R v Chi Pan Chow

[2018] NSWDC 339

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Chi Pan Chow [2018] NSWDC 339
Hearing dates:	25 January 2018
Date of orders:	02 October 2018
Decision date:	02 October 2018
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentence corrected non parole period varied.
Catchwords:	CRIMINAL LAW SENTENCING – Commonwealth sentence – sentence correction – applying S 19AHA Crimes Act 1914 – slip rule not required – Judge concedes calculation error – rectification of error.
Legislation Cited:	Criminal Code (Cth) Crimes Act 1914
Cases Cited:	Achurch v The Queen (2014) 253 CLR 141 Afu v R [2017] NSWCCA 246 Green v R (2011) 244 CLR 462 Lau [2010] NSWCCA 43
Category:	Sentence
Parties:	Chi Pan Chow (Offender) Director of Public Prosecutions (Commonwealth)
Representation:	Counsel: Ms G Westgarth (for the Director of Public Prosecutions, Commonwealth) Mr Anders Mykkeltvedt (for the offender)   Solicitors:  Mr L Ting (for the offender)
File Number(s):	2016/00268533

Judgment

A sentence for importing a commercial quantity of a border controlled drug.

1. On Thursday, 25 January 2018, the fourth and most complex sentence matters in my list that day were proceedings brought by the Director of Public Prosecutions against Chi Pan Chow and Ka Yee Elizabeth Wong.

2. Both Chow and Wong had committed significant crimes. In July 2016, Chow imported into Australia 3,170 grams of pure methamphetamine in two consignments: s 307.1(1) Criminal Code (Cth). He also asked that I take into account two other offences – import a marketable quantity of a border controlled drug and traffic a controlled drug.

3. During the hearing I received documentary evidence from both the prosecution and the defence; including some oral evidence. After submissions, I proceeded immediately to sentence.

4. I sentenced Chow to a term of imprisonment of 11 years with a non-parole period of six years and nine months. I took into account his early guilty plea. The sentence commenced on 6 September 2016. His non-parole period expired on 5 June 2023. The balance of the term was four years and six months. As I concluded my remarks I said, “For those who are mathematically minded a starting point of 15 years, slightly rounded down - 55% ratio.”

5. Wong was also dealt with for a s 307.1(1) offence. Her offence involved 787 grams of pure methamphetamine. An offence of traffic a controlled drug was taken into account. I sentenced Wong to a term of imprisonment of six years and nine months with a non-parole period of three years and nine months. Her non-parole period was 55% of the total sentence.

A sentencing error?

6. Chow now says that when I sentenced him I erred in my mathematical calculations and that error should be corrected to his advantage. He submits that his non-parole period was over 60% of the total sentence and that is not what I intended.

7. Chow sought to correct the sentencing record. A motion was filed pursuant to s 19AHA(4) Crimes Act 1914. It reads:

19AHA Rectification of errors etc. in sentences, non-parole periods and recognizance release orders

(1) This section applies if a sentencing order made by a court under this Part in relation to a person:

(a) reflects an error of a technical nature made by the court; or

(b) has a defect of form; or

(c) contains an ambiguity.

8. Careful submissions prepared by Mr Buchen and Mr Mykkeltvedt of counsel were filed. They point to a possible error in how I had calculated the sentence They submitted that that section is apposite, or alternatively, the record could be corrected pursuant to what is known as the “slip rule:” MFI 1. I have also received today submissions from the Commonwealth under the hand of Ms Westgarth, of counsel. She suggests that the sentence, and the ratio of non-parole to parole period, I imposed was exactly that which was intended: MFI 2.

A technical error was made

9. I have had a chance to review my notes and redo the calculations to assist my memory of what occurred. I am also acutely aware that when one is sentencing co-offenders the principle of parity applies. Here, different personal circumstances and different aspects of the offending required different sentences be imposed upon Chow and Wong. While strict parity was not required the sentences as between the co-offenders was required to be proportionate. Parity and proportionality are classic examples of the requirement paced on a sentencing judge to, so far as possible, ensure equal justice: see Green v R (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246.

10. In cases where these principles apply, proportionality can also encompass the structure of a sentence and its non-parole period. This is particularly so where foreign nationals are imprisoned: see Lau [2010] NSWCCA 43.

11. My rationale for making my note to the mathematically minded was to ensure some transparency in the sentencing process. Because I was working on the bench in open court I used the Judicial Commission date calculator on my I-Pad to calculate the ratio between the head sentence and its non-parole period. My eyesight is not what it was. On reflection I must have pressed to 60% ratio instead of the 55% button when I came to formulate the sentencing dates, because it was my intention clearly stated in the judgment that the same ratio parole to non‑parole period apply to both co-offenders, complying with the decision in Lau.

12. Accordingly, I accept that there was an error in my calculations.

13. I pause to note that there are many in the community who may not understand that sentencing judges in this court rarely have time for quiet reflection. We rarely have time to leave the bench to double check our calculations. It is possible of course to reserve, but in this particular case there were many relatives of both parties who had come from Hong Kong to view the proceedings and they were not staying in the country longer. It was felt imperative by all concerned that, if at all possible, the sentences be imposed and remarks delivered immediately.

Applying S 19AHA Crimes Act 1914

14. Section 19AHA Crimes Act 1914 allows for the rectification of errors. The section applies if a sentencing order is made in relation to a person and it reflects an error of a technical nature made by the Court. The section has a note that says:

15. “The following are examples of errors of a technical nature: a clerical mistake, an accidental slip or omission, a material miscalculation of figures or a material mistake in the description of a person, thing or matter.”

16. The section allows for an application to be made by a party or other nominated persons to rectify the error, defect or ambiguity. The sentencing order able to be rectified relates to an order purporting to impose a sentence and an order fixing a non-parole period.

17. It is clear from the previous exposition that when I sentenced Chow I made a material miscalculation relating to the fixing of the non-parole period. The section is designed for proper correction of such errors and I intend to employ that section in the orders I make.

18. Mention was made in both submissions of this Court being “an inferior court of record.” A judge of this Court does not have the inherent jurisdiction derived from the Royal Courts of Justice, but I do have powers to act in the necessary exercise of my jurisdiction. In that context, the proper administration of justice requires that errors of this nature if the order made does not truly represent what the Court intended to pronounce be corrected by the application of available legislative provisions or if they are not available by application of what is commonly known as the “slip rule”: Achurch v The Queen (2014) 253 CLR 141. There will be some slight rounding down: Sentencing is not a strictly mathematical exercise.

Orders and Re-sentence

19. Accordingly the formal orders of the Court are:

I correct the sentence imposed in the court below: s 19AHA Crimes Act 1914.

I confirm Chow’s sentence of imprisonment of 11 years imprisonment, there will be a non-parole period of six years.

The sentence and its non‑parole period will commence upon 6 September 2016.

Chow will be released to parole pursuant to s 19AL Crimes Act 1914 on 5 September 2022. The total sentence expires 5 September 2027.

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Amendments

21 November 2018 - Catchword amendment

Decision last updated: 21 November 2018