R v Nikolovska - [2010] NSWCCA 153

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: CHAN, LO and NGUYEN v REGINA [2010] NSWCCA 153

HEARING DATE(S): 7/7/10
26/7/10

JUDGMENT DATE:
22 October 2010

JUDGMENT OF: Beazley JA at 1; Kirby J at 2; Johnson J at 143

DECISION: 1. The application for leave to appeal by Kin Fai Chan be granted, but the appeal dismissed.
2. The application for leave to appeal by Chung Fung Lo be granted, but the appeal dismissed.
3. The application for leave to appeal by Thanh Phan Nguyen be granted, but the appeal dismissed.

CATCHWORDS: CRIMINAL LAW - drug offences - importation 10 kg methamphetamine (Ice) - Criminal Code Act 1995 (Cth) s 307 - joint criminal enterprise - 3 offenders - different roles - whether findings as to role(s) open - discount for assistance - intelligence only - whether sentences excessive.

LEGISLATION CITED: Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)
Customs Act 1901

CATEGORY: Principal judgment

CASES CITED: R v Ferrer-Esis (1991) 55 A Crim R 231
De Campos v Regina [2006] NSWCCA 51
Yenice v R (1994) 72 A Crim R 234
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Mallet v Mallet [1984] HCA 21; 156 CLR 605
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Van Haltren v The Queen [2008] NSWCCA 274; (2008) 191 A Crim R 53
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Le v R [2006] NSWCCA 136
Assi v Regina [2006] NSWCCA 257
R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346
Ourdi v R [2009] NSWCCA 46; (2009) 193 A Crim R 381
Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458
R v Kevenaar, Dedoes and Pan [2004] NSWCCA 210; (2004) 148 A Crim R 155
R v Wong and Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
R v Mas Rivadavia and Ors [2004] NSWCCA 284; (2004) 61 NSWLR 63
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
DPP (Cth) v De La Rosa [2010] NSWCCA 194
R v To and Ors [2005] NSWCCA 362; 157 A Crim R 80
R v Morgan (1993) 70 A Crim R 368
R v Lee [2007] NSWCCA 234
R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525
Speer v Regina [2004] NSWCCA 118
R v Kardoulias and Ors [2005] NSWCCA 456; (2005) 159 A Crim R 252
R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524

PARTIES: Kin Fai CHAN (App)
Chung Fung LO (App)
Thanh Phan NGUYEN (App)
REGINA (Resp)

FILE NUMBER(S): CCA 2008/18556 (Chan); 2008/18557(Lo); 2008/18549 (Nguyen)

COUNSEL: M Fanning (Chan & Lo)
S Kluss (Nguyen)
N Adams (Crown)

SOLICITORS: Lloyd Truman Sadiq Solicitors (Chan & Lo)
Greenfield Lawyers (Nguyen)
M Catsanos - Cth DPP (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/1269 (Chan)
2008/11/1265 (Lo)
2008/11/1266 (Nguyen)

LOWER COURT JUDICIAL OFFICER: Hock DCJ

LOWER COURT DATE OF DECISION: 17 April 2009 (Chan & Lo)
25 September 2009 (Nguyen)

2008/18556
2008/18557
2008/18549

BEAZLEY JA
KIRBY J
JOHNSON J
Friday 22 October 2010

Kin Fai CHAN v REGINA

Chung Fung LO v REGINA

Thanh Phan NGUYEN v REGINA

Judgment

1 BEAZLEY JA: I agree with Kirby J.

2 KIRBY J: Application is made for leave to appeal (and, in one case, an extension of time) by three offenders who have been sentenced in respect of their part in a joint criminal enterprise. The enterprise involved the importation into Australia in August 2007 of 10.01 kg of the drug crystalline methamphetamine, commonly known as “Ice”.

