Chong v R
[2011] NSWCCA 182
•17 August 2011
Court of Criminal Appeal
New South Wales
Case Title: Chong v R Medium Neutral Citation: [2011] NSWCCA 182 Hearing Date(s): 1 August 2011 Decision Date: 17 August 2011 Jurisdiction: Before: McClellan CJ at CL at 1
Simpson J at 2
Fullerton J at 41Decision: 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 584Texts Cited: Category: Principal judgment Parties: Mia Vivien Chong (Applicant)
Regina (Respondent)Representation - Counsel: Counsel
P Boulten SC (Applicant)
RJ Bromwich SC (Crown)- Solicitors: Solicitors
Legal Aid Commission (Applicant)
Director of Public Prosecutions (Crown)File number(s): 09/11733 Decision Under Appeal - Court / Tribunal: - Before: Williams DCJ - Date of Decision: 17 December 2009 - Citation: [2009] NSWDC 377 - Court File Number(s) 09/11733 Publication Restriction:
Judgment
McCLELLAN CJ at CL : I agree with Simpson J.
SIMPSON J : The applicant seeks leave to appeal against a sentence imposed upon her in the District Court on 17 December 2009, following her plea of guilty to a single charge of importing not less than the marketable quantity of a border controlled drug (cocaine), committed on 10 May 2009.
Pursuant to s 307.2 of the Criminal Code (Cth) the offence carries a maximum custodial penalty of imprisonment for 25 years. Williams DCJ sentenced the applicant to imprisonment for 6 years, commencing on 10 May 2009, with a non-parole period of 3 years and 6 months, expiring on 9 November 2012.
The Facts
The circumstances relevant to the offence were put before the court by way of an agreed statement of facts. On 10 May 2009, the applicant flew into Sydney from Los Angeles. Concealed in her underclothing were two bags containing cocaine of a total quantity of 420.5 grams, but yielding cocaine in its pure form of 151.1 grams. Also in her possession was small vial containing traces of crystal amphetamine. By s 314.4 of the Criminal Code , for the purposes of Div 307 (of which s 307.2 is a part) a marketable quantity of cocaine is two grams. (This is not to be confused with s 314.1, which prescribes, for the purposes of Div 302, concerning "controlled drugs" as distinct from "border controlled drugs", 250 grams as a marketable quantity.)
The street value of the cocaine was between $86,343 and $135,990. The wholesale value was between $25,498 and $31,059.
At the airport the applicant was selected by customs officers for luggage examination and questioning. This occurred at about 6.50 am. She gave a number of answers that subsequently proved to be false. On a search of the applicant's handbag, the vial with the crystal amphetamine residue was discovered. Over the next three hours, on as many as five occasions, the applicant told customs officers that she wanted to use the toilet. On each occasion she was told that she would be required to use a "controlled toilet", under observation. On each occasion she changed her mind and declined to use the controlled toilet.
She refused an "external search", saying she did not want to take her clothes off, and that she had nothing, although conceding "maybe just a little bit of that", pointing to the vial containing the crystal amphetamine. At 8.05 am she consented to a "frisk search" which exposed some suspicious items in her clothing. She said that she was not concealing narcotics. Thirty minutes later, she said to a customs officer:
"What if I just gave you a little bit? Could we just forget about the rest of the stuff?"
The customs officer advised her not to say anything more. The applicant said:
"I know, I know, I just want to know what is easiest."
Eventually, the applicant produced one of the bags of cocaine from her groin area. She told the customs officer that that was all she had. Later, having been told that an external examination could be conducted under compulsion, she consented, and the second bag was located concealed in her underwear.
The applicant's personal circumstances
The applicant gave evidence in the sentencing proceedings. Also available to the sentencing judge was a pre-sentence report, a psychiatric report prepared by Dr Christopher Canaris, a reference from a friend, and a letter written by the applicant to the sentencing judge, and a medical certificate concerning the applicant's mother. From there the following information emerged.
