilty, for which he was provided a 25% discount. The starting point of the head sentence was therefore imprisonment for 20 years. Nothing was said, however, about a utilitarian discount for the plea of guilty that the applicant had entered. That was entirely orthodox, because the understanding in New South Wales as at that date was that no such discount should be granted.
The applicant has been in continuous custody since 12 May 2011. It can be seen that his non-parole period will expire shortly, on 12 May 2021.

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 Hong v The Queen

Details

AGLC: Hong v The Queen [2020] NSWCCA 225
Case: [2020] NSWCCA 225
Decision Date: 04 September 2020

CaseChat Overview and Summary

The case of Hong v The Queen involved an appellant who had been sentenced for the attempted importation of a commercial quantity of a border controlled drug, specifically 25 kilograms of pure heroin. The appellant lodged an appeal against his sentence, arguing that the original sentencing judge had failed to consider a discount for his early plea of guilty and had not adequately accounted for his excellent progress in custody since the sentence was imposed many years ago. The case was heard by the High Court of Australia, which had to determine whether the sentence should be altered.

The central legal issue before the court was whether the original sentence should be revised due to the sentencing judge's failure to properly consider the discount for the appellant's early plea of guilty and his commendable behaviour in custody. The court also needed to consider the so-called “Xiao error,” a judicial error identified in a previous case, which involved the misapplication of the discount for a guilty plea. This error required the court to reassess the sentence to ensure it was fair and just.

The court found that the original sentencing judge had indeed erred by not applying the discount for the appellant's plea of guilty, a mistake recognised as the “Xiao error.” Additionally, the court acknowledged the appellant's significant rehabilitation efforts in custody, which warranted a lesser sentence. Given these factors, the court re-sentenced the appellant, taking into account the error and his progress in custody. The High Court determined that the original sentence was excessive and thus imposed a new sentence that better reflected the appellant's current circumstances.

The final orders of the court were to re-sentence the appellant, reflecting the discount for his early plea of guilty and his substantial rehabilitation efforts. The court's decision underscored the importance of correctly applying sentencing discounts and the need to consider an offender's rehabilitation when re-sentencing.

Orders