R v Kon Lim Chew - [2004] NSWCCA 26

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Kon Lim Chew [2004] NSWCCA 26

FILE NUMBER(S):
60352/03

HEARING DATE(S): 13 February 2004

JUDGMENT DATE: 25/02/2004

PARTIES:
Regina
Kon Lim Chew

JUDGMENT OF: Sully J James J Hulme J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0984`

LOWER COURT JUDICIAL OFFICER: Christie DCJ

COUNSEL:
M. Cinque - Crown
J. Hickleton - Appellant

SOLICITORS:
C'wealth DPP - Crown
George Sten & Co. - Appellant

CATCHWORDS:

LEGISLATION CITED:
Customs Act 1901 (Commonwealth)
Justices Act 1902 (NSW)
Criminal Appeal Act 1912 (NSW)

DECISION:
Leave to appeal against sentence granted
appeal against sentence dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60352/03
SULLY J
JAMES J
HULME J
25 February 2004

REGINA v KON LIM CHEW

Judgment

SULLY J: On 3 July 2002 the applicant, Mr. Chew, arrived in Sydney by air from Malaysia. He had previously ingested 59 small packages, each of which contained heroin powder. He was carrying these packages inside his body at the time of his entry into Australia. The total weight of the heroin thus carried by the applicant was 226.5 grams. The weight of pure heroin thus carried by the applicant was 71.8 grams. The estimated street value of the heroin thus imported by the applicant was in the order of $98,000 Australian dollars.
Members of the Australian Customs Service detained the applicant at the airport for an internal search. In that connection the applicant was transported to St. George Hospital. While en route to the hospital he told the accompanying officers that he was in fact concealing something internally and that he was willing to remove it and to give it to the officers who could then arrest the people to whom he, the applicant, was supposed to have given the packages in due course. Even at that early stage of his dealings with law enforcement authorities, the applicant was anxious to ensure that, should he give assistance to the authorities, he would be guaranteed return to Malaysia immediately and without prosecution. In his subsequent dealings with law enforcement authorities the applicant endeavoured, at every turn from first to last, to bargain with the authorities.
In due course the applicant was charged formally with having imported into Australia prohibited imports to which section 233B of the Customs Act 1901 (Commonwealth) applied, namely a quantity of heroin being not less than the traffickable quantity applicable to that drug. The traffickable quantity prescribed by statute in connection with heroin is 2 grams. The offence thus charged against the applicant attracted, upon conviction, a statutory maximum penalty of, relevantly, imprisonment for 25 years.
The applicant pleaded guilty in the Local Court and was committed, pursuant to section 51A of the Justices Act 1902 (NSW), for sentence to the District Court. In due course the applicant stood for sentence before his Honour Judge Christie QC. The applicant adhered to his plea of guilty; and in due course his Honour formally convicted the applicant and sentenced him to imprisonment for 6 years with a non-parole period of 4 years.
The applicant now seeks leave to appeal against what he asserts to be the manifestly excessive severity of that sentence.
The first ground of appeal asserts that the learned primary Judge erred in law by reason of his having sentenced the applicant upon the basis that the applicant was a principal in the relevant importation, when in fact the applicant was, and ought to have been sentenced upon the basis that he was, only a courier, and a mere courier at that.
The relevant legal principles have been re-visited and re-stated in the recent decision of the High Court of Australia: The Queen v Olbrich [1999] 199 CLR 270. There are, for present purposes, two particular principles that are to be drawn from that decision. First, and to quote from the majority judgment at 279 [19]: “Characterising the offender as a ‘courier’ or a ‘principal’ must not obscure the assessment of what the offender did”. Secondly, since it was the applicant who was contending that he should be sentenced on a basis mitigated by reason of the fact that he was nothing more than a courier, it was for him to satisfy the sentencing Judge on the balance of probabilities that such was the fact: see 199 CLR, 281[26], [27].
Judge Christie, before whom the applicant gave evidence, proceeded upon the basis that it was for the applicant to establish on the balance of probabilities that he had been, in truth, nothing more than a courier. His Honour was of the view that the applicant had not discharged that burden of proof. This was, in my opinion, a finding of fact plainly open to his Honour upon the whole of the evidence then before him.
Once that point was reached, Judge Christie had then to deal with the applicant upon the basis that he was not a courier; that he was indubitably an importer; that there was no evidence to suggest that he was the master-mind, or one of a number of master-minds, behind a joint criminal enterprise; and that he fell to be sentenced, therefore, as somebody who had made a bare-faced attempt to bring into this country 72 grams by pure weight of heroin for advantage to himself.
