Lee v The Queen - [2017] NSWCCA 156

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Lee v R [2017] NSWCCA 156
Hearing dates: 23 June 2017
Decision date: 30 June 2017
Before: Hoeben CJ at CL at [1];
R A Hulme J at [2];
Wilson J at [48]
Decision:
1. Leave to appeal against sentence granted and appeal upheld.
2. Quash the sentence imposed in the District Court on 19 August 2016 and in lieu impose a sentence of imprisonment for 3 years to date from 31 March 2016. The applicant is to be released on recognizance on 30 December 2017 after serving 1 year and 9 months upon giving security by recognizance in the sum of $100 without surety that he will be of good behaviour for the balance of the term of the sentence.

Catchwords: CRIMINAL LAW – appeal against sentence – importation of an unspecified quantity of methamphetamine contrary to s 307.3 of the Criminal Code 1995 (Cth) – gross weight of item 3.2 kg but actual quantity of drug unknown – sentencing judge made finding that the offender must have been aware it was a significant quantity – whether breach of De Simoni principle – marketable quantity of methamphetamine only 2 g – sentencing judge did err by taking into account the fact it was a significant quantity – sentencing judge did not just make finding in relation to what offender intended to import – appeal allowed
Legislation Cited: Criminal Appeal Act 1912 (NSW) s 6(3)
Criminal Code 1995 (Cth) s 307
Criminal Code Regulations 2002
Cases Cited: Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Nguyen v The Queen [2016] HCA 17; 256 CLR 656
R v Lee [2007] NSWCCA 234
R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106
The Queen v De Simoni [1981] HCA 31; 147 CLR 383
Category: Principal judgment
Parties: Hing Nong Lee (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr F Coyne (Applicant)
Ms J Single (Crown)
Solicitors:
Crowther Sim Lawyers
Commonwealth Director of Public Prosecutions

File Number(s): 2014/351017
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

19 August 2016

Before:

Hock DCJ

File Number(s):

2014/351017

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J and the orders which he proposes.
R A HULME J: Hing Nong Lee (“the applicant”) was found guilty by a jury of an offence against s 307.3 of the Criminal Code 1995 (Cth) of importing methamphetamine, a border controlled drug.
Against a prescribed maximum penalty of imprisonment for 10 years and/or a fine of 2000 penalty units ($340,000 at the time of the offence) her Honour Judge Hock imposed a sentence of 6 years with a non-parole period of 3 years 6 months.
Her Honour specified the commencement date of the sentence as 31 March 2016 which has the effect that the applicant will become eligible for release on parole on 30 September 2019.
The applicant seeks leave to appeal…

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 Lee v The Queen

Details

AGLC: Lee v The Queen [2017] NSWCCA 156
Case: [2017] NSWCCA 156
Decision Date: 30 June 2017

CaseChat Overview and Summary

The appellant, Lee, was convicted of importing an unspecified quantity of methamphetamine in contravention of section 307.3 of the Criminal Code 1995 (Cth). The appeal was brought against the sentence imposed by the sentencing judge, who found that the appellant must have been aware that the imported quantity was significant. The High Court of Australia was tasked with determining whether the sentencing judge had erred by considering the significant quantity of the drug, in light of the De Simoni principle.

The central legal issue was whether the sentencing judge's consideration of the significant quantity of the drug, despite the unknown actual quantity, constituted a breach of the principle set out in De Simoni v The Queen. This principle holds that a sentencing judge should not consider facts that increase the penalty unless they are found to be true by a jury or admitted by the defendant. In this case, the sentencing judge made a finding that the appellant must have been aware of the significant quantity, despite the unknown actual quantity.

The Court found that the sentencing judge had indeed erred by taking into account the significant quantity of the drug. The sentencing judge did not merely make a finding in relation to what the appellant intended to import but also considered the significant quantity of the drug. This constituted a breach of the De Simoni principle, as the sentencing judge had not found the fact of the significant quantity to be true beyond reasonable doubt. As a result, the appeal was allowed.

The High Court of Australia quashed the sentence imposed by the sentencing judge and remitted the matter to the sentencing judge for re-sentencing. The Court noted that the marketable quantity of the methamphetamine was only 2 g, and this should be considered in the re-sentencing process. The appellant's appeal was thus successful, and the matter was sent back for a fresh sentencing hearing in accordance with the law.

Orders