R v Chew - [2022] NSWDC 325

District Court

New South Wales

Medium Neutral Citation: R v Chew [2022] NSWDC 325
Hearing dates: 17 March 2022
Date of orders: 17 March 2022
Decision date: 17 March 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
NSW offence: Sentenced to a term of imprisonment of 1 year 6 months
Commonwealth offence: Sentenced to a term of imprisonment of 3 years 4 months. Non parole period of 1 year 9 months.

Catchwords:
CRIME – Attempt possess marketable quantity of an unlawfully imported border-controlled drug - Supply prohibited drug – Deal with proceeds of crime
SENTENCING - Relevant factors on sentence – State and Federal offences- guilty plea- fact finding - knowledge drugs in the parcel – low level role- employed to take risk- foreign national with limited English - impact of COVID-

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
R v Nguyen [2010] NSWCCA 238;(2010) A Crim R 106
R v Shi [2004] NSWCCA 135
The Queen v Pham [2015] HCA 39; (2015) 256 CLR

Category: Sentence
Parties: Chan Kiat Chew (the offender)
Commonwealth Director of Public Prosecutions
Representation:
Counsel:
Mr K Fitzgerald (for the offender)
Ms C Brain (for Commonwealth Director of Public Prosecutions)
Solicitors:
Kingston Fox Lawyers (for the offender)

File Number(s): 2021/00032675

SENTENCE – EX TEMPORE REVISED

In January 2021 a parcel addressed to “Chiew Kok Aun” was intercepted by border control authorities. It had come from Malaysia. It contained 186.27 grams of pure heroin. The heroin was removed, and the parcel reconstructed. It was then taken by police undercover operative disguised as a delivery person to the address in Burwood.
The woman who answered the door said that she was not the nominated person but that it could be her housemate. A short time later Chan Kiat Chew, the offender, came out, and handed over his identification unprompted. He spoke to the delivery person/undercover operative and said, “That’s me, it’s a spelling mistake.” He took delivery of the parcel.
Soon after he was arrested. He was taken to Burwood police station and provided with a Mandarin-speaking interpreter. Initial denials were soon followed by admissions. He told police that he had received previous parcels from a friend and was aware they contained white powder. On those occasions he had been asked to open the parcels, take out the packages inside and weigh the contents. He was then asked to give the packages to another person by placing them in a red toolbox for collection. He said he possibly suspected the parcels sent to him contained drugs. He said he did so to earn money.
During a subsequent search of his premises a red toolbox containing 123 grams of powder was found. That powder was later found to be methylamphetamine. The offender accepted that it was product from a previous parcel that was awaiting collection.
Police made enquiries in relation to a bankcard (under a different name) held…

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 R v Chew

Details

AGLC: R v Chew [2022] NSWDC 325
Case: [2022] NSWDC 325
Decision Date: 17 March 2022

CaseChat Overview and Summary

The appellant was charged with attempting to possess a marketable quantity of an unlawfully imported border-controlled drug, supplying a prohibited drug, and dealing with the proceeds of a crime. The matter was heard in the District Court of New South Wales. The appellant pleaded guilty to the charges but disputed the quantum of his sentence.

The court was required to consider the relevant factors to be taken into account in sentencing the appellant. These included the nature and circumstances of the offence, the appellant's culpability, the impact of his offending on the community, and the need for deterrence and rehabilitation. The court also needed to consider the appellant's guilty plea, his low-level role in the offending, his limited English proficiency, and the impact of COVID-19 on his life.

The court found that the appellant was a low-level participant in the offending but had employed to take the risk. The court also found that the appellant had limited English proficiency and had been impacted by COVID-19. However, the court found that the appellant's offending had a significant impact on the community and that there was a need for deterrence and rehabilitation. The court sentenced the appellant to a term of imprisonment of 1 year 6 months for the NSW offence and 3 years 4 months for the Commonwealth offence, with a non-parole period of 1 year 9 months.

The court ordered that the sentences be served concurrently, and the appellant be released on parole after serving 1 year 9 months of his sentence. The court also ordered that the appellant be subject to a supervision order for a period of 3 years after his release from prison.

Orders

Orders of the court

NSW offence: Sentenced to a term of imprisonment of 1 year 6 months

Commonwealth offence: Sentenced to a term of imprisonment of 3 years 4 months. Non parole period of 1 year 9 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Chew [2022] NSWDC 325
Hearing dates:	17 March 2022
Date of orders:	17 March 2022
Decision date:	17 March 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	NSW offence: Sentenced to a term of imprisonment of 1 year 6 months Commonwealth offence: Sentenced to a term of imprisonment of 3 years 4 months. Non parole period of 1 year 9 months.
Catchwords:	CRIME – Attempt possess marketable quantity of an unlawfully imported border-controlled drug - Supply prohibited drug – Deal with proceeds of crime SENTENCING - Relevant factors on sentence – State and Federal offences- guilty plea- fact finding - knowledge drugs in the parcel – low level role- employed to take risk- foreign national with limited English - impact of COVID-
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995 (Cth) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	R v Nguyen [2010] NSWCCA 238;(2010) A Crim R 106 R v Shi [2004] NSWCCA 135 The Queen v Pham [2015] HCA 39; (2015) 256 CLR
Category:	Sentence
Parties:	Chan Kiat Chew (the offender) Commonwealth Director of Public Prosecutions
Representation:	Counsel: Mr K Fitzgerald (for the offender) Ms C Brain (for Commonwealth Director of Public Prosecutions) Solicitors: Kingston Fox Lawyers (for the offender)
File Number(s):	2021/00032675