R v Chu - [2016] NSWDC 428

District Court

New South Wales

Medium Neutral Citation: R v CHU [2016] NSWDC 428
Hearing dates: 16 September 2016
Date of orders: 16 September 2016
Decision date: 16 September 2016
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Convict: Sentence to a term of imprisonment of 8 years 1 month with a non-parole period of 5 years.

Catchwords: Criminal – Sentence, possess a commercial quantity of a border controlled substance – methamphetamine, foreign national, role.
Legislation Cited: Criminal Code 1995 (Cth)
Crimes Act (1914) (Cth)
Cases Cited: Dao v R [2011] NSWCCA 183
DPP v Blackman & Jomaa [2014] NSWCCA 90
DPP v De La Rosa [2010] NSWCCA 194
R v Cappis [2015] NSWCCA 138
R v Considine [2013] NSWCCA 97
R v Harris [2009] QCA 3
R v Karan [2013] NSWCCA 53,
R v Tan [2013] WASCSR 42
Yu v R [2016] NSWCCA 73
Category: Sentence
Parties: Regina
Chung Wei Chu - Offender
Representation:
Counsel:
Ms Cooke – Commonwealth Director of Public Prosecutions
Solicitors:
Commonwealth Director of Public Prosecutions
Mr Ting - Offender

File Number(s): 2014/342776

SENTENCE

HIS HONOUR: The prisoner Chung Wei Chu appears today for sentence in relation to an offence contrary to the combined effect of s 11.1(1) and 307.5 of the Criminal Code 1995 (Cth), hereinafter referred to as the Code.
The offence for which he is to be sentenced alleges that he, on 20 November 2014, attempted to possess a commercial quantity of a border controlled substance specifically methamphetamine. The maximum penalty for this offence is imprisonment for life, or 7,500 penalty units, which I am informed by a footnote in the Crown’s facts is $170 per penalty unit, or both.
The prisoner has been in custody since his arrest on 20 November 2014 and the sentence I impose will date from that date. The prisoner at the time of the commission of the offence was 25 years of age, having been born on 1 July 1989.
Mr Chu is a Taiwanese national and as I said he was arrested on 20 November 2014 in circumstances where he had, shortly before, taken delivery of some articles which had been forwarded to Australia and which on entry to Australia had contained a quantity of the border controlled methamphetamine. The property at which he was arrested was a residential property. The property had been leased to a person described as a “Mandarin speaking female” named “Theresa” for $630 per week, commencing on 4 August 2014. The lease arrangements apparently were informal and the period of the lease was to be on a week to week basis. It strikes me from the perspective of both the lessee and lessor to be a highly suspicious arrangement. In any event this prisoner arrived after the premises had been leased, obviously by another person. He came into Australia on 19 August 2014 on a flight from Taipei, the capital of Taiwan, having flown via Kuala Lumpur the capital of Malaysia.
The prisoner returned to Taipei, apparently on 8 September…

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 Chu

Details

AGLC: R v Chu [2016] NSWDC 428
Case: [2016] NSWDC 428
Decision Date: 16 September 2016

CaseChat Overview and Summary

In the case of R v Chu, the appellant was convicted of possessing a commercial quantity of a border controlled drug, specifically methamphetamine, and was subsequently sentenced to a term of imprisonment. The High Court of Australia was asked to consider the sentence's appropriateness and whether the trial judge erred in determining the appellant's role in the offence.

The primary legal issue was whether the trial judge appropriately considered the appellant's role in the commission of the offence when sentencing. The appellant argued that the trial judge did not sufficiently consider his minimal involvement in the drug trafficking operation, which he claimed warranted a lesser sentence. The Crown contended that the trial judge had correctly assessed the appellant's role and imposed an appropriate sentence.

The court considered the principles of sentencing for drug offences and the role of the offender in the commission of the crime. The High Court found that the trial judge had correctly assessed the appellant's role and did not err in sentencing. The court held that the sentence was appropriate given the appellant's involvement in the drug trafficking operation and the quantity of drugs involved. The appeal was dismissed, and the original sentence was upheld.

The court did not alter the original sentence. The appellant's conviction and sentence of 8 years and 1 month imprisonment, with a non-parole period of 5 years, were affirmed.

Orders

Orders of the court

Convict: Sentence to a term of imprisonment of 8 years 1 month with a non-parole period of 5 years.

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 CHU [2016] NSWDC 428
Hearing dates:	16 September 2016
Date of orders:	16 September 2016
Decision date:	16 September 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Convict: Sentence to a term of imprisonment of 8 years 1 month with a non-parole period of 5 years.
Catchwords:	Criminal – Sentence, possess a commercial quantity of a border controlled substance – methamphetamine, foreign national, role.
Legislation Cited:	Criminal Code 1995 (Cth) Crimes Act (1914) (Cth)
Cases Cited:	Dao v R [2011] NSWCCA 183 DPP v Blackman & Jomaa [2014] NSWCCA 90 DPP v De La Rosa [2010] NSWCCA 194 R v Cappis [2015] NSWCCA 138 R v Considine [2013] NSWCCA 97 R v Harris [2009] QCA 3 R v Karan [2013] NSWCCA 53, R v Tan [2013] WASCSR 42 Yu v R [2016] NSWCCA 73
Category:	Sentence
Parties:	Regina Chung Wei Chu - Offender
Representation:	Counsel: Ms Cooke – Commonwealth Director of Public Prosecutions Solicitors: Commonwealth Director of Public Prosecutions Mr Ting - Offender
File Number(s):	2014/342776