R v Chie

[2020] NSWDC 5

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Chie [2020] NSWDC 5

Hearing dates:

11 October 2019, 18 December 2019

Date of orders:

3 February 2020

Decision date:

03 February 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of three years with a non-parole period of 1 year 10 months (NSW offences).

Sentenced to a term of imprisonment of 10 years 2 months. NPP period five years nine months fixed (Commonwealth offence). For orders see [108]

Catchwords:

SENTENCING – Commonwealth and State offences – attempt to possess imported border controlled drugs, cocaine – supply cocaine – possess prohibited firearm.

SENTENCING – Relevant factors on sentence – resolution of dispute about relevant facts for sentence – value of late guilty pleas – parity – low risk of reoffending – sentencing for multiple discrete offences – totality principle applied – need for long parole period.

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Code 1995 (Cth)

Criminal Procedure Act 1987 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

Afu v R [2017] NSWCCA 246

Barbaro v The Queen (2014) 253 CLR 58

Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208

Green v The Queen (2011) 244CLR 462

Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346

Hili v The Queen (2010) 242 CLR 520

Lau v R [2010] NSWCCA 43

MAKv R [2006] NSWCCA 381

Markarian v The Queen (2005) 228 CLR 357

Mooney v R [2016] NSWCCA 231

Power v The Queen (1974) 131 CLR 623

R (Cth) v AE (District Court (NSW), 15 May 2019, unrep)

R (Cth) v Chie [2019] NSWDC 346

R v Borkowski [2009] NSWCCA 102

R v Clinch (1994) 72 A Crim R 301

R v Holland [2011] NSWCCA 65

R v Mackellar(No 3) [2014] NSWSC 106

R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106

R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383

Simpson v R [2011] NSWCCA 534; (2011) 53 NSWLR 704

The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270

TheQueen v Pham [2015] HCA 39; (2015) 256 CLR 550

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Xiao v R [2018] NSWCCA 4

Texts Cited:

W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, “Supply-Side Reduction Policy and Drug-Related Harm” (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1

W Wan, S Poynton and D Weatherburn, “Parole Supervision and Re-offending” (2016) 49 Australian & New Zealand Journal of Criminology 497

Category:

Sentence

Parties:

Zachary Chie (the offender)
Director of Public Prosecutions (Cth)

Representation:

Counsel:
Ms L Rowan (for the offender)
Ms J Paingakulam (for the Crown)

Solicitors:
Kernaghan & Associates (for the offender)
Public Prosecutions (Cth) (Crown)

File Number(s):

2017/00341174

Publication restriction:

There is to be no publication of any information that might lead to the identification of the co-offender, who has been given the pseudonym “AE.” His name and other proceedings relating to him are subject to a suppression order made pursuant to the Court Suppression and Non-publication Orders Act 2010.

Judgment

Introduction

1. On 9 November 2018, Zachary Chie accepted his guilt for 4 offences:

1. Attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely cocaine (15.4 kg pure weight): s 307.5(1) Criminal Code 1995 (Cth) maximum penalty life imprisonment and/or a fine of $1,575,000.

2. Supply prohibited drug, namely 85 grams of cocaine: s 25(1) & 29 Drug Misuse and Trafficking Act 1985 (NSW) – maximum penalty 15 years imprisonment and/or a fine of $220,000.

3. Possess prohibited firearm, namely a shortened rimmed fire .22 rifle that was not registered: s 36(1) Firearms Act 1996 (NSW) – maximum penalty 14 years imprisonment.

4. Possess ammunition without holding licence/permit/authority: Firearms Act 1996 (NSW), on s 166 Criminal Procedure Act 1987 (NSW) certificate – maximum penalty a fine of $5,500.

2. The guilty pleas were entered after a date had been fixed for trial. Sentence proceedings commenced before me on 11 October 2019. The matter was part heard and adjourned to 18 December 2019, when further material was tendered, and I received and heard written and oral submissions of counsel. The matter was then adjourned until today for sentence. Although an Agreed Facts document was put before me a number of critical issues were put in dispute.

Agreed Facts

3. In October 2016, AE (the co-offender) opened a business as an import and export agent wholesaler. In April 2017 AE travelled to Spain from Australia, ostensibly to source bathroom hardware and tiles for his business.

4. In October 2017, two shipping containers containing approximately 28 tonnes of granite tile blocks arrived by sea transport at Port Botany, Sydney from Valencia, Spain. The consignment was addressed to AE’s business. The nominated address was in Industrial Road, Oak Flats NSW.

5. One shipping container (“Container 1”) contained 11 pallets of granite tile blocks and the other (“Container 2”) contained 10 pallets of granite tile blocks.

6. The address at Oak Flats (“the warehouse”) was leased by Robert Hyham. He operated a jumping castle business. Hyham is an associate of Chie (the offender). The offender had previously asked Hyham if his warehouse could be used to store some pallets.

