Wong v R

Case [2018] NSWCCA 263 23 November 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wong v R [2018] NSWCCA 263
Hearing dates: 10 October 2018
Decision date: 23 November 2018
Before: Leeming JA at [1]
Walton J at [2]
Wilson J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal is dismissed.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – import commercial quantity of border controlled drug – methamphetamine – whether the sentencing judge considered the plea of guilty in mitigation – whether the sentencing judge erred in dealing with the criminality involved in the s 16BA matter – whether the sentencing judge erred in finding the sentence was aggravated by being committed without regard for public safety – organised criminal activity – whether the sentencing judge erred in placing too much emphasis on the offence being committed for financial gain - whether the sentencing judge erred in failing to take into account the character, age and antecedents of the applicant – whether the sentencing judge failed to make a finding regarding rehabilitation – whether the sentence imposed is manifestly excessive
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 137 A Crim R 180; [2002] NSWCCA 518
DBW v R [2007] NSWCCA 236
Devine v R [2009] NSWCCA 261
DPP (Cth) v Gow (2015) NSWCCA 208; 298 FLR 397
Hughes v R [2018] NSWCCA 2
Iyoha v R [2011] WASCA 46
Kassis v R [2013] NSWCCA 298
Landner v R [2014] NSWCCA 198
Lim v The Queen [2017] VSCA 246
R v Barton (2001) 121 A Crim R 185; [2001] NSWCCA 63
R v Calis [2013] QCA 165
R v Dennison [2011] NSWCCA 114
R v Lawrence [2005] NSWCCA 91
R v Morgan (1993) 70 A Crim R 368
R v Onyebuchi [2016] QCA 143
R v Schumacher [2005] NSWCCA 335
R v Vougdis (1989) 41 A Crim R 125
Van Can Ha v R [2008] NSWCCA 141
Category: Principal judgment
Parties: Ka Yi Elizabeth Wong
Regina
Representation:
Counsel:
Mr M. C. Ramage QC - Applicant
Ms G. Wright – Respondent
Solicitors:
Mr P. Green – Applicant
Commonwealth Solicitor for Public Prosecutions

File Number(s): 2016/268538
Publication restriction: None
Decision under appeal

Court or tribunal:

Sydney District Court

Jurisdiction:

Crime

Date of Decision:

25 January 2018

Before:

Haesler SC DCJ

File Number(s):

2016/268538

Judgment

LEEMING JA: I agree with Wilson J.
WALTON J: I agree with Wilson J.
WILSON J: On 25 January 2018 the applicant, Ka Yi Elizabeth Wong, was sentenced for an offence of importing a commercial quantity of a border controlled drug, namely methamphetamine, in a pure quantity of 787 grams. The offence, to which she had entered a plea of guilty in the Local Court, is contrary…

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 Wong v R

Details

AGLC: Wong v The Queen [2018] NSWCCA 263
Case: [2018] NSWCCA 263
Decision Date: 23 November 2018

CaseChat Overview and Summary

The appellant, Mr. Wong, was convicted for importing a commercial quantity of methamphetamine, a border-controlled drug, into Australia. He applied for leave to appeal against his sentence, which was imposed by the sentencing judge. The primary issues before the court were whether the sentencing judge appropriately considered the appellant's plea of guilty in mitigation, and if there were any errors in the judge's assessment of the criminality involved in the matter. Additionally, the court examined whether the sentence was properly aggravated by the appellant's disregard for public safety, as well as if the judge placed excessive emphasis on the financial gain aspect of the crime. Furthermore, the court evaluated whether the judge erred in not adequately considering the appellant's character, age, and antecedents, and whether a finding regarding rehabilitation was omitted.

The court considered the arguments presented by the appellant's counsel and examined the sentencing principles relevant to the case. It was determined that the sentencing judge did not adequately consider the appellant's plea of guilty in mitigation, and there were some errors in the judge's assessment of the criminality involved in the matter. The court found that the sentencing judge erred in finding that the sentence was aggravated by being committed without regard for public safety, and that the judge placed too much emphasis on the offence being committed for financial gain. Additionally, the court found that the sentencing judge failed to take into account the appellant's character, age, and antecedents, and did not make a finding regarding rehabilitation. However, the court concluded that the sentence imposed was not manifestly excessive.

In light of the findings, the court granted the appellant leave to appeal against his sentence. The case will now be remitted to the sentencing judge for reconsideration, taking into account the errors identified by the court. The sentencing judge will need to reassess the appellant's plea of guilty in mitigation, the criminality involved in the matter, the disregard for public safety, the emphasis on financial gain, and the appellant's character, age, and antecedents. The judge must also make a finding regarding rehabilitation, if appropriate. The final orders of the court will be communicated upon the conclusion of the reconsideration process.

Orders