R v Chua

[2001] NSWCCA 50

CITATION:	R v Chua [2001] NSWCCA 50
FILE NUMBER(S):	CCA 60661/00
HEARING DATE(S):	2 March 2001
JUDGMENT DATE:	2 March 2001
PARTIES :	Regina v Boon Hock Chua
JUDGMENT OF:	Heydon JA at 1; Bell J at 26; Smart AJ at 27

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0501
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

COUNSEL :	R Sutherland (Crown) T Buddin SC (Respondent)
SOLICITORS:	Commonwealth Director of Public Prosecutions Legal Aid Commission of New South Wales
CATCHWORDS:	Criminal Law - Sentencing - Knowingly concerned in prohibited importation of commercial quantity of heroin - Crown appeal against alleged manifest inadequacy of sentence - Whether special circumstances existed to take case outside R v Wong sentencing range - Whether ratio of non-parole period to head sentence should have been greater than 54 per cent - Confession and full co-operation with law enforcement authorities - Plea of guilty - Remorse and contrition - Whether respondent's admissions vital in establishing the prosecution's case against him - R v Wong and Leung (1999) 48 NSWLR 340
LEGISLATION CITED:	Customs Act 1901
CASES CITED:	R v Bernier (1998) 102 A Crim R 44 R v Karacic [2001] NSWCCA 12 R v Ngui (2000) 111 A Crim R 593 R v Wong (1999) 48 NSWLR 340
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60661/00

HEYDON JA
BELL J
SMART AJA

Friday, 2 March 2001

REGINA v Boon Hock CHUA

JUDGMENT

1    HEYDON JA: This is an appeal by the Crown against the sentence imposed on the respondent on the grounds of its alleged manifest inadequacy.

2 On 13 September 2000 the respondent pleaded guilty to the charge of having been knowingly concerned in the importation into Australia of a prohibited import to which s 233B of the Customs Act 1901 applies, being narcotic goods consisting of a quantity of heroin not less than the commercial quantity applicable to heroin.

3    Kinchington DCJ, QC, sentenced the respondent to 6 years’ imprisonment with a non-parole period of 3 years and 3 months. It may be accepted that that was a lenient sentence; the question is whether it was appellably wrong.

4    The essence of the Crown complaint is that in R v Wong (1999) 48 NSWLR 340 this Court provided an indicative range of 8 to 12 years’ imprisonment for importations of between 1.5 and 3.5 kilograms of heroin; that the quantity involved here was 1.9264 kilograms; that, contrary to the sentencing judge’s opinion, there were no special features sufficient to take the case outside the range indicated in R v Wong; and that the ratio of non-parole period to head sentence should have been about two-thirds, not about 54 percent.

5    At 7.45 pm on 4 May 2000, the respondent arrived at Sydney Airport on a Qantas flight from Bangkok. At 8.50 pm an officer of the Australian Customs Service stopped the respondent as he was heading to the “Green Nothing to Declare” exit. He and other officers questioned the respondent and examined his bags. In the course of conversation about the respondent’s Buddhism, the respondent showed them a small tattoo on his lower left arm. He was asked if he had more tattoos. He said he had two on his chest, and lifted his shirt to reveal them. It was noticed that there was an abrasion on his skin and some tape around his back. The sentencing judge described what happened next as follows (AB 17.7-19.1):

“A search was then conducted by the Customs Service of the terminal area and located in one of the toilet areas was a blue carry bag, which on examination contained a white powder when subject to a presumptive drug test proved to be heroin.
Those packages were consistent with being packages that could be carried on the body of a person. The powder in the packages was ultimately subject to analysis and found to contain heroin of 69.8 to 74.3 per cent purity, and it has been estimated the pure weight of heroin contained in those packages was 1,926.4 grams.
The offender was interviewed, and during the course of that interview he admitted that he had taken those packages out of Bangkok. He informed the officers in the course of that record of interview that he had been recruited, I think, in Singapore, flown to Bangkok where the packages had been attached to his body, and received instructions to hand them over in the course of the flight to Australia to another person, whom he would meet on that flight.
He says that that was done in the course of the flight. He identified the packages that were found in the toilet area as being the packages that he had taken out of Bangkok, and [which] he had given to the person on the flight to Sydney. He also informed the police that, so far as he was aware, the final destination of the heroin was to be Christchurch in New Zealand, but that he did not know how it was to get there after he handed it to the man on the flight to Sydney.
He also indicated that his air fare and the sum of $1,500 which was found in his possession were provided to him by the persons behind the operation. He says that the only name that he knew was the name Ben and he had a phone number he was to contact. Enquiries made by the Australian Federal Police force in regard to the phone number and the name Ben did not help the investigating authorities locate anyone else connected with the importation of the heroin into Australia.
The estimated wholesale value of the heroin was just over $500,000, and it had an estimated street value of just over $5,500,000.”