Such an offence is, in terms of its objective criminal culpability, a serious offence against the public order of this country and the welfare of its citizens.
I apprehend that it might be useful, given the particular facts of the present case, to make the following additional observations:
[1]It is the fixed and long-standing legislative policy of the Government of Australia that the importation into this country from abroad of narcotics is to be prevented.
[2]The first line of defence against the importation of prohibited narcotics is manned by the Australian Federal Police, the Australian Customs Service and associated law enforcement agencies. It needs to be made clear to anyone who is tempted to import prohibited drugs into this country, that advances in technology and the accumulation of practical experience are constantly improving the techniques of surveillance and of detection which are available to those law enforcement agencies. That means that the risk of detection, while not absolutely certain in every case, is becoming steadily more likely in a steadily increasing number of cases.
[3]The second line of defence against those prohibited imports is manned by the Courts. Nobody who is tempted to run prohibited drugs into this country from abroad can now be heard to say that he does not understand that any such enterprise will be treated by the Courts of this country with all appropriate severity. Anybody who is caught running prohibited drugs into this country from abroad should understand, therefore, that upon conviction he can expect to go to gaol for a very long time.
[4]The third line of defence against prohibited imports is manned by those officials of the Executive Government who are responsible for the deportation of undesirable aliens. It should be made clear to anybody who is tempted to run drugs into this country from abroad that, if he is a foreign national, then he will beyond question be deported from this country at the conclusion of his serving of whatever term of imprisonment might be imposed upon him by the Courts of this country.
[5]Those three lines of defence, as I have described them, are both independent and inter-dependent. For example, it is now well established in Australian law that it is not the province of the Courts to intrude upon the function of the Executive Government to which reference has been made in paragraph [4] above. By the same token, there is not much point in the passing by the Courts of appropriately severe sentences of imprisonment, if the offenders have reason to think that, provided they cause no trouble while in custody, they will be permitted to pursue, with real prospects of success, some woolly-minded proposition that their enforced residence in this country has somehow generated some legitimate expectation that they will be permitted to remain at large in the Australian community.
The first ground of appeal has not, in my opinion, been made good.
The second ground of appeal asserts that the learned primary Judge failed “……….. to give any or adequate weight to evidence before him to the effect that the information given by …….(the applicant) …… had been of some assistance to the authorities”. A document dated 23 January 2003 was placed before the learned sentencing Judge, and was made available to this Court in the course of the hearing of the present application. It is not expedient to recount the fine detail of what is said in the document. It suffices to say that it is clear from the terms of the document that any assistance given by the applicant to relevant law enforcement agencies was of low-level intelligence value.
Complementary to that assessment is the fact, upon which I have earlier remarked, that the applicant attempted throughout the entire course of his dealings with the relevant law enforcement authorities to bargain his way out of the predicament in which he found himself. It seems to me that a fair reading of the records of the interviews held with the applicant justifies a conclusion that the applicant continuously backed and filled in his continuing attempts to strike a bargain that would keep him, as he appears to have hoped might be achieved, out of gaol. On some occasions the applicant offered assistance in return for the assistance of the authorities. On other occasions the applicant refused to answer questions, or gave dismissive answers, in a context from which the inference might fairly be drawn that he was trying, in a street-wise kind of way, to play, so to speak, a game of cat and mouse with the authorities, until such time as he might be satisfied that he could strike in fact the kind of bargain for which he was so obviously aiming.
Judge Christie himself dealt with this aspect of the applicant’s case by saying:
“He has never identified, in any real sense, anybody involved in this enterprise, not even by way of any meaningful description and I regard the assistance, such as it was, that he has given the authorities as virtually useless.”
