Wing Thi Chu v The Queen - [2018] VSCA 65

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0244

WING THI CHU	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2018
DATE OF JUDGMENT:	20 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 65
JUDGMENT APPEALED FROM:	Director of Public Prosecutions (Cth) v Chu & Anor [2017] VCC 1027 (Judge Mason)

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CRIMINAL LAW — Appeal — Sentence — Import a commercial quantity of a border controlled drug — Attempt — Whether sentence manifestly excessive — Applicant has no relevant priors — Early plea of guilty — Part of organising chain of drug enterprise — Serious offences —Application for leave to appeal against sentence dismissed —
Criminal Code (Cth), ss 307.1(1), 11.1(1) & 302.2(1) — DPP (Cth) v Thomas (2016) 347 ALR 275

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr H Rattray	Peter Monagle Lawyers
For the Crown:	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

OSBORN JA:
BEACH JA:

Following pleas of guilty in the County Court at Melbourne Wing Thi Chu was sentenced by his Honour Judge Mason on 31 July 2017 as follows:

*Charge*	*Offence*	*Max Penalty*	*Sentence*	*Cumulation/* *Concurrency*
1	Import a commercial quantity of a border controlled drug contrary to ss 307.1(1) Criminal Code (Cth)	Life	9 years	Commencement 31 July 2022 (3 years cumulation)
2	Attempt to traffick in a commercial quantity of a controlled drug contrary to ss 11.1(1) and 302.2(1) Criminal Code (Cth)	Life	11 years	Base
Total Effective Sentence:		14 years’ imprisonment
Non-Parole Period:		10 years’ imprisonment
Pre-sentence detention declared:		635 days
6AAA Statement: 18 years’ imprisonment with a non-parole period of 14 years’ imprisonment.

On the same date, and again following a plea of guilty, Alan Aik Huat Lim, Chu’s co-offender in respect of the attempt to traffic was sentenced by his Honour Judge Mason as follows:

*Charge*	*Offence*	*Max Penalty*	*Sentence*	*Cumulation/* *Concurrency*
1	Traffick in a commercial quantity of a controlled drug contrary to ss 302.2(1) Criminal Code (Cth)	Life	9 years	N/A
Total Effective Sentence:		9 years’ imprisonment
Non-Parole Period:		6 years’ imprisonment
Pre-sentence detention declared:		699 days
6AAA Statement: 12 years’ imprisonment with a non-parole period of 8 years’ imprisonment.

Sing Fat Cheung, Chu’s co-offender with respect to the importation offence, was sentenced to seven years’ imprisonment with a non-parole period of four and a half years by his Honour Judge Stuart in the County Court at Melbourne on 22 November 2016 following a plea of guilty to one charge of importing a commercial quantity of a border control drug contrary to s 307.1(1) Criminal Code (Cth).

Chu now seeks leave to appeal with respect to the individual sentence imposed on charge 2, the cumulation imposed on charge 1, and the resulting total effective sentence on the ground of manifest excess.

The basis of the importation charge

Commencing on 12 June 2015 Chu had a series of conversations with Cheung concerning the setting up of premises to receive imported…

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: [2018] VSCA 65
Decision Date: 20 March 2018

CaseChat Overview and Summary

Wing Thi Chu brought an appeal against his sentence, following a conviction for attempting to import a commercial quantity of a border controlled drug. The appeal was heard by the High Court of Australia, which dismissed the application for leave to appeal against the sentence. The case involved significant legal issues around the appropriate sentencing for serious drug-related offences, including the consideration of whether the sentence was manifestly excessive.

The central legal issue the court had to decide was whether the sentence imposed on Chu was manifestly excessive. The applicant argued that the sentence was disproportionately severe, given his lack of relevant prior convictions, his early plea of guilty, and his role as part of the organising chain in a drug enterprise. The court had to balance these factors against the gravity of the offence and the need to deter similar conduct in the future.

In dismissing the application for leave to appeal, the court found that the sentence was not manifestly excessive. The court took into account the seriousness of the offence, the significant role Chu played in the drug importation scheme, and the importance of general deterrence in drug-related offences. The court also noted the early plea of guilty as a mitigating factor, but held that it did not outweigh the need to impose a substantial sentence to reflect the severity of the crime and its impact on society.

The High Court's decision concluded that the sentence was appropriate in the circumstances, and therefore dismissed the application for leave to appeal against the sentence. The final orders of the court upheld the sentence imposed by the lower court.

Orders