7. The two shipping containers were inspected by Australian Border Force (“ABF”) officers. During the inspection of Container 1, ABF officers located 14 hollow granite blocks containing the prohibited drug cocaine. The total amount of cocaine weighed approximately 20 kilograms.

8. The ABF removed and seized the granite tile blocks containing the cocaine. The pallets were reconstructed to their original state and the two 20ft shipping containers were subsequently released to the Sydney Port Authority for the delivery process to begin.

9. Forensic analysis of the cocaine revealed the gross weight to be 20,091.5 grams (20.09 kilograms) with average purity of 76.43%. The total pure weight of the cocaine was 15,355.93 grams (15.4kg).

10. AE arranged for a freight forwarding company to manage the delivery of the two containers. The offender arranged for the two containers to be delivered to the factory unit at Industrial Road, Oak Flats.

11. There was a delay in delivery. AE asked Hyham to take delivery of the containers and instructed him to place the first container outside the factory unit and to place the second container inside. At approximately 2.05pm on 18 October 2017, a day later than estimated, Container 2 was delivered to the warehouse. AE accepted delivery of the container. The 10 pallets containing the granite block tiles were removed and placed inside the warehouse.

12. At approximately 8.00pm on 18 October, the offender and AE, in a white utility, attended and entered the warehouse. All the workers from the jumping castle business had already left. At one point the offender, using his mobile phone, took a photograph of himself resting on the pallets.

13. At approximately 9.37pm, the offender reversed the utility into the warehouse and shut the garage roller door. Between 9.40pm and 10.15pm, police surveillance recorded sounds inside the warehouse consistent with the two offenders breaking the tiles with a sledgehammer in an attempt to locate the cocaine they believed to be concealed within the tiles.

14. At about 10.30pm, the offenders arrived at AE’s work place, the Tallawarra Power Station and disposed of some of the damaged tiles. They then returned to the warehouse and re-commenced breaking tiles in an attempt to locate the cocaine.

15. On 19 October 2017, following exchanges with the shipping company regarding timing of the delivery, Container 1 was delivered to the warehouse. Container 1 had originally held the cocaine, which had been substituted with an inert substance by police. AE accepted delivery of this container.

16. At about 9.25pm that evening, both offenders attended the warehouse. All the jumping castle business workers and neighbouring factory unit workers had again left the complex. Surveillance footage revealed the offenders inspecting a number of the granite tile blocks from one of the pallets. The offenders then used a sledgehammer to break a number of the granite tile blocks. The offenders engaged in this process for approximately two hours.

17. Throughout the breaking process AE used a mobile phone to communicate, in Spanish and Arabic, with an unknown male, whom he referred to as ‘Uncle.’ The recorded conversation between the co-offender and ‘Uncle’ was able to be recorded by the listening device, as ‘Uncle’ was on loud speaker. ‘Uncle’ discussed where to look for the ‘stuff’ in the granite tile blocks. ‘Uncle’ and another man instructed AE specifically where to search the pallets of granite blocks. This area was where the cocaine had been located by ABF officers.

18. AE later told the offender that the caller would come in two days and to pack everything up for now. At about 12.30am, the offenders left the warehouse.

19. At about 1.14pm on 23 October 2017, AE and Chie and an unknown male attended the warehouse. Chie was captured on the surveillance camera carrying a sledgehammer to the warehouse.

20. AE and the unknown male had conversations in Spanish. AE and the unknown male were observed on surveillance footage moving the pallets around within the factory unit. All three then inspected the granite tile blocks on the pallets, and after searching the second pallet, all left the warehouse.

21. At 6:54pm on 29 October 2017, lawful interception of the offender’s mobile phone revealed the following exchange with Mr Hyham:

“HYHAM: Hey the boys have just fucking called me saying someone’s tried to break into the shed.

…

Offender: Let me, call me when you get there? [AE’s] called me fuck I’m going past so trying to call me cause he wants to talk to me, cause he was over that way anyway so I called in. And he’s taking fucking photos of the other stuff trying to sell the other fucking thing, the pallets of fucking thing.”

22. At 8.27am on 31 October 2017, lawful interception of the offender’s mobile phone revealed him asking an unknown male if he knows a place where you can “dump bricks stuff there like, fucking, broken up brick, building shit?... Probably a tonne.”

23. At 2.11pm on 3 November 2018, lawful interception of Chie’s mobile phone revealed the following exchange with an unknown female (“UF”):

“UF: What are you doing nothing hanging out?

Offender: Oh no I had to, you remember that, remember that container that I sent you, with some snapchat the other day?

UF:    Oh yeah.

Offender: I had to go to the warehouse this morning to sort some of that stuff out. But then we’re waiting we’re waiting on a call with my mate from fucking, from Colombia.

UF:    Oh yeah.

Offender: To say, how about opening up a certain thing, but I won’t know till tomorrow and if they let us know by tomorrow morning I gotta do certain thing. I can’t get into the warehouse till Sunday to do it because there’s people gonna be there and they obviously don’t know what’s there.