The applicant was born in August 1983, in Texas, USA, of Korean migrant parents. She grew up in Los Angeles. She is a US citizen. She was not quite 26 when she committed the offence. Contrary to what she told the customs officers, she has some criminal record in the United States, particularly for drug offences, and some offences of dishonesty. It will be necessary to return to the detail of the criminal history when considering the grounds of the application.
The applicant began using drugs at age 15, beginning with what she called "uppers" (ecstasy and marijuana) and quickly graduated to amphetamines, which became her drug of choice.
She told Dr Canaris that, in 2005 (she would have been 22) her boyfriend was shot in the stomach and died. It is reasonably clear that this was a drug related event, and both her relationships and social activities have largely revolved around a drug culture.
At about the ages of 17 and 18 she lived in Korea for a year and a half, and did not use drugs during that time. The purpose of this was to separate herself from the drug culture in which he had become heavily involved. After her return to America, however, she resumed her drug use, influenced by a boyfriend who was a drug user. Her parents attempted to have her participate in a rehabilitation programme, but she refused and ran away. In 2001 (age 18) she gave birth to a daughter, who lives with her (the child's) father in California.
Dr Canaris considered that the applicant "may well" have suffered Attention Deficit Hyperactivity Disorder of the impulsive and inattentive type. Individuals who suffer that disorder are at substantially greater risk of becoming involved in substance abuse and dependence, and are more likely to develop mood and anxiety disorders in later life. Since being in custody the applicant has in fact been diagnosed with and treated for depression.
Approximately three days before she flew to Australia, she entered into an arranged marriage.
The applicant's mother had suffered from breast cancer, which was initially treated, but recurred. (She has died since the applicant was sentenced.) In the letter she wrote to the sentencing judge, the applicant expressed her contrition for attempting to bring drugs into Australia, and said that she now understands the severity of her conduct, and the reasons for the prohibition on illicit drugs.
The remarks on sentence
Williams DCJ recounted the facts and the applicant's personal history in a way that generally is not challenged (subject to what appears below). He quoted at some length from the psychiatric report. Relevantly to the grounds of the application, he said:
Ms Chong is not the usual type of drug courier. Indeed it is somewhat surprising that she was entrusted with the shipment given her obvious heavy addiction to a severely mind-altering substance. Whilst it could not be said that she offended out of need, it also seems to be the case that she did not offend out of greed. However, I cannot overlook the factors operating on her offending, such as her own addiction, her clouded judgment and the emotional pressure placed on a vulnerable personality. I am not satisfied that she fully understood what she was doing or that she was fully able to rationalise her choices. That is reflected in the lack of substantial planning, lack of a cover story, the lack of sophistication about the whole operation, and also carrying drugs in her own handbag.
...
In the scheme of things her past record does not entitle her to any particular leniency, even though prior good character is not much of consideration in this type of offending. Her previous record is merely indicative of her lowly status in the importation and helps explain why she offended , a realistic explanation being something that is often lacking with other offenders in similar circumstances.
...
There is not a great deal of latitude in these matters, barring exceptional circumstances or the provision of significant assistance. Whilst the amount of drug imported is not of overwhelming relevance, it does need to be taken into account, as does of course, the issue of general deterrence." (italics added)
He noted the plea of guilty and that it was evidence that the applicant was prepared to facilitate the legal process: The Queen v Cameron [2002] HCA 6; 209 CLR 339. He did not identify numerically the reduction which he plainly allowed as a result of the plea of guilty.
The grounds of appeal
The grounds of appeal are pleaded as follows:
"1. His Honour erred by finding that the applicant's record does not entitle her to any particularly leniency.
2. His Honour erred by finding that he did not have a great deal of latitude in these matters barring exceptional circumstances.
3. The sentence is manifestly excessive given all of the relevant circumstances."
Ground 1: the applicant's criminal record
Obviously, the applicant has no Australian criminal record. Evidence of her criminal history was put before the court by way of what appears to be an email sent by Interpol Washington to Interpol Canberra. It is in a form not familiar to this Court. I do not propose to reproduce it in full, but extract, by way of example, the following:
"14 June 1997 - charged by Los Angeles Police Department for shoplifting as a juvenile. Disposition: released to parent/guardian
...
