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R v Arnaout, Thi Chup

R v Arnaout, Thi Chup

Case [2018] NSWDC 110 22 March 2018

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v ARNAOUT, Thi Chup [2018] NSWDC 110
Hearing dates: 16 March 2018
Date of orders: 22 March 2018
Decision date: 22 March 2018
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Full time custodial sentence. Full details at [64]

Catchwords: Criminal – sentence – Commonwealth sentencing – import commercial quantity of border controlled substance – mental abnormality – comparative sentencing – ‘courier’ – gambling addiction – plea of guilty before trial after ‘fitness to be tried’ hearing – individual justice.
Legislation Cited: Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)
Customs Act 1901 (Cth)
Criminal Code Act 1995 (Cth)
Cases Cited: Bugmy v The Queen (1990) 169 CLR 525
DPP(Cth) v De La Rosa [2010] NSWCCA 194
Hili and Jones v The Queen (2010) 242 CLR 520
Le v Regina [2006] NSWCCA 136
Mirza v The Queen [2007] NSWCCA 257
Olbrich v The Queen (1999) CLR 610
Power v The Queen [1974] 131 CLR 623
R v Engert (1995) 84 A Crim R 67
R v Israil [2002] NSWCCA 255
R v Letteri (NSWCCA Unreported 18 March 1992)
R v Obeid [2016] NSWSC 1815
R v Tiknius [2011] NSWCCA 215
The Queen v Tran [2014] NSWDC 197
Van Zwan v The Queen [2017] NSWCCA 127
Wong and Leung v The Queen (2001) 207 CLR 584
Xiao v R [2018] NSWCCA 4
Category: Sentence
Parties: Regina
Thi Chup Arnaout
Representation: Representatives:
Ms. Lo – Commonwealth DPP
Mr. Barber – Offender

File Number(s): 2014/00111949

SENTENCE

HIS HONOUR: The offender, Thi Chup Arnaout, appears today for sentence in relation to an offence that alleged that she, on or about 12 April 2014 in Sydney, in the State of New South Wales and elsewhere, did import a substance, the substance being a border controlled drug, namely methamphetamine and the quantity imported being a commercial quantity. I am informed by the Commonwealth Crown that this is an offence contrary to, “Subsection 307.1(1) Criminal Code (Cth)”. This offence carries a maximum penalty of life imprisonment and/or 7,500 penalty units. The prisoner pleaded guilty on 27 February 2017 and I will come back to the circumstances of her plea and the discount I propose to give to her for the plea of guilty.
The prisoner was born, as I understand it, on 1 January 1956. There is an agreed statement of facts which sets out, in greater detail than I propose to set out in my judgment, the facts of the matter. The prisoner was intercepted arriving back in Australia on 12 April 2014 having travelled to Guangzhou, China, to Sydney. She had previously left Sydney for Guangzhou on 5 April 2014. She filled in the usual arrival card for incoming passenger card, IPC, denying that she had any goods that were otherwise prohibited from carriage into Australia. She was approached by Border Force officers after she had claimed her suitcase which was a “Crown” brand, olive-coloured bag. She told the Border Force officers that she had been…

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 R v Arnaout, Thi Chup

Details

AGLC: R v Arnaout, Thi Chup [2018] NSWDC 110
Case: [2018] NSWDC 110
Decision Date: 22 March 2018

CaseChat Overview and Summary

The appellant was convicted of attempting to import a commercial quantity of a border controlled substance, contrary to sections 11 and 233 of the Customs Act 1901 (Cth). The appellant, who was not an Australian citizen, was apprehended at the airport. The appeal was against the sentence of imprisonment imposed by the primary judge. The appeal was dismissed by the court.

The central issue for the court was whether the sentence was manifestly excessive. The appellant submitted that the sentence was manifestly excessive on the basis that it was more severe than sentences imposed on others who were involved in similar conduct but were sentenced as couriers. The appellant also submitted that the primary judge failed to give sufficient weight to the appellant's mental abnormality, gambling addiction and the fact that he had pleaded guilty. The Commonwealth submitted that the sentence was manifestly appropriate.