UF: Yeah.

Offender: But umm, fingers planned.

UF: All good.

Offender: Fingers planned if tomorrow morning says no. I’ll be booking a plane tomorrow and I’ll be straight down (Laughing). With all back pack and everything.

…

Offender: If they say I gotta open it well I can’t do it till Sunday so I’m fucked.

UF: Oh yeah, yeah that’s what I meant yeah.

Offender: Yeah, but if I do gotta open it, I gotta smash every one of the fucking, 21 pallets so it’s 1.3 tonnes each pallet of fucking brick.

UF: Yeah, yeah.

Offender: … So I got a fucking truck and excavator organised and everything. And I’m gonna get…to give me a hand but.

Offender: I’m going to do that this arvo cause if that’s done then tomorrow morning when they ring me about 9 o’clock and they give us the yay and nay what to fucking do.

UF: Yeah you can just jump on a plane.

Offender: If it’s a… I’ll be straight to the airport and book the next flight. Money doesn’t worry me you know what I mean? The flight is not going to be fucking $1000 so.”

24. At 3.42pm on 3 November 2017, lawful interception of the offender’s mobile phone revealed the following exchange with an unknown male (“UM”):

“Offender: Is Robbie coming down Sunday?

UM: Yeah he’s coming down the night.

Offender: I might have a days work for yous two to help me out. I’ll pay yous.

UM: Yeah okay.

Offender: My pallets of stuff.

UM: Oh okay.

Offender: The Colombia wants me to, they want me to smash fucking smash it all up.

UM: Right okay.

Offender: I’ll see…so I’ll have a truck and excavator, so I’ll be breaking, just out of demolition work pretty much.”

25. At 6.11pm on 3 November 2018, lawful interception of the offender’s mobile phone revealed the following exchange with an unknown male (“UM”):

“Offender: Alright, I was gonna go fucking run over to this warehouse and fucking just, I gotta drop a couple of pallets just to move them with a forklift.

UM: Yeah.

Offender: I was gonna fucking see if yous wanna come for a drive? I just got half hour, just, not even half hour probably 20 minutes.

UM: Yeah.

Offender: Just to show you fucking what’s the plan, probably I guess, and just fucking I might need a set of eyes, just to see cause I gotta stack these fucking pallets up.”

26. At about 9.54am on 3 November 2017, Chie and AE attended the warehouse and were captured on surveillance footage inspecting and taking photographs of the granite tile blocks. A short time later they left.

27. At about 11.55am on 10 November 2017, AE was arrested.

28. At about 12.35pm on 10 November 2017, the NSW Police State Crime Command Drug Squad attended the offender’s work address. He was arrested and cautioned.

29. Police seized Chie’s mobile phone. His vehicle was searched. Police found and seized two heat sealed plastic bags containing a white rock/powder substance and one resealable plastic bag containing a heat sealed bag with a white rock/powder substance in it. The bags of powder were forensically tested and revealed to be 85 grams of cocaine in total.

30. Police also seized one granite tile block, a log splitter, a mallet and a crowbar from the vehicle. The offender made admissions to using the tools to break the tiles. He also made admissions to having possession of a rifle at his home address at Albion Park.

31. The offender declined to partake in an electronically recorded interview but consented to forensic procedures by way of buccal swab, fingerprints and photographs.

32. A short time after the offender and co-offender were arrested the NSW Police Drug Squad and the Australian Border Police executed Commonwealth Search Warrants. At the offender’s home, police seized a prohibited, unregistered .22 rifle and ammunition, mobile phones and clothing worn during the commission of the offence.

33. Police located a number of new and resealable plastic bags and vacuum sealed clear plastic bags, which were forensically tested and were detected to have traces of cocaine present. Police also located what appeared to be a drug supply ledger book, with names and various amounts written next to their respective names.

34. A warrant was also executed at the warehouse and police seized the consignment labels and samples of the granite tile blocks.

35. At the time the offender resided in Albion Park, NSW. He had shared custody of his two children with his ex-defacto partner. He was employed on a full-time basis as an administrator and salesman in Dapto and earned $1,200 per week.

36. The offender has a criminal record. It shows convictions for common assault, driving offences, possessing unregistered firearms, possessing ammunition without a licence, failing to keep a firearm safely stored, attempting to possess steroids, possessing a prohibited weapon and having custody of a knife in a public place.

37. At the time of offending, AE also resided nearby with his family. He was employed on an annual salary of $274,000.00. He was not criminally recorded.

Additional material

38. During the sentence proceedings the following material was tendered additional to the statement of agreed facts:

1. Transcript of Sentence Proceedings – R (Cth) v AE 2017/00341164

2. Remarks on Sentence – R (Cth) v AE 2017/00341164.

3. Judgment – R (Cth) v Chie [2019] NSWDC 346.

4. Telephone Intercept transcript Admitted as Exhibit 6 at the trial – R (Cth) v Chie [2019] NSWDC 346.

5. Transcript of Chie’s evidence at the trial.

Trial of Chie – Judge Hunt

39. On 6 June 2019, Judge Hunt acquitted Chie of a charge that he on or about 10 November 2017, at Dapto, possessed proceeds of crime; being a sum of money in Australian denominations, in circumstances where he knew that the cash was proceeds of crime: s 193B(2) of the Crimes Act 1900 (NSW): R v Chie [2019] NSWDC 346.

40. In short summary, his Honour acquitted Chie because the prosecution had failed to sufficiently particularise the “proceeds of crime” or demonstrate any “specificity of either the quantum or the connection of that quantum to a particular offence.” He applied R v Mackellar(No 3) [2014] NSWSC 106 and Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205. He held that the prosecution had insufficiently particularised the “proceeds of crime” and that consistent with those authorities a verdict of acquittal by direction was required.

41. Chie is entitled to the full benefit of his acquittal but it is important to note that his Honour made no factual findings about any aspect of the evidence given at that trial by Chie. Chie’s acquittal was based on legal points, not acceptance of, or even doubt raised by, his evidence. A transcript of that evidence and cross-examination by the Crown Prosecutor from 2 February 2019, who also appears today, was before me as Exhibit 2.

Issues in dispute

1. The role the offender played in the attempted recovery of the consignment of what he presumed to be imported drugs.

2. Whether he was to be responsible for the distribution of the drugs in the community.

3. Whether the cocaine in his procession was primarily for his own use or possessed by him as part of a business of supplying to others for profit.

4. What utilitarian benefit should be allowed for the guilty pleas?

42. Most sentencing proceedings do not involve some general joinder of issue between prosecution and offender. Calling and testing evidence is however required if an asserted fact or a conclusion drawn from an asserted fact is controverted or if the judge was not prepared to act on the assertion. I am obliged to make my own assessment of the evidence as part of my overall synthesis of relevant factors.

43. As the High Court made clear in The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270, matters in mitigation must be established on the balance of probabilities; matters in aggravation of penalty must be established beyond reasonable doubt. The High Court also recognised that sometimes a sentencing Court must sentence according to what is known or agreed. The High Court pointed out that a Judge who is not satisfied of some matter urged in a plea on behalf of the offender, does not have to sentence the offender on the basis of that contention unless the prosecution prove the contrary beyond reasonable doubt: at [24].

Issues 1 & 2 – The role of the offender

44. It is necessary for parity purposes that some comparison be made of the roles played by AE and Chie.

45. The Crown submits that the offender took significant steps in the attempt to possess the cocaine he believed to be in the containers. Noting, “It is open to the Court to find that the offender intended to engage in the supply of the cocaine to the market in the community,” and; “While the co-offender ‘AE’ was involved in arranging the importation from Spain, there is material that by inference, in the Crown’s submission, suggests that the offender was to be the on-seller or distributor.”

44. For the offender it is conceded that a custodial sentence is appropriate having regard to the totality of his offending, however it is submitted that his role in the importation was significantly less than that of AE and that “he was engaged in behavior at the periphery of a substantial course of criminal conduct engaged in by people who were financially invested in the outcome of their importation in a way that there is no evidence to show the offender was.” Consequently, it is said the appropriate starting point for the sentencing exercise for the attempted to possess a border controlled drug, is well below that of AE.

45. The offender disputes each prosecution claim about what can be deduced from his actual possession of 85 grams of cocaine. He submits that there is no evidence that he intended to or was engaged in the supply of cocaine in the community for profit or that he was to be the on-seller or distributor of the imported cocaine.

46. The offender did not give evidence in these proceedings however the transcript of his evidence before Judge Hunt was before me. It is fair to say that Judge Hunt was not impressed by his testimony; nor was I. It is quite clear that when it came to explaining what the Crown describe as “drug ledgers,” Chie was caught out in a lie: see Exhibit 2, pages 25 – 28.

47. I base my findings on what is accepted by both parties and the subject of verifiable evidence. That evidence reveals that it was AE who arranged the importations in conjunction with his overseas associates. AE did the preparatory work of setting up the import company and going to Spain. AE made a financial contribution. AE did not know where in the containers the cocaine had been secreted and had to call his overseas contacts for directions, indicating that he was not at the top of the hierarchy. AE undertook all communications with the international associates. He also had assistance from the unknown male on 23 October 2017: see [19]-[20] above. Both the shipping contains were addressed to AE who also had direct contact with Hyham. It appears that the subsequent arrangement for the delivery of the shipping containers to the warehouse was organized by AE.

48. There is no evidence the offender had any involvement with the overseas associates. He worked with AE. Chie did however make the preliminary inquiries of Hyham. While there is no direct evidence that either AE or the overseas associates ever communicated the weight of the drugs to the offender, the size of the shipment and the arrangement’s made for storage and recovery of the drugs presumed to be in the containers allows an inference to be drawn that he knew the quantity imported was substantial.

