Wong v The Queen

Link copied
Case Copied 83 min read

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

TAK FAT WONG   APPELLANT

AND

THE QUEEN  RESPONDENT

Wong v The Queen
[2001] HCA 64
15 November 2001
S193/2000

ORDER

1.Appeal allowed.

2.Set aside the order of the Court of Criminal Appeal of New South Wales dated 16 December 1999.

3.Remit the matter to that Court for further hearing and determination conformably with the reasons of this Court.

On appeal from the Supreme Court of New South Wales

Representation:

J Basten QC with N J Williams for the appellant (instructed by Legal Aid Commission of New South Wales)

P S Hastings QC with F A Veltro for the respondent (instructed by Commonwealth Director of Public Prosecutions)

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with M J Leeming intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor).

B M Selway QC, Solicitor-General for the State of South Australia with C D Bleby intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia).

M G Sexton SC, Solicitor-General for the State of New South Wales with K M Guilfoyle intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales).

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

JACKIE KAI CHU LEUNG   APPELLANT

AND

THE QUEEN  RESPONDENT

Leung v The Queen
15 November 2001
S198/2000

ORDER

1.   Appeal allowed.

2.   Set aside the order of the Court of Criminal Appeal of New South Wales dated 16 December 1999.

3.   Remit the matter to that Court for further hearing and determination conformably with the reasons of this Court.

On appeal from the Supreme Court of New South Wales

Representation:

J Basten QC with G D Wendler for the appellant (instructed by Van Houten)

P S Hastings QC with F A Veltro for the respondent (instructed by Commonwealth Director of Public Prosecutions)

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with M J Leeming intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor).

B M Selway QC, Solicitor-General for the State of South Australia with C D Bleby intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia).

M G Sexton SC, Solicitor-General for the State of New South Wales with K M Guilfoyle intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales).

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. GLEESON CJ. The Court of Criminal Appeal of New South Wales allowed appeals by the Commonwealth Director of Public Prosecutions pursuant to s 5D…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Wong v The Queen and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2001] HCA 64
Decision Date

CaseChat Overview and Summary

The appeals concerned the sentencing of the appellants, who had been convicted of being knowingly concerned in the importation of a commercial quantity of heroin contrary to the *Customs Act 1901* (Cth). The Director of Public Prosecutions (Cth) appealed to the Court of Criminal Appeal of New South Wales against the sentences imposed by the trial judge, arguing they were manifestly inadequate. The Court of Criminal Appeal allowed these appeals, increasing the sentences. The High Court of Australia heard appeals from the appellants against the decision of the Court of Criminal Appeal.

The High Court was required to determine whether the Court of Criminal Appeal erred in increasing the sentences imposed by the trial judge, and whether any such error was attributable to the Court of Criminal Appeal's publication of "quantitative guideline" judgments for offences under section 233B of the *Customs Act 1901* (Cth). Specifically, the Court considered whether the promulgation of these guidelines was incompatible with the exercise of federal jurisdiction by a state court and whether the guidelines were inconsistent with the *Crimes Act 1914* (Cth), which sets out the matters to which a sentencing judge must have regard.

The High Court found that while the Court of Criminal Appeal's criticism of its own guidelines was valid in relation to their likely future application, this criticism did not bear on the outcome of the present appeals. The Court agreed with the appellants that the guidelines, by their specificity and the weight they attached to the objective quantity of heroin imported, carried a substantial risk of leading to sentencing approaches inconsistent with section 16A of the *Crimes Act 1914* (Cth). However, the Court concluded that the decision of the Court of Criminal Appeal in increasing the sentences for the appellants was not shown to be in error.

The High Court allowed the appeals, set aside the order of the Court of Criminal Appeal of New South Wales dated 16 December 1999, and remitted the matter to that Court for further hearing and determination in conformity with the reasons of the High Court.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal of New South Wales dated 16 December 1999.