The findings of fact which are embodied in that statement of his Honour were, in my respectful opinion, plainly and amply open to his Honour on the whole of the available evidence. In those circumstances, it is in my opinion quite misconceived to suggest that the applicant did anything entitling him to a distinct and significant discounting of sentence by reason of assistance volunteered to law enforcement authorities. That conclusion is amply supported, in my opinion, by the decision of this Court, (Gleeson CJ, Meagher JA and Hunt J), in R v Gallagher [1991] 23 NSWLR 220; see in particular per Gleeson CJ at 227E-228B, and 230B-D.
This ground of appeal, also, has not, in my opinion, been made good.
The third ground of appeal asserts an error “……..in failing to consider ……(the applicant’s)…… need for rehabilitation in fixing the non-parole period, by reason of the likelihood of his deportation”.
The portion of the remarks on sentence which gives rise to this ground of appeal reads:
“Immediately upon his release he will be deported to Malaysia, at the end of his non-parole period, and I do not know what fate awaits him there, I do not imagine he knows either. But it takes away any real need to consider his rehabilitation after his release because it is really way beyond the control of anybody in authority in this country, so that the length of his parole is really not my business, in any practical sense.”
Judge Christie, in sentencing the present applicant, was sentencing a person who had been convicted of a Federal offence. The relevant provisions of the Crimes Act 1914 (Commonwealth) therefore applied. Included in those provisions is section 19AK which provides:
“Where a person is convicted of a Federal offence, a court is not precluded from fixing a non-parole period in respect of the sentence imposed for that offence merely because the person is, or may be, liable to be deported from Australia.”
It can be acknowledged at once that it would have been an error of law for his Honour to have taken the approach that he either could not, or would not, fix a non-parole period because of the likelihood of the applicant’s deportation from this country after his having served such a sentence of imprisonment as might be passed upon him: see The Queen v Shrestha [1991] 173 CLR 48 per Deane, Dawson and Toohey JJ at 70-71. His Honour did not, however, take that erroneous approach. His Honour’s approach was, rather, that of setting the non-parole period discarding the need to consider the appropriateness of any more lenient non-parole period, because “the length of his parole is really not my business in any practical sense”.
This latter perception of his Honour was, in my respectful opinion, erroneous. His Honour having decided, correctly, to set a non-parole period at all, he was obliged, conformably with ordinary principles of sound sentencing, to consider in a discerning way what the evidence suggested to be appropriate in the matter of a non-parole period in the circumstances of the individual case with which his Honour was dealing.
Since his Honour did not in fact make such an assessment, the present argument for the applicant must be in essence an argument to the effect that, had such a discriminating consideration been given to the assessment of an appropriate non-parole period, then a period more favourable to the applicant than the period fixed by his Honour must have resulted.
I am wholly unpersuaded that such is the case. It is well established law that in a case of the present kind the conventional range of subjective factors is, at least generally speaking, of very much less weight than might be the case in the context of a different kind of criminal offending: see R v Klein [2001] NSWCCA 120 per Wood CJ at CL at [24].
There was tendered to the learned sentencing Judge a psychological assessment prepared at the instance of those who represented the applicant before Judge Christie. The final recommendations in that report are as follows:
“As noted above, Mr. Chew responds positively in a structured and stable environment. He appears to be coping reasonably well since his incarceration because of the type of structure this setting provides. However, given Mr. Chew’s poor coping skills, continued placement within the gaol system will inevitably lead to institutionalisation and vulnerability to a violent peer group. In turn, proximity to such an abusive peer group may increase his vulnerability to their influence and hence the risk of re-offending. It is recommended where possible that he be placed on a community based order, or period of parole as he is likely to respond well to the conditions of such an order. He wishes to return to Malaysia as soon as possible and implementation of such an option will lessen the risk of re-offending. Mr. Chew may also benefit from referral to a welfare agency as appropriate to his background, which may be able to provide support to he and his family if he is to be returned into the community.”
The first thing to be said about those recommendations is that they proceed, necessarily and not at all unusually, upon the basis of information supplied largely by the offender himself. That consideration does not automatically invalidate the particular conclusions; but it does entail the need for a sentencing Court to be properly cautious in simply accepting and acting upon the recommendations.
