Law v R

Case [2006] NSWCCA 100 4 April 2006

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CITATION: LAW, Chun Hing v REGINA [2006] NSWCCA 100

HEARING DATE(S): 13 February 2006

JUDGMENT DATE:
4 April 2006

JUDGMENT OF: McClellan CJ at CL at 1; James J at 82; Buddin J at 83

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - importation of not less than the commercial quantity of heroin - extensive drug importation operation - case in the worst category - ongoing and open ended conspiracy to import heroin - whether a justifiable sense of grievance due to disparity with co-offenders - whether error in failing to take into account unavailability of remissions - whether sentence manifestly excessive - review of decisions in relation to serious drug importation offences

LEGISLATION CITED: Customs Act 1901
Crimes Act (Cth)

CASES CITED: Lee Vanit v The Queen (1997) 190 CLR 378
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
R v Bartle & Ors (2003) 181 FLR 1
R v Campillo Vaquere [2004] NSWCCA 271
R v Cheung Ying-Lun (1999) 154 FLR 259
R v Chung Tak Chan [2005] NSWCCA 154
R v De La Espriella-Velasco [2002] WASCA 131
R v Flavel [2001] NSWCCA 227
R v Gonzalez-Betes [2001] NSWCCA 226
R v Ismunandar and Siregar (2002) 136 A Crim R 206
R v Kelleher (1996) 89 A Crim R 215
R v Mooseek [1995] VCC 318
R v Neale (2004) 148 A Crim R 493
R v Ng [2001] NSWCCA 305
R v Perrier (No 2) (1991) 1 VR 717
R v Reaves (2004) 147 A Crim R 26
R v Stanbouli (2003) 141 A Crim R 531
R v Suarez-Mejia (2002) 131 A Crim R 577
R v Tisilandis (1982) 2 NSWLR 430
R v Wei Ming Chen and R v Khong Hoi Lau (2002) 130 A Crim R 300
Wangsaimas & Ors v R (1996) 133 FLR 272

PARTIES: Chun Hing Law (Appl)
The Crown

FILE NUMBER(S): CCA 2005/999

COUNSEL: H Dhanji (Appl)
W J Abraham QC (Crown)

SOLICITORS: Gregory J Goold Solicitors (Appl)
Commonwealth Director of Public Prosecutions

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70022/97

LOWER COURT JUDICIAL OFFICER: Sully J

2005/999

McCLELLAN CJ at CL
JAMES J
BUDDIN J
TUESDAY 4 APRIL 2006

LAW, Chun Hing v REGINA

Judgment

1 McCLELLAN CJ at CL: The applicant, Chun Hing Law, was convicted on 11 April 2002 of a single count in an indictment which alleged that between December 1993 and January 1995 he had conspired with Alan Tam (Tam Yu Wah), Joseph Law Ling, Mao Huang Tung, Brian Alexander Kuan and diverse others to import not less than the commercial quantity of heroin into Australia, contrary to s 233B(1)(cb) of the Customs Act 1901.

2 The conviction of the applicant followed a trial by jury. He was sentenced to life imprisonment, with a non-parole period of 30 years each to date from 2 October 1996, the date on which he was first taken into custody.

3 The applicant had…

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 Law v R

Details

AGLC: Law v R [2006] NSWCCA 100
Case: [2006] NSWCCA 100
Decision Date: 4 April 2006

CaseChat Overview and Summary

In the case of Law v R, the appellant, a resident of Western Australia, was convicted of importing not less than the commercial quantity of heroin. The dispute arose from the severity of the sentence imposed by the Supreme Court of Western Australia. The Court of Appeal was tasked with determining whether the sentence was appropriate given the circumstances of the case. The appellant argued that the sentence was manifestly excessive, considering the disparity in sentences received by his co-offenders, and that the trial judge had failed to adequately consider the unavailability of remissions.

The court identified the primary issues as the appropriate assessment of the seriousness of the crime, the disparity in sentences among co-offenders, and whether the trial judge had erred in not considering the unavailability of remissions. The appellant submitted that his role in the importation operation, while significant, did not warrant a sentence in the worst category, and that the disparity with his co-offenders constituted a justifiable sense of grievance. Furthermore, the appellant contended that the trial judge should have factored in the unavailability of remissions, which could have potentially reduced the severity of the sentence.

In considering these issues, the Court of Appeal held that the trial judge had correctly classified the case as one of the worst category due to the extensive nature of the drug importation operation. The court found that the appellant's role, while significant, did not warrant a lesser classification. The court also determined that the disparity in sentences among co-offenders did not constitute a justifiable sense of grievance, as each offender's role and contribution to the operation were distinct. Regarding the unavailability of remissions, the court concluded that the trial judge's failure to consider this factor did not render the sentence manifestly excessive, as the primary focus should have been on the gravity of the offence and the need for deterrence and denunciation. Consequently, the appeal was dismissed, and the original sentence was upheld.

In summary, the Court of Appeal found that the sentence imposed by the Supreme Court of Western Australia was appropriate, taking into account the extensive nature of the drug importation operation, the appellant's role, and the need for deterrence and denunciation. The court dismissed the appeal, and the original sentence was upheld.

Orders