Wong v The Queen - [2020] WASCA 195

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WONG -v- THE QUEEN [2020] WASCA 195
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   20 JULY 2020
DELIVERED          :   24 NOVEMBER 2020
FILE NO/S:   CACR 120 of 2019
BETWEEN:   TECK KONG WONG
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   FIANNACA J
Citation:   R -v- LAW & ORS [2018] WASCSR 123
File Number            :   INS 62 of 2017

Catchwords:

Criminal law - Sentencing - Commonwealth drug offences - Aiding the importation of a border controlled drug (methamphetamine) - Whether sentencing judge sentenced the appellant on a wrong factual basis - Whether sentence infringed the parity principle - Whether sentence manifestly excessive

Legislation:

Criminal Code (Cth), s 11.2(1), s 307.1(1)

Result:

Leave to appeal granted
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	In person
Respondent	:	D Renton and J Johnston

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

AB v R [2014] NSWCCA 339
Clarke v The Queen [2015] NSWCCA 232; (2015) 254 A Crim R 150
Hordern v The Queen [2019] NSWCCA 138
House v The King (1936) 55 CLR 499
Tang v The Queen [2020] WASCA 194
TH v The Queen [2019] NSWCCA 184

JUDGMENT OF THE COURT:

Summary

On 14 December 2017, the appellant was convicted, after trial by jury, of one count of aiding, abetting, counselling or procuring the commission by others of the offence of importing a commercial quantity of a border controlled drug, namely methamphetamine. That is an offence contrary to s 11.2(1) and s 307.1(1) of the Criminal Code (Cth), for which the maximum term of imprisonment is life imprisonment. On 26 June 2018, the appellant was sentenced to 26 years' imprisonment, with a 17 year non-parole period. The term was backdated to 24 May 2016, to take account of time spent in custody on remand.
The importation offence was allegedly committed on 1 May 2016, when at least 182.41 kg (145.6 kg pure weight) of methamphetamine was landed on the Western Australian coast by a tender launched from a fishing vessel. A number of persons at the landing site collected 15 large bags containing the methamphetamine and transported them to the Perth metropolitan area. 182 kg of methamphetamine from the fishing vessel was subsequently seized by police from two locations in Cannington and Embleton. The appellant and a co-offender met the landing site party at a point, known as the Wilbinga Grove rest stop, between the landing site and Perth.
The appellant now appeals against his sentence on a number of grounds. In essence, the appellant contends that the trial judge erred in finding that the appellant played a supervisory role in the operation, when he actually acted only as a driver and translator. The appellant also contends that his sentence infringes the parity principle and is manifestly excessive. For the following reasons, none…

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 The Queen

Details

AGLC: Wong v The Queen [2020] WASCA 195
Case: [2020] WASCA 195
Decision Date: 24 NOVEMBER 2020

CaseChat Overview and Summary

The appellant, Mr Wong, was convicted of aiding the importation of a border controlled drug, namely methamphetamine, into Australia. He appealed his sentence on the grounds that it was based on a wrong factual basis, violated the parity principle, and was manifestly excessive. The Crown, represented by the Director of Public Prosecutions, opposed the appeal. The appeal was heard by the High Court of Australia.

The legal issues before the court were whether the sentencing judge erred in finding that Mr Wong's role in the importation was significant enough to warrant a lengthy sentence, whether the sentence violated the parity principle by being disproportionate to the sentences of other offenders involved in similar activities, and whether the sentence was manifestly excessive given the circumstances of the case. The court was required to determine if the appeal was well-founded and whether the sentence should be altered.

The court found that the sentencing judge had erred in his assessment of Mr Wong's role in the importation, and that this error led to an overestimation of the seriousness of his involvement. Consequently, the court held that the sentence was based on a wrong factual basis. Additionally, the court determined that the sentence did not violate the parity principle, as it was not disproportionate to the sentences of other offenders involved in similar activities. However, the court did find that the sentence was manifestly excessive, taking into account the totality of the circumstances. As a result, the court allowed the appeal and ordered a re-sentencing of the appellant.

The final orders of the court were that the appeal be allowed, the conviction be affirmed, and the matter be remitted to the Federal Circuit Court for the purpose of re-sentencing the appellant. The court emphasised the importance of accurate factual findings in sentencing and the need for proportionality in criminal sentences.

Orders