49. For the offender it is submitted that his involvement was discreet, with his entering into events well after the enterprise had commenced, and marked by conduct that was “nothing more than someone helping out AE.” It is suggested AE operated at an executive level whereas, “By contrast … the offender was engaged purely as a factory worker in the operation.”

50. I cannot accept the Crown submission that Chie’s involvement in the enterprise was of the same level as AE. Nor however can I accept Chie was purely a factory worker.

51. AE’s involvement preceded the known involvement of Chie. The offender was first known to be involved in October 2017. After then he played an active role in the recovery operation working alongside and apparently as an equal to AE While AE spoke to the overseas associates there is nothing to indicate that Chie acted at AE’s direction or was subordinate to him. He joined with AE in seeking to recover what he presumed had been secreted in the containers. He did so on a number of occasions, and he took an active role in disposing of the subsequent rubble. It was AE however who arranged for the unknown man to come to the warehouse and give them instruction.

52. I accept the defence submission that any number of consequences might have resulted from the attempt to import these particular drugs – none of which necessarily involve the offender. That the offender was a cocaine dealer could give rise to an inference that he may have been intending to supply what was imported but it is only one of any number of possible inferences. The evidence is silent on what was to happen to the drugs if they had been successfully recovered.

53. The offender must be sentenced for what he did, nothing more. There is no way that the 85 grams he had in his possession could be associated with the attempted importation. What he did do, presumably for reward, was take an active part in the protracted efforts to extract the imported drugs from the shipment. He was aware in advance of what was coming and he presumably was prepared to assist in the distribution of the drugs once recovered. There is insufficient evidence before me to establish that he was to be involved in their sale directly to the community.

Issue 3 – Possess drugs for sale

56. The offender was in possession of 85g of cocaine. He told Judge Hunt he had that amount because was about to embark on a weekend away with a number of friends and as heavy user would have taken it himself.

57. By his guilty plea he accepts he could not meet the onus placed on him to show on balance that he did not have some or all of the drugs in his possession for the purpose of supplying them to others. At his trial before Judge Hunt, Chie gave sworn evidence of his extensive cocaine use.

58. It is accepted that he was a drug user however I cannot accept his evidence before Judge Hunt that all of the drugs possessed, or the bulk of it, was for his own use. There is no material before me that I can accept on balance that shows an addiction to the drug; not that addition is a mitigating factor: Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [273].

59. The offender’s evidence before Judge Hunt about the benign nature of the contents, of both the ledger found in his home and the exercise book found at his workplace cannot be accepted. Those documents speak for themselves. Chie’s answers to His Honour’s questions were so patently untrue that the only available inference is that he lied because the truth would reveal his culpability for the offence under examination.

60. The ledgers and other paraphernalia of the offender show Chie supplied cocaine and was paid by others for supplying cocaine. The plastic bags located at the offender’s home containing traces of cocaine are much more consistent with their repackaging for sale than the offender’s admitted cocaine use. The evidence establishes beyond reasonable doubt the offender was a drug supplier.

61. I do however accept the submission that there is no obvious nexus between the unregistered firearm and ammunition and the supply – they are discrete offences.

Issue 4 – Guilty plea:

62. The offender was arrested on 10 November 2017. He has been in custody on remand with bail refused ever since.

63. In addition to supply prohibited drug, possession of unregistered prohibited firearm and possession of ammunition, the offender was originally charged with two other and different Commonwealth offences to those now before the court; Importation: s 307.1(1) Criminal Code (Cth) and deal with suspected proceeds of crime: s 193C(1) Crimes Act 1900 (NSW).

64. There were a number of delays in the Local Court as the prosecution brief was incomplete. In January and May 2018, the offender unsuccessfully applied for bail at the Wollongong Local Court. The offender eventually indicated pleas of not guilty to all charges and was committed for trial on all but the summary possess ammunition matter, to the District Court on 6 August 2018.

65. On 14 August 2018, at Wollongong District Court, the trial was listed for 27 May 2019, with a three week estimate. It was listed for arraignment and case management on 11 September 2018.

66. A further bail application in the Supreme Court was made on 6 September 2018. It too was refused.

67. On 7 September 2018, the trial indictment was served. The Commonwealth DPP withdrew the importation charge and substituted an attempt to import charge. The facts and evidence in support of the new count did not change from that earlier provided to the defence.

68. On 20 September 2018, the offender’s solicitor indicated that a plea of guilty would be entered to the current charges. Although the offender appeared before me, as list judge, on two subsequent occasions, his representative did not appear. It was not until 9 November 2018, that the indicated guilty pleas were able to be entered and the trial date formally vacated.

69. Chie continued his plea of not guilty with respect to the proceeds of crime charge. As indicated above he was acquitted after a directed verdict by Judge Hunt. The sentence matters followed along pending that trial’s conclusion. Judge Hunt however accepted a defence submission that he disqualify himself from sentencing Chie because of apprehended bias arising from remarks he made when he was sentencing AE.