6    Initially the respondent was charged with importing heroin, and he pleaded guilty to that charge on 18 August 2000 before the Chief Judge of the District Court. He adhered to that plea when he was brought before the sentencing judge for sentence on 11 September 2000. After the evidence had closed and addresses had been completed, the sentencing judge opined that the facts proved did not establish importation, as distinct from being knowingly concerned in importation. The Crown asked for an adjournment and the matter was stood over to 13 September 2000. The charge was amended from importation to being knowingly concerned in importation. The respondent pleaded guilty to the amended charge and after further argument and a short period of reservation the respondent was sentenced.

7    The operative parts of the sentencing judge’s reasoning so far as they bear on the determination of his sentence were as follows (AB 19.4-20.8, 21.2-22.8 and 23.2-.8):

“He is a young man now aged twenty-eight, having been born on 25 December 1972. He is a citizen of Singapore. He is single and has no family or no children.
At the time he was recruited to bring this heroin on to the plane whose destination was Australia, he was unemployed, although he had previously worked as a driver and a butcher. He had previously been to Australia in 1989 with his family.
He has no prior criminal convictions in Australia, and I am not aware that he has any prior criminal convictions either in Singapore or anywhere else in the world. He has pleaded guilty to this charge and has co-operated with the authorities from the outset. Indeed, it could be said that if he had exercised his right of silence when questioned by the customs officials and the Australian Federal Police, that they would have had no material which would have established his connection with the heroin found in the toilet cubicle at Sydney Kingsford Smith Airport.
He has at no stage tried to hide his involvement as a courier in this operation to bring the heroin into Australia so that it could be re-exported apparently to Christchurch in New Zealand. I accept his pleas of guilty and his co-operation with the Australian Federal Police at the early stage that it was done as a genuine sign of his remorse and contrition for the criminal act he got involved in on this occasion.
He has been in custody since his arrest on 4 May this year. While in custody, he has pursued a number of educational courses, and certificates relating to those courses are contained in exhibit 1 herein. I will have copies of those certificates made. The copies will stay with the file and the originals will be returned to him.
I now turn to a consideration of the sentence I must subject him to. The offence of being knowingly concerned in the importation of a commercial quantity of heroin into Australia is indeed a serious criminal one. As I have previously indicated, the maximum penalty available to me in respect of this type of offence is life imprisonment. Both from a general and a specific deterrent point of view, I must subject the prisoner to a severe penalty.
It seems to me that none of the sentencing options other than a full-time custodial sentence is available to me in this case. This is an unusual case.
…
As I have indicated, I am satisfied that from the prisoner’s co-operation with the authorities from the outset and his forthrightedness during the course of being interviewed by the Australian Federal Police that at no stage did he try to hide his involvement in this operation. I am satisfied from all the material that has been placed before me that he was a courier and that his role was to partake in the chain of carriage of this drug, this prohibited drug, into Australia.
As I said, both from a general and a specific deterrent point of view, it must be brought home not only to the prisoner but also to others who might be tempted to act as couriers or play a part, even though they consider it a minor part, in the importation of illicit drugs into Australia, that if they do and they are caught they will be severely dealt with by this Court.
In recent years, the Supreme Court of New south Wales in exercising its jurisdiction as a Court of Criminal Appeal has set down sentencing guidelines in relation to the importation of heroin in the case of R v Wong and Leung. Those guidelines would indicate that so far, for those involved in the importation or those connected with the importation of a low range commercial quantity of heroin, that is, between one and a half kilograms to 3.5 kilograms, can look forward to being subject to terms of imprisonment between eight and twelve years in the ordinary case.
As I have indicated, this is no ordinary case. It has a number of unusual features, one being the fact that the accused pleaded guilty when charged with importation; did not seek to hide behind the fact that that importation charge could not be proved; and when it was changed to one of being knowingly concerned in the importation of this commercial quantity of heroin, he also pleaded guilty to that charge.
Another unusual feature is that it was only through questioning of the prisoner that the part that he played in the bringing of this heroin into Australia was ascertained. To some extent, it could be said that he has been subject to a double jeopardy, not in the true sense of that word, but in the broader sense of that word.
In any event, I am satisfied that his remorse and contrition is of the highest order that one could have in regard to remorse and contrition, that he is entitled to the benefit of that. He is entitled to a benefit on his sentence, which is otherwise appropriate, discounted because of his early plea. He has admitted his guilt and pleaded at the first available opportunity.
…
I have already indicated that I think this is a case in which I must subject him to a full-time custodial sentence.
I also note that the prisoner is not a national of this country, and that any sentence he will serve will be served without the support of close family or friends. It is highly unlikely that he will have anyone visiting him while he is in custody from his own family or from his friends. Of course, that is something that he would have expected if he was caught bearing in mind his connection with this country.
In all the circumstances of this case, and bearing in mind it is an unusual one, I think that it falls just outside the sentencing guidelines referred to in the case of Wong and Leung. It seems to me that an overall prison sentence in the vicinity of some six years is an appropriate sentence to subject the prisoner to in this case, and to fix a non parole period of three years and three months in relation to it in the special circumstances of this matter, special and unusual circumstances of this matter.”

8    The Crown identified the unusual features on which the sentencing judge relied in the following terms (written submissions, p 6):

“(i) The fact that the accused pleaded guilty when charged with importation and that he did not seek to hide behind the fact that that importation charge could not be proved and that when changed to a charge of being knowingly concerned, he also pleaded guilty to that charge.
(ii) It was only through questioning of the prisoner that the part he played in the bringing of the heroin into Australia was ascertained.
(iii) His remorse and contrition was of the highest order entitling him to a benefit on sentence which would be further discounted because of his early plea.”

9    The Crown then advanced the following submissions (written submissions pp 7-10):

“The Crown respectfully submits that the features identified by the learned trial judge were not such as to take the case outside the guideline judgment, nor ‘out of the ordinary’ in respect of comparable cases.
It is respectfully submitted that his Honour erred in concluding that the importation charge could not itself have been proved. A person who consigns goods into Australia, who posts them for collection within Australia, or who physically carries them onto an aeroplane which will land in Australia, is guilty of the act of importing a prohibited import irrespective of whether he physically carries the item personally, utilizes innocent agents such as the postal service or hands it to another participant in a joint enterprise.
As observed by the High Court in White v Ridley [(1978) 140 CLR 342]: ‘the applicant did not himself bring the cannabis into Australia; it was brought in by the airline. However, it is well settled at common law that a person who commits a crime by the use of an innocent agent is himself liable as a principal offender’; per Gibbs J at 346 (see also Stephen J at 353; Jacobs at 360).
The present Respondent did not abandon any available defence. To the extent that there was a change of charge in the Indictment to which the Respondent again entered a plea of guilty, there were neither any alteration in the objective level of criminality, nor was there any special circumstances (such as Bernier abandoning a possible defence of duress) which entitled the Respondent to any particular discount.
The fact that the prisoner had indicated his part in the bringing of the heroin into Australia through questioning was similarly not a matter which attracted any special element of leniency.
The objective circumstances would conceivably have justified a conclusion that the Respondent had carried the heroin from Bangkok and that he had removed the body packs after disembarking from the plane. He presumably had then hidden the heroin within the toilet cubicle in the terminal building. The fact that the Respondent gave an account, which was accepted by the Crown, to the effect that he had removed the heroin whilst still on the plane and given it to a third party, was not a factor which removed the case out of the ‘ordinary’.
There was no element of ‘double jeopardy’ either in the circumstance of the altered Indictment, or in the circumstances of the Respondent’s disclosures.
The Respondent had admitted his guilt and had adhered to a plea of guilty from the earliest opportunity. He was entitled for that to be appropriately taken into account.
However it is noted that the table of sentences handed up by the Crown in Wong & Leung and indeed the comparables to which Judge Kinchington was taken in the present case, were matters in which couriers and others lower in the hierarchy (where one could be ascertained) had in fact pleaded guilty.
The learned sentencing judge in the present matter placed undue reliance upon the admissions and the plea of guilty because of his conclusion that the Crown had no case without the admissions.
Whilst the Respondent pleaded guilty at an early point in time, it is to be observed that his confession was made only after the authorities had discovered his carry bag and arose in the circumstances where the Respondent must have presumed at that time that the authorities would have been able to discover his fingerprints on either the bag or the body packs which contained the heroin. The fact that subsequent fingerprint analysis failed to yield identifiable fingerprints did not alter the perception which must have been in the Respondent’s mind on the day of his arrest that such evidence was likely to be able to be ascertained and thereby able to link him, together with the other surrounding circumstances, with the carry bag and the heroin.
In the course of the sentencing proceedings the case officer from the Australian Federal Police was cross-examined by counsel for the Respondent about the importance of the admissions which had been made:
‘Q. The fact was that without those admissions you wouldn’t have much of a case against him, would you agree with that?
A. At that stage, yes ’ (AB 8).
The significance of the officer’s response: ‘ At this stage, yes’ , is an important one.
The Respondent had made full admissions regarding his activities and his knowledge of the importation being in relation to heroin, both to the customs officers at the airport and to the police in a formal interview. He had pleaded guilty and proceeded to the District Court by way of a paper committal and had reaffirmed that all of the heroin in the carry bag had been transported by him in the course of a second interview at the jail referred to during cross-examination by Ms Flannery (AB 8).
The fact was that the admissions made at the stage of arrest were such that without them there was ‘not much of a case’ at that stage .
However the circumstances in which the location of sticking plaster by which means the body packs had been adhered to the skin of the Respondent, combined with the finding of the body packs still bearing tape in a bag containing an item of clothing belonging to the Respondent, was such that in the event of a plea of Not Guilty, further investigations were clearly available to be undertaken by the Crown.
In the light of the early and continuing plea of guilty, there was no focus on questions such as the size and number and spacing of the markings on the torso and legs of the Respondent which might have been able to be aligned with the body packages of heroin and the tape adhering thereto in the event of a forensic contest. Similarly, consideration was not needed to be given to the question of DNA testing which would presumably have been well able to establish the fact that the sticking plaster attached to the body packs had been taped to the body of the Respondent.
The Crown acknowledges the significance and importance to be attached to admissions of guilt and to pleas of guilty.
However, in the circumstances of the present case the learned sentencing judge placed too much emphasis on the admissions and understated the position of the Crown case in reaching a conclusion that there would have been ‘no material which would have established his connection with the heroin’, if he had exercised his right to silence.
The case was not one in which a significant added element of leniency arose because of ‘ the disclosure of an otherwise unknown guilt of an offence’ , nor was it one ‘ where it was unlikely that the guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence ’: see R v Ellis (1986) 6 NSWLR 603 at 604.

Whilst appropriate acknowledgment and encouragement needs to be given in respect of confessions and pleas of guilty, this ought not to result in the imposition of a sentence which might be perceived as manifestly inadequate by reference to other factors such as the quantity of narcotic involved.
Comparative sentences specifically brought to the attention of the sentencing judge, in addition to the guideline judgment and cases referred to therein, were contained in a document handed to the sentencing judge. They each involved confessions at the earliest opportunity and subsequent pleas of guilty. Degrees of assistance to the authorities were also involved as indicated in the individual cases.”

10    The first significant criticism which the Crown made was that the “importation charge could not be proved”. The second, and related, significant criticism is that the respondent’s admissions were not vital in establishing the case against him.

11    First, the citation of White v Ridley is not material: the person to whom the respondent delivered the heroin was not an “innocent agent” but a guilty principal offender.

12    Secondly, although the Crown now evidently submits that the respondent was guilty of importation, before the sentencing judge it apparently thought otherwise, because it acquiesced in the sentencing judge’s suggestion that the respondent was not guilty of importation and sought an adjournment, and amended the charge (AB 9 line 31-10 line 36).

13    Thirdly, the sentencing judge’s view that if the respondent had remained silent the Crown would have had no material linking him with the heroin is, on the evidence before him, correct. However, the Crown argument appears to be that if the respondent had made no admissions, even though there were no identifiable fingerprints on the blue carry bag or on the packets containing the heroin (AB 8 lines 25-30), it would have been possible to link the accused with those items because of the finding in the bag of “an item of clothing belonging to the” respondent, the possibility of aligning the markings on the respondent’s body with the packages, and the possibility of conducting DNA testing. There was no evidence that the clothing belonged to the respondent beyond his admission (AB 44.2): hence ex hypothesi if he made no admissions that would not have linked him to the bag. It must be questionable whether the alignment procedure would have proved guilt beyond a reasonable doubt. Even if one assumes that DNA testing could have proved guilt beyond a reasonable doubt - there is no evidence that it would have and the Crown fairly conceded that there was a degree of speculation in thinking that it would have - the Crown’s reasoning does have the by-product of highlighting the immense extent to which the respondent, by making admissions, saved the prosecution and the court time and trouble. The reasoning also has an unpalatable aspect: it suggests that if no admissions had been made, the prosecution would have tried to prove the accused guilty of a particular line of conduct which at trial it in fact accepted the respondent did not carry out. Of course that endeavour by the prosecution would have been an entirely innocent one, but that does not alter the fact that the argument under consideration is making appeal to the circumstance that the prosecution would have been seeking to prove a case which one now knows is wrong and which is contrary to that which it accepted as being correct at the sentencing hearing.

14    Fourthly, on the assumption that the sentencing judge’s opinion about the lack of evidence in the absence of the respondent’s admissions was founded on a submission put by the respondent to the sentencing judge, which seems likely, it is significant that on 13 September 2000 the counsel then appearing for the Crown said of the events of 11 September 2000 (AB 11 lines 45-52):

“The Crown relies on the evidence submitted on Monday. I indicated to your Honour that I agreed with the submissions made on behalf of the offender in relation to the significance of his admissions in relation to the strength of the Crown case, and I don’t resile from that position, your Honour.”

Counsel did go on, reasonably enough, to draw attention to the objective seriousness of the offence. But she also appeared to accept and adopt the force of the point made by the sentencing judge which is now under attack by the Crown in the following passage (AB 12 lines 8-32):
“HIS HONOUR: But the thing that concerns me more than any of all that matter, if the accused had said nothing, I mean said nothing pleaded not guilty, the Crown’s case would have failed, wouldn’t it.
MUIRHEAD: Your Honour, I don’t want to make that concession.
HIS HONOUR: You can’t. It’s not a question of you making that concession at all. He was charged with supply. If he would have said nothing, pleaded [scil. not] guilty, the Crown would have entered all this evidence; at the end of the Crown case, you would have been faced with the situation that you hadn’t proved importation.
MUIRHEAD: Yes, your Honour. I agree with that.
HIS HONOUR: All I am saying is, it seemed to me that the accused has co-operated at all times. He hasn’t sought to hide behind technicalities of the law, which he is entitled to do, and it makes it into a more unusual case than a normal one.
MUIRHEAD: Well, I agree with that, your Honour. It is an unusual case.”

In those circumstances there is a degree of inconsistency between the Crown posture below and the Crown posture here.

15    One point made by the Crown was that it was wrong to say there was no evidence of guilt apart from admissions. It may be that the sentencing judge exaggerated in that respect. But it was not a material error.

16    Another of the Crown’s points is that there was little if any difference between the objective criminality of importation and the objective criminality of being knowingly involved in importation. This is a valid point. But the respondent’s frankness about the precise factual position did save the authorities much trouble and offered solid support for the sentencing judge’s opinions about the respondent’s “remorse and contrition”. The assessment of remorse and contrition is a process in relation to which a sentencing judge enjoys a peculiar advantage over an appellate court, and cannot lightly be disturbed or discounted on appeal if, as here, there is a rational basis for it.

17    The sentencing judge’s opinions on the extent of the respondent’s co-operation, and of his remorse and contrition, are supported not only by a reading of his record of interview but also by what Federal Agent Evans said in evidence at the sentencing hearing. In the record of interview, the early questions were of a formal character. One of them was:

“Q60. You said to me earlier during this interview that you travelled on a flight from Bangkok to Sydney. Can you tell me what your travel arrangements were from the time that you left Bangkok?

