R v Chan - [2017] QCA 8

SUPREME COURT OF QUEENSLAND

CITATION:

R v Chan [2017] QCA 8

PARTIES:

R
v
CHAN, Robert Wing Fong
(applicant)

FILE NO:

CA No 87 of 2016
SC No 480 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 24 March 2016

DELIVERED ON:

7 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2016

JUDGES:

Gotterson and Morrison JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The application for leave to appeal be granted.

2. The appeal is allowed only to the extent that the sentences imposed for counts 2 to 14 inclusive and 16 are set aside and that no further punishment be imposed in relation to those counts.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where defendant convicted on his own plea of guilty to fifteen offences – where defendant sentenced to 10 years imprisonment for trafficking methylamphetamine over a two year period – where defendant received same sentence as co-offender whose criminal record was worse and whose offending was more serious – whether sentence was unreasonable or plainly unjust – whether sentencing judge gave sufficient weight to mitigating factors, namely the basis of offending, pleas of guilty and defendant’s personal circumstances

R v Adams[2009] QCA 56, cited
R v Connolly[2016] QCA 132, cited
R v Jacobs[2016] QCA 28, cited

COUNSEL:

D R Lynch QC for the applicant
C W Heaton QC for the respondent

SOLICITORS:

Guest Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: I agree with the orders proposed by Douglas J and with the reasons given by his Honour.
MORRISON JA: I have read the reasons of Douglas J and agree with those reasons and the orders his Honour proposes.
DOUGLAS J: The applicant was sentenced to 10 years’ imprisonment on 24 March 2016 for the offence of trafficking in methylamphetamine, count 1 on the indictment. The consequence of the 10 year term imposed is that he is required to serve at least 80 per cent of that sentence before becoming eligible for parole. At the same time he pleaded guilty to 14 other offences. They consisted of eleven counts of possession of glassware for use in connection with producing a dangerous drug, one count of production of methylamphetamine in excess of 200 grams, one count of possession of methylamphetamine in excess of two grams and, finally, a count of possession of iodine, referred to as a relevant substance.
The parties accept that the concurrent sentences of terms of imprisonment imposed for counts 2 to 14 inclusive and 16 should be set aside and that no further punishment be imposed in relation to those counts apart from the recording of convictions. The decision in R v Connolly,[1] recently reiterated the view…

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 Chan

Details

AGLC: R v Chan [2017] QCA 8
Case: [2017] QCA 8
Decision Date: 7 February 2017

CaseChat Overview and Summary

In the case of R v Chan, the defendant was convicted on his own plea of guilty to fifteen offences, including trafficking methylamphetamine over a two-year period. The trial judge sentenced the defendant to 10 years imprisonment, a sentence which was identical to that given to a co-offender despite the latter’s more severe criminal record and more serious offending. The defendant appealed against the sentence, arguing that it was manifestly excessive or inadequate, and that the sentencing judge had not sufficiently considered mitigating factors such as the nature of the offending, his pleas of guilty, and his personal circumstances.

The legal issues before the court were whether the sentence imposed was unreasonable or plainly unjust, and whether the sentencing judge had appropriately weighed the mitigating factors in the context of the defendant’s offending. The court considered the gravity of the defendant’s involvement in trafficking a harmful drug on a large scale, the deterrent effect of the sentence, and the defendant’s guilty pleas and rehabilitative prospects. The court concluded that the 10½ year sentence, while lengthy, was justified given the serious nature of the offences and the need for deterrence.

The court determined that the sentence was not manifestly excessive or plainly unjust, as it had appropriately considered the mitigating factors and the seriousness of the offences. The defendant’s case did not warrant direct comparison with his co-offender’s sentence, as the circumstances were distinct. Therefore, the court granted the defendant leave to appeal but allowed the appeal only to the extent of setting aside the sentences imposed for counts 2 to 14 inclusive and 16, with no further punishment to be imposed in relation to those counts.

Orders

Orders of the court

1. The application for leave to appeal be granted.

2. The appeal is allowed only to the extent that the sentences imposed for counts 2 to 14 inclusive and 16 are set aside and that no further punishment be imposed in relation to those counts.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Adams’ offending was described as a grave example of trafficking with his involvement being at a high level and on a large scale. He continued to traffic after a direct associate had been arrested for his involvement. The court was of the view that the 10½ year sentence was lengthy but rightly so, even taking into account the mitigating factors of his guilty plea and promising rehabilitative prospects. The court emphasised the strong need for deterrence.Conclusion Taking into account the seriousness of the applicant’s offending and the sentences imposed in generally comparable cases, it cannot be concluded that the sentence is unreasonable or plainly unjust and thereby manifestly excessive. The applicant’s case does not bear direct comparison with Mr Jacobs’ sentence so as to demonstrate error in the exercise of the sentencing discretion. It was serious offending involving the production of large quantities of a harmful drug. The learned trial judge referred to the relevant matters in mitigation explicitly so that the sentence does not warrant further moderation in the context of the seriousness of the offending.Order Consequently, taking into account the need to re-sentence on counts 2 to 16, the orders should be as follows:1.the application for leave to appeal be granted;2.the appeal is allowed only to the extent that the sentences imposed for counts 2 to 14 inclusive and 16 are set aside and that no further punishment be imposed in relation to those counts.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Chan [2017] QCA 8
PARTIES:	R v CHAN, Robert Wing Fong (applicant)
FILE NO:	CA No 87 of 2016 SC No 480 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 24 March 2016
DELIVERED ON:	7 February 2017
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2016
JUDGES:	Gotterson and Morrison JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal be granted. 2. The appeal is allowed only to the extent that the sentences imposed for counts 2 to 14 inclusive and 16 are set aside and that no further punishment be imposed in relation to those counts.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where defendant convicted on his own plea of guilty to fifteen offences – where defendant sentenced to 10 years imprisonment for trafficking methylamphetamine over a two year period – where defendant received same sentence as co-offender whose criminal record was worse and whose offending was more serious – whether sentence was unreasonable or plainly unjust – whether sentencing judge gave sufficient weight to mitigating factors, namely the basis of offending, pleas of guilty and defendant’s personal circumstances R v Adams[2009] QCA 56, cited R v Connolly[2016] QCA 132, cited R v Jacobs[2016] QCA 28, cited
COUNSEL:	D R Lynch QC for the applicant C W Heaton QC for the respondent
SOLICITORS:	Guest Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent