Seah v The Queen - [2011] NSWCCA 269

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hoon Tiong SEAH v R [2011] NSWCCA 269
Hearing dates: 24 June 2011
Decision date: 14 December 2011
Before: McClellan CJ at CL at [1];
Hidden J at [2];
Johnson J at [37]
Decision:
Leave to appeal granted, appeal dismissed.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - importing heroin - complaints that sentencing judge gave undue weight to quantity of drug - status of Wong and Leung guidelines - other complaints concerning weight given to remorse, co-operation with authorities and rehabilitation - no question of principle
Legislation Cited: Criminal Code 1995
Crimes Act 1914 (C'th)
Cases Cited: R v Wong and Leung [1999] NSWCCA 420, 45 NSWLR 340
R v Cheung and Choi [2010] NSWCCA 244, 203 A Crim R 398
Wong v The Queen [2001] HCA 64, 207 CLR 584
DPP (Cth) v De La Rosa [2010] NSWCCA 194, 205 A Crim R 1
Category: Principal judgment
Parties: Hoon Tiong Seah (applicant)
Regina (respondent)
Representation: M Paish (applicant)
P M McGuire (respondent)
Stephen Tully - Tully & Co Solicitors (applicant)
Carole Ruthchild - Solicitor for the Commonwealth Director of Public Prosecutions (respondent)

File Number(s): 2009/71507
Decision under appeal

Date of Decision:

2010-02-12 00:00:00

Before:

Blackmore DCJ

File Number(s):

2009/71507

Judgment

McClellan CJ at CL: I agree with Hidden J.

Hidden J: The applicant, Hoon Tiong Seah, pleaded guilty in the District Court to importing a marketable quantity of heroin, an offence under s 307.2(1) of the Criminal Code 1995 (Cth) which carries a maximum sentence of 25 years imprisonment. He was sentenced to imprisonment for 8 years with a non-parole period of 5 years, to date from 25 July 2009, the day of the offence and of his arrest. He seeks leave to appeal against that sentence.

Facts

The facts can be summarised briefly. The applicant and another offender, Boon Leng Kuek, travelled to Australia from Malaysia, arriving on 25 July 2009. Each of them was found by customs officers to be carrying a quantity of heroin secreted in his shoes. The applicant brought in 571 grams of a substance which contained 423.6 grams of pure heroin. Mr Kuek was carrying a somewhat larger quantity.

Strictly speaking, the two men were not co-offenders in the same criminal enterprise. They knew each other and travelled to Australia together, but each was charged with the amount of heroin he imported.

After initially denying any knowledge of the drugs, both of them claimed to have been given the shoes by a contact in Kuala Lumpur. They booked their flights and paid for them with money supplied by that person. Each of them expected to receive between $10,000 and $20,000 when they returned to Malaysia. The street value of the drug brought in by the applicant was estimated to be between $494,200 and $847,200. The street value of the drug brought in by Mr Kuek was somewhat higher.

The sentencing judge dealt…

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 Seah v The Queen

Details

AGLC: Seah v The Queen [2011] NSWCCA 269
Case: [2011] NSWCCA 269
Decision Date: 14 December 2011

CaseChat Overview and Summary

The case before the court involved an appeal against sentence by the applicant, Seah, who had been convicted of importing heroin. The applicant contested the severity of the sentence imposed by the sentencing judge, arguing that undue emphasis was placed on the quantity of the drug imported. The appeal was heard by the High Court of Australia, which was required to determine whether the applicant's complaints about the sentence were sufficient to warrant leave to appeal.

The central legal issues before the court were whether the sentencing judge had erred in the way they assessed and weighted various factors in determining the sentence. Specifically, the court needed to consider whether the judge had given excessive weight to the quantity of the drug imported, and whether the judge had appropriately considered the guidelines established in previous cases, known as the Wong and Leung guidelines. Additionally, the court examined whether the sentencing judge had correctly evaluated the weight to be given to the applicant's remorse, co-operation with authorities, and potential for rehabilitation.

The court found that while the applicant had made several complaints about the sentence, there was no question of principle involved in the case. The court concluded that the sentencing judge had not given undue weight to the quantity of the drug imported and had appropriately considered all relevant factors, including the Wong and Leung guidelines. The court found that the sentencing judge had correctly assessed the weight to be given to the applicant's remorse, co-operation with authorities, and potential for rehabilitation. Consequently, the court decided not to grant leave to appeal, as the applicant's complaints did not present a matter of principle that required further consideration by the High Court.

No further orders were made by the court beyond the refusal of leave to appeal.

Orders