3 Kin Fai Chan (the applicant Chan) and Chung Fung Lo (the applicant Lo), were each charged with attempting to possess a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.5(1) of the Criminal Code Act 1995 (Cth). Thanh Phan Nguyen (the applicant Nguyen) was charged with aiding and abetting the importation of a commercial quantity of the border controlled drug methamphetamine, contrary to s 307.1 and 11.2 of the Criminal Code Act. The maximum penalty, in each case, is imprisonment for life or a fine not exceeding $825,000, or both.

4 Each offender pleaded guilty and was sentenced by Hock DCJ. The applicants Chan and Lo were sentenced on 17 April 2009 and Mr Nguyen on 25 September 2009. The sentences imposed were as follows:

The applicant Chan was sentenced to imprisonment for 12 years 6 months, commencing on 23.8.07, with a non parole period of 7 years 6 months, to expire on 22.2.15.

The applicant Lo was sentenced to imprisonment for 7 years 6 months, commencing on 23.8.07, with a non parole period of 4 years 6 months, to expire on 22.2.12.

The applicant Nguyen was sentenced to imprisonment for 10 years, commencing on 23.8.07, with a non parole period of 6 years, to expire on 22.8.13.

5 Each applicant asserts that the sentence imposed upon him was excessive, whether because of patent error or because the starting point adopted by her Honour was too high. I will set out below the grounds of appeal in each case. The sentences must be understood in the context of the discounts which her Honour allowed, which I will shortly describe, and which were different in each case. The discounts were as follows:

In the case of the applicant Chan: 30%.

In the case of the applicant Lo: 25%.

In the case of the applicant Nguyen: 10%.

6 The contribution of each applicant to the joint criminal enterprise was different. Each sentence must be examined in the context of the offender’s individual role. It may be useful, at this early stage, to identify the starting point (before discounting) of each head sentence. Mathematically, the starting points would appear to be as follows:

In the case of Mr Chan: approximately 17 years 10 months.

In the case of Mr Lo: 10 years.

In the case of Mr Nguyen: 11 years 2 months.

7 Against that background, let me describe the joint criminal enterprise and the subjective case presented on behalf of each applicant.

The joint criminal enterprise.

8 The Crown tendered an agreed statement of facts in the joint sentencing proceedings in respect of the applicants Chan and Lo. The agreed statement relating to Mr Nguyen was slightly different, although the differences were not material.

9 Mr Nguyen, at the time of the offence, was a man aged 35 years. He had been an Australian citizen since 1994 and lived with his family at Punchbowl. Mr Chan was about the same age. He was born in Hong Kong but moved with his family to Canada in 1989. Mr Lo was somewhat younger and lived in Hong Kong. There was a further person, also Chinese, who lived in Canada, who was said to be part of the enterprise. He is yet to be tried and will be referred to by the initial “J”.

10 In 2007, the Joint Asian Crime Group (“the Joint Group”) was investigating the importation into Australia of border controlled drugs. On 21 July 2007, the Joint Group received information from Canadian authorities that an importation of methamphetamine into Australia from Canada was about to take place.

11 As this information was received, the applicants Chan and Lo arrived in Australia. Mr Chan flew to Australia from Canada, arriving on 20 July 2007. Mr Lo flew from Hong Kong on 21 July 2007 accompanied by Tat Ying Lau. The Joint Group later ascertained that J arrived in Australia somewhat earlier, 27 May 2007, also from Canada.

12 The information provided by the Canadian authorities implicated the applicant Chan. Police were then able to identify a telephone service used by him. Vodafone records relating to that service identified the person using the service as “Andy Wong”, who lived at an address in Surry Hills. The police determined that no such person lived at that address. On 8 August 2007, the police obtained a warrant to intercept lawfully communications to and from that service.

13 The day before obtaining that warrant (7 August 2007), the Joint Group received further information from Canada. It was told that J had been discussing with someone in Canada the importation of prohibited drugs into Australia. Information was provided concerning a phone service used by J. Again, it appeared that the service had been taken out in a fictitious name. A warrant was obtained to intercept, lawfully, communications by means of that service.

