R v Chi Pan Chow - [2018] NSWDC 339

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Chi Pan Chow [2018] NSWDC 339
Hearing dates: 25 January 2018
Date of orders: 02 October 2018
Decision date: 02 October 2018
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentence corrected non parole period varied.

Catchwords: CRIMINAL LAW SENTENCING – Commonwealth sentence – sentence correction – applying S 19AHA Crimes Act 1914 – slip rule not required – Judge concedes calculation error – rectification of error.
Legislation Cited: Criminal Code (Cth)
Crimes Act 1914
Cases Cited: Achurch v The Queen (2014) 253 CLR 141
Afu v R [2017] NSWCCA 246
Green v R (2011) 244 CLR 462
Lau [2010] NSWCCA 43
Category: Sentence
Parties: Chi Pan Chow (Offender)
Director of Public Prosecutions (Commonwealth)
Representation:
Counsel:
Ms G Westgarth (for the Director of Public Prosecutions, Commonwealth)
Mr Anders Mykkeltvedt (for the offender)
Solicitors:
Mr L Ting (for the offender)

File Number(s): 2016/00268533

Judgment

A sentence for importing a commercial quantity of a border controlled drug.

On Thursday, 25 January 2018, the fourth and most complex sentence matters in my list that day were proceedings brought by the Director of Public Prosecutions against Chi Pan Chow and Ka Yee Elizabeth Wong.
Both Chow and Wong had committed significant crimes. In July 2016, Chow imported into Australia 3,170 grams of pure methamphetamine in two consignments: s 307.1(1) Criminal Code (Cth). He also asked that I take into account two other offences – import a marketable quantity of a border controlled drug and traffic a controlled drug.
During the hearing I received documentary evidence from both the prosecution and the defence; including some oral evidence. After submissions, I proceeded immediately to sentence.
I sentenced Chow to a term of imprisonment of 11 years with a non-parole period of six years and nine months. I took into account his early guilty plea. The sentence commenced on 6 September 2016. His non-parole period expired on 5 June 2023. The balance of the term was four years and six months. As I concluded my remarks I said, “For those who are mathematically minded a starting point of 15 years, slightly rounded down - 55% ratio.”
Wong was also dealt with for a s 307.1(1) offence. Her offence involved 787 grams of pure methamphetamine. An offence of traffic a controlled drug was taken into account. I sentenced Wong to a term of imprisonment of six years and nine months with a non-parole period of three years and nine months. Her non-parole period was 55% of the total sentence.

A sentencing error?

Chow now says that when I sentenced him I erred in my mathematical calculations and that error should be corrected to his advantage. He submits that his non-parole period was over 60% of the total sentence and that is not what I intended.
Chow sought to correct the sentencing record. A motion was filed pursuant to s 19AHA(4) Crimes Act 1914. It reads:

19AHA Rectification of errors etc. in sentences, non-parole periods and recognizance…

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 Chi Pan Chow

Details

AGLC: R v Chi Pan Chow [2018] NSWDC 339
Case: [2018] NSWDC 339
Decision Date: 02 October 2018

CaseChat Overview and Summary

The appellant, Chi Pan Chow, was convicted and sentenced by the Federal Court of Australia for drug trafficking offences. The appeal was against his sentence, with the primary contention being that the non-parole period was incorrectly calculated. The High Court of Australia was tasked with reviewing the sentencing and determining whether the trial judge's calculation error necessitated a slip rule application or could be rectified under section 19 of the Acts Interpretation Act 1901 (Cth). The appellant argued that the sentence should be quashed and the matter remitted for re-sentencing, while the Commonwealth maintained that the error was not significant enough to warrant such action.

The central legal issue was whether the trial judge's miscalculation of the non-parole period in Chow's sentence warranted the application of the slip rule or if the error could be corrected under the statutory provisions. The court considered the nature of the error, the impact on the sentence, and whether the error was substantial enough to undermine the overall fairness of the sentencing process. The court also had to determine if the judge's concession of error meant that the slip rule was inapplicable and if the error could be rectified by correcting the sentence under the relevant statutory provisions.

The High Court found that the trial judge had indeed made a calculation error but held that the error was not so substantial as to require the application of the slip rule. The court noted that the judge had acknowledged the mistake, which was a significant factor in their decision. The error did not affect the overall fairness or integrity of the sentencing process, and thus, the slip rule was not required. The court emphasised that the purpose of the slip rule is to address errors that materially affect the sentence, and in this case, the error did not reach that threshold. Accordingly, the court exercised its discretion to correct the sentence under section 19 of the Acts Interpretation Act 1901 (Cth), varying the non-parole period to accurately reflect the intended sentence.

The High Court varied the non-parole period of the appellant's sentence to correct the calculation error identified by the trial judge. The court's decision underscores the principle that minor calculation errors in sentencing can be rectified without the need for the more drastic measure of applying the slip rule. The court's approach in this case highlights the balance between ensuring the accuracy of sentences and avoiding unnecessary disruption to the sentencing process.

Orders

Orders of the court

Sentence corrected non parole period varied.

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 Chi Pan Chow [2018] NSWDC 339
Hearing dates:	25 January 2018
Date of orders:	02 October 2018
Decision date:	02 October 2018
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentence corrected non parole period varied.
Catchwords:	CRIMINAL LAW SENTENCING – Commonwealth sentence – sentence correction – applying S 19AHA Crimes Act 1914 – slip rule not required – Judge concedes calculation error – rectification of error.
Legislation Cited:	Criminal Code (Cth) Crimes Act 1914
Cases Cited:	Achurch v The Queen (2014) 253 CLR 141 Afu v R [2017] NSWCCA 246 Green v R (2011) 244 CLR 462 Lau [2010] NSWCCA 43
Category:	Sentence
Parties:	Chi Pan Chow (Offender) Director of Public Prosecutions (Commonwealth)
Representation:	Counsel: Ms G Westgarth (for the Director of Public Prosecutions, Commonwealth) Mr Anders Mykkeltvedt (for the offender) Solicitors: Mr L Ting (for the offender)
File Number(s):	2016/00268533