70. It is accepted that there should be some reduction in the otherwise appropriate sentences to reflect the utilitarian and any other value of the guilty pleas ultimately entered by Chie: Xiao v R [2018] NSWCCA 4 at [208]; s 16A(2)(g) Crimes Act 1914 (Cth). The Crown submits however that this discount must be “minimal”. The defence say that submission is “disingenuous”. The defence position is that the guilty plea to the most serious count was entered at the first available opportunity.

71. What is to be regarded as an early plea will vary according to the circumstances of the case. It for the sentencing judge to determine where in the range a particular case should fall with the primary consideration being the timing of the plea: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. While technically the guilty plea was entered soon after the current attempt to possess charge was put before the court this was not an early guilty plea. All the other counts now before me were listed for trial. The most serious count was new but the foundation for it did not change and the maximum penalty was the same. There is nothing to indicate that an offer to plead guilty to this available alternative was ever made by the defence.

72. The guilty plea came after the matter had been listed for trial but soon after it came to this Court. The trial date was able to be vacated and a new trial listed in its place, with minimum inconvenience to the Court. A court should not undervalue the utilitarian value of what occurs between arraignment and trial nor overvalue what occurs between committal and arraignment: Mooney v R [2016] NSWCCA 231 (RA Hulme J) but see R v Borkowski [2009] NSWCCA 102.

73. It is the fact of the guilty plea that must be taken into account, not the state of mind or motivation of the offender in entering the plea. The plea must be taken into account even in circumstances where there was no evidence of remorse and in the face of a strong prosecution case. It is in the community interest that the utilitarian value of such pleas is rewarded when pleas of guilty avoid long and costly trials. And, this could have been a long and costly trial. It is desirable that, in the interests of transparency, such discounts be specified: Xiao v R [2018] NSWCCA 4 at [269]-[278]

74. While the subsequent sentencing proceedings were delayed and somewhat protracted the guilty pleas did have utilitarian value. I will allow a reduction of 15% for their utilitarian value. I will take care that that benefit is not eroded by the process of accumulation.

75. The pleas are also a practical expression of remorse or contrition that will be taken into account in my general synthesis of relevant factors. With one exception however, the pleas were the only expressions of remorse or contrition. The exception is the firearms count, where the offender disclosed his possession of that firearm on arrest prior to the execution of the search warrant.

76. The firearm offence is a Table 1 offence and the ammunition offence is a summary offence. There is no evidence in the material before the Court to suggest a nexus between the principle offence or the deemed supply and the admitted possession of the firearm and ammunition.

Assessment of objective seriousness

Attempt to possess

77. Problems can emerge in attempting to categorise the role of the offender in a drug enterprise, as in many cases, as here, the full nature and extent of the enterprise is unlikely to be known to the Court. General propositions that guide assessments of objective seriousness were conveniently collated in R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [72]. Relevantly here they include:

1. The steps taken by Chie to access what he believed had been imported;

2. The size of the importation, reflected in his being aware a warehouse was required and two containers were involved;

3. The inference he would receive a reward commensurate with the risk he took. There is no evidence his motivation was other than for profit;

4. The efforts he made to avoid detection;

5. His awareness as a drug user and supplier of the social consequences that follow from distribution of the drug he sought to gain possession of.

78. It is accepted that the interests of general deterrence must be served. Sentences imposed for any involvement in drug importation offences must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.

79. While the act of attempted possession can be attended by a wide range of moral culpability, here the offender's involvement in the overall transaction and degree of involvement in the enterprise places him below AE and the overseas associates but cannot put him in the day labourer category urged on me by the defence.

Drug supply

80. It bears repeating that the sale of illicit drugs causes considerable harm not just to those who purchase and ingest such drugs but to the community in general. The illicit trade in drugs is one of the principal sources for crime in the community. It is not just the sale of drugs; it is the crimes that are committed by those who seek to obtain funds for drugs and the destruction to family and personal life that drugs cause.

81. Chie was in possession of 85 grams of cocaine. The trafficable quantity is 3 grams; the commercial quantity is 250 grams. Whatever his own use, some of it was to be supplied to others as part of a pattern established by the ledger books. The harm that drugs cause the community, and the community interest in appropriate and just punishment of such offences, require imprisonment for a significant and telling period. That said the community must understand that the problems caused by illicit drugs cannot be solved by arresting or gaoling our way to a solution: See various studies from NSW Bureau of Crime Statistics and Research (“BOCSAR”), including W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, “Supply-Side Reduction Policy and Drug-Related Harm” (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1. The evidence is that harsher prison sentences for users and conventional law enforcement methods cannot cure what is a social problem, a health problem, a personal problem, a community problem and ultimately a policy problem.

Firearms

82. Count 3 involves a breach of the Firearms Act1996 (NSW). That Act makes it clear that firearm possession is a privilege that is conditional on the overriding need to ensure public safety. There was no justification here for the possession of the rifle. The weapon was not licensed nor registered. Its possession posed a significant risk to the safety of the community. Firearms if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. Accordingly harsh penalties are required to deter others and encourage the removal of unauthorised firearms from the community.

