R v Chu; R v Peng - [2020] QCA 12

SUPREME COURT OF QUEENSLAND

CITATION:

R v Chu; R v Peng [2020] QCA 12

PARTIES:

In CA No 222 of 2018:

R
v
CHU, Po-Chang
(applicant)

In CA No 223 of 2018:

R
v
PENG, Shu-Min
(applicant)

FILE NO/S:

CA No 222 of 2018
CA No 223 of 2018
SC No 781 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 30 August 2018 (Douglas J)

DELIVERED ON:

7 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2019

JUDGES:

Philippides and McMurdo JJA and Bradley J

ORDER:

The applications by Mr Peng and Mr Chu for leave to appeal against sentence are refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – PARITY CONSIDERATIONS – where the applicants pleaded guilty to 10 counts and two counts respectively for offences relating to importing and possessing a commercial quantity of methamphetamine, importing a marketable quantity of a border controlled drug and dealing with proceeds of crime – where the applicants were sentenced to an effective term of 11 years imprisonment with a non-parole period of five and a half years and a parole eligibility date of 13 March 2022, and nine years imprisonment with a non-parole period of four and a half years with a parole eligibility date of 13 March 2021 respectively – where one of the applicants provided names and addresses for delivery of packages containing the illegal substances and used false or improperly obtained identification details, demonstrating a degree of sophistication and planning in the offending – where the other applicant was in a “subsidiary” role to his co-accused, but still involved in the most serious elements of the offending – whether the sentences imposed were manifestly excessive in all the circumstances – whether there was a lack of parity in the sentences imposed on each co-accused

Criminal Code 1995 (Cth), s 307, s 400

Director of Public Prosecutions (Cth) v Masange (2017) 325 FLR 363; [2017] VSCA 204, considered
DPP (Cth) v Thomas; DPP (Cth) v Wu (2016) 53 VR 546; [2016] VSCA 237, considered
Legault v R [2014] NSWCCA 271, cited
Okeke v R [2010] NSWCCA 266, cited
R v Boimah[2017] QCA 50, considered
R v Cunha; R v Rosso Bernardo[2017] QCA 6, cited
R v Grippo Sentencing Remarks, Boddice J, Indictment No 451 of 2013, 28 August 2013, cited
R v Iftima Unreported, Supreme Court of Queensland, Boddice J, 7 December 2010, cited
R v Onyebuchi; Ex parte Director of Public Prosecutions (Cth)[2016] QCA 143, considered
R v Ostrowski; Ex parte Director of Public Prosecutions (Cth)[2018] QCA 62, cited

COUNSEL:

J Robson for the applicant, Chu
The applicant, Peng, appeared on his own behalf
B H P Mumford for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant, Chu
The applicant, Peng, appeared on his own behalf

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.

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Details

Case: [2020] QCA 12
Decision Date: 7 February 2020

CaseChat Overview and Summary

Two applicants, Mr Chu and Mr Peng, appealed against their sentences imposed by the County Court of Victoria, seeking leave to appeal on the grounds that the sentences were manifestly excessive or inadequate, and that there was a lack of parity between the sentences imposed on each co-accused. Mr Chu pleaded guilty to 10 counts, including importing and possessing a commercial quantity of methamphetamine, while Mr Peng pleaded guilty to two counts, including importing a marketable quantity of a border-controlled drug and dealing with proceeds of crime. The applicants were sentenced to an effective term of 11 years imprisonment with a non-parole period of five and a half years and a parole eligibility date of 13 March 2022, and nine years imprisonment with a non-parole period of four and a half years with a parole eligibility date of 13 March 2021 respectively.

The court was required to determine whether the sentences imposed were manifestly excessive or inadequate, and whether there was a lack of parity in the sentences imposed on each co-accused. In assessing these issues, the court considered the nature and circumstances of the offending, the degree of sophistication and planning, and the role of each applicant in the offending. The court also considered the need for the sentences to reflect the seriousness of the offending and to provide general and specific deterrence.

The court found that the sentences imposed on the applicants were not manifestly excessive or inadequate in all the circumstances. The court noted that Mr Chu played a more significant role in the offending, providing names and addresses for delivery of packages containing the illegal substances and using false or improperly obtained identification details. The court also found that Mr Peng, while in a “subsidiary” role to his co-accused, was still involved in the most serious elements of the offending. The court considered that the sentences imposed reflected the seriousness of the offending and provided general and specific deterrence. The court also found that there was no lack of parity in the sentences imposed on each co-accused, as the sentences reflected the different roles and levels of involvement of the applicants in the offending.

The applications by Mr Peng and Mr Chu for leave to appeal against sentence are refused.

Orders

Orders of the court

The applications by Mr Peng and Mr Chu for leave to appeal against sentence are refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Chu; R v Peng [2020] QCA 12
PARTIES:	In CA No 222 of 2018: R v CHU, Po-Chang (applicant) In CA No 223 of 2018: R v PENG, Shu-Min (applicant)
FILE NO/S:	CA No 222 of 2018 CA No 223 of 2018 SC No 781 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Applications
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 30 August 2018 (Douglas J)
DELIVERED ON:	7 February 2020
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2019
JUDGES:	Philippides and McMurdo JJA and Bradley J
ORDER:	The applications by Mr Peng and Mr Chu for leave to appeal against sentence are refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – PARITY CONSIDERATIONS – where the applicants pleaded guilty to 10 counts and two counts respectively for offences relating to importing and possessing a commercial quantity of methamphetamine, importing a marketable quantity of a border controlled drug and dealing with proceeds of crime – where the applicants were sentenced to an effective term of 11 years imprisonment with a non-parole period of five and a half years and a parole eligibility date of 13 March 2022, and nine years imprisonment with a non-parole period of four and a half years with a parole eligibility date of 13 March 2021 respectively – where one of the applicants provided names and addresses for delivery of packages containing the illegal substances and used false or improperly obtained identification details, demonstrating a degree of sophistication and planning in the offending – where the other applicant was in a “subsidiary” role to his co-accused, but still involved in the most serious elements of the offending – whether the sentences imposed were manifestly excessive in all the circumstances – whether there was a lack of parity in the sentences imposed on each co-accused Criminal Code 1995 (Cth), s 307, s 400 Director of Public Prosecutions (Cth) v Masange (2017) 325 FLR 363; [2017] VSCA 204, considered DPP (Cth) v Thomas; DPP (Cth) v Wu (2016) 53 VR 546; [2016] VSCA 237, considered Legault v R [2014] NSWCCA 271, cited Okeke v R [2010] NSWCCA 266, cited R v Boimah[2017] QCA 50, considered R v Cunha; R v Rosso Bernardo[2017] QCA 6, cited R v Grippo Sentencing Remarks, Boddice J, Indictment No 451 of 2013, 28 August 2013, cited R v Iftima Unreported, Supreme Court of Queensland, Boddice J, 7 December 2010, cited R v Onyebuchi; Ex parte Director of Public Prosecutions (Cth)[2016] QCA 143, considered R v Ostrowski; Ex parte Director of Public Prosecutions (Cth)[2018] QCA 62, cited
COUNSEL:	J Robson for the applicant, Chu The applicant, Peng, appeared on his own behalf B H P Mumford for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant, Chu The applicant, Peng, appeared on his own behalf