The second thing to be said about the recommendations is that, in my opinion, no responsible sentencing Court could give effect to them in a case of the present kind. As previously explained, the applicant committed, brazenly and deliberately, a serious breach of Australian law. What he did had the potential, had he not been detected immediately upon his entry into this country, to put into the domestic Australian drug trafficking market a quantity of heroin sufficient to cause a significant measure of degradation and damage to a number of members of the Australian community. He was entitled to have a non-parole period set, unless the Crown established facts and circumstances of such particular gravity as took his case quite outside the general run of comparable cases; and the Crown did not contend either at first instance or before this Court that the applicant’s case was a case of that particular kind. The applicant was entitled to have a non-parole period set, if at all, without reference to any likelihood of his future deportation. He was entitled, accordingly, to have his non-parole period set at the generally accepted level, unless he established on the probabilities facts and circumstances justifying a longer non-parole period. This, in my opinion, he plainly failed to do. It would be, in my opinion, entirely contrary to principle, and entirely contrary to the proper protection of the public, to give even the slightest encouragement to a view that a person who runs heroin into this country should be given a more lenient non-parole period because it would be more agreeable to him and for him that he be “returned into the community” with the provision of “support to he and his family” (emphasis added) to be paid for, of course, out of the pockets of the very people whose laws he has flouted and whose well-being he has willingly put at risk.
The present ground of appeal has, in my opinion, been made good in the sense that it is at least fairly arguable that error has been demonstrated in the approach taken by the sentencing Judge to the fixing of a non-parole period. That is, however, only to raise for consideration the question contemplated by section 6(3) of the Criminal Appeal Act 1912 (NSW): that is to say, the question whether another and more lenient sentence is warranted in law. It will be apparent from what I have earlier written that, in my opinion, it is not.
In my opinion the Court should order:
(1)that leave to appeal against sentence be granted;
(2) that the appeal against sentence be dismissed.
JAMES J: I agree with Sully J that, for the reasons given by his Honour, while leave to appeal against sentence should be granted, the appeal against sentence should be dismissed.
HULME J: In this matter I have had the advantage of reading the reasons for judgment of Sully J. I am in agreement with the orders his Honour proposes and with his reasons. I would however add some additional comments of my own in respect of one matter the sentencing judge resolved in the Appellant’s favour.
In the course of his remarks on sentence Judge Christie said:-
“This man has pleaded guilty so he has to get the full benefit of that, although people who turn up at airports with a belly full of heroin are unlikely to plead anything but guilty at any stage, unless they convince someone they were force fed. And that is not a version of the facts which even a New South Wales jury is likely to buy. So that his plea of guilty was probably inevitable, but nevertheless it has to be taken as an expression of contrition and remorse and it has a very real utilitarian value.”
The proposition that a plea of guilty has to be taken as an expression of contrition and remorse is simply wrong. As I observed in R v Kalache [2000] NSWCCA 2 at [160], “Elementary rules of logic and legal reasoning do not disappear just because the particular proceedings require judges to impose sentences”. A conclusion as to whether or not an offender is remorseful or contrite is no different from any other finding of fact a judge is required to determine. It is to be done on the basis of the evidence presented. This may be oral, first hand or hearsay, or evidence of circumstances from which remorse or contrition may or may not be inferred.

In the latter situation it is appropriate for any sentencing judge to bear in mind the remarks of Dixon CJ in Holloway v McFeeters (1956) 94 CLR 470 at 477 that,
“(A)n inference may be made only as the most probable deduction from the established facts, (and) it must at least be a deduction which may reasonably be drawn from them.”
When one has regard to the substantial discount available for a plea of guilty, in many cases that discount, or in other words naked self-interest, is just as likely to be the reason for such a plea. If so, and there is no further evidence on the topic, no inference of contrition – a matter on which an offender bears the onus – should be made. A fortiori is this so when the Crown case is strong. And if there is further evidence, that evidence should be assessed on its merits, with due regard to the credibility of its source.
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LAST UPDATED: 27/02/2004