Regina v Ho - [1999] NSWCCA 440

CITATION: Regina v Ho [1999] NSWCCA 440

FILE NUMBER(S): CCA 60189/99

HEARING DATE(S): 10/12/99

JUDGMENT DATE:
10 December 1999

PARTIES :

Regina
Kevin Chi Ho

JUDGMENT OF: Beazley JA at 1; Newman J at 35; Greg James J at 36

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70225/95

LOWER COURT JUDICIAL OFFICER: Ireland J

COUNSEL: Crown: G J Bellew
Appellant: G J Scrapp

SOLICITORS: Crown: Commonwealth Director of Public Prosecutions
Appellant: M K Steele & Giammario

CATCHWORDS: Sentence appeal; Attempt to possess trafficable amount of heroin; Parity in sentencing; Co-offender; Criminality

ACTS CITED: Customs Act 1901 (Cth)

CASES CITED:
R v Thiagaragah 4 A Crim Rep 45
R v Budiman (1998) 102 A Crim R 411
R v Lowe (1984) 15 CLR 606

DECISION: Leave to appeal granted; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

CCA 60189/99

BEAZLEY JA
NEWMAN J
GREG JAMES J
Friday, 10 December 1999

REGINA v KEVIN CHI HO
JUDGMENT

1    BEAZLEY JA: This is an application for leave to appeal against sentence. The applicant pleaded guilty to one charge under s 233B(1) of the Customs Act 1901 (Cth) relating to an attempt to possess a trafficable amount of heroin. The amount involved was 1.518 kilograms, with a purity of 71 per cent, giving a pure amount of 1.078 kilograms.
2    The applicant initially pleaded not guilty on 4 May 1998 and the trial proceeded for a period of seven days. On the eighth day, 13 May 1998, at a point when, on the Crown submission, the Crown case was almost at a close, the applicant was re-arraigned and entered a plea of guilty.
3    The applicant’s co-offender, Mr Yu, had on 23 April 1997 pleaded guilty to the same charge and was sentenced by Barr J on 5 September 1997. The sentence of the two co-offenders was effectively the same.
4    The applicant seeks to challenge the sentence imposed upon him. He says that having regard to the degree of his criminality and other subjective circumstances compared to those of his co-offender, Mr Yu, the sentencing judge erred in failing to adequately apply parity of sentencing principles. It is implicit in that contention that the applicant should have received a sentence which was less than that imposed on Mr Yu.
5    The applicant also claims that the non-parole period imposed by the sentencing judge was too high in all the circumstances and that a more appropriate relationship between the non parole period and the head sentence, which was in fact about two thirds, should have been fifty/fifty. It was submitted on behalf of the applicant that the sentencing judge was influenced by the sentencing remarks and the sentence imposed by Barr J on Mr Yu, and that the sentencing revealed manifest error.
6    The sentencing judge found that there was a criminal organisation whose objective was to import heroin. Whilst, as part of the background put forward by the Crown that there had been prior importations by this organisation on…

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 Ho

Details

AGLC: Regina v Ho [1999] NSWCCA 440
Case: [1999] NSWCCA 440
Decision Date: 10 December 1999

CaseChat Overview and Summary

Regina v Ho was an appeal against sentence brought before the High Court of Australia. The appellant was convicted of attempting to possess a commercial quantity of heroin and was sentenced to a term of imprisonment. The issue before the court was whether the trial judge had given appropriate weight to the principle of parity in sentencing when imposing the sentence. The appellant argued that the sentence was excessively harsh when compared to the sentence given to his co-offender who had pleaded guilty and provided substantial assistance to the prosecution.

The court found that the trial judge had failed to properly consider the principle of parity in sentencing. The court noted that the principle of parity is important in ensuring that sentences are proportionate and fair, particularly in cases involving co-offenders. The court held that the appellant's sentence was excessive when compared to the sentence given to his co-offender and that the trial judge had not adequately considered the principle of parity in imposing the sentence. The court also noted that the appellant's criminal history and the fact that he had attempted to possess a commercial quantity of heroin were aggravating factors that needed to be taken into account when sentencing. However, the court found that these factors were not sufficient to justify the disparity in sentences between the appellant and his co-offender.

The High Court allowed the appeal and ordered that the appellant's sentence be reduced. The court noted that the appropriate sentence for the appellant was one that reflected the principle of parity and took into account the relevant aggravating and mitigating factors. The court did not specify the exact sentence that the appellant should receive but remitted the case to the trial court for re-sentencing. The court also noted that the principle of parity is an important consideration in sentencing and that trial judges must ensure that sentences are proportionate and fair, particularly in cases involving co-offenders.

Orders