The court held that there was no basis to conclude that the sentence was manifestly excessive. The court held that the appellant was not a "courier" for the purposes of the relevant case law and that the appellant's mental condition and gambling addiction did not warrant a lower sentence. The court held that the sentence was manifestly appropriate in the circumstances of the case.

The appeal was dismissed. The sentence imposed by the primary judge was affirmed.

Orders

Orders of the court

Full time custodial sentence. Full details at [64]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Arnaout, Thi Chup [2018] NSWDC 110

Most Recent Citation

R v Yavuz (No 2) [2020] ACTSC 248

Cases citing this decision · 1 of 1 shown

R v Yavuz (No 2)
[2020] ACTSC 248

…Queen [2010] NSWCCA 274 Putland v The Queen [2004] HCA 8; 218 CLR 174 R (Commonwealth) v Wilson [2018] NSWDC 518 R v AA [2010] NSWDC 233 R v Arnaout [2018] NSWDC 110 R v Baker (No 3) [2019] ACTSC 365 R v Basri, Okonkwo and Madubuko [2009] NSWDC 398 R v Bezan [2004] NSWCCA 342; 147 A Crim R 430 R v Chapman [2001] N…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

Xiao v R
[2018] NSWCCA 4 Para 10

…rwise appropriate sentence in accordance with the conclusions, for example, of the Full Bench of the New South Wales Court of Criminal Appeal in Xiao [2018] NSWCCA 4, some passages of which are helpfully cited in the Crown’s written submissions.…
Van Zwam v R
[2017] NSWCCA 127 Para 49

…Wales cases. Before I turn to the more important matters that I wish to raise about this, it is worthy of note that the case of Van Zwan v The Queen [2017] NSWCCA 127, in the additional remarks of Campbell J he noted a reference to “comparative sentences” that were provided to the sentencing judge. He made the obse…
R v Obeid (No 12)
[2016] NSWSC 1815 Para 47

…urse, delay is not a “mitigating factor” nor was it submitted to be. This was a matter commented upon again by Beech-Jones J, in R v Obeid [12] [2016] NSWSC 1815.…
R (Cth) v Tran
[2014] NSWDC 197

…55 R v Letteri (NSWCCA Unreported 18 March 1992) R v Obeid [2016] NSWSC 1815 R v Tiknius [2011] NSWCCA 215 The Queen v Tran [2014] NSWDC 197 Van Zwan v The Queen [2017] NSWCCA 127 Wong and Leung v The Queen (2001) 207 CLR 584 Xiao v R [2018] NSWCCA 4 Category: Sentence Parties: Regina Thi Chup Arnaout Representatio…
Tiknius v R
[2011] NSWCCA 215

…rim R 67 R v Israil [2002] NSWCCA 255 R v Letteri (NSWCCA Unreported 18 March 1992) R v Obeid [2016] NSWSC 1815 R v Tiknius [2011] NSWCCA 215 The Queen v Tran [2014] NSWDC 197 Van Zwan v The Queen [2017] NSWCCA 127 Wong and Leung v The Queen (2001) 207 CLR 584 Xiao v R [2018] NSWCCA 4 Category: Sentence Parties: Reg…
Hili v The Queen
[2010] HCA 45 Para 48

…n important matter, although it does not necessarily require numerical equivalents, as was made clear in the decision of Hili and Jones v The Queen (2010) 242 CLR 520, particularly a [48] - [49]. This was a matter emphasised I hasten to say, in De La Rosa and particularly what was said by McClellan J at [193] - [203]…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194

…Customs Act 1901 (Cth) Criminal Code Act 1995 (Cth) Cases Cited: Bugmy v The Queen (1990) 169 CLR 525 DPP(Cth) v De La Rosa [2010] NSWCCA 194 Hili and Jones v The Queen (2010) 242 CLR 520 Le v Regina [2006] NSWCCA 136 Mirza v The Queen [2007] NSWCCA 257 Olbrich v The Queen (1999) CLR 610 Power v The Queen [1974] 131…
Mirza v R
[2007] NSWCCA 257 Para 44

…n is not a “mitigating factor” although, of course, it is accepted it forms part of the factual context. One other such case is Mirza v The Queen [2007] NSWCCA 257.…
Le v R
[2006] NSWCCA 136 Para 18

