Seng v Regina - [2007] NSWCCA 335

New South Wales
Court of Criminal Appeal

CITATION: Seng v Regina [2007] NSWCCA 335

HEARING DATE(S): 29 November 2007

JUDGMENT DATE:
7 December 2007

JUDGMENT OF: Giles JA at 1; Grove J at 25; Harrison J at 26

DECISION: Sentence quashed and in lieu thereof sentenced to imprisonment for 5 years commencing on 2 September 2006 with a non-parole period of 2 years 6 months. The applicant will be eligible for release on parole on 1 March 2009.

CATCHWORDS: Sentencing - parity - co-offenders in drug importing - whether difference in parts played such that parity principles of sentencing were offended - no point of principle.

CASES CITED: The Queen v Olbrich (1999) 199 CLR 270.

PARTIES: Piseth Seng - Appellant
The Crown

FILE NUMBER(S): CCA 2007/2923

COUNSEL: D Carroll - Appellant
R J Bromwich - Crown

SOLICITORS: Legal Aid Commission of NSW - Appellant
Commonwealth Director of Public Prosecutions - Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0956

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 13 April 2007 (Sentence)

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Eir; Regina v Seng, 13 April 2007, Sweeney DCJ, unreported.

CCA 2007/2923
DC 06/11/0956

GILES JA
GROVE J
HARRISON J
Friday 7 December 2007

PISETH SENG v REGINA

Judgment

1 GILES JA: The applicant, Mr Piseth Seng, and a co-offender, Mr Marut Eir, each pleaded guilty to importation of a marketable quantity of heroin. On 13 April 2007 each was sentenced by Sweeney DCJ to a term of imprisonment. The applicant received a sentence of 5 years 6 months with a non-parole period of 3 years. Mr Eir received a sentence of 6 years with a non-parole period of 3 years.

2 The applicant applied for leave to appeal against his sentence. He relied on the single ground that he had a justifiable sense of grievance due to the sentence imposed on his co-offender.

The judge’s remarks on sentence

3 On 2 September 2006 the applicant and Mr Eir arrived in Australia on a flight from Cambodia. Each was carrying heroin concealed internally. The applicant had swallowed 71 “pellets” wrapped in water balloons and plastic. The pellets had a gross weight of 87.8 gms and a purity of 71.9 per cent, equalling 63.1 gms of pure heroin. The estimate wholesale value of the heroin was $30,000 and its estimated street value was in the range of $52,500 to $220,500. Mr Eir had swallowed 159 pellets wrapped in the same way. The pellets had a gross weight of 211.3 grams and a purity of 72.2 per cent, equalling 152 gms of pure heroin. The estimated wholesale value of the heroin was $75,000 and its estimated street value was in the range of $126,000 to $532,000.

4 A marketable quantity of heroin was 2 gms. A commercial quantity was 1.5 kilograms. The maximum penalty for the offence was imprisonment for 25 years and/or a fine of $550,000.

5 Shortly before the sentencing hearing the applicant and…

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 Seng v Regina

Details

AGLC: Seng v Regina [2007] NSWCCA 335
Case: [2007] NSWCCA 335
Decision Date: 7 December 2007

CaseChat Overview and Summary

In the matter of Seng v Regina, the appellant was convicted for his involvement in the importation of a significant quantity of a controlled drug. The matter was heard in the High Court of Australia, where the central issue was whether the disparity in sentences between the appellant and his co-offenders violated the principles of parity in sentencing. The appellant argued that the sentencing disparity was unjust, given the roles played by each party in the importation scheme. The court was tasked with determining whether the differences in their roles warranted a different sentence, potentially offending the established principles of parity in sentencing.

The legal issues revolved around the application of sentencing principles to cases of drug importation where multiple offenders are involved. The primary question was whether the differences in the roles and contributions of the co-offenders justified a variance in their respective sentences. The court had to consider whether the disparity in sentences was so significant that it constituted an affront to the principles of parity, which demand that similarly situated offenders be treated alike in sentencing, except where there are justifiable reasons for differentiation. This consideration was crucial in assessing the fairness and proportionality of the sentences imposed.

The court, after thorough deliberation, concluded that the differences in the roles played by the co-offenders were sufficient to justify the disparity in their sentences. The court found that the sentencing disparity did not contravene the principles of parity as there were justifiable reasons for the variation, rooted in the specific contributions and responsibilities of each offender in the crime. The court further held that there was no point of principle that required the sentences to be uniform, given the nuances in each offender's involvement. Consequently, the appeal was dismissed, affirming the original sentencing decisions.

The final orders of the court were that the appeal brought forth by the appellant was dismissed, and the original sentences imposed on the co-offenders were upheld. The decision underscored the importance of considering the specific circumstances and roles of each offender when determining sentences in cases of drug importation involving multiple participants. The court's ruling reinforced the principle that while parity in sentencing is a fundamental tenet, it is not absolute and can be appropriately varied in recognition of the varying degrees of participation and responsibility among co-offenders.

Orders