John Giang Dieu Kook v Regina - [2001] NSWCCA 122

CITATION: John Giang Dieu Kook v Regina [2001] NSWCCA 122

FILE NUMBER(S): CCA 60324/00

HEARING DATE(S): 06/12/00

JUDGMENT DATE:
6 April 2001

PARTIES :

John Giang Dieu Kook
v
Regina

JUDGMENT OF: Meagher JA at 1; Hidden J at 9; Howie J at 10

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0532

LOWER COURT JUDICIAL
OFFICER : Latham DCJ

COUNSEL : Apellant: P Byrne SC/G Bashir
Respondent: E Fullerton SC

SOLICITORS: Appellant: Glenn K Walsh Solicitors
Respondent: Commonwealth Director of Public Prosecutions

CATCHWORDS: Criminal Law - application for leave to appeal against severity of sentence - importation of prohibited substance - sentencing guidelines - principle of parity - application dismissed.

LEGISLATION CITED: Customs Act (1901), s 233B (1)(d)

CASES CITED:
R v Cartwright (1989) 17 NSWLR 243
R v Henry (1999) 46 NSWLR 346
R v Jurisic (1998) 45 NSWLR 209
R v Olbrich (1999) 199 CLR 270
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Wong & Leung (1999) 48 NSWLR 340

DECISION: Application dismissed.

IN THE COURT OF

CRIMINAL APPEAL

CCA 60324/00

MEAGHER JA

HIDDEN J

HOWIE J

Friday, 6 April 2001

JOHN GIANG DIEU KOOK v REGINA

The applicant had been found guilty of being knowingly concerned in the importation of a commercial quantity of heroin and sentenced to 12 years imprisonment with a non-parole period of 8 years. The applicant sought leave to appeal against the severity of his sentence.

HELD

per Meagher JA & Howie J (Hidden J agreeing):

The submissions advanced on behalf of the applicant do not support a finding that the sentence was too harsh.

ORDERS

Application dismissed.

IN THE COURT OF

CRIMINAL APPEAL

CCA 60324/00

MEAGHER JA

HIDDEN J

HOWIE J

Friday, 6 April 2001

JOHN GIANG DIEU KOOK v REGINA

JUDGMENT

1 MEAGHER JA: This is an application for leave to appeal against the severity of a sentence imposed by her Honour Judge Latham on 19 May 2000. The applicant was sentenced to a term of imprisonment of 12 years, with a non-parole period of 8 years. The applicant had, on 10 March 2000, pleaded guilty to one count under s 233B (1)(d) of the Customs Act (1901), namely that between 23 March and 13 June 1998 he was knowingly concerned in the importation of a commercial quantity of heroin. In fact the amount involved was nearly 2.5 kilograms. It was concealed inside hollowed out computer instruction books.

2 The principals in the importation were two men called Mei and Li. The hollowed books arrived by plane in Sydney on 17 April 1998. A Malaysian citizen called Pang was recruited by one Simon in Malaysia to collect and sign for the books. Thereafter the books were taken to the accused’s premises, the key to which the accused gave to Pang. As her Honour said “in general terms Pang received instructions and expenses from the prisoner throughout this period”.

3 It is contended on behalf of the applicant that the sentence was too harsh. This…

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.

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Details

Case: [2001] NSWCCA 122
Decision Date: 6 April 2001

CaseChat Overview and Summary

John Giang Dieu Kook sought leave to appeal against the severity of his sentence, which was imposed for the importation of a prohibited substance. The case was heard in the High Court of Australia. The applicant contended that his sentence was manifestly excessive when compared to others who had been involved in similar criminal activities. The central legal issues revolved around the interpretation of sentencing guidelines and the principle of parity in sentencing.

The court examined the principle of parity, which requires that sentences for similar crimes be proportionate. It considered the applicant's sentence in the context of sentences handed down in other cases involving similar offences. The court also reviewed the relevant sentencing guidelines and the judge's application of these guidelines when determining the applicant's sentence. The court found that the applicant's sentence was not manifestly excessive when compared to other cases and that the sentencing judge had appropriately applied the relevant guidelines. The court held that the principle of parity did not require a different outcome in this case.

As a result of its findings, the court dismissed the application for leave to appeal against the severity of the sentence. The court determined that the sentence imposed on the applicant was appropriate and did not contravene the principle of parity. No further orders were made.

Orders