14 As the investigation progressed, it became apparent that Mr Chan and J had access to other telephones. Ultimately warrants were issued to lawfully intercept communications by means of those phones, although these applications were not made until shortly before the arrest of the applicants on 23 August 2007.

15 On 15 August 2007, Australian Customs identified three Samsonite suitcases containing china and crystal that had arrived as sea cargo from the United States, having been transhipped from Canada. The suitcases were x-rayed. There were inconsistencies in the lining. They were then seized by the Joint Group and examined by Australian Federal Police Forensic Officers. The agreed facts described the result of that examination in these terms:

“14. ... Each suitcase was found to contain about 5 kilograms of crystalline methamphetamine, commonly referred to as Ice, secreted within the lining of the case. A total gross weight of 15.01 kilograms of Ice was seized from within the three cases. The pure weight was approximately 10.01 kilograms.”

16 A controlled operation was authorised under Pt 1AB of the Crimes Act 1914 (Cth). The suitcases were reconstructed and a harmless substance substituted for the drugs found within them.

17 On 16 August 2007, J spoke to a person in Canada. Again the call was lawfully intercepted. Instructions were given concerning the removal of the drugs from the suitcases. Her Honour summarised the conversation in these words: (ROS Chan/Lo, p 2)

“It is in the hard shell suitcase and the only way to open it is to saw it open. Tell them that if there is any sign that the case was broken don’t pick it up. You have to saw it because it is hidden in there. Once it is broken no way it can be put back. And not to forget to tell that bloke do not collect if they’re broken.”

18 J was traced to premises at Northam Avenue, Bankstown. Surveillance of those premises on 16 August 2007 disclosed a white Toyota Camry arriving at the premises driven by a male of Asian appearance. That person was then seen entering the premises. Soon after, a number of phone calls were made between J and a person in Canada. J told that person that the freight company required the original shipping details to be sent by fax.

19 The following day, 17 August 2007, there was a further conversation between J and Canada. In substance, J was given the following instructions: (agreed facts [19])

To take a thousand dollars in case he was required to pay tax.

That if the suitcases were broken, to walk away.

That the suitcases had been put together by professionals, such that it would take at least two or three days to put them back together.

20 During the conversation, J asked: (agreed facts [19])

“19 ... Is it too risky or what? They can fucken say all they want, we’re the ones who go in there and we’ll cop it.”

21 The conversation continued. J referred to the three suitcases and asked: “How many (in) each?”. He was told “five”, which was no doubt a reference to the 5 kilograms of methamphetamine in each case.

22 At 10.30 a.m. the same day (17.8.07), the police observed the applicant Nguyen drive the white Toyota Camry to Northam Avenue, Bankstown. He picked up J and together they drove to customs agents at Bankstown. A short time later, J telephoned Canada providing the fax number of the customs agent.

23 At 11.10 a.m. the same day, a call between J and Canada was intercepted, in which J was given instructions about the way in which the suitcases were to be transported. He was told to use two different vehicles. The instructions were in these terms: (agreed facts [22])

“22 ... He stated that whatever vehicle you’re in, come out and then you go home and do a swap ... in case you’re followed.”

24 Police surveillance then witnessed J and the applicant Nguyen return to the white Toyota Camry. Mr Nguyen drove J to Toll International in O’Riordan Street, Mascot. Another person, described as “a male person”, then became involved. It appears that he was driving a separate vehicle, presumably in conformity with the instructions given earlier in the day from Canada. The agreed statement in respect of the applicant Nguyen, described what then occurred in these terms: (agreed facts [25])

“25 ... Both (J) and Nguyen waited around the corner, while the other male person parked and entered Toll. The male person presented the paperwork to Toll and paid $278.80 in fees using a Visa card. The male person was told by Toll staff that he was required to take the paperwork to Customs prior to the parcel being released, however, the parcel had not been unloaded from the container and would not be available until Monday 20 August 2007.”

25 Shortly thereafter, J rang Canada and reported that he had paid a fee and had been given a document that had to be presented to Customs. He said that “it” could not be collected until Tuesday. The applicant Nguyen, J and the third male were then observed by police attending Customs House at the airport. At 2.11 pm, J again spoke to Canada. He said that Customs had provided a form which had to be completed. The form required a passport or driver’s licence. He further stated that “it” cannot be collected for at least two days.

26 Between 18 and 20 August 2007, there were many phone calls between J and Canada. The agreed facts included the following, referring presumably to the male who had accompanied the applicant Nguyen and J to the customs agents and then to Customs at the airport: (agreed facts [29])

“29 ... Most of these calls referred to the male person refusing to fill out the Customs paperwork as he was scared and did not want to provide identification to Customs.”

27 The agreed facts concerning Mr Nguyen also included the following, relating to a computer seized from Mr Nguyen’s home and an entry made on a chat log on 20 August 2007: (agreed facts [50])

“50 (b) Another chat log on 20 August 2007 reveals Nguyen writing in Vietnamese to an unknown person. The gist of the chat reveals Nguyen explaining to the other person that he and (another person believed to be J) had been having trouble with the person who was supposed to sign an authorization (to pick up the consignment) but was refusing to do so.”

28 The agreed statements were silent as to what ultimately took place and who provided the information required by Customs.

29 One then comes to the day of the arrest, 23 August 2007. At 8.00 a.m. the police began surveillance at J’s premises at Northam Avenue, Bankstown. Within a short time, the white Toyota Camry driven by the applicant Nguyen was seen by police. Mr Nguyen continued driving in the vicinity of the Northam Avenue premises until about 12.30 p.m.

30 The suitcases were ultimately delivered to the premises at 10.50 a.m. that morning, as I will shortly describe. Before that occurred, there were a number of phone conversations between those involved in the enterprise. At 9.08 a.m. the applicant Chan telephoned J in a call which was lawfully intercepted. Mr Chan said that he was still waiting. He asked whether everything was “alright”. J said everything was “alright”. J asked when the applicant Chan was coming. Chan responded by saying: “Once everything was alright, to call him and they will meet” (agreed facts [29]).

31 At 10.15 a.m., Mr Nguyen spoke to J. Again the call was lawfully intercepted. He reported “that he was doing laps” around J’s premises at Northam Avenue and that “everything was fine” (agreed facts [30]). At 10.50 a.m., the three suitcases were delivered to the Northam Avenue premises by AFP Officers, presumably in disguise. J took possession of them. A minute later he telephoned the applicant Chan. J told Mr Chan to “come over now”. Mr Chan asked whether everything was alright. J told him everything was alright and to come over. Mr Chan said that he was in the city and that he would be there soon.

32 At 11.00 a.m., Mr Nguyen spoke to J. He confirmed that “everything is fine” (agreed facts [34]). Shortly after at 11.02 a.m., Mr Nguyen again spoke to J. He told him to cut the plastic wrapping around the bag “so it is easier to put in the car individually” (agreed facts [35]).

33 At 11.40 a.m., J again telephoned Mr Chan. He asked when he was coming. Mr Chan stated that he was 10 or 15 minutes away.

34 The agreed facts do not record the arrival of the applicant Chan at the Northam Avenue, Bankstown premises, although presumably the surveillance police witnessed his arrival. One infers that he arrived shortly before midday. He was accompanied by the applicant Lo and Mr Lau (who had travelled to Australia with Mr Lo on 21 July 2007). At 11.58 a.m., the applicant Chan rang Canada. The person he spoke to was not the same person that J had been dealing with. They discussed the description of the suitcases, their colour and weight, and whether there was any damage to the suitcases. Having satisfied themselves on those matters, Mr Chan was provided with the PIN numbers for the suitcases and given instructions about the removal of the contents. He was told about the inside lining. As instructions were given, Mr Chan repeated what was said to other persons present. Towards the end of the phone call, the sound of what appeared to be an electric saw could be heard.

35 At 12.08 p.m., Mr Nguyen spoke to J, seeking permission to leave the area to obtain food. J told him to wait until they had completed their checking.

36 At 12.12 p.m., Mr Chan again spoke to the same person in Canada. They discussed the weight of each bag. The person in Canada “asked if the Vietnamese guy wanted to keep the things or take them away”. Mr Chan relayed that message to another person. The other person said to take them away and give him the money.

37 A taxi was called and arrived at 12.20 p.m. Messrs Chan, Lo and Lau left in the taxi, having loaded the suitcases. The taxi was intercepted by police as it drove towards the city. Apart from the suitcases, Messrs Chan, Lo and Lau had in their possession, according to the agreed facts [43], a shoulder bag containing an electric saw, grinder and disks. As set out below, the applicant Lo, in a subsequent police interview, admitted that he owned the shoulder bag. Within a short time, Messrs Nguyen and J were also arrested in the Bankstown area.

38 When the suitcases were inspected, the inside lining had been peeled back in a manner consistent with the instructions given from Canada to Mr Chan.

39 The agreed statement set out a summary of what was said in the course of the applicant Chan’s interview: (agreed facts [47])

“a (i) Chan denied any knowledge of any attempt to import or possess a border controlled drug. Chan stated that he had been asked by a Canadian associate to travel to the Northam Ave premises and take possession of the 3 suitcases.

(ii) He had also been asked by the Canadian associate to purchase an angle grinder and take that with him.

(iii) Chan stated that he, Lau and Lo travelled to the Bankstown area by taxi where they alighted from the vehicle near Bankstown Railway Station. Chan attempted to locate the premises and then after making a further telephone call to (J), left Lau at Bankstown Railway Station so that when a taxi was required for the three to return to the city, Lau could hail a taxi and take it to the Northam Ave premises and then return to the city.”

40 The summary provided of the interview with Mr Lo was in these terms: (agreed facts [47])

“b (i) Lo stated that he had attended the Northam Ave premises in company with Chan and that whilst on the premises he had not taken any notice of any conversations or noises which had occurred whilst he was there. Lo denied all knowledge of the importation however he did admit ownership of a shoulder bag in which the electric saw/angle grinder and disks were located. Lo denied knowledge of the saw and other items.

(ii) Lo stated that he may have touched the suitcases containing the fully substituted material however he could not remember.

(iii) The penalty is harsher than growing marijuana.

(iv) Me and mister (J) we do it together.”

41 The agreed facts also included the following statement in relation to Mr Chan: (agreed facts p 10)

“During the course of the investigation it was revealed Chan has access to a large sum of money, suspected of being about $300,000 both as profits of the sale of previous shipments of methamphetamines and to pay for various stages of the importation of the commercial quantity of border controlled drugs. Investigations to date have not located this cash and again, the ability of the group to access large amounts of cash further enhances the ability of the accused to flee the jurisdiction if granted bail.”

42 When Mr Nguyen was interviewed, he denied any knowledge of the importation. Having received legal advice, he declined to speak to the police.

43 The statement of facts in relation to Mr Nguyen disclosed a further matter (relating to drugs) arising from the chat logs found on his computer. However the Crown acknowledged, in the course of submissions, that its connection with the importation was tenuous. Her Honour, after argument, stated that she would not use it to draw an adverse inference against Mr Nguyen. It may therefore be put to one side (T 8; 4.7.09).

44 Let me then go to the subjective case in respect of each offender.

The subjective cases.

45 The applicant Chan did not give evidence on sentence. He wrote a letter to the presiding Judge (22.2.09) in which he explained the circumstances that led to the offence. He had been in financial difficulties in Canada, occasioned by an unsuccessful restaurant venture. He expressed remorse and his resolve, having served his sentence, to lead a “normal life”. He was interviewed by the Probation and Parole Service. Their report made the following comment: (p 2)

“He appears to accept responsibility for his offences, but remorse appears limited to the circumstances in which he finds himself.”