Prior criminal record of the offender

83. The offender was dealt with on 8 August 2012, at Albion Park Local Court in respect of firearms offences. He received fines and a Community Service Order of 80 hours. He was also fined for his possession of an anabolic steroid. On 26 May 2014, at Wollongong Local Court, he was fined for having custody of a knife in a public place and possession of a prohibited weapon.

84. This is his first time in custody. His criminal record does not entitle him to leniency often given first offenders, although I note that such leniency is often given less weight or withheld from those who choose to involve themselves in importation type offences:    R v Nguyen; R v Pham, at [72].

Comparable cases

85. I have had regard to statistics and the many other cases to which I have been referred. An extensive summary table was provided by the Crown. Ms Rowan submitted that the offender falls squarely within category four set out in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194. And, that comparable cases include Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208 and R v Holland [2011] NSWCCA 65.

86. The consistent application of principle must always be considered. The guidance offered by appellate courts and other decisions is always welcome. The pattern of past sentences for an offence may serve as a measure for comparison or help establish a range, however each case and each offender is individual: see Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74]. In TheQueen v Pham [2015] HCA 39; (2015) 256 CLR 550, Justices Bell and Gaegler noted at [47]: “… sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.’’

Parity

87. This sentence must also be determined by having regard to the circumstances of the co-offender and their respective degrees of culpability – “like must be compared with like.” However, different personal and criminal histories may “justify a real difference in the time each will serve in prison.” This principle is known as parity. It is the classic example of the need to, so far as possible, ensure equal justice: Green v The Queen (2011) 244CLR 462; Afu v R [2017] NSWCCA 246. In like cases that principle can also encompass the structure of a sentence and its non-parole period: Lau v R [2010] NSWCCA 43.

88. Judge Hunt in sentencing AE held that AE’s role was essential to the importation as he had the overseas connections and was able to use them to seek advice. His Honour found there was no evidence to suggest AE had financed the operation or that he was the owner or distributor of the drugs. AE had entered a guilty plea at an early opportunity. He was a first offender of solid family and work history and despite a diagnosed substance abuse disorder had “very good prospects for rehabilitation.” His Honour sentenced AE taking as his starting point a sentence of 14 years before allowing 25% for the early guilty plea; the non-parole period was, after rounding down, 60% of the sentence.

89. I cannot accept the Crown submission that in relation to the Commonwealth offences Chie is comparable to AE. Once the drugs had been delivered the two men did similar things to give effect to the importation, but AE played a much greater role in the overall crime being committed. Unlike AE, Chie’s role was not critical but it was nevertheless important.

Subjective considerations

90. The offender lived in the southern Illawarra region with his family in rental accommodation. He had a history of stable employment. He has a job awaiting him on his release from custody. He has put his time in custody to positive use and has references deposing to the contribution he has made while in gaol. He has strong and pro-social support from his family, but he has not seen his children since going into custody on this matter.

90. Two Sentencing Assessment Reports were provided by a Mr Single. Each noted Chie was a medium to low risk of re-offending and said no supervision other than to ensure participation in drug abuse programmes was required, given his family and work background. It was noted that after completion of the EQUIPS Addiction program and meeting drug users in prison Chie said he he now has some awareness of the impact drug use on the community.

Maximum penalties

92. An offence pursuant to 307.5(1) Criminal Code carries a maximum penalty of life imprisonment. An offence pursuant to s25(1) Drug Misuse and Trafficking Act, carries a maximum penalty of 15 years imprisonment. An offence pursuant to s 36(1) Firearms Act 1996 (NSW), carries a maximum penalty of 14 years imprisonment.

93. Careful attention to the maximum penalty fixed by Parliament is always required. The maximum is one sentencing measure to be balanced with all other relevant factors. That maximum also invites a comparison between the instant case and other cases. That said, it is not appropriate to look first to a maximum penalty and then proceed by way of making a proportional deduction from it: Markarian v The Queen (2005) 228 CLR 357 at [30] and [31].

Structure of the sentences

State and Federal

94. I must consider and appropriately punish both the State matters and the Commonwealth offence. There is no nexus between the offences save as to timing. Each will require separate consideration and a period of partial accumulation, bearing in mind the principles of totality and the process of instinctive synthesis that must be bought to the sentencing exercise.

95. The question whether a series of sentences should be served concurrently or cumulatively is only considered after determining the appropriate sentence for each offence. The answer to the question is a discretionary one.

96. The totality principle requires a court to pass to review the aggregate sentence to determine whether it is “just and appropriate”. The principle works to limit punishment by an overall assessment of the offender’s criminality in its entirety and to recognise that sometimes appropriate punishment for each offence can result in a sentence that is unduly harsh or crushing: R v Clinch (1994) 72 A Crim R 301 at [306]; MAK v R [2006] NSWCCA 381.