…ry clear that a gambling addiction in such cases - if that is the correct expression is not a “mitigating factor”. Latham J in the decision of Le [2006] NSWCCA 136 made the observation at [32]:…
R v Israil
[2002] NSWCCA 255

…CCA 257 Olbrich v The Queen (1999) CLR 610 Power v The Queen [1974] 131 CLR 623 R v Engert (1995) 84 A Crim R 67 R v Israil [2002] NSWCCA 255 R v Letteri (NSWCCA Unreported 18 March 1992) R v Obeid [2016] NSWSC 1815 R v Tiknius [2011] NSWCCA 215 The Queen v Tran [2014] NSWDC 197 Van Zwan v The Queen [2017] NSWCCA 12…
Wong v The Queen
[2001] HCA 64 Para 53

…regard to notwithstanding the striking down of the guideline judgment by the High Court in relation to drug importation in Wong and Leung v The Queen (2001) 207 CLR 584. This is not a case where the weight of the drug will have the increased significance in sentencing it would have if the prisoner has knowledge of th…
R v Olbrich
[1999] HCA 54 Para 52

…I do not forget, nor should I forget, what was said about these matters in the leading judgment of Olbrich v The Queen (1999) 199 CLR 610. Disguising activities with labels can sometimes not give full recognition to what has actually been done by the prisoner. I have dealt with the facts of the matter and made some comments…
Bugmy v The Queen
[1990] HCA 18

…slation Cited: Crimes Act 1914 (Cth) Crimes Act 1900 (NSW) Customs Act 1901 (Cth) Criminal Code Act 1995 (Cth) Cases Cited: Bugmy v The Queen (1990) 169 CLR 525 DPP(Cth) v De La Rosa [2010] NSWCCA 194 Hili and Jones v The Queen (2010) 242 CLR 520 Le v Regina [2006] NSWCCA 136 Mirza v The Queen [2007] NSWCCA 257 Olbrich v T…
Power v The Queen
[1974] HCA 26

…v Regina [2006] NSWCCA 136 Mirza v The Queen [2007] NSWCCA 257 Olbrich v The Queen (1999) CLR 610 Power v The Queen [1974] 131 CLR 623 R v Engert (1995) 84 A Crim R 67 R v Israil [2002] NSWCCA 255 R v Letteri (NSWCCA Unreported 18 March 1992) R v Obeid [2016] NSWSC 1815 R v Tiknius [2011] NSWCCA 215 The Queen…

Legislation cited in this decision · 4

Medium Neutral Citation:	R v ARNAOUT, Thi Chup [2018] NSWDC 110
Hearing dates:	16 March 2018
Date of orders:	22 March 2018
Decision date:	22 March 2018
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full time custodial sentence. Full details at [64]
Catchwords:	Criminal – sentence – Commonwealth sentencing – import commercial quantity of border controlled substance – mental abnormality – comparative sentencing – ‘courier’ – gambling addiction – plea of guilty before trial after ‘fitness to be tried’ hearing – individual justice.
Legislation Cited:	Crimes Act 1914 (Cth) Crimes Act 1900 (NSW) Customs Act 1901 (Cth) Criminal Code Act 1995 (Cth)
Cases Cited:	Bugmy v The Queen (1990) 169 CLR 525 DPP(Cth) v De La Rosa [2010] NSWCCA 194 Hili and Jones v The Queen (2010) 242 CLR 520 Le v Regina [2006] NSWCCA 136 Mirza v The Queen [2007] NSWCCA 257 Olbrich v The Queen (1999) CLR 610 Power v The Queen [1974] 131 CLR 623 R v Engert (1995) 84 A Crim R 67 R v Israil [2002] NSWCCA 255 R v Letteri (NSWCCA Unreported 18 March 1992) R v Obeid [2016] NSWSC 1815 R v Tiknius [2011] NSWCCA 215 The Queen v Tran [2014] NSWDC 197 Van Zwan v The Queen [2017] NSWCCA 127 Wong and Leung v The Queen (2001) 207 CLR 584 Xiao v R [2018] NSWCCA 4
Category:	Sentence
Parties:	Regina Thi Chup Arnaout
Representation:	Representatives: Ms. Lo – Commonwealth DPP Mr. Barber – Offender
File Number(s):	2014/00111949