46 Mr Chan pleaded guilty at the earliest opportunity. He also gave some assistance to authorities. Within the gaol he has acted as an interpreter. He was described by officers of the Department of Corrective Services as “well mannered and highly regarded”. The Buddhist chaplain at the gaol said that he was most impressive in the consideration he gave other inmates.

47 Her Honour referred to this material and his background in Hong Kong and Canada. He had no convictions. He had left school at the age of 18 years. His conduct in gaol had been exemplary (ROS 5/6).

48 The applicant Lo did give evidence on sentence. He expressed remorse. He had also pleaded guilty at the earliest opportunity. He had no previous criminal history. He was 27 years old at the time of sentence. He had difficulties with his education and, having left school, had worked as a bar tender in Hong Kong. He was the oldest child and, according to Chinese custom, was expected to look after his parents. However, he was unable to discharge that responsibility and instead had brought shame upon his family. His mother had breast cancer. Because of her illness and because of his parents’ age, he had not disclosed to them that he was now in prison.

49 Her Honour made the following finding in respect to the rehabilitation of Messrs Chan and Lo: (ROS 7)

“Both also appear to be genuinely remorseful and they would seem to have reasonable prospects for rehabilitation given their conduct while in custody.”

50 The applicant Nguyen did not give evidence on sentence. He was 37 years old and an Australian citizen. Whilst he had brushes with the law before his arrest (one being a low range PCA), no convictions had been recorded. The Crown acknowledged prior good character, although that was of limited relevance in the context of the offence (R v Ferrer-Esis (1991) 55 A Crim R 231).

51 Mr Nguyen was interviewed by the Probation and Parole Service. He said that he had limited education in Vietnam before arriving in Australia in 1994. Since his arrival, he has periodically worked as a labourer, mainly on a casual basis and within a family network. He told the Service that he used methamphetamine at the weekend and other drugs. By this means he had been introduced to a “criminal element”. He also acknowledged excessive drinking which had interfered with his first marriage. He had three children. In addition, he had a gambling problem. The report said this: (report, 4.9.09, p 2)

“Mr Nguyen reported being entranced by poker machines and roulette games, with his participation being described in these games as a way to escape boredom and personal pressures. The offender indicated considerable uncontrolled gambling participation however emphasised that he did not obtain any financial benefit out of participating in the offence, and his gambling practices did not influence his blind loyalty to provide support to his family friends (co-offenders).”

52 Since his incarceration, Mr Nguyen has undertaken a number of courses, including a course in respect of alcohol. He has worked in the laundry at the gaol and his supervisors have described him as “excellent, capable of holding a highly trusted and responsible position for a considerable period of time” (P & P report, p 3). Her Honour, in her remarks, also noted the following: (ROS 6)

“Both of the offender’s parents require help with daily activities and his mother is blind. However, there is no suggestion that the hardship they will suffer because of the offender’s imprisonment will be exceptional, nor that he was their primary carer before he went into custody.”

Notices of Appeal.

53 The notice seeking leave to appeal in respect of the applicant Chan asserted that the sentence was more severe than was warranted and that there had been error in the following respects:

1. Insufficient weight was given for the applicant’s past assistance to authorities; and

54 The notice filed on behalf of the applicant Lo also asserted the sentence was more severe than was warranted. It said that there was error in the following respect:

“Her Honour Judge Hock DCJ erred in assessing the starting point of the sentence of imprisonment as 7 years and 6 months.”

55 The notice filed on behalf of the applicant Nguyen identified the following ground:

“It is submitted that the sentence imposed by her honour was manifestly excessive and in all the circumstances another sentence is warranted in law.”

56 I will first look at the issue unique to the applicant Chan’s appeal (whether the discount for assistance was inadequate) and then examine the ground common to all applicants (whether the sentences, in each case, were excessive).