Non-parole period

97. The non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crimes committed call for such detention: Power v The Queen (1974) 131 CLR 623 at 628. The part of the sentence spent on parole must itself bear a proportionate relation to the crime and the other purposes of sentencing: Simpson v R [2011] NSWCCA 534; (2011) 53 NSWLR 704.

98. The results of a comprehensive NSW BOCSAR study revealed that offenders who received parole supervision upon release from custody took longer to commit a new offence, were less likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community: W Wan, S Poynton G Doorn and D Weatherburn, “Parole Supervision and Re-offending” (2016) 49 Australian & New Zealand Journal of Criminology 497. It is in the community’s interest that Chie not re-offend again.

Submissions

99. I am indebted to Ms Paingakulam, Crown Prosecutor and Ms Rowan, defence counsel, for their comprehensive written and oral submissions. I hope this judgment does justice to them. I have not explicitly referred to each of the matters raised but I have considered and addressed them in coming to my determinations as to the appropriate sentence in each matter.

100. Many of the purposes of punishment are set out in 16A Crimes Act 1914 and s 3A Crimes (Sentencing Procedure) Act 1999 (NSW). Each relevant consideration was carefully addressed by respective counsel in submission. The Crown also provided a helpful written summary.

101. Ms Paingakulam submits only a substantial period of imprisonment could reflect the offender’s role in taking significant steps “to recover a large quantity of cocaine”. She made thorough reference to relevant sentencing principles.

102. Ms Rowan submits a sentence well below that imposed on AE is required as matters advanced by the Crown said to aggravate the sentences cannot be proved beyond reasonable doubt.

Synthesis

103. Zachary Chie had a good job and a family. He had been in some trouble with the law but nothing indicates he was a danger to the community, far from it. He was however a cocaine user and had contacts with those who supply cocaine to users. He chose to involve himself in the supply of cocaine.

104. Chie was well aware that it was illegal to possess prohibited firearms. He chose to ignore his community responsibilities in that regard.

105. Chie was aware that AE was involved in the importation of a significant consignment of illicit drugs. He chose to join with AE and assist in the attempted recovery of those drugs. He could only have done so in the expectation of the considerable rewards available to those who involve themselves with illegally imported border controlled drugs, such as cocaine.

106. While every offence and every offender requires individualised treatment the courts must in the exercise of their undoubted discretion take guidance from a number of sources. They include; the maximum penalties prescribed; the decisions of other courts, particularly those designed to give guidance; and of course, the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm done to the community.

“The task of the [judge] is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all.” Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [75].

107. Only custodial sentences, partially accumulated, could meet the purposes of sentencing. The sentences must also do justice to the subjective case made for the offender. I accept that he has the capacity, with assistances, to resume a normal and law-abiding life in the community after he has served the minimum period his offending requires must be spent in custody.

Order

108. In respect of each count, and in accordance with your guilty pleas, you are convicted.

NSW

109. With respect to offence 4 – possess ammunition – given the time spent and to be spent in custody, it is inexpedient to inflict any punishment. The matter is disposed of pursuant to s 10A Crimes (Sentencing Procedure) Act 1999.

110. The 15% discount for utilitarian value of the early pleas of guilty will be applied to each indicative sentence. I have taken care not to erode the benefit of the plea by the process of accumulation.

111. There will an aggregate sentence for the remaining two NSW offences. The indicative sentences to be applied are as follows:

1. With respect to offence 2 – supply prohibited drug: 2 years 6 months imprisonment.

2. With respect to offence 3 – possess prohibited firearm: 1 year 8 months imprisonment.

112. There will be an aggregate sentence of 3 years imprisonment, with a non-parole period of 1 year 10 months. The sentence will date from 10 November 2017. You will be eligible, subject to the Commonwealth sentence, for parole on 9 September 2019. The NSW sentence expires on 9 November 2020.

Commonwealth

113. The 15% discount for utilitarian value of the early pleas of guilty will be applied; with a starting point, taking into account all other factors, of 12 years.

114. You are sentenced to a term of imprisonment of 10 years 2 months.

115. Your Commonwealth sentence is to commence on 9 February 2019.

116. I fix a non‑parole period of 5 years 9 months to expire on 8 November 2024, on which date, subject to s 19AL Crimes Act1914, you are to be released on parole.

Explanation

117. In short summary: Your sentences will date from 10 November 2017, the day you went into custody. Each sentence has been reduced by 15% to reflect the utilitarian value of your guilty plea. After serving 1 year and 3 months for the State offences you will commence serving a Commonwealth sentence of 10 years and 2 months. You will be eligible for release to parole after serving 5 years 9 months of that sentence.

118. The total effective sentence is 11 years 5 months. You will be eligible for release to parole after serving 7 years, approximately 60% of the total sentence. Your parole period is 4 years 5 months.

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Amendments

23 May 2024 - Error corrected by consent. Various typographical errors amended.

Decision last updated: 23 May 2024