Hui v The Queen - [2015] VSCA 314

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0052

CHI HANG HUI	Appellant
v
THE QUEEN	Respondent

S APCR 2015 0066

TSAN-LUNG LIN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 November 2015
DATE OF JUDGMENT:	25 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 314
JUDGMENT APPEALED FROM:	DPP v Hui [2015] VCC 150 (Judge Gucciardo)

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CRIMINAL LAW – Sentence – Multiple drug offences under Criminal Code (Cth) – Total effective sentence of 7 years 6 months with non-parole period of 6 years imposed on Appellant Hui – Non-parole period 80% of total effective sentence – Whether manifestly excessive – Kumova v The Queen [2012] VSCA 212 applied – Appeal allowed – New non-parole period fixed of 5 years 6 months for Appellant Hui.

CRIMINAL LAW – Sentence – Multiple drug offences under Criminal Code (Cth) – Role of Appellant Lin in co-offending – Whether head sentences manifestly excessive – Saxon v The Queen [2014] VSCA 296 applied – Sentencing judge’s reasons read as a whole do not mischaracterise appellant’s role in offending – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant Hui	Mr O P Holdenson QC	Lethbridges Pty Ltd
For the Appellant Lin	Dr M Fitzgerald	Marich Legal Pty Ltd
For the Respondent	Ms K Breckweg	Commonwealth Director of Public Prosecutions

WHELAN JA:

In March and April 2013 Chi Hang Joseph Hui (‘Hui’) and Tsan-Lung Lin (‘Lin’) committed drug offences in contravention of the Criminal Code (Cth) (‘the Code’).

On 6 October 2014, on the first day of his trial, Lin pleaded guilty to one charge of trafficking a marketable quantity of a controlled drug and one charge of possessing a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported.

Hui had indicated his intention to plead guilty in July 2014. On 27 January 2015 Hui pleaded guilty to one charge of importing a marketable quantity of a border controlled drug and one charge of trafficking a commercial quantity of a controlled drug.

Following a plea hearing on 27 January 2015, Hui and Lin were sentenced on 17 February 2015 as follows:

Hui

Charge Offence Maximum Sentence Cumulation

1 Import a marketable quantity of a border controlled drug [the Code: s 307.2(1)] 25 years and/or 5,000 penalty units [the Code: s 307.2(1)] 5 years Sentence to commence 17 February 2015[1]

2 Trafficking a commercial quantity of a controlled drug [the Code: s 302.2(1)] Life imprisonment and/or 7,500 penalty units
[the Code: s 302.2(1)] 6 years Sentence to commence 17 August 2016

Total Effective Sentence: 7 years and 6 months’ imprisonment

Non-Parole Period: 6 years

Pre-sentence Detention Declared: 683 days

6AAA Statement: 8 years and 6 months’ imprisonment with a non-parole period of 7 years

[1]Under Commonwealth sentencing law, cumulation of sentences is achieved by fixing later commencement dates for the second and subsequent sentences: Crimes Act 1914 (Cth) s 19. In the case of Hui, the sentencing judge…

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 Hui v The Queen

Details

AGLC: Hui v The Queen [2015] VSCA 314
Case: [2015] VSCA 314
Decision Date: 25 November 2015

CaseChat Overview and Summary

The case of Hui v The Queen involved an appeal by two appellants against their sentences for multiple drug offences under the Criminal Code (Cth). The appellants, Hui and Lin, were both convicted and sentenced by the County Court of Victoria. The central dispute in the appeal was the perceived excessiveness of the sentences, particularly the non-parole periods imposed on the appellants.

The court was tasked with determining whether the non-parole period imposed on the appellant Hui was manifestly excessive, given that it constituted 80% of the total effective sentence. This was examined in light of the principles established in Kumova v The Queen. Additionally, the court had to assess whether the head sentences for the appellants reflected a proper characterisation of their roles in the co-offending, using the criteria set out in Saxon v The Queen. The sentencing judge’s overall reasoning was also scrutinised to ensure that it did not mischaracterise the appellants’ roles.

The Court of Appeal concluded that the non-parole period for the appellant Hui was indeed manifestly excessive, and thus the appeal was allowed. A new non-parole period of 5 years and 6 months was fixed for Hui. In contrast, the Court found that the sentencing judge’s reasons, when read as a whole, did not mischaracterise the roles of the appellants in the offending. Consequently, the appeal against the sentences for Lin was dismissed.

In summary, the appeal of Hui was successful in reducing the non-parole period, while the appeal of Lin was unsuccessful.

Orders