R v Chie

Case [2020] NSWDC 5 3 February 2020

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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:

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 Chie

Details

AGLC: R v Chie [2020] NSWDC 5
Case: [2020] NSWDC 5
Decision Date: 03 February 2020

CaseChat Overview and Summary

The defendant, Chie, was sentenced following his convictions for various drug-related and firearm offences. These included an attempt to possess imported border-controlled drugs, specifically cocaine, and possessing a prohibited firearm. The case was heard in the Supreme Court of New South Wales, where the sentencing was determined. The legal issues before the court involved determining the appropriate sentence for multiple offences, considering the value of late guilty pleas, the risk of reoffending, and applying the totality principle to avoid excessive punishment.

The court considered several factors in arriving at the sentence. It acknowledged the late guilty pleas, which demonstrated a form of repentance, and the low risk of reoffending. However, it also weighed the severity of the crimes, particularly the attempt to possess a significant amount of cocaine and the possession of a prohibited firearm. The court applied the totality principle to ensure that the aggregate sentence for the state offences was appropriate, resulting in a sentence of three years with a non-parole period of 1 year 10 months. For the Commonwealth offence, the court imposed a sentence of 10 years 2 months, with a fixed non-parole period of five years nine months.

The reasoning of the court was grounded in the need to ensure that the sentence reflected the seriousness of the offences, while also considering mitigating factors such as the late guilty pleas and the low risk of reoffending. The court determined that a lengthy parole period was necessary to maintain public safety and deter future criminal conduct. The final orders reflected a balanced approach, taking into account both the need for punishment and the circumstances that might mitigate the sentence.

Orders

Orders of the court

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]

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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Citations

R v Chie [2020] NSWDC 5

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Chie [2019] NSWDC 346
Citation 1 (Para 3)

…Judgment – R (Cth) v Chie [2019] NSWDC 346.…
Xiao v R [2018] NSWCCA 4
Citation 2 (Para 70)

…uction 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 “disi…
Afu v R [2017] NSWCCA 246
Citation 3 (Para 87)

…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.…
Mooney v R [2016] NSWCCA 231
Citation 4 (Para 72)

…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.…
R v Pham [2015] HCA 39
Citation 5 (Para 86)

…ach 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 The Queen 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 weig…
Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208
Citation 6 (Para 85)

…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.…
R v McKellar (No 3) [2014] NSWSC 106
Citation 7 (Para 40)

…emonstrate 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” an…
Barbaro v The Queen [2014] HCA 2
Citation 8 (Para 86)

…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 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550, Justices Bell and Gaegler noted at [47]: “… sentencing is a discretionary judgment an…
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 9 (Para 87)

…ll 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] NS…
Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205
Citation 10 (Para 40)

…n 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…
R v Holland [2011] NSWCCA 65
Citation 11 (Para 85)

…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.…
Hili v The Queen [2010] HCA 45
Citation 12 (Para 86)

…r 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 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550, Justices Bell and Gaegler noted at [47]: “… se…
R v Nguyen; R v Pham [2010] NSWCCA 238
Citation 13 (Para 77)

…ely 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:…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 14 (Para 85)

…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.…
Lau v R [2010] NSWCCA 43
Citation 15 (Para 87)

…; 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.…
R v Robert Borkowski [2009] NSWCCA 102
Citation 16 (Para 72)

…en 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.…
R v MAK [2006] NSWCCA 381
Citation 17 (Para 96)

…iate 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.…
Markarian v The Queen [2005] HCA 25
Citation 18 (Para 93)

…d, 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].…
Wong v The Queen [2001] HCA 64
Citation 19

…704 The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 The Queen 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…
Morawski v State Rail Authority [2000] NSWCCA 309
Citation 20 (Para 71)

…e 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 wa…
R v Thomson; R v Houlton [2000] NSWCCA 383
Citation 21 (Para 71)

…e 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…
R v Olbrich [1999] HCA 54
Citation 22 (Para 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 se…
Regina v Simpson [1999] NSWCCA 367
Citation 23 (Para 97)

…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.…
R v Henry [1999] NSWCCA 111
Citation 24 (Para 58)

…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].…
R v Henry [1999] NSWCA 111
Citation 25 (Para 58)

…al 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].…
Power v The Queen [1974] HCA 26
Citation 26 (Para 97)

…nimum 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…

Legislation Cited

Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 100)
Crimes Act 1900 (ACT)
1 mention (from Para 39)
Crimes Act 1914 (Cth)
1 mention (from Para 70)
Criminal Procedure Act 1987 (NSW)
1 mention (from Para 4)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 2)
Firearms Act 1996 (TAS)
1 mention (from Para 3)

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: