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…
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- AGLC
- Hui v The Queen [2015] VSCA 314
- Case
- [2015] VSCA 314
- Decision Date
CaseChat Overview and Summary
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.
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Background
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Evidence Before The Court
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