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Chuah v The Queen [2022] VSCA 51

The offender was sentenced following pleas of guilty to 1 count of attempting to possess a marketable quantity of an unlawfully imported border controlled drug contrary to ss 11.1(1) and 307.6(1) of the Commonwealth Criminal Code and 1 count of improperly possessing a foreign travel document contrary to s 21(4) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth). Original sentence imposed 8 years imprisonment with a non-parole period of 4 years and 6 months. Offender appealed on grounds that the sentencing erred in finding the offender had a firm understanding of the quantity of substance being imported, that the sentencing judge erred in finding that the offender’s entry to Australia was at least partly with the purpose of committing the drug offences and that the sentence was manifestly excessive.  

Nature and Circumstances: Prosecutor’s submissions regarding the offender’s knowledge of the quantities of the imported drugs only applied to the charge 1 parcel. Sentencing judge stated what was being alleged about imported packages in general was that the offender had knowledge that what was ‘in the package was a border controlled drug’. Prosecutor agreed with that proposition and went on to say there was ‘no suggestion [the offender] knew… quantity or purity or anything like that’. On a fair reading of the exchange, the prosecutor could be taken to be conceding either that the offender did not know the quantity or purity of any of the importations with which they were implicated or that they did not know the quantity or purity of the importation for which they were charged. It was not open to the sentencing judge to sentence the offender inconsistently with this concession unless they gave the offender notice that they were not willing to accept it, which they did not do. Sentencing judge’s statement that ‘it is not contended by the prosecution that [the offender] entered with the sole purpose of committing the drug offences’ implicitly accepted that the offender may have entered Australia for the primary purpose of committing drug offences. However, it was not open to the judge to do so where the prosecutor unequivocally stated that the evidence did not support such a conclusion and never resiled from that position. Sentencing judge denied the offender procedural fairness on both grounds.  

Leave to appeal granted. Appeal on grounds 1 and 2 allowed. Offender resentenced to 6 years and 9 months imprisonment with a non-parole period of 3 years and 9 months.
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