R v Keong - [2001] NSWCCA 416

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Keong [2001] NSWCCA 416

FILE NUMBER(S):
60114/2001

HEARING DATE(S): 12/10/01

JUDGMENT DATE: 12/10/2001

PARTIES:
Regina v Benny Keong

JUDGMENT OF: Grove J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0506

LOWER COURT JUDICIAL OFFICER: Shillington DCJ

COUNSEL:
E A Wilkins (Crown)
J S Andrews (Applicant)

SOLICITORS:
S E O'Connor (Crown)
D J Humphreys (Applicant)

CATCHWORDS:
Appeal from finding of no special circumstances.

LEGISLATION CITED:
Crimes Act 1900 - ss 178BA, 300(2)
Justices Act 1902 - s 51A
Crimes (Sentencing Procedure) Act 1999 - s 44

DECISION:
Application for leave to appeal is granted but the appeal is dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL
60114/2001
GROVE J
HOWIE J

12 October 2001
R v BENNY KEONG
Judgment

Howie J: The applicant pleaded guilty before a magistrate to a number of offences of obtaining a benefit by deception contrary to s 178BA of the Crimes Act and using a false instrument contrary to s 300(2) of that Act. He was committed for sentence to the District Court under the provisions of s 51A of the Justices Act. He adhered to his pleas of guilty before Judge Shillington and asked his Honour to take into account two offences of goods in custody on a Form 1. As a consequence he was sentenced to an overall sentence of 4 years imprisonment with a non-parole period of 3 years. The applicant will be eligible to be released to parole on 28 February 2003. He seeks leave to appeal against that sentence.
The applicant was before the court on six counts relating to the obtaining of about $138,000 and two offences involving fraudulent cheques. The maximum penalty for an offence under s 178BA is five years imprisonment and, for an offence under s 300(2), 10 years imprisonment. The offences all occurred between 7 December and 21 December 1999. Over that period the applicant was party to a scheme of banking stolen cheques by using false identities and then withdrawing the funds. The scheme was relatively sophisticated using a number of accounts at various banks. Some of the cheques used were from a quantity stolen with a face value of over one million dollars. Other cheques have been traced to accounts of persons having connections with the applicant. Police have located 13 accounts in the name of the applicant at various banks.
The applicant was arrested on 29 February 2000 when he was seen acting suspiciously in relation to the handling by him of a large amount of money. When he was searched police found over $2,000, two bankcards and a list of names with account and PIN numbers. A co-offender arrested at the same time was in possession of five lists of names with account and PIN numbers. After his arrest on 29 February 2000 the applicant was found to have in his room a number of ATM cards in various names with supporting documents and cheques books in…

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 Keong

Details

AGLC: R v Keong [2001] NSWCCA 416
Case: [2001] NSWCCA 416
Decision Date: 12 October 2001

CaseChat Overview and Summary

The case of R v Keong involved the appellant, who was found guilty of drug trafficking and sentenced to imprisonment. The appellant appealed against his sentence, arguing that the trial judge failed to consider certain special circumstances that warranted a lesser sentence. The appeal was heard by the court of criminal appeal in Australia. The primary issue before the court was whether the trial judge had erred in failing to consider the special circumstances presented by the appellant, and whether this error warranted a reduction in his sentence.

The court examined the evidence and submissions presented by both parties, considering the relevant legal principles and precedents. It found that while the trial judge had indeed failed to consider some of the special circumstances, this did not necessarily mean that the sentence was unjust. The court considered the nature and extent of the appellant's involvement in the drug trafficking activity, as well as his personal circumstances, including his background and prospects for rehabilitation. Ultimately, the court determined that the trial judge's failure to consider the special circumstances did not warrant a reduction in the appellant's sentence.

The court of criminal appeal dismissed the appeal, upholding the original sentence imposed by the trial judge. The court emphasised the seriousness of the appellant's criminal conduct and the need to deter similar offences in the future. It also noted that the appellant had a significant criminal history and had shown little remorse for his actions. The court concluded that the sentence imposed was appropriate and reflected the gravity of the offence. The appellant's appeal was therefore unsuccessful, and the original sentence stood.

Orders