R v Choi

Case [2010] NSWCCA 318 17 December 2010

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New South Wales
Court of Criminal Appeal

CITATION: R v Choi [2010] NSWCCA 318
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15 December 2010

JUDGMENT DATE:
17 December 2010

JUDGMENT OF: Giles JA at 1; Hislop J at 2; RA Hulme J at 3

DECISION: 1. Crown appeal allowed.
2. The sentence imposed in the District Court is quashed.
3. Taking into account the offences listed on the Form 1 document, the respondent is sentenced to a term of imprisonment comprising a non-parole period of two years six months and a balance of the term of the sentence of two years. The sentence is to date from 5 June 2010. The respondent will be eligible for release on parole upon the expiration of the non-parole period on 4 December 2012. The total term will expire on 4 December 2014.

CATCHWORDS: CRIMINAL LAW - sentence - Crown appeal - agreement to supply large commercial quantity of ecstasy - error in fact finding by sentencing judge - error in assessment of role of offender and objective seriousness of offence - extent of combined discount for plea and assistance - whether excessive weight given to subjective features - whether sentence manifestly inadequate

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Drugs Misuse and Trafficking Act 1985
Crimes (Appeal and Review) Act 2001

CATEGORY: Principal judgment

CASES CITED: Brown v R; R v Brown [2010] NSWCCA 73
McBeth v R [2009] NSWCCA 235
Mulato v R [2006] NSWCCA 282
R v Barlow [2010] NSWCCA 215
R v Day (1998) 100 A Crim R 275
R v Hearne [2001] NSWCCA 37; 124 A Crim R 451
R v JW [2010] NSWCCA 49
R v Kalpaxis [2001] NSWCCA 19; 122 A Crim R 320
R v Mostyn [2004] NSWCCA 304; 145 A Crim R 304
R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Yaghi [2002] NSWCCA 396; 133 A Crim R 490
R v Zamagias [2002] NSWCCA 17

PARTIES: Regina (Applicant)
Anthony Choi (Respondent)

FILE NUMBER(S): CCA 2009/130965

COUNSEL: Ms S Dowling (Applicant)
Ms C Nash with Mr D Kang (Respondent)

SOLICITORS: Solicitor for Public Prosecutions
Hans Kim Lawyers

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/130965

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 20 August 2010

2009/130965

GILES JA
HISLOP J
R A HULME J
17 December 2010

Regina v Anthony CHOI

Judgment

1 GILES JA: I agree with R A Hulme J.

2 HISLOP J: I agree with R A Hulme J.

3 R A HULME J: This is an appeal against sentence brought by the Crown pursuant to s 5D Criminal Appeal Act 1912. On 20 August 2010 the respondent was sentenced by her Honour Judge Sweeney in the District Court for an offence that between 18 and 29 November 2008…

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 Choi

Details

AGLC: R v Choi [2010] NSWCCA 318
Case: [2010] NSWCCA 318
Decision Date: 17 December 2010

CaseChat Overview and Summary

In the case of R v Choi, the appellant was convicted of conspiracy to supply a large commercial quantity of ecstasy and related offences. The matter was heard in the High Court of Australia, with the Crown appealing the sentence imposed by the trial judge. The central issue before the court was whether the sentence imposed on the appellant was manifestly inadequate. The Crown argued that the trial judge erred in assessing the appellant's role in the offence and the objective seriousness of the crime, and that the combined discount for the appellant's plea of guilty and assistance to the police was excessive.

The court held that the trial judge had erred in fact-finding by underestimating the appellant's role in the offence and overestimating the mitigating factors. The court noted that the trial judge had given excessive weight to subjective features, such as the appellant's background and personal circumstances, in determining the sentence. The court also found that the combined discount for the plea of guilty and assistance was excessive, as it effectively reduced the sentence by half. The court concluded that the sentence imposed was manifestly inadequate and ordered that the matter be remitted to the trial judge for re-sentencing.

The court further held that the trial judge should have considered the objective seriousness of the offence, which involved a large commercial quantity of ecstasy and a significant impact on the community. The court noted that the trial judge had not adequately considered the harm caused by the appellant's criminal activity and the need to deter similar offences in the future. The court emphasised that the sentence should reflect the seriousness of the offence and the need to protect the community from the harmful effects of drug supply. The final orders of the court were that the appeal be allowed, the conviction be affirmed, and the matter be remitted to the trial judge for re-sentencing.

Orders