Regina v Chanthaboury - [2001] NSWCCA 74

Reported Decision:
120 A Crim R 505

New South Wales

Court of Criminal Appeal

CITATION: Regina v Chanthaboury [2001] NSWCCA 74

FILE NUMBER(S): CCA 60016/00

HEARING DATE(S): 16 February 2001

JUDGMENT DATE:
23 March 2001

PARTIES :

The Crown
Sisouphanh Chanthaboury (Appl)

JUDGMENT OF: Wood CJ at CL at 1; McClellan J at 2; Smart AJ at 43

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL
OFFICER : Morgan DCJ

COUNSEL : R E Sutherland (Crown)
L Flannery (Appl)

SOLICITORS: Commonwealth Director of Public Prosecutions (Crown)
Legal Aid Commission (Appl)

CATCHWORDS: CRIMINAL LAW - s 233B Customs Act 1901 (Cth) - cocaine - trafficable quantity - SENTENCING - severity of sentence - sentencing guidelines - role of accused in criminal organisation - bare or mere courier - mitigating factors - assistance to authorities - plea of guilty - whether sufficient allowance made for assistance provided

LEGISLATION CITED: Customs Act 1901 (Cth)
Crimes Act 1914 (Cth)

CASES CITED:
R v Wong & Leung [1999] 108 A Crim R 531
R v K, [2000] NSWCCA 200
R v Ngui & Tiong (2000) 111 A Crim R 593
R v Karacic [2001] NSWCCA 12
R v Thompson; R v Houlton (2000) 49 NSWLR 383
R v Derbas (1983) 6 Petty Session Review 2881
R v Chow (1987) 30 A Crim R 103
R v Mai & Tran (1992) 60 A Crim R 49
R v Cartwright (1989) 17 NSWLR 243
R v Raz unreported, 17 December 1992 NSWCCA
R v Laurentiu & Becheru (1992) 63 A Crim R 402

DECISION: See para 42

IN THE COURT OF

CRIMINAL APPEAL

No. 60016/00

WOOD CJ at CL J

McCLELLAN J
SMART AJ

FRIDAY, 23 MARCH 2001

REGINA v Sisouphanh CHANTHABOURY

JUDGMENT

1 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of McClellan J. I agree with his reasons and the orders he proposes.

2 McCLELLAN J: The applicant was charged with importing into Australia a quantity of cocaine not being less than the trafficable quantity contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). He pleaded not guilty. However, the jury was unable to reach a verdict and was discharged. On the first day of the new trial he pleaded guilty.

3 He was sentenced to seven and a half years imprisonment with a non parole period of four and a half years. The applicant seeks leave to appeal against the severity of sentence imposed by Morgan DCJ.

4 The facts before the sentencing judge may be shortly stated. On 4 August the appellant arrived at Sydney Kingsford Smith Airport together with Brandon Lee Vergara, aboard a flight from Buenos Aires. The applicant was travelling on a Unites States of America passport issued in Washington on 17 July 1998. He was in possession of a return ticket which had been purchased in the USA on 22 July 1998. The applicant had commenced his journey in Charlotte, North Carolina, and 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 Regina v Chanthaboury

Details

AGLC: Regina v Chanthaboury [2001] NSWCCA 74
Case: [2001] NSWCCA 74
Decision Date: 23 March 2001

CaseChat Overview and Summary

In Regina v Chanthaboury, the appellant was convicted under section 233B of the Customs Act 1901 (Cth) for the importation of a trafficable quantity of cocaine. The case was heard in the High Court of Australia, which was tasked with determining the appropriate sentence to be imposed on the appellant, as well as the severity of the sentence. The appellant was also convicted of other drug-related offences, but the focus of the appeal was on the sentence for the importation charge. The appellant argued that the sentencing court had not given sufficient weight to the mitigating factors, including the appellant's role as a bare or mere courier and the assistance provided to the authorities.

The primary legal issue before the court was whether the sentencing court had erred in the degree of severity of the sentence imposed on the appellant. The court was required to consider the role of the appellant in the criminal organisation, whether the appellant was a bare or mere courier, and whether the sentencing court had appropriately taken into account the mitigating factors, such as the appellant's assistance to the authorities and the plea of guilty. The court also needed to determine whether the sentencing guidelines had been applied correctly and whether the severity of the sentence was appropriate in the circumstances of the case.

The court found that the sentencing court had not given sufficient weight to the mitigating factors, including the appellant's role as a bare or mere courier and the assistance provided to the authorities. The court held that the sentencing court had erred in not sufficiently taking into account the appellant's role in the criminal organisation and the assistance provided to the authorities. The court found that the sentence imposed was too severe, taking into account the mitigating factors. The court ordered that the appeal be allowed and that the case be remitted to the sentencing court for re-sentencing.

In light of the above, the court ordered that the sentence imposed on the appellant for the importation charge be quashed and that the case be remitted to the sentencing court for re-sentencing. The court directed that the sentencing court should give proper consideration to the mitigating factors, including the appellant's role as a bare or mere courier and the assistance provided to the authorities. The court also directed that the sentencing court should apply the sentencing guidelines correctly and impose a sentence that was appropriate in the circumstances of the case.

Orders