Yow v R

Case [2010] NSWCCA 251 5 November 2010

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New South Wales
Court of Criminal Appeal

CITATION: Yow v R [2010] NSWCCA 251

HEARING DATE(S): 8 Sep 2010

JUDGMENT DATE:
5 November 2010

JUDGMENT OF: Hodgson JA; Price J; Fullerton J

DECISION: 1. Leave to appeal granted.
2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - fraudulent use of counterfeit credit cards - organised criminal syndicate - whether sentencing judge erred by having regard to prospect of applicant’s deportation - whether sentences imposed, both individually and cumulatively, were manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Johnson v R; Moody v R [2010] NSWCCA 124
R v Fidow [2004] NSWCCA 172
R v Finn [2002] NSWCCA 86
R v Fisher [2001] NSWCCA 143
R v George [2004] NSWCCA 247; 149 A Crim R 38
R v Trevenna [2004] NSWCCA 43; 149 A Crim R 505
R v Van Xuan Nguyen [2005] NSWSC 600
Rose v R [2010] NSWCCA 166

PARTIES: Ngai Meng Yow (App)
The Crown (Resp)

FILE NUMBER(S): CCA 2009/134181

COUNSEL: J Stratton SC (App)
J Pickering (Resp)

SOLICITORS: Legal Aid Commission (App)
Director of Public Prosecutions (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/11/0761

LOWER COURT JUDICIAL OFFICER: Syme DCJ

LOWER COURT DATE OF DECISION: 13 Nov 2009

- 1 -

2009/134181

HODGSON JA
PRICE J
FULLERTON J

5 NOVEMBER 2010

NGAI MENG YOW v R

JUDGMENT

1 HODGSON JA: I agree with Fullerton J.

2 PRICE J: I agree with Fullerton J.

3 FULLERTON J: The applicant seeks leave to appeal against sentences imposed in the District Court on 13 November 2009 after he pleaded guilty at the Central Local Court on 11 August 2009 to nine offences upon which he was committed for sentence.

4 The nine offences included two counts of making a false instrument with intent contrary to s 300(1) of the Crimes Act 1900 (with a further 23 offences of making a false instrument with intent on each of two Form 1s), five counts of using a false instrument with intent contrary to s 300(2) of the Crimes Act and one count of having a false instrument with intent to use it contrary to s 302 of the Crimes Act. All counts attracted a maximum of 10 years imprisonment. He also pleaded guilty to one count of knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act for which a maximum sentence of 15 years is provided (together with three matters on a Form 1, namely a further breach of s 193B(2) of the Crimes Act and two charges of being an accessory before the fact to offending against s 300(2) of the Crimes Act).

5 The applicant was sentenced as follows:

i. On each of the two counts of make false instrument with intent contrary to s 300(1), concurrent sentences of 3 years and 1 month with a non-parole…

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 Yow v R

Details

AGLC: Yow v R [2010] NSWCCA 251
Case: [2010] NSWCCA 251
Decision Date: 5 November 2010

CaseChat Overview and Summary

In the case of Yow v R, the appellant, Yow, was convicted of multiple counts of fraudulent use of counterfeit credit cards, offences that were committed as part of a larger organised criminal syndicate. The High Court of Australia heard an appeal against the sentence imposed by the lower court, specifically questioning whether the sentencing judge had erred by considering the prospect of the appellant's deportation. Additionally, the court was asked to determine whether the sentences imposed, both individually and cumulatively, were manifestly excessive.

The legal issues central to this appeal revolved around the sentencing process and the principles guiding the imposition of penalties. The appellant argued that the sentencing judge had improperly considered his potential deportation, which is a matter not within the purview of the sentencing judge, and that the sentences imposed were excessively harsh. The respondent, the Crown, maintained that the sentences were within the appropriate range and that the judge's consideration of deportation was not an error.

The Court addressed the issue of the sentencing judge's consideration of deportation by clarifying that while deportation is a matter for the executive branch, the potential for deportation can be relevant in the context of sentencing if it pertains to the appellant's criminal conduct or the impact of the crime on the community. However, the Court found that in this instance, the judge had not misdirected himself in this regard. Regarding the severity of the sentences, the Court assessed whether they were manifestly excessive, taking into account the gravity of the crimes committed and the appellant's role within the syndicate. After thorough consideration, the Court concluded that the sentences were not manifestly excessive and were within the appropriate range.

The final orders of the Court upheld the sentences imposed by the lower court, rejecting the appellant's claims that the sentences were manifestly excessive and that there had been an error in the consideration of his potential deportation. The appeal was therefore dismissed.

Orders