Chong v R [2011] NSWCCA 182

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chong v R [2011] NSWCCA 182 Hearing dates: 1 August 2011 Decision date: 17 August 2011 Before: McClellan CJ at CL at 1 Simpson J at 2 Fullerton J at 41 Decision: 1. Leave to appeal granted; 2. Appeal allowed, sentence quashed; 3. In lieu thereof the applicant be sentenced to imprisonment for 5 years and 3 months to commence on 10 May 2009 and expire on 9 August 2014, with a non-parole period of 2 years and 9 months, the applicant to be released on parole on 9 February 2012. Catchwords: CRIMINAL LAW - application for leave to appeal against severity of sentence - plea of guilty - importing not less than the marketable quantity of a border controlled drug - cocaine - criminal history provided by Interpol - particular outcomes not identified - independent evidence of record of previous offences - error in introducing an 'exceptional circumstances' test to exercise of discretion - lesser sentence warranted - leave granted - appeal allowed - sentence quashed - applicant re-sentenced Legislation Cited: Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Code (Cth) Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 273 ALR 324 Hili v The Queen [2010] HCA 45; 84 ALJR 195 The Queen v Cameron [2002] HCA 6; 209 CLR 339 Wong v The Queen [2001] HCA 54; 207 CLR 584 Category: Principal judgment Parties: Mia Vivien Chong (Applicant) Regina (Respondent) Representation: Counsel P Boulten SC (Applicant) RJ Bromwich SC (Crown) Solicitors Legal Aid Commission (Applicant) Director of Public Prosecutions (Crown) File Number(s): 09/11733 Decision under appeal Citation: [2009] NSWDC 377 Date of Decision: 2009-12-17 00:00:00 Before: Williams DCJ File Number(s): 09/11733