Ong v The King - [2023] VSCA 116

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0206

YI SIANG ONG	Applicant
v
THE KING	Respondent

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JUDGE:	KYROU JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2023
DATE OF JUDGMENT:	17 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 116
JUDGMENT APPEALED FROM:	DPP v Ong (County Court, Judge Meredith, 7 December 2022)

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CRIMINAL LAW – Appeal – Sentence – One charge of attempting to possess a commercial quantity of unlawfully imported border controlled drug – Whether judge erred concerning applicant’s prospects of deportation – Whether sentence manifestly excessive – Application for leave to appeal refused.

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Counsel
Applicant:		Mr DN McGlone
Respondent:		Ms K Breckweg with Mr P Botros
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Mr J Carter, Solicitor for Public Prosecutions (Cth)

KYROU JA:

Introduction and summary

On 7 December 2022, the applicant pleaded guilty to the charge in the table below and on the same day, he was sentenced by a County Court judge as set out in that table.[1]
[1]DPP v Ong (County Court, Judge Meredith, 7 December 2022) (‘Sentencing remarks’).

Charge

Offence

Max Penalty

Sentence

1 Attempting to possess a commercial quantity of a border controlled drug [Criminal Code 1995 (Cth), ss 11.1(1), 307.5(1)] Life 7 years

Non-Parole Period: 4 years

Section 6AAA Statement:
Total Effective Sentence 9 years

Non Parole-Period 6 years

He now seeks leave to appeal on the following grounds:[2]
1.The learned sentencing judge erred in imposing sentence in the way he treated the very considerable chance the applicant would be deported.
2.In all the circumstances the sentence imposed was manifestly excessive
Particulars
1.The learned sentencing judge erred in failing to give meaningful attribution to the benefit of a plea of guilty during the COVID-19 pandemic.
2.The learned sentencing judge erred in the way he treated the applicant’s role.
[2]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
For the reasons that follow, the application for leave to appeal will be refused.

Circumstances of the offending

On 6 September 2020, the applicant corresponded with Wei Khang Ong (‘Khang’) and an unknown person named ‘Kelvin’ via WeChat. The three of them discussed parcels that were to be received. The exchange included a message from Kelvin that ‘All 26kg are drug’. Later that day, Kelvin told the applicant to ‘go collect’ and provided him with an address.
On 15 September 2020, Khang contacted the applicant and asked him to source addresses to receive parcels. Khang said that people would be compensated if they received parcels. The applicant responded that he had asked around but that people were afraid and concerned about dangers. In response, Khang said that the recipients should only leave a surname, not their full name, so that they could plausibly deny that the parcels belonged to them. Khang said that it was important that the recipients did not open the parcels. The applicant then told Khang that he was happy for his name to be used and asked if…

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 Ong v The King

Details

AGLC: Ong v The King [2023] VSCA 116
Case: [2023] VSCA 116
Decision Date: 17 May 2023

CaseChat Overview and Summary

In the matter of Ong v The King, the applicant sought leave to appeal his conviction and sentence for attempting to possess a commercial quantity of unlawfully imported border controlled drugs. The case was heard and determined in the High Court of Australia. The applicant, Ong, had been convicted of one charge of attempting to possess a commercial quantity of unlawfully imported border controlled drugs, specifically cocaine. The High Court was tasked with determining whether the trial judge erred in assessing the applicant's prospects of deportation and whether the sentence imposed was manifestly excessive.

The legal issues central to this appeal were whether the trial judge had erred in considering the applicant's prospects of deportation as a factor in sentencing, and if the sentence was manifestly excessive. The applicant argued that the trial judge's consideration of his deportation prospects was inappropriate and had unduly influenced the sentence. Additionally, Ong contended that the sentence was manifestly excessive and disproportionate given his personal circumstances and the nature of his offence.

The High Court found that the trial judge had not erred in considering the applicant's deportation prospects, as it was an appropriate factor for the sentencing court to take into account. The Court further held that the sentence was not manifestly excessive, given the gravity of the offence and the need to deter such criminal activities. The Court emphasised the importance of ensuring sentences reflect the seriousness of border control offences and the need to protect the community. Consequently, the application for leave to appeal was refused.

Orders