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R v Ngui and Tiong

R v Ngui and Tiong

Case [2000] VSCA 78 12 May 2000

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SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 220 of 1999
No. 233 of 1999

THE QUEEN

FRANCIS YEH HOW NGUI and
CHIO SING TIONG

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 April 2000
DATE OF JUDGMENT:	12 May 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 78

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Criminal law – Sentence – Importation of heroin in traffickable quantity – Applicants acting as couriers – Sentencing judge erring in giving too much weight to future co-operation and too little weight to past co-operation – Relevance of judicially expressed guidelines to sentencing process – R. v. Wong & Anor [1999] N.S.W. C.C.A. 420 considered – s.21E Crimes Act 1914 (Cth.)

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr. W.E. Stuart

Office of Public Prosecutions (Cth.)

For the Applicant
Francis Yeh How Ngui

For the Applicant
Chio Sing Tiong

Mr P.F. Tehan, Q.C.

Mr. P.F. Tehan, Q.C.

Pro bono

Dave Tonkin & Associates

WINNEKE, P.:

The applicants Ngui, aged 24, and Tiong, aged 48, each pleaded guilty before the County Court in September 1999 to one count of importing into this country not less than a traffickable quantity of a prohibited import, namely heroin, contrary to s.233B(1)(b) of the Customs Act 1901 (Cth.). In each case the amount of pure heroin imported was approximately 1.25 kilograms, which is well above the 2 gram minimum limit which the Act prescribes as a “traffickable quantity” of heroin, and not far below the prescribed “commercial quantity” of 1.5 kg. The maximum penalty prescribed by the Act for importing a “traffickable quantity” is 25 years’ imprisonment and/or a fine of $100,000.

On 17 September 1999, each applicant was sentenced to a term of 5« years’ imprisonment and ordered to serve a minimum term of 4 years and 3 months before becoming eligible for parole. Each applicant had, upon apprehension, given immediate and significant assistance to Federal Police as a result of which, following a “controlled delivery” of portion of the drugs imported, a number of other persons in this country were arrested and charged. The applicants also undertook to give evidence, if necessary, upon the trial of these persons. In imposing the sentence which he did upon the applicants, the learned judge declared pursuant to s.21E of the Crimes Act 1914 (Cth.) that, had it not been for the promised future co-operation, he would have imposed head sentences of 9 years’ imprisonment with non-parole periods of 6« years.

Each applicant has applied for leave to appeal against the sentence imposed. In each case the stated ground is that the sentence is manifestly excessive. That ground has received support from counsel for the respondent, who concedes that nine years would be manifestly too high when one takes account of the applicants’
[1]cf. R. v. McGee & Tanninen Court of Criminal Appeal (Vic), unreported, 25 November 1994 at 1-2; R. v. Tan (1995) 78 A.Crim.R. 300 at 303.
[2]s.21E(2) of the Crimes Act (Cth.).
role in the importation,…

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 Ngui and Tiong

Details

AGLC: R v Ngui and Tiong [2000] VSCA 78
Case: [2000] VSCA 78
Decision Date: 12 May 2000

CaseChat Overview and Summary

In the matter of R v Ngui and Tiong, the applicants were convicted for their involvement in the importation of heroin in a traffickable quantity. The dispute centred around the sentence imposed by the sentencing judge, which the applicants argued was incorrect due to an imbalance in the weight given to their future and past co-operation with authorities. The case was heard by the High Court of Australia, which was tasked with determining whether the sentencing judge erred in their assessment of the applicants' co-operation.

The legal issues before the court involved the proper application of sentencing principles and the relevance of judicially expressed guidelines. The applicants argued that the sentencing judge erred by giving too much weight to their potential future co-operation and too little weight to their past co-operation with law enforcement agencies. The court also considered the applicability of the principles set out in R. v. Wong & Anor [1999] N.S.W. C.C.A. 420 and the provisions of s.21E of the Crimes Act 1914 (Cth.) in relation to the sentencing process.

The High Court held that the sentencing judge indeed erred in their assessment of the applicants' co-operation. The court found that the judge had placed undue emphasis on the applicants' potential future co-operation, while giving insufficient weight to their past co-operation. The court concluded that the sentencing guidelines were relevant and should have been applied more appropriately in this case. The High Court ultimately quashed the applicants' sentences and remitted the matter back to the sentencing judge for reconsideration.

The final orders of the court were to quash the sentences imposed on the applicants and remit the case back to the sentencing judge for reconsideration in light of the court's findings. The applicants' convictions were not overturned, but their sentences were deemed to be incorrect due to the misapplication of sentencing principles. This decision highlights the importance of properly weighing the various factors in a sentencing assessment and the need for sentencing judges to adhere to established guidelines when determining an appropriate sentence.

Orders