21 January 2001 - charged by Azusa Police Department with: (1) possession of controlled substance; (2) possession of controlled substance paraphernalia.
Disposition: UNKNOWN
22 December 2001 - charged by Glendale Police Department with the possession of controlled substance paraphernalia.
Disposition: UNKNOWN
23 September 2002 - charged by state court at Glendale with the possession of controlled substance paraphernalia.
Disposition: Bench warrant issued; convicted later and sentenced to 7 days in jail.
...
12 August 2005 - charged by Burbank Police Department with: (1) burglary; (2) possession of controlled substance paraphernalia; (3) bench warrant - theft; (4) warrant - possession of controlled substance.
Disposition: UNKNOWN
..."
There are other entries to the same effect. Others showed periods of probation and imprisonment for short terms (3 days, 30 days).
It was this record to which the sentencing judge was referring when he said:
" ... Her past record does not entitle her to any particular leniency ... "
The point that was made on behalf of the applicant was that in only a few instances was the disposition of the charges identified. It is not possible to be sure that she was found guilty or convicted of the offences. Moreover, where the disposition is identified, the penalties appear to have been quite minor, even insignificant.
Accordingly, senior counsel for the applicant contended that the correct characterisation of her criminal history is as:
"mostly juvenile, street related and personal drug use offences, consistent with her history of chronic drug abuse difficulties."
He adopted the comments of Williams DCJ that the applicant's record was merely indicative of her lowly status in the importation, but challenged the conclusion that her past record:
" ... disentitled her to any particular leniency."
The point was reiterated in oral submissions. Senior counsel argued that:
" ... there was really no proof of what her record was."
If the only evidence of the applicant's criminal history was the Interpol document there may be some force in the latter submission. But the evidence was not so confined. The agreed statement of facts contained the following:
"The Accused is a US Citizen with extensive criminal history including narcotic offences."
And Dr Canaris recounted, from the history he took from the applicant, that she had been sentenced to a year in gaol for a robbery, but had only served a short time because of remissions given to her.
Further, in her evidence in chief, the applicant was asked:
"Q: Now you've got a very extensive criminal record for someone so young Ms Chong?",
to which she assented. Her counsel then asked her to explain the offences she had committed. She said that she was "pretty reckless" and assented to the proposition that she was taking drugs and was involved with "a bad crowd". She said she was involved with "heavy drug users".
There is, in the Crimes Act 1914 (Cth), no equivalent of s 21A(2)(d) or s 21A(3)(e) and (f) of the Crimes ( Sentencing Procedure) Act 1999 which, respectively, require courts sentencing in respect of state offences to take into account as aggravating or mitigating circumstances the existence or absence of a previous record of criminal offences. Section 16A of the Crimes Act specifies matters (where relevant and known) that must be taken into account on sentencing. Sub-para (2)(m) requires, inter alia, that the character and antecedents of an offender must be taken into account.
Traditionally, of course, courts do extend some leniency to first offenders, although there are some offences in respect of which the absence of a previous criminal history is less relevant than others. Drug importation and drug supply are such offences.
Williams DCJ did not take into account the applicant's record as an aggravating factor. She was not entitled to have taken into account as a mitigating factor the absence of previous convictions. In accordance with the requirements of s 16A(2)(n) his Honour had appropriate regard to the applicant's character and antecedents, to the extent that the information before him permitted him to do so. He merely observed, correctly, that her record did not entitle her to any "particular leniency". As an observation that is, in my opinion, plainly correct. His Honour treated the record, essentially, as neutral. I would reject this ground of the application.
Ground 2: "exceptional circumstances"
By this ground the applicant complains of the observation in the remarks on sentence, extracted above, that:
"There is not a great deal of latitude in these matters, barring exceptional circumstances or the provision of significant assistance."
