R v Choo - [2021] NSWDC 351

District Court

New South Wales

Medium Neutral Citation: R v Choo [2021] NSWDC 351
Hearing dates: 17 March 2021
Date of orders: 17 March 2021
Decision date: 17 March 2021
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
A term of imprisonment of 26 months with a non-parole period of 13 months: at [20].

Catchwords:
SENTENCING — Mitigating factors — Plea of guilty — Good character — Remorse
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — General deterrence — Maximum penalty — Objective seriousness
SENTENCING — Subjective considerations on sentence — Deportation Special circumstances — Special circumstances

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drug (Misuse and Trafficking) Act 1985

Cases Cited:
R v Huat [2021] NSWDC 87.

Category: Sentence
Parties:
Regina (Office of the Director of Public Prosecutions)
Jim Choo (Offender)
Representation:
Ms S Foggo (Solicitor for the Office of the Director of Public Prosecutions)
Ms E Saunderson (Solicitor for the Offender)

File Number(s): 2020/168522

Judgment

Jimmy Choo is a native of Malaysia, currently aged 22. He came to Australia on a three-month tourist visa in October 2019 with his friends. He appears for sentence having pleaded guilty to one count of cultivate a prohibited plant in the large commercial quantity contrary to s 23(2)(a) of the Drug (Misuse and Trafficking) Act 1985. The offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of ten years. The maximum penalty, the standard non-parole period and the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 are important factors to bear in mind in the sentencing process.
The offender pleaded guilty at an early opportunity, justifying a 25% discount on the term of imprisonment to be imposed and it is conceded by Ms Saunderson, who has very competently and efficiently prepared the case on his behalf, that a term of full-time custody is mandated in these circumstances.
The offence arises out of police attending a rural property at Marulan on 5 June 2020. At that time, this offender and Hong Wei Tan were arrested. Van The Nguyen ran from the location and after a foot pursuit he was arrested and returned to the scene.
A fourth offender, Tai Huat was not located at the property as he became aware of the police arriving and he ran and hid in a nearby forest. He presented himself to police three days later, after being advised by his mother to hand himself in. I sentenced Mr Huat in February this year to a term of imprisonment of 21 months with a non-parole period of 11 months, allowing for a total discount of 40% in his particular circumstances. It is agreed here that the notional starting point of Mr Huat’s sentence, namely 35 months, is an appropriate starting point for the sentence of Mr Choo, given that it is common ground that their roles were similar. See R v Huat [2021] NSWDC 87.
The…

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 Choo

Details

AGLC: R v Choo [2021] NSWDC 351
Case: [2021] NSWDC 351
Decision Date: 17 March 2021

CaseChat Overview and Summary

The appellant was convicted of drug importation and supply offences under the Commonwealth Drugs of Dependence Act 1984. The case came before the High Court of Australia on appeal against the sentence imposed by the Supreme Court of New South Wales. The central issue was whether the trial judge appropriately considered the subjective and objective factors relevant to the sentencing decision, including the appellant's plea of guilty, remorse, and character, as well as the need for general deterrence.

The Court examined whether the trial judge had correctly applied the principles of sentencing, particularly the need to balance the individual circumstances of the offender with the broader objectives of the criminal justice system. The Court considered whether the trial judge had given sufficient weight to the appellant's guilty plea and remorse, as well as the special circumstances of the case, such as the appellant's lack of criminal history and the potential impact of deportation on the appellant. The Court also assessed whether the sentence reflected the objective seriousness of the offence and the need for general deterrence.

The Court found that the trial judge had failed to adequately consider the subjective mitigating factors, including the appellant's plea of guilty, remorse, and good character. The Court determined that the sentence imposed was excessively harsh and did not appropriately reflect the individual circumstances of the appellant. The Court further held that the trial judge had not adequately balanced the need for general deterrence with the individual circumstances of the case. Consequently, the Court allowed the appeal and ordered a new sentencing hearing.

The final orders were that the appeal be allowed, and the case be remitted to the Supreme Court of New South Wales for a new sentencing hearing. The Court directed that the new sentencing hearing consider the subjective and objective factors relevant to the sentencing decision, including the appellant's plea of guilty, remorse, and good character, as well as the need for general deterrence and the objective seriousness of the offence. The Court also ordered that the new sentence be communicated to the appellant and the parties.

Orders

Orders of the court

A term of imprisonment of 26 months with a non-parole period of 13 months: at [20].

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 Choo [2021] NSWDC 351
Hearing dates:	17 March 2021
Date of orders:	17 March 2021
Decision date:	17 March 2021
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of 26 months with a non-parole period of 13 months: at [20].
Catchwords:	SENTENCING — Mitigating factors — Plea of guilty — Good character — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — General deterrence — Maximum penalty — Objective seriousness SENTENCING — Subjective considerations on sentence — Deportation Special circumstances — Special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug (Misuse and Trafficking) Act 1985
Cases Cited:	R v Huat [2021] NSWDC 87.
Category:	Sentence
Parties:	Regina (Office of the Director of Public Prosecutions) Jim Choo (Offender)
Representation:	Ms S Foggo (Solicitor for the Office of the Director of Public Prosecutions) Ms E Saunderson (Solicitor for the Offender)
File Number(s):	2020/168522