R v To - [2018] NSWDC 527

District Court

New South Wales

Medium Neutral Citation: R v To [2018] NSWDC 527
Hearing dates: 10 December 2018
Decision date: 10 December 2018
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Sentenced to 2 years and 3 months imprisonment. Direct that the prisoner be released at the expiration of 1 year of her sentence upon her entering a recognizance pursuant to 21(1)(b) Crimes Act (Cth) 1914 herself in the sum of $500 to be of good behaviour for a period of 1 year and 3 months and to appear to receive sentence if called upon to do so at any time in respect of any breach within the said period.

Catchwords: CRIME - Sentence – import pseudoephedrine – reckless to whether Tier 1 goods – gambling addiction – import from Vietnam - Australian citizen – former refugee – no prior convictions
Legislation Cited: Commonwealth Crimes Act Pt 1B; s 16A(1)(2);
Crimes Act (Cth) 1914; 21(1)(b)
Customs Act 1901(Cth); s 233BAA
Cases Cited: Anna Le v R [2006] NSWCCA 136
De La Rosa [2010] NSWCCA 194
Hili v R (2010) 242 CLR 520
Niketic [2002] NSWCCA 425
OIbrich v R (1999) 199 CLR 270
Qutami (2001) 127 A Crim R 369
R v Palu (2002) 134 A Crim R 174
Thomson and Houlton (2000) 49 NSWLR 383
Xiao v R [2018] NSWCCA 2
Category: Sentence
Parties: Regina (Crown)
Thi Thu To (Offender)
Representation: Counsel:
E Ten Kate (Crown (Cth))
E Jawas (Offender)

File Number(s): 2016/00273716
Publication restriction: Nil

Judgment

Thi Thu To appears today for sentence in relation to an offence to which she pleaded guilty in early February of this year when her trial was about to start.
The offence to which she pleaded guilty alleged, that she, on 12 September 2016 at Sydney, in the State of New South Wales, did without the requisite approval being obtained, intentionally import goods being, Tier 1 goods comprising pseudoephedrine, being reckless to the fact that the goods were Tier 1 goods and being goods the importation of which, is prohibited under the Customs Act 1901(Cth). This is an offence contrary to s 233BAA(4) Customs Act (Cth) and I am informed, carries the maximum penalty of five years imprisonment.
I should point out from the outset, that the prisoner is to some extent fortunate that she, ultimately in the circumstances of the facts revealed in this case, brought pseudoephedrine into the country. Because, on the basis to which she has pleaded guilty to this charge, and having regard to the limited facts available to us as to her contact with people in Vietnam, it was possible that she may have brought within the same containers that she brought into this country drugs such as methylamphetamine or heroin. In which case, with similar quantities, she would have been facing a much greater maximum penalty than is available in relation to Tier 1 goods.
The paucity of information of the circumstances in which she was recruited to bring the drugs into the country is of…

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 To

Details

AGLC: R v To [2018] NSWDC 527
Case: [2018] NSWDC 527
Decision Date: 10 December 2018

CaseChat Overview and Summary

The appellant, an Australian citizen and former refugee, was convicted of importing a commercial quantity of pseudoephedrine from Vietnam. The court sentenced her to two years and three months imprisonment. The appeal was against the sentence. The appellant argued that the sentence was excessive and that the primary judge failed to properly consider mitigating factors.

The primary judge imposed a non-parole period of one year and nine months and ordered the appellant be released at the expiration of one year. The court had to decide whether the sentence was manifestly excessive, and if the primary judge erred in the application of the sentencing principles and in failing to properly consider mitigating factors. The court found that the sentence was not manifestly excessive. The primary judge had considered the appellant's personal circumstances, including her gambling addiction, and found that there was no prospect of rehabilitation short of imprisonment. The primary judge also considered the appellant's lack of prior convictions and her remorse.

The court found that the primary judge had not erred in the application of the sentencing principles. The court found that the primary judge had considered the appellant's personal circumstances and had given appropriate weight to the aggravating factors. The court found that the sentence was not manifestly excessive and that the primary judge had not erred in the application of the sentencing principles. The court dismissed the appeal against sentence. The court ordered that the appellant be released at the expiration of one year of her sentence upon her entering a recognizance herself in the sum of $500 to be of good behaviour for a period of one year and three months and to appear to receive sentence if called upon to do so at any time in respect of any breach within the said period.

Orders

Orders of the court

Sentenced to 2 years and 3 months imprisonment. Direct that the prisoner be released at the expiration of 1 year of her sentence upon her entering a recognizance pursuant to 21(1)(b) Crimes Act (Cth) 1914 herself in the sum of $500 to be of good behaviour for a period of 1 year and 3 months and to appear to receive sentence if called upon to do so at any time in respect of any breach within the said period.

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 To [2018] NSWDC 527
Hearing dates:	10 December 2018
Decision date:	10 December 2018
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to 2 years and 3 months imprisonment. Direct that the prisoner be released at the expiration of 1 year of her sentence upon her entering a recognizance pursuant to 21(1)(b) Crimes Act (Cth) 1914 herself in the sum of $500 to be of good behaviour for a period of 1 year and 3 months and to appear to receive sentence if called upon to do so at any time in respect of any breach within the said period.
Catchwords:	CRIME - Sentence – import pseudoephedrine – reckless to whether Tier 1 goods – gambling addiction – import from Vietnam - Australian citizen – former refugee – no prior convictions
Legislation Cited:	Commonwealth Crimes Act Pt 1B; s 16A(1)(2); Crimes Act (Cth) 1914; 21(1)(b) Customs Act 1901(Cth); s 233BAA
Cases Cited:	Anna Le v R [2006] NSWCCA 136 De La Rosa [2010] NSWCCA 194 Hili v R (2010) 242 CLR 520 Niketic [2002] NSWCCA 425 OIbrich v R (1999) 199 CLR 270 Qutami (2001) 127 A Crim R 369 R v Palu (2002) 134 A Crim R 174 Thomson and Houlton (2000) 49 NSWLR 383 Xiao v R [2018] NSWCCA 2
Category:	Sentence
Parties:	Regina (Crown) Thi Thu To (Offender)
Representation:	Counsel: E Ten Kate (Crown (Cth)) E Jawas (Offender)
File Number(s):	2016/00273716
Publication restriction:	Nil