The argument advanced on behalf of the applicant was that the introduction of the notion of "exceptional circumstances" went beyond what is established in the authorities. It was acknowledged that:
"There is a particularly circumscribed range of appropriate sentences for people who import drugs, no matter how insignificant the quantities might be and no matter what lowly role the person might have played".
It was then argued:
"But it is not correct to say that there is a requirement for exceptional circumstances or the demonstration of significant assistance before a particular degree of leniency can be extended to an offender."
In my opinion, the acknowledgement contained in the final paragraph is correct. Courts have repeatedly stressed the need for sentencing in respect of drug importations to reflect the serious view the legislature, and the community, take of such activity, and the damage successful importations cause. The cases were most recently comprehensively collected by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 273 ALR 324. It is true that on the facts of any individual case, there exists a range within which a sentence will properly fall. But each case must be treated individually; s 16A(1) of the Crimes Act directs a court sentencing federal offenders to:
" ... impose a sentence ... of a severity appropriate in all the circumstances of the offence."
Against that must be balanced the direction in s 16A(2)(k) to pay adequate regard to:
" ... the need to ensure that the [offender] is adequately punished for the offence."
That, in my opinion, leaves no room for the super-imposition of an "exceptional circumstances" test: see Hili v The Queen [2010] HCA 45; 84 ALJR 195 at [25], [54]. It is correct to say that, in the interests of consistency in sentencing, sentencing judges must have regard to what has been done in other cases: Hili at [53]. What has been done in other cases may give way to the particular circumstances of the case in question. I have come to the conclusion that, in speaking as he did, the sentencing judge introduced into the exercise of his discretion a barrier that was not warranted: the need to establish exceptional circumstances before he could depart from some (unspecified) range of sentences. It is true, of course, that there does exist a point below which a sentence would be manifestly inadequate, and a point above which a sentence would be manifestly excessive. But, within that range, there is no call for a requirement that exceptional circumstances be established. It is not entirely clear what his Honour meant, but it does seem to me that he may have removed the flexibility in his approach to which the applicant was entitled.
That somewhat tentative view receives some reinforcement from the length of the sentence, something that I will explain when I turn to ground 3.
The argument on behalf of the applicant went further, and contended that, even if exceptional circumstances were required, they exist in the present case. It is not quite clear on what basis this was put. The reference was a most general reference to:
"the rest of his Honour's judgment."
The assertion was made that this was:
" ... quite an exceptional case of importing a marketable quantity of a border controlled drug."
But just what made it exceptional was not spelled out.
I do not accept that this case was exceptional. True, it had some significant features, but, in reality, the applicant is not unlike the numerous couriers of drugs who are apprehended importing their narcotics into this country. It is only necessary to refer to cases such as Wong v The Queen [2001] HCA 54; 207 CLR 584 and De La Rosa to be exposed to multiple instances of cases with facts substantially similar.
Ground 3: Manifestly excessive?
The basis on which it was contended that the sentence was manifestly excessive is to be found in De La Rosa , in which McClellan CJ at CL collated groups of cases, the groups based on specified characteristics. At [222] - [223] appears a group of cases of a category into which it could be asserted that the applicant's case falls. In that group the longest sentence imposed was a head sentence of 6 years, the shortest of 3 years and 9 months. The longest non-parole period was 4 years and 3 months, the shortest 2 years. It will be seen that the applicant's head sentence equates to the longest there mentioned. That was because that sentence was in fact the sentence imposed upon the applicant. It is not clear from the report whether there were others of equivalent length.
That fact alone would not persuade me that the sentence was manifestly excessive. Put together, however, with the reference to "exceptional circumstances" with which I have dealt above, I have come to the conclusion that the erroneous reference is the explanation for the sentence selected.
The error, together with the length of the sentence, persuade me that, within the terms of s 6(3) of the Criminal Appeal Act 1912, another sentence (less severe) is warranted in law and should have been passed. Accordingly, I propose the following orders:
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.
FULLERTON J: I agree with Simpson J.
**********
5
4
4