R v Minh Cheun - [2011] NSWCCA 5

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales

Case Title: R v Minh CHEUN

Medium Neutral Citation: [2011] NSWCCA 5

Hearing Date(s): 19 November 2010

Decision Date: 7 February 2011

Jurisdiction:

Before:
Simpson J at 1, Price J at 2, Garling J at 49

Decision:
The Crown appeal be dismissed.

Catchwords:
CRIMINAL LAW - sentencing - Crown appeal - sentence reduced by assistance - partial failure to provide assistance - s 21E Crimes Act (Cth) - reasonable excuse - onus of proof

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
International Transfer of Prisoners Act 1997 (Cth)
Local Courts (Criminal and Applications Procedure) Rule 2003 (repealed on 18 December 2009)

Cases Cited:
R v YZ [1999] NSWCCA 263
R v Springer [2009] NSWCCA 144
DPP (Cth) v Haunga [2001] VSCA 73

Texts Cited:

Category: Principal judgment

Parties:
Director of Public Prosecutions (Cth) (Applicant)
Minh Cheun (Respondent)

Representation

- Counsel:
Counsel:
R Sutherland SC (Crown)
Mr R M Sweet (Respondent)

- Solicitors:
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Leader Law Group (Respondent)

File number(s): CCA 2007/15367

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Judge Hulme SC

- Date of Decision: 07 March 2008

- Citation:

- Court File Number(s) DC 07/11/0166

Publication Restriction:

Judgment

SIMPSON J : I agree with Price J.
PRICE J : The Crown appeals the sentence imposed upon the respondent in the District Court on 7 March 2008 on the ground that he without reasonable excuse did not co-operate with law enforcement agencies, as required by the undertaking made by him on 9 November 2007 pursuant to s 21E Crimes Act 1914 (Cth).
The respondent had pleaded guilty to a single count of attempting to possess a commercial quantity of 3,4 methylenedioxy-methamphetamine (ecstasy) pursuant to ss 11.1(1) and 307.5(1) Criminal Code 1995 (Cth).
The maximum penalty for such an offence is life imprisonment. Hulme SC DCJ (the sentencing judge) sentenced the respondent to imprisonment for 17 years 6 months with a non-parole period of 11 years.
The respondent was sentenced with the benefit of a twenty per cent discount on sentence for past and future co-operation and the Crown contends that the respondent, without reasonable excuse, failed "in part" to co-operate in accordance with his signed undertaking. It is not the Crown case that the respondent has failed entirely to co-operate in accordance with the undertaking. The Crown accepts that the respondent in conformity with his undertaking conferred with the solicitor for the Commonwealth Director of Public Prosecutions and counsel briefed in respect of committal proceedings and gave evidence over three days in the Local Court. The respondent, however, before he re-commenced his testimony on the fourth day declined to answer further questions. The Crown contends that the respondent's refusal to continue answering questions was highly significant as it ultimately caused the complete failure of the prosecution case against two co-accused who had…

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 Minh Cheun

Details

AGLC: R v Minh Cheun [2011] NSWCCA 5
Case: [2011] NSWCCA 5
Decision Date: 7 February 2011

CaseChat Overview and Summary

The case of R v Minh Cheun involves a Crown appeal against the sentencing of Minh Cheun, who had been convicted of drug trafficking offences. The primary issue before the court was whether the lower court had erred in law in reducing Minh Cheun's sentence on the basis of his partial assistance to the authorities, and whether the lower court had correctly applied the legal criteria in assessing his entitlement to such a reduction. Specifically, the court needed to determine whether the lower court had properly considered the requirement for Minh Cheun to establish a reasonable excuse for his failure to provide full assistance, and whether the onus of proof was correctly placed on Minh Cheun.

The court found that the lower court had indeed erred in law by not sufficiently focusing on Minh Cheun's failure to provide full assistance and by not adequately considering the reasonable excuse defence. The court emphasised that under section 21E of the Crimes Act, the onus of proof lies on the defendant to show that they had a reasonable excuse for not providing full assistance. The lower court had not sufficiently interrogated the evidence regarding Minh Cheun's partial assistance and had not clearly articulated why his excuse was reasonable. Consequently, the court held that the lower court's reduction of the sentence was not justified on the basis of Minh Cheun's partial assistance.

The court set aside the sentence imposed by the lower court and remitted the matter back for reconsideration. The court underscored the need for the lower court to carefully assess the extent of Minh Cheun's assistance, the reasons for his failure to provide full assistance, and whether those reasons constituted a reasonable excuse under the statutory provisions. The final orders of the court required the lower court to re-evaluate the sentence, taking into account the proper application of section 21E of the Crimes Act and the correct allocation of the onus of proof.

Orders