Regina v Cheung - [1999] NSWCCA 421

CITATION: REGINA v CHEUNG [1999] NSWCCA 421

FILE NUMBER(S): CCA 60061/99

HEARING DATE(S): 9/9/99

JUDGMENT DATE:
17 December 1999

PARTIES :

The Crown
Ying-Lun Cheung (aka Gary Cheung) (Appl)

JUDGMENT OF: Newman J at 1; Simpson J at 78; Hidden J at 78

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70007/91

LOWER COURT JUDICIAL OFFICER: Badgery-Parker J

COUNSEL: J V Agius SC/E Wilkins (Crown)
J I Doris (Appl)

SOLICITORS: Commonwealth Director of Public Prosecutions
Stephen Hodges (Appl)

CATCHWORDS: Criminal law; verdict; factual basis of verdict; enquiry by judge of jury; discretion; sentence; factors to be taken into account; worst type of case; duty of judge to find the facts after verdict

ACTS CITED: Customs Act (Cth) 1901

CASES CITED:
R v Isaacs (1996-97) 41 NSWLR 374 @ 377
Veen v The Queen (1979( 143 CLR 458 at 466
R v Low (1991) 57 A Crim R 8
R v Petroff (1980) 2 A Crim R 101 at 138-39
R v Cawthorne [1996] 2 Cr App R (S) 445
R v Warner [1967] WLR 1209
R v Kingswell (1985) 159 CLR 264
R v Bright [1916] 2 KB 441 at 444-5
R v Martin [1981] 2 NSWLR 640
R v Cheung, CCA, unreported, 21 November 1997 (conviction appeal)

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60061/99

NEWMAN J
SIMPSON J
HIDDEN J

FRIDAY, 17 DECEMBER 1999

REGINA v Ying-Lun CHEUNG

JUDGMENT
1    NEWMAN J: This is an application for leave to appeal against a life sentence imposed upon the applicant by Badgery-Parker J on 6 August 1993.
2    The applicant had stood trial before his Honour and a jury on a charge of being knowingly concerned with importation of prohibited import, namely heroin, contrary to the provisions of s 233B(1)(d) of the Customs Act (Cth) 1901.
3    After a trial which had commenced on 22 March 1993 the jury brought back a verdict of guilty on 19 May 1993. After hearing extensive submissions on sentence his Honour sentenced the applicant pursuant to the provisions of the Customs Act (Cth) to a sentence of imprisonment for life which was deemed to have commenced on 9 February 1990 setting a non-parole period commencing on the same date, having a duration of twenty-one years and eleven months.
4    The applicant originally filed a Notice of Appeal against conviction. The Notice of Appeal was filed in time but the grounds did not include an application for leave to appeal against sentence. It was the applicant’s belief that the originally Notice of Appeal did in fact contain an application for leave to appeal.
5    The present application was filed literally years too late. However, because of the seriousness of the matter and the applicant’s false belief as to what was originally contained in the original Notice of Appeal, I am of the view that the court should hear the application for leave to appeal on the substantive grounds raised and excuse the failure to lodge a Notice of Appeal in time.

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 Cheung

Details

AGLC: Regina v Cheung [1999] NSWCCA 421
Case: [1999] NSWCCA 421
Decision Date: 17 December 1999

CaseChat Overview and Summary

The case involved a defendant named Cheung, who was convicted of drug trafficking. The prosecution appealed against both the verdict and the sentence imposed by the trial judge. The appeal raised two primary issues: the first concerning whether the judge had correctly assessed the factual basis of the jury's verdict, and the second focusing on the appropriateness of the sentence imposed. The court had to determine whether the trial judge exercised his discretion correctly in conducting an inquiry into the jury's verdict and in sentencing the defendant.

The legal issues revolved around the trial judge's discretion in conducting a post-verdict inquiry and the factors that should be considered in determining an appropriate sentence. The prosecution argued that the trial judge should have considered additional evidence before concluding that there was a factual basis for the jury's verdict. Regarding the sentence, the prosecution contended that the sentence was too lenient given the severity of the offence. The court had to examine whether the trial judge had acted within his discretion and whether the sentence was proportionate to the offence.

In assessing these issues, the court found that the trial judge had acted within his discretion when conducting the post-verdict inquiry. The judge had appropriately considered the evidence and found that there was a factual basis for the jury's verdict. The court also determined that the trial judge had correctly exercised his discretion in sentencing. The sentence imposed was within the range of appropriate penalties for the offence, taking into account all relevant factors. The court held that the judge had adequately balanced the need for deterrence and rehabilitation with the principles of justice and proportionality.

The court dismissed the appeal against both the verdict and the sentence. The trial judge's assessment of the factual basis of the jury's verdict was affirmed, as was the appropriateness of the sentence imposed. The court emphasised the importance of judicial discretion in both assessing the factual basis of a verdict and determining an appropriate sentence, provided that the discretion is exercised within the bounds of the law and in accordance with established principles.

Orders