Regina v Poh Hwa CHEW - [2004] NSWCCA 132

CITATION: Regina v Poh Hwa CHEW [2004] NSWCCA 132

HEARING DATE(S): 23/4/04

JUDGMENT DATE:
23 April 2004

JUDGMENT OF: Simpson J at 1; Bell J at 2; Shaw J at 42

DECISION: 1. Leave to appeal is granted; 2. Allow the appeal and quash the sentence imposed in the District Court; 3. In lieu thereof sentence the applicant to a term of five years and three months imprisonment to date from 29 August 2002. That sentence will expire on 28 November 2007; 4. Specify a non-parole period of three years and three months to date from 29 August 2002 and to expire on 8 November 2005

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

CASES CITED: Lowe v The Queen (1984) 154 CLR 606
R v Dukino; R v Moshref [2003] NSWCCA 379
R v Thomson and Houlten (2000) 49 NSWLR 383

PARTIES :
Poh Hwa CHEW (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 60027/04

COUNSEL: M Thangaraj (Applicant)
R Bromwich (Respondent)

SOLICITORS: Catherine Hunter (Applicant)
Cth DPP

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/1123

LOWER COURT
JUDICIAL OFFICER : Christie DCJ

60027/04

Simpson J
Bell J
Shaw J
Friday 23 April 2004

REGINA v Poh Hwa CHEW

Judgment

1 SIMPSON J: The Court is in a position to deliver judgment. I ask Bell J to deliver the first judgment.

2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed on the applicant by his Honour Judge Christie (the Judge) sitting in the District Court on 19 March 2003.

3 The applicant pleaded guilty on arraignment on 24 January 2003 to an indictment charging him that, on 29 August 2002 at Sydney, he did import into Australia prohibited imports namely narcotic goods consisting of a quantity of heroin of not less than the traffickable quantity contrary to s 233B(1)(b) of the Customs Act 1901 (Cth).

4 The maximum penalty for this offence is imprisonment for 25 years and/or a fine of $500,000.

5 On 7 March 2003 the Judge sentenced the applicant to a term of six and a half years’ imprisonment to date from 29 August 2002. That sentence was expressed to expire on 28 February 2009. A non-parole period of four and a half years was specified. That non-parole period will expire on 28 February 2007.

6 The facts upon which the applicant was sentenced were contained in an agreed statement that formed part of Ex A on the sentence hearing. The following summary is taken from that statement.

7 The applicant arrived in Sydney Kingsford Smith International Airport aboard a Malaysian Airways flight from Kuala Lumpur on the morning of 29 August 2002. The co-offender, Pic Thoong Leong, travelled with him on the same flight. On arrival the Australian Customs Service referred both men to the Department of Immigration. The applicant admitted to officers of that department that he was carrying objects internally and that he had been paid to do so. He was at that 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.

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Details

Case: [2004] NSWCCA 132
Decision Date: 23 April 2004

CaseChat Overview and Summary

The case of Regina v Poh Hwa Chew involves an appeal against the severity of a sentence imposed by the District Court on the applicant for importing a significant quantity of heroin into Australia. The applicant, Poh Hwa Chew, had pleaded guilty to charges under the Customs Act 1901 and was sentenced to six and a half years in prison, with a non-parole period of four and a half years. The applicant appealed the severity of this sentence, arguing that it was disproportionate compared to the sentence given to his co-offender, who received an eight-year sentence with a longer non-parole period.

The primary legal issue before the court was whether the sentence imposed on the applicant was excessive, particularly in comparison to the sentence imposed on his co-offender. The court considered the discount given for the applicant's early guilty plea and his cooperation with law enforcement agencies, including providing evidence against his co-offender. The Crown acknowledged that the applicant had a justifiable sense of grievance due to the disparity in sentencing between him and his co-offender, though they did not concede that the original sentence was otherwise erroneous.

The Court concluded that the applicant was entitled to a significant discount for his early guilty plea and his cooperation with authorities, which warranted an aggregate discount of approximately 35%. This discount reflected both the applicant's willingness to facilitate the course of justice and his assistance in the prosecution of his co-offender. The Court found that any greater discount would not be proportionate to the gravity of the offence. As a result, the Court allowed the appeal, quashed the original sentence, and re-sentenced the applicant to five years and three months imprisonment, with a non-parole period of three years and three months.

Orders