R v Yeo - [2012] SASCFC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v YEO
[2012] SASCFC 60
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice David)
25 May 2012
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
The applicant applied for permission to appeal to the Court of Criminal Appeal against his sentence after a single Judge of the Supreme Court of South Australia refused permission to appeal – application and appeal heard concurrently in the event that permission to appeal was granted.
In November 2008, customs officials intercepted 80 kilograms of dimethylamphetamine concealed in a shipping container – police removed the substance from the container and replaced it with an inert substance – the container was then shipped to a place north of Adelaide and kept under surveillance – the applicant and co-offender were caught ‘red handed’ unpacking the substance – the applicant and a co-offender were both found guilty by a jury of attempting to possess a commercial quantity of a border controlled drug, contrary to s 11.1 and s 307.5 of the Criminal Code Act 1995 (Cth) – a District Court Judge sentenced the applicant to imprisonment for ten years, and fixed a non-parole period of six years six months.
The ground of appeal was that the sentence was manifestly excessive – the issues put into contention by the applicant to support the ground of appeal were: (1) whether the sentencing Judge erred in finding that the applicant’s role in the offence was more than that of a hired hand carrying out menial work; (2) whether the Judge erred in fact in relation to the benefit the applicant was to receive; and (3) whether the Judge erred in equating the applicant’s offending, for the purposes of sentencing, with that of his co offenders, who were sentenced by a different Judge – whether the Judge erred in the consideration of the principle of parity.
Held (Doyle CJ, Nyland and David JJ): (1) the evidence supported the Judge’s finding that the applicant’s role was significant; (2) the Judge made no error rejecting the applicant’s evidence and to find that his role was likely to result in a much greater benefit than he acknowledged; (3) it was open to the Judge to take the same starting point for the applicant and co-offenders – it was also open to the Judge to take the view that each offender had a substantial involvement in a major offence – it was not incumbent on the Judge to rank the culpability of the offenders.
Application for permission to appeal against sentence refused – the proposed grounds of appeal were not reasonably arguable.
Criminal Code 1995 (Cth) s 11.1; s 307.5, referred to.

R v YEO
[2012] SASCFC 60
Court of Criminal…

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 Yeo

Details

AGLC: R v Yeo [2012] SASCFC 60
Case: [2012] SASCFC 60
Decision Date: 25 May 2012

CaseChat Overview and Summary

The applicant, R v Yeo, sought leave to appeal against a sentence imposed by a Judge of the Supreme Court of South Australia. The applicant and a co-offender were convicted by a jury of attempting to possess a commercial quantity of a border-controlled drug, contrary to federal law, after being apprehended unpacking 80 kilograms of dimethylamphetamine. The sentencing Judge imposed a term of imprisonment of ten years with a non-parole period of six years and six months.

The central legal issues before the Court of Criminal Appeal were whether the sentencing Judge erred in assessing the applicant's role in the offence as more than that of a mere labourer, whether the Judge made a factual error regarding the benefit the applicant expected to receive, and whether the Judge erred in applying the principle of parity by sentencing the applicant similarly to his co-offenders, who were sentenced by a different Judge.

The Court found that the evidence supported the sentencing Judge's conclusion that the applicant played a significant role in the offence, rejecting the submission that he was merely "hired labour." The Court also held that the Judge was entitled to reject the applicant's evidence concerning his expected remuneration and to find that his involvement was likely to yield a greater benefit than he admitted. Furthermore, the Court determined that it was open to the sentencing Judge to adopt the same starting point for the applicant as for his co-offenders, as each offender had a substantial involvement in a major offence, and it was not incumbent upon the Judge to meticulously rank the culpability of each individual.

Consequently, the Court of Criminal Appeal refused the applicant's permission to appeal, finding that the proposed grounds of appeal were not reasonably arguable.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

All in all, I find no indication of any error on the part of the Judge.Conclusion I would refuse permission to appeal. Because of the substantial nature of the sentences imposed I have dealt with the application in some more detail than would usually be done in relation to an application for permission to appeal. But having done that, I am satisfied that the proposed grounds of appeal are not reasonably arguable. Accordingly, it is appropriate to refuse permission to appeal. It goes without saying that if permission to appeal were to be granted, I would dismiss the appeal in any event. For those reasons I would order that permission to appeal be refused. NYLAND J: I agree that permission to appeal should be refused. I agree with the reasons of the Chief Justice. DAVID J: I would refuse permission to appeal. I agree with the reasons of the Chief Justice.

Ratio Decidendi

Legal Principle Established

Mr Tong was 38 years of age. He came to Australia from Vietnam at the age of 18 years. He had two children, one of whom suffered from autism. The Judge accepted that his imprisonment would cause hardship to his wife, and distress to his children. However, the Judge took the view that this could have no substantial effect on the sentence of imprisonment that she had to impose. In the end, the Judge imposed a sentence of nine years six months, and fixed a non-parole period of five years six months. Consideration of appeal I repeat, although it is hardly necessary to do so, that Mr Yeo was sentenced for a serious crime, and for an offence which was a very serious offence of its kind. As the Judge found, there being plenty of evidence to support the finding, Mr Yeo must have realised that he was dealing with a very large quantity of drugs, and with a quantity of drugs worth millions of dollars. The sentence that the Judge imposed had to be a heavy one. It had to reflect the substantial nature of the undertaking. General deterrence was important. Mr Heffernan, counsel for Mr Yeo on appeal, submits that there was nothing done by Mr Yeo to support a conclusion that he was “anything more than imported cheap labour whose function was to assume the greatest risk for minimum financial return”. I do not accept that submission. It was open to the Judge to find that his role was more substantial than that, as she did. One might wonder why the organisers of the shipment would send someone from Singapore to Australia on the basis suggested by Mr Heffernan. In any event, the activities in which Mr Yeo engaged provided a basis for the finding that the Judge made. Mr Heffernan also submitted that the Judge made a mistake as to the amount that Mr Yeo was to be paid, and that this led to her concluding erroneously that that his role was more than that of labourer. Again, I disagree. It was open to her Honour to reject Mr Yeo’s evidence about his expected reward, and to find as she did that his role was likely to result in a much greater benefit than he acknowledged. Mr Heffernan also submits that Mr Yeo has a justifiable sense of grievance, bearing in mind the sentence imposed on Mr Tong in particular. He submits that the Judge should not have used the same starting point as that used by the Judge who sentenced Mr Ho. He also submits that Mr Yeo’s offending was less culpable than that of Mr Tong, that he should have received a lesser sentence than Mr Tong, and that there was nothing about the circumstances of Mr Tong to warrant the slight reduction in the head sentence imposed on him. I disagree with each of these submissions. It was open to the Judge who sentenced Mr Yeo to take the same starting point for Mr Yeo and Mr Tong, as was taken by the Judge who sentenced Mr Ho. In doing so, the Judge adopted a starting point that she herself referred to as “very merciful”. I agree. Each of the offenders can regard himself as fortunate to have escaped with the sentence that he did. As to the question of parity, each of them was involved in a substantial way in a very serious offence. I do not accept the implicit submission that it was incumbent on the Judge who sentenced Mr Yeo and Mr Tong to rank each of them carefully in relation to the other, and in relation to Mr Ho. It was open to the Judge to take the view, as she did, that each of them had a substantial involvement in a very major offence, and that any differences in relation to their culpability were sufficiently minor to be passed by. I do not accept the notion that it was incumbent on the Judge to finely grade and rank the offending of each these three offenders. The Judge did not err in her approach to the sentencing of Mr Yeo and Mr Tong.