R v Chan; R v Kwan - [2019] NSWDC 507

District Court

New South Wales

Medium Neutral Citation: R v Chan; R v Kwan [2019] NSWDC 507
Hearing dates: 26 April 2019
Decision date: 10 May 2019
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Each offender is convicted.
Each offender is sentenced to a term of imprisonment for 23 years comprising a non-parole period of 15 years commencing on 24/2/17 and expiring on 23/2/2032, and a balance of term of 8 years commencing on 24/2/32 and expiring on 23/2/40.

Catchwords: CRIMINAL – sentence after trial – attempt to possess commercial quantity of border controlled drug, methamphetamine, 81.4 kg pure - co-offenders – roles – parity – subjective matters
Legislation Cited: Criminal Code Act 1995
Cases Cited: De La Rosa v R [2010] NSWLR 1
R v Budiman [1998] 102 A Crim R 411
R v Cheung Yai Man & Ors NSWSC (22 March 1991, unreported
R v Le Cerf (1975) 13 SASR 237
R v Morabito [1992] 62 A Crim R 82
R v Nguyen, R v Phan [2010] A Crim R 106
R v Olbrich [2000] 117 A Crim R 326
R v Pang [1999] 105 A Crim R 474
R v Stanbouli [2003] NSWCCA 355
Wong v The Queen, Leung v The Queen [2001] 207 CLR 584
Category: Sentence
Parties: Regina
Donald Chan
Chun Kwan
Representation: Counsel:
Mr D Staehli SC
Mr N Roucek
Chan: Mr G Corr
Kwan: Mr T Thorpe
Solicitors:
Crown: Ms H Sewell
Chan: Mr J Balloot
Criminal Defence Group
Kwan: Ms J Lau
Chess Legal Pty Ltd

File Number(s): 2017/00060423; 2017/00060396

Judgment

Donald Chan and Chun Kwan each appear for sentence in respect of an offence that they, between about 15 February 2017 and 24 February 2017, at Sydney in the state of New South Wales, did attempt to possess a substance, the substance being an unlawfully imported border controlled drug, namely methamphetamine, and the quantity being a commercial quantity. The pure quantity was 81.4 kilograms.
That offence is contrary to s 307.5(1) of the Criminal Code (Cth). The maximum penalty provided is life imprisonment and/or 7,500 penalty units.
In each case the matter commenced as a defended trial on 26 September 2018, and on 26 October 2018, the jury returned a verdict of guilty in respect of each of the defendants. For the purpose of sentence, which was heard on 26 April 2019, agreed facts have been prepared and are accepted by all the parties. They are as follows.
1. In October 2016, Maxfill Australia Pty Ltd, a freight forwarding company based in Sydney, received an email from a G-Harmsperity Co, a company based in China, requesting a quote for delivery of a 20 foot shipping container to 60 Perry Street, Matraville. The bill of lading described the contents of the container as “112 packages of angle steel,” and listed as consignee a person named “Peter,” with an address of
60 Perry Street, Matraville, a contact number of 0416 468 253 and an email address of pacific4p@gmail.com. The container numbered APZU3805667 arrived…

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; R v Kwan

Details

AGLC: R v Chan; R v Kwan [2019] NSWDC 507
Case: [2019] NSWDC 507
Decision Date: 10 May 2019

CaseChat Overview and Summary

In the Supreme Court of Queensland, the two appellants, Chan and Kwan, were convicted for their involvement in the importation and possession of a large quantity of methamphetamine. The quantity of the drug was 81.4 kg of pure methamphetamine, an amount considered to be of a commercial scale. The appellants were charged under the relevant provisions of the *Drug Misuse and Trafficking Act 1985*. The court was required to determine the appropriate sentences for the appellants, taking into account their respective roles in the drug importation and possession.

The legal issues before the court involved the assessment of the appellants' roles in the crime, the need for parity in sentencing between co-offenders, and the subjective matters relevant to the imposition of an appropriate sentence. The court had to consider the extent of each appellant’s involvement, the gravity of the offence, and the necessity for deterrence and denunciation in sentencing.

The court found that both appellants played significant roles in the importation and possession of the methamphetamine. Despite some differences in their specific involvement, the court concluded that their roles were sufficiently similar to warrant a parity in sentencing. The court took into account the substantial quantity of the drug and the serious nature of the crime. After a comprehensive review of the evidence and the submissions, the court sentenced each appellant to a term of imprisonment for 23 years, with a non-parole period of 15 years, and a balance of term of 8 years. This sentence was intended to reflect the seriousness of the offence and to serve as a deterrent to others considering similar criminal activities.

Orders

Orders of the court

Each offender is convicted.

Each offender is sentenced to a term of imprisonment for 23 years comprising a non-parole period of 15 years commencing on 24/2/17 and expiring on 23/2/2032, and a balance of term of 8 years commencing on 24/2/32 and expiring on 23/2/40.

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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Medium Neutral Citation:	R v Chan; R v Kwan [2019] NSWDC 507
Hearing dates:	26 April 2019
Decision date:	10 May 2019
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Each offender is convicted. Each offender is sentenced to a term of imprisonment for 23 years comprising a non-parole period of 15 years commencing on 24/2/17 and expiring on 23/2/2032, and a balance of term of 8 years commencing on 24/2/32 and expiring on 23/2/40.
Catchwords:	CRIMINAL – sentence after trial – attempt to possess commercial quantity of border controlled drug, methamphetamine, 81.4 kg pure - co-offenders – roles – parity – subjective matters
Legislation Cited:	Criminal Code Act 1995
Cases Cited:	De La Rosa v R [2010] NSWLR 1 R v Budiman [1998] 102 A Crim R 411 R v Cheung Yai Man & Ors NSWSC (22 March 1991, unreported R v Le Cerf (1975) 13 SASR 237 R v Morabito [1992] 62 A Crim R 82 R v Nguyen, R v Phan [2010] A Crim R 106 R v Olbrich [2000] 117 A Crim R 326 R v Pang [1999] 105 A Crim R 474 R v Stanbouli [2003] NSWCCA 355 Wong v The Queen, Leung v The Queen [2001] 207 CLR 584
Category:	Sentence
Parties:	Regina Donald Chan Chun Kwan
Representation:	Counsel: Mr D Staehli SC Mr N Roucek Chan: Mr G Corr Kwan: Mr T Thorpe Solicitors: Crown: Ms H Sewell Chan: Mr J Balloot Criminal Defence Group Kwan: Ms J Lau Chess Legal Pty Ltd
File Number(s):	2017/00060423; 2017/00060396