Wong v R (Cth) - [2020] NSWCCA 311

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wong v R (Cth) [2020] NSWCCA 311
Hearing dates: 18 November 2020
Decision date: 27 November 2020
Before: Hoeben CJ at CL at [1];
Price J at [36];
Fagan J at [37]
Decision:
(1)   The applicant is allowed an extension of time within which to seek leave to appeal against sentence.
(2)   Leave to appeal against sentence is granted.
(3)   The appeal against sentence is allowed.
(4)   The sentence imposed by Cogswell SC DCJ on 18 May 2012 is quashed.
(5)   In lieu thereof, the applicant is sentenced to imprisonment for 17 years and 6 months, commencing 21 December 2010 and expiring 20 June 2028, with a non-parole period of 11 years and 8 months expiring 20 August 2022.

Catchwords:
CRIMINAL LAW – sentence appeal – possession of a commercial quantity of a border controlled drug suspected of having been unlawfully imported – sentence of imprisonment for 18 years with a non-parole period of 12 years – error in failing to assess the utility of an early plea of guilty – need to resentence applicant – sentence of imprisonment for 17 years and 6 months with a non-parole period of 11 years and 8 months.

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code (Cth)

Cases Cited:
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
SZ v Regina (2007) 168 A Crim R 249; [2007] NSWCCA 19
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category: Principal judgment
Parties: Kok Loong Wong – Applicant
Regina (Cth) – Respondent
Representation:
Counsel:
S Fraser – Applicant
P McEniery – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Commonwealth Director of Public Prosecutions – Respondent Crown

File Number(s): 2010/422622
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

18 May 2012

Before:

Cogswell SC DCJ

File Number(s):

2010/422622

JUDGMENT

HOEBEN CJ at CL:

Offences and sentence

On 18 May 2012, his Honour Judge Cogswell SC, following a plea of guilty in the Local Court, sentenced the applicant for an offence of possess a commercial quantity of a border controlled drug, reasonably suspected of having been unlawfully imported, contrary to s 307.8(1) of the Criminal Code (Cth). In sentencing the applicant his Honour took into account an offence of deal with money which was greater than $100,000 being reckless as to whether that money was the proceeds of crime.

The applicant was sentenced to imprisonment for 18 years with a non-parole period of 12 years, to date from 21 December 2010. The applicant’s non-parole period expires on 20 December 2022.
The maximum penalty for this offence is imprisonment for life and/or a fine of 7,500 penalty units.
A single ground of appeal is advanced in support of the application: the sentencing judge did not have regard to the utilitarian value of the applicant’s plea of guilty.
The Crown’s submissions in response to the application…

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 (Cth)

Details

AGLC: Wong v R (Cth) [2020] NSWCCA 311
Case: [2020] NSWCCA 311
Decision Date: 27 November 2020

CaseChat Overview and Summary

The case of Wong v R (Cth) involved the appellant, who was convicted of possessing a commercial quantity of a border-controlled drug suspected of being unlawfully imported. The appellant was sentenced to imprisonment for 18 years, with a non-parole period of 12 years. The primary issue before the court was whether the original sentencing judge had erred in failing to assess the utility of the appellant's early plea of guilty, which could have potentially led to a more lenient sentence. The court was required to determine whether the sentence imposed was manifestly inadequate or excessive in light of the error made by the trial judge.

The court held that the trial judge had indeed erred in not considering the appellant's early plea of guilty, which was a significant factor that should have been taken into account when determining the sentence. The court found that the error had the potential to influence the overall sentence, making it necessary to resentence the appellant. In resentencing, the court considered all relevant factors, including the nature and circumstances of the offence, the appellant's background, and the utility of the early plea of guilty. The court ultimately determined that a sentence of imprisonment for 17 years and 6 months with a non-parole period of 11 years and 8 months was appropriate.

The court's decision highlights the importance of considering all relevant factors, including an early plea of guilty, when determining a sentence. The resentencing demonstrates a more balanced approach that takes into account the mitigating effects of the appellant's early plea. The final orders of the court involved the reduction of the appellant's original sentence to a sentence of imprisonment for 17 years and 6 months with a non-parole period of 11 years and 8 months. This decision serves as a reminder to sentencing judges to carefully consider all relevant factors, including an early plea of guilty, when determining an appropriate sentence.

Orders