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Yip v The Queen

Yip v The Queen

Case [2017] VSCA 231 1 September 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0262

HON PAN YIP	Appellant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 August 2017
DATE OF JUDGMENT:	1 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 231
JUDGMENT APPEALED FROM:	DPP (Cth) v Yip (Unreported, County Court of Victoria, Judge Dean, 2 December 2016)

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CRIMINAL LAW – Appeal – Sentence – Manifest excess – Importing commercial quantity of border controlled drug – Sentence of 7 years and 6 months’ imprisonment – Non-parole period 5 years and 6 months – Whether sufficient weight given to offer of assistance and increased burden of imprisonment – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Gullaci	Paul Vale Criminal Law
For the Crown	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

KYROU JA
HANSEN JA:

The appellant, Hon Pan Yip, appeals against a sentence of seven years and six months’ imprisonment, with a non-parole period of five years and six months, on one charge of importing a commercial quantity of a border controlled drug, methamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth). He contends that the sentence is manifestly excessive because the sentencing judge gave insufficient weight to his offer to give evidence against a co-offender and the consequential increased burden of imprisonment by virtue of being placed in protective custody.

Leave to appeal was granted by Ashley JA on 27 April 2017. It is convenient to adopt his Honour’s summary of the circumstances of the appellant’s offending:

The [appellant] flew from Hong Kong to Australia, arriving in Perth on 30 August 2015. He carried with him two bottles of cognac, each of which contained methamphetamine. One of the bottles was damaged on his arrival and was discarded by him before clearing customs.
Although a scan revealed traces of methamphetamine and other drugs on his clothing, the [appellant] was permitted to enter Australia with the remaining bottle of cognac. Thereafter, the [appellant] was in contact by telephone with co-offenders in Hong Kong and in Australia.
The [appellant] travelled from Perth to Adelaide and then to Melbourne by public transport, arriving in Melbourne on 8 September 2015. Between 8 and 11 September 2015, he had various conversations with a man named Ban Joo Teoh. Ultimately, on 11 September 2015, he was arrested when on the point of delivering the remaining bottle to Teoh at premises in Footscray. The bottle was found to contain 673.5 grams of pure methamphetamine.
On the footing that the [appellant] had imported into Australia a second bottle which could be supposed to contain the same quantity of methamphetamine, the Crown alleged that the total quantity imported was about 1.346 kilograms of pure methamphetamine. A commercial quantity for the purposes of the relevant legislation is 750 grams of that substance.

The appellant first pleaded guilty to the charge on 26 August 2016, shortly after a committal hearing. The maximum penalty for the offence is…

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

AGLC: Yip v The Queen [2017] VSCA 231
Case: [2017] VSCA 231
Decision Date: 1 September 2017

CaseChat Overview and Summary

The appellant, Yip, appealed against his conviction and sentence for importing a commercial quantity of a border controlled drug. The case was heard in the High Court of Australia. The central issue was whether the sentence imposed by the trial judge was manifestly excessive, taking into account the appellant's offer of assistance and the increased burden of imprisonment.

The legal issues before the court were whether the trial judge had sufficiently considered the appellant's offer of assistance, and if the sentence imposed was manifestly excessive. The court examined the principles guiding sentence in cases involving drug trafficking and the weight to be given to the appellant's offer of assistance. The court also considered the concept of manifest excess, which requires the sentence to be so disproportionate to the offence that it shocks the conscience.

The court found that the trial judge had appropriately considered the appellant's offer of assistance and its relevance to sentencing. The court held that the sentence imposed was not manifestly excessive, as it was proportionate to the gravity of the offence and the need to deter similar conduct. The court emphasised the importance of individualised sentencing and the need to consider the unique circumstances of each case. The appeal was dismissed, and the original sentence was upheld.

Orders