3. Remit the matter to that Court for further hearing and determination conformably with the reasons of this Court.

Background

Background to the litigation

These appeals were heard together. They raise the same questions: whether the Court of Criminal Appeal of New South Wales erred, in increasing the sentences imposed upon the appellants by the trial judge; and, whether that error was caused by, or perhaps may be discerned from, the lengthy discourse about, and statement of, the sentencing guidelines in the Court's reasons for judgment, albeit that the Court held that the guidelines had no application to these appellants. It is relevant to notice at the outset that because the appellants were charged with offences under s 233B(1)(d) of the Customs Act 1901 (Cth) ("the Act"), the courts below were, in dealing with the appellants, exercising federal jurisdiction. The facts On 8 November 1997 the appellants were arrested in Sydney and charged with being knowingly concerned in the importation of a "commercial"[218] quantity of heroin in contravention of s 233B of the Act. On 7 September 1998 the appellants were convicted by a jury in the District Court of New South Wales. On 18 December 1998, each was sentenced by the trial judge, Davidson DCJ, to a term of 12 years imprisonment with a non-parole period of seven years, dating from 8 November 1997.[218]See Sched VI of the Act. On 24 February 1999 the Acting Commonwealth Director of Public Prosecutions ("the Director") gave notice of intention to appeal against the sentences imposed on the appellants on the ground that they were manifestly inadequate. The appeals were listed for hearing before a Court of Criminal Appeal constituted by five judges, Spigelman CJ, Mason P, and Simpson, Sperling and Barr JJ because, before the hearing, the Director gave notice that he sought a "guideline judgment" in relation to offences under s 233B of the Act with respect to the importation of heroin. In support of his submissions that there should be a guideline judgment, the Director submitted a comprehensive bundle of documentary material to the Court relating to the prevalence of offences under s 233B, approaches to sentencing adopted in other jurisdictions, and an analysis of sentences imposed for various contraventions of s 233B by New South Wales courts, and by other Australian State and Territory courts. The Court of Criminal Appeal gave judgment on 16 December 1999. All members of it agreed with the judgment of the Chief Justice, subject to a reservation expressed by Simpson J[219], as to "the suitability of the cases presently before the Court to provide the foundation for a guideline judgment in relation to couriers and persons low in the hierarchy of an importing organisation".[219]R v Wong; R v Leung (1999) 48 NSWLR 340 at 372 [189]. Spigelman CJ accepted the submission of the Director that the case was an appropriate one in which to promulgate a guideline judgment. The guidelines were as follows[220]:[220]R v Wong; R v Leung (1999) 48 NSWLR 340 at 366 [142]."The following guideline is intended to be non-binding in the sense explained in Jurisic[[221]] and Henry[[222]]. It has been determined primarily on the basis of existing sentencing patterns and is intended to apply to couriers and persons low in the hierarchy of the importing organisation.[221]R v Jurisic (1998) 45 NSWLR 209.[222]R v Henry (1999) 46 NSWLR 346.· Low level traffickable quantity - 5 to 7 years (2 grams-200 grams) · Mid level traffickable quantity - 6 to 9 years (200 grams-1 kilogram) · High range traffickable quantity - 7 to 10 years 1 kilogram-1.5 kilograms (heroin) 1 kilogram-2 kilograms (cocaine) · Low range commercial quantity - 8 to 12 years 1.5 kilograms-3.5 kilograms (heroin) 2 kilograms-3.5 kilograms (cocaine) · Substantial commercial quantity - 10 to 15 years (3.5 kilograms-10 kilograms)"

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ GAUDRON, GUMMOW AND HAYNE JJ CALLINAN J (dissent)
Even so, there is, in my view, a valid criticism to be made of the guidelines, although it is not one that has a bearing on the outcome of the present appeals. There is utility in addressing the criticism, because of the danger that in future cases, where the guidelines are applied, error may result. I agree with the contention of the appellants that, making due allowance for all the qualifications with which the guidelines were accompanied, there is a substantial risk that they may result in an approach to sentencing which is inconsistent with the requirements of s 16A of the Crimes Act 1914 (Cth). Insofar as they are a mere compilation or classification of sentencing information, then they are either accurate or inaccurate, helpful or unhelpful. But they are clearly intended to be more than that. The effect they will have, is to constrain the exercise of sentencing discretion. This is a risky undertaking when there is a federal statute which spells out in detail the matters to be taken into account by a sentencing judge. The statute is important both for what it says and for what it does not say. In particular, the guidelines, in their specificity, and in the significance they attach to the objective fact of the quantity of heroin imported, which is broken down into sub-categories which have no statutory foundation, are likely to lead to error. To take one example, which is not uncommon, although it has nothing to do with the present case, it may be that an offender's state of information and belief about the quantity of heroin imported is much more significant than the objective fact as to quantity. A given judge, looking at the guidelines, but also taking account of all the qualifications expressed, might not necessarily take an approach inconsistent with s 16A. But there is a real risk that another judge might.Conclusion The decision of the Court of Criminal Appeal has not been shown to be in error. There is a valid criticism to be made of guidelines that were formulated in relation to couriers, but that criticism relates to the use that is likely to be made of the guidelines in future cases and has no bearing upon the present case. The appeals should be dismissed. The appellants were convicted of being knowingly concerned in the importation into Australia of a quantity of heroin not less than the commercial quantity applicable to heroin[17]. They now appeal against orders of the Court of Criminal Appeal of New South Wales[18] made on appeals by the Director of Public Prosecutions (Cth) against the sentences imposed on them by the trial judge. The Director's appeals to the Court of Criminal Appeal were allowed. The sentence of 12 years with a non parole period of seven years imposed on each of the appellants was quashed and in lieu each was sentenced by the Court of Criminal Appeal to 14 years with a non parole period of nine years.[17]Customs Act 1901 (Cth), s 233B. Schedule VI of that Act specifies the commercial quantity applicable to heroin as 1.5 kg.[18]R v Wong; R v Leung (1999) 48 NSWLR 340 (Spigelman CJ, Mason P, Simpson, Sperling and Barr JJ).

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GAUDRON, GUMMOW AND HAYNE JJ,

Full text does not contain this section.