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Tiong v The Queen

Tiong v The Queen

Case [2016] VSCA 257 25 October 2016

Appeal

Criminal Liability

Sentencing

Trafficking in drug of dependence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0128

CHIONG TECK TIONG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 September 2016
DATE OF JUDGMENT:	25 October 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 257
JUDGMENT APPEALED FROM:	[2016] VCC 833 (Judge Cannon)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in drug of dependence (2), dealing with proceeds of crime – Possession for sale – Quantities of two drugs found in offender’s possession – Whether sentences on lesser charges (18 months, 4 months) manifestly excessive – Whether cumulation manifestly excessive – Quantity trafficked – Offender’s role – Possession of second drug represented additional criminality – Current sentencing practice – Median sentence of no assistance – Sentences reasonably open – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms N Kaddeche	Turnbull Lawyers
For the Respondent	Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Cavanough AJA. I would make the orders which his Honour proposes, for the reasons which he gives.

His Honour’s reasons include substantial portions of the reasons of the sentencing judge. As is apparent from those extracts, the judge’s reasoning was careful and cogent, and paid proper attention both to the general sentencing considerations and to the particular circumstances of this offence and this offender. Unsurprisingly, no specific error is alleged. In such circumstances, it will always be difficult to show that it was not reasonably open to the judge to come to the conclusion which she did.[1]
[1]R v Stuttard [2006] VSCA 112 [26].

Finally, Cavanough AJA has noted the prosecutor’s reliance on the median sentence for this offence, as revealed by the relevant Sentencing Snapshot produced by the Sentencing Advisory Council.[2] For the reasons given by this Court in Director of Public Prosecutions v Walters (a pseudonym),[3] however, reference to the median sentence for an offence cannot assist a sentencing judge in determining the appropriate sentence in the case at hand.
[2]See [17] below.
[3][2015] VSCA 303.

The median sentence for an offence is ‘an accidental or contingent statistic’.[4] It is simply the statistical end-product of the series of sentences for the particular period covered by the Snapshot. Importantly, the median is not a measure of offence seriousness. As the Court said, it is ‘a misconception to view the median sentence as representing the sentence which would be imposed for an offence of “mid-range seriousness”’.[5]

[4]Ibid [30].

[5]Ibid [31].

CAVANOUGH AJA:

On 16 June 2016, following pleas of guilty, the applicant was convicted in the County Court of three offences, and was sentenced as follows:

Charge on Indictment
Offence Maximum Sentence Cumulation

1 Trafficking in a drug of dependence – methylamphetamine (Drugs Poisons and Controlled Substances Act 1981 s 71AC) 15 years 30 months’ imprisonment Base

2 Trafficking in a drug of dependence – cocaine (Drugs Poisons…

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 Tiong v The Queen

Details

AGLC: Chiong Teck Tiong v The Queen [2016] VSCA 257
Case: [2016] VSCA 257
Decision Date: 25 October 2016

CaseChat Overview and Summary

The appellant, Tiong, appealed against his sentence following his conviction for drug trafficking and dealing with proceeds of crime. The case was heard in the High Court of Australia. Tiong was found in possession of significant quantities of two different drugs, and he was convicted on multiple counts. The central legal issue before the court was whether the sentences imposed for the lesser charges, 18 months and 4 months, were manifestly excessive, and if the cumulative sentence was manifestly excessive considering the quantity of drugs trafficked, Tiong’s role, and the additional criminality represented by the possession of the second drug. The court had to balance these factors against current sentencing practices and the sentences reasonably open to it.

The court examined the sentences imposed and considered whether they fell within the range of sentences reasonably open to it. It noted that the median sentence for such offences was of no assistance in this context. The court concluded that the sentences on the lesser charges, while significant, were not manifestly excessive. It also found that the cumulative sentence, although lengthy, did not reach a point of manifest excessiveness given the totality of the offending. The court highlighted the need to consider the quantity of drugs, the offender’s role, and the additional criminality. The High Court ultimately determined that the sentences imposed were within the range reasonably open to it and dismissed the appeal.

In light of the findings, the High Court confirmed that the sentences imposed on the appellant were appropriate and not manifestly excessive. The court upheld the decision of the lower court, thereby finalising the matter. The sentences of 18 months and 4 months, when considered cumulatively, were deemed to be within the bounds of current sentencing practices and adequately reflective of the nature and extent of the offending.

Orders