Koh v R

Case [2013] NSWCCA 287 22 November 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Koh v R [2013] NSWCCA 287
Hearing dates: 25 October 2013
Decision date: 22 November 2013
Before: Hoeben CJ at CL at [1];
Johnson J at [2];
Latham J at [145]
Decision:
Application for extension of time to appeal against sentence refused

Catchwords: CRIMINAL LAW - appeal - sentence - application for extension of time to appeal - Applicant sentenced in June 2011 - alleged Muldrock error - knowingly taking part in supply of large commercial quantity of prohibited drug - 2,272.612 kilograms of 100% pure MDP2P - more than 4,000 times large commercial quantity - capable of providing 2,454 kilograms of pure MDMA - total street value about $500 million - Applicant travels to Australia to perform range of activities related to offence - Muldrock error not demonstrated - no error in assessment of objective seriousness - sentence not manifestly excessive - lesser sentence not warranted in any event - no merit in proposed grounds of appeal - extension of time to appeal refused
Legislation Cited: Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Prisoners (Interstate Transfer) Act 1983 (Vic)
Cases Cited: Abdul v R [2013] NSWCCA 247
Bolt v R [2012] NSWCCA 50
George v R [2013] NSWCCA 263
Magaming v The Queen [2013] HCA 40; 87 ALJR 1060
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Nguyen v R; Phommalysack v R [2011] VSCA 32; 31 VR 673
Paxton v R [2011] NSWCCA 242; 219 A Crim R 104
R v Calcutt [2012] NSWCCA 40; 221 A Crim R 505
R v Koh [2007] VCC 1484
R v Li [2008] VCC 901
R v Nguyen [2010] NSWCCA 238; 205 A Crim R 106
R v Niketic [2002] NSWCCA 425
R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Weininger v The Queen [2003] HCA 14; 212 CLR 629
Wong v The Queen [2001] HCA 64; 207 CLR 584
Texts Cited: ---
Category: Principal judgment
Parties: Keng Chuan Koh (Applicant)
Regina (Respondent)
Representation: Counsel:
Ms BJ Rigg (Applicant)
Ms M Cinque (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/23722
Publication restriction: ---
Decision under appeal

Citation:

---

Date of Decision:

2011-06-10 00:00:00

Before:

Her Honour Judge Woodburne SC

File Number(s):

2010/23722

Judgment

HOEBEN CJ at CL: I agree with Johnson J.

JOHNSON J: The Applicant, Keng Chuan Koh, applies for an extension of time to seek leave to appeal against sentence imposed in the Sydney District Court on 10 June 2011.

The Applicant pleaded guilty to an offence of knowingly taking part in the supply of a large commercial quantity of a prohibited drug contrary to s.25(2) and s.33 Drug Misuse and Trafficking Act 1985 ("DMT Act"), for which…

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 Koh v R

Details

AGLC: Koh v R [2013] NSWCCA 287
Case: [2013] NSWCCA 287
Decision Date: 22 November 2013

CaseChat Overview and Summary

The Applicant in this matter appealed against his sentence and sought an extension of time to appeal. The Applicant had been sentenced in June 2011 for knowingly taking part in the supply of a large commercial quantity of a prohibited drug. Specifically, the Applicant was involved in the importation and supply of 2,272.612 kilograms of 100% pure MDP2P, a precursor chemical used in the manufacture of MDMA. The quantity was more than 4,000 times the large commercial quantity and capable of providing 2,454 kilograms of pure MDMA, with a total street value of approximately $500 million. The Applicant travelled to Australia to perform a range of activities related to the offence.

The primary legal issue was whether the Applicant had demonstrated a Muldrock error, which would have warranted a reduction in sentence. The court was also required to determine if the sentence was manifestly excessive and whether a lesser sentence was warranted. Additionally, the court assessed the merits of the proposed grounds of appeal. The court found that the Applicant had not demonstrated a Muldrock error and there was no error in the assessment of the objective seriousness of the offence. The sentence was not manifestly excessive, and a lesser sentence was not warranted. The proposed grounds of appeal had no merit. Consequently, the extension of time to appeal was refused.

The court's reasoning was grounded in the severity of the offence and the substantial quantity of the drug involved. The Applicant's involvement in the supply chain, including his travel to Australia to facilitate the offence, underscored the gravity of his actions. The court concluded that the sentence imposed was appropriate and reflected the seriousness of the offence. The Applicant's arguments regarding a Muldrock error and the excessiveness of the sentence were not substantiated. The court emphasised that the sentence was proportionate to the offence committed.

In conclusion, the court dismissed the appeal and denied the extension of time to appeal. The Applicant's sentence was upheld, and the proposed grounds of appeal were found to be without merit. The court's decision affirmed the severity of drug trafficking offences and the importance of appropriate sentencing to reflect the gravity of such crimes.

Orders