That innocuous question was answered: “To carry heroin” (AB 33.6). This admission, contrary to a suggestion at page 3 of the Crown’s written submissions, was not made after the respondent “was confronted with the fact that a search had located the bag in which the heroin was contained.” That happened in Q198; the respondent made many detailed admissions between Q60 and Q198. The Crown did point out that on the evidence the respondent did not make any admissions in an initial period of questioning by customs officers before the bag was located. The evidence is unclear how long that questioning lasted and what questions were asked. Even if the respondent remained silent or made false denials in the initial questioning, the fact is that he began to confess the details of his conduct at a very early stage thereafter.

18    Federal Agent Evans correctly said that the respondent made “full admissions”; he was “completely co-operative … most certainly”; he assisted “as much as he was able”; and at a second interview on 16 August 2000 at gaol, he identified all the drugs shown in a photograph as drugs he recognised as having placed into the bag, even though he could have said some were not his and thereby reduced the quantity and the maximum penalty to which he was subject (AB pages 8-9).

19    The sentencing guidelines set out in R v Wong (1999) 48 NSWLR 340 are only guidelines. They are not rules of law; they are not binding; their role is indicative (see at 349). The particular circumstances of a particular case can justify departures from them (at 365). The circumstances of each particular case are very various, and in their nature guidelines cannot take account of many of them: R v Ngui (2000) 111 A Crim R 593 at [13]; R v Karacic [2001] NSWCCA 12 at [48].

20    Further, though the guidelines take account of sentences in cases where there was a plea of guilty, they make “no assumption one way or the other about such matters as whether there was a plea of guilty”: R v Karacic [2001] NSWCCA 12 at [50]; R v Ngui (2000) 111 A Crim R 593 at [17]. And they explicitly recognise that there “may also be circumstances in which a plea of guilty is entitled to such significant weight as to justify a sentence below the range” (at [141]). In the circumstances it was open to the sentencing judge to treat the co-operation of the respondent at all stages and his pleas of guilty as being of such significant weight as to justify a sentence below the range set out in the guidelines and below those in the other cases to which the sentencing judge was referred.

21    This Court ought not to interfere with discretionary decisions on sentences unless error in principle, significant error in fact, failure to take into account a relevant matter or the taking into account of an irrelevant matter is established, or unless the result of the decision is such as to suggest that some error of one of those kinds has occurred. At least in the last-mentioned respect, the willingness of the court to interfere must in practice be reduced where a sentence imposed by a judge of the experience of the sentencing judge in this case is in issue. In all the circumstances the sentence itself does not suggest error, and no explicit error appears on the face of the sentencing judge’s reasons.

22    At AB 22.5, the sentencing judge said:

“To some extent, it could be said that [the respondent] has been subject to a double jeopardy, not in the true sense of that word, but in the broader sense of that word.”

The Crown suggested that by the expression “double jeopardy” the trial judge was referring to the fact that the respondent had to plead to two different charges on different occasions. To my mind those events count a little, but not much, in the respondent’s favour. There is little to suggest that the sentencing judge thought otherwise.

23    Turning to the Crown’s complaint about the ratio which the non-parole period bore to the total sentence, in R v Bernier (1998) 102 A Crim R 44 at 49 this Court said:

“The norm for non-parole periods is in the range of about 60 percent to 66 and two-thirds per cent. One factor which may be material is the length of the head sentence and its position in the permissible range. Circumstances may exist which make it appropriate to move outside the usual range for non-parole periods. The process is not mathematical or rigid, and often requires a finely tuned assessment.”

In its written submissions which were used at the sentencing hearing, the Crown submitted that the appropriate ratio was “approximately 60 percent of the head sentence”: AB 60.2. The difference between 60 percent and 54 percent in the circumstances of this case does not suggest error, and even if it did, intervention by this Court would resemble impermissible tinkering.

24    The respondent advanced various discretionary reasons why this Court would not increase the sentence even if the Crown’s arguments were otherwise sound. In the circumstances it is not necessary to deal with those discretionary reasons.

25    I would propose that the appeal be dismissed.

26    BELL J: I agree.

27    SMART AJ: I agree

**********