Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270 Hearing dates: 19 October 2018 Decision date: 28 November 2018 Before: Hoeben CJ at CL; Davies J; Hamill J Decision: In the matter of Chien Chih Kuo:

(1) Leave to appeal granted. (2) The appeal is allowed. (3) The sentence imposed on Chien Chih Kuo on 23 September 2016 is quashed. (4) In lieu thereof, Chien Chih Kuo is sentenced to imprisonment with a non-parole period of 12 years, commencing 11 February 2014 and expiring 10 February 2026, with a balance of term of 7 years expiring 10 February 2033.

In the matter of Zhao Xiung Huang:

(1) Leave to appeal granted. (2) The appeal is allowed. (3) The sentence imposed on Zhao Xiung Huang on 23 September 2016 is quashed. (4) In lieu thereof, Zhao Xiung Huang is sentenced to imprisonment with a non-parole period of 12 years, commencing 11 February 2014 and expiring 10 February 2026, with a balance of term of 7 years expiring 10 February 2033.

In the matter of Meng-Chih Shih:

(1) Leave to appeal granted. (2) The appeal is allowed. (3) The sentence imposed on Meng-Chih Shih on 23 September 2016 is quashed. (4) In lieu thereof, Meng-Chih Shih is sentenced to imprisonment with a non-parole period of 14 years, commencing on 11 February 2014 and expiring on 10 February 2028, with a balance of term of 8 years expiring 10 February 2036. Catchwords: CRIMINAL LAW – sentence appeals – three applicants – attempting to possess a commercial quantity of a border controlled drug being methamphetamine – 142kgs in quantity – error conceded by Crown in sentencing judge failing to take into account the utilitarian value of the plea of guilty – need to re-sentence – assessment of different roles of applicants in the offence – whether applicants aware of the nature and extent of drug importation – motive of financial gain – considerable planning involved – on re-sentence a finding in each case that lesser sentence warranted in law. Legislation Cited: Crimes Act 1914 (Cth) – s 16A Criminal Code (Cth) – 307.1(1), 307.3(1), 307.5(1) Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A(2)(o) Cases Cited: Adams v The Queen [2008] HCA 15; 234 CLR 143 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Ibrahim v R [2016] NSWCCA 6 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Lau v Regina [2014] NSWCCA 179 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Regina v Franze [2013] VSC 421 Teng Lam Tan and Wong v R [2009] 22 VR 706 Thammavongsa v Regina [2015] NSWCCA 107 Wang v R [2010] NSWCCA 319 Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 Xiao v R [2018] NSWCCA 4 Category: Principal judgment Parties: Chien Chih Kuo – Applicant Zhao Xiung Huang – Applicant Meng-Chih Shih – Applicant Regina – Respondent Crown Representation: Counsel: A Parsons – Applicant Kuo J Stratton – Applicant Huang J Stratton – Applicant Shih G Wright – Respondent Crown