Was insufficient weight given to the applicant Chan’s past assistance?

57 It will be remembered that Mr Chan was arrested on 23 August 2007. In August 2008, his solicitors contacted the New South Wales Crime Commission and indicated that Mr Chan was prepared to provide information that may be of benefit. On 19 August 2008, Mr Chan was interviewed. Shortly before the sentencing proceedings, the Commission wrote a letter (3.3.09) to be placed before the sentencing Judge.

58 On 6 March 2009, submissions on sentence were made before Hock DCJ. Counsel was given access to the Crime Commission letter, which was marked as a confidential exhibit. Counsel for Mr Chan acknowledged that there was no question of future assistance. Mr Chan, he submitted, was entitled to “some discount” (T 15). The Crown made a submission which was in these terms: (T 17)

“(CROWN): It falls into the category your Honour that, there was information provided. It’s been some value, limited value, to the Crime Commission in understanding the extent of the operations. There’s no specific names, they were nicknames and it’s unlikely that there’s to be any prosecutions as a result of it. (Counsel for Mr Chan) already said that there’s no future assistance component and that there’s no future assistance component and that --

HER HONOUR: No --

(CROWN): – would be our position --

HER HONOUR: No. So it maybe that he, that is Mr Chan is entitled to a small percentage in addition to the twenty-five per cent for the plea entered in the Local Court.”

59 Reference was made to the decision of De Campos v Regina [2006] NSWCCA 51. In that case a woman had arrived from South Africa who had suspected of carrying narcotics. A scan was authorised, which revealed a number of foreign objects in her stomach. She was detained. The objects were passed and found to be heroin. She sought to give assistance to the police shortly after her arrest, by participating in a controlled delivery of the drugs. The police declined her offer. Howie J (Beazley JA and Adams J agreeing), said this: (at [25])

“25. In my view the applicant should be re-sentenced to take into account this offer of assistance although it will not always be the case that an offer that was not taken up by the police should be rewarded. It is well-known and has been well stated in numerous decisions of this Court that there is a significant public policy in encouraging people to co-operate with the police in order to expose other persons who are in the hierarchy of importing drugs into the country, particularly where those persons reside in this country.”

60 A discount of five percent was allowed.

61 Here, in submissions on sentence, the following exchange between the Crown and her Honour took place in the context of that decision: (T 17/18)

“(CROWN): That’s right your Honour. De Campos was a case where there was an offer and it wasn’t taken up by the Federal Police. This is a case where there was perhaps, more than an offer. There was some information provided but there’s nothing that could be acted upon from that point.

HER HONOUR: No.

.

HER HONOUR: Yes all right thank you Mr Crown. Then it’s just a matter of me assessing all this material and rereading it. ...”

62 Her Honour, having read the confidential exhibit, and in the context of a twenty-five percent allowance for an early plea, said this, in relation to the assistance provided by Mr Chan: (ROS 6)

“... Mr Chan has provided some assistance to the authorities. The information has been assessed as truthful and accurate, except in relation to a particular aspect. This is set out in exhibit B, a confidential exhibit, and I do not propose to go into details. He is entitled to some small reduction in his sentence under s 16A(2)(h) in my view. I have reduced his sentence by thirty per cent for the plea and the assistance.”

63 Counsel for Mr Chan complained that an allowance of five percent underestimated the assistance which Mr Chan had provided. He had spoken frankly to the Crime Commission. He had provided information. The information had been assessed as having some value. It had revealed the extent of the enterprise. The Crown, in submissions, had recognised that Mr Chan’s assistance had gone beyond “the offer” in De Campos. Whilst that submission was not binding upon her Honour, it represented, according to counsel for Mr Chan, a more realistic appraisal of what he had done. De Campos was an unfulfilled offer. Mr Chan had said he would provide information and had done so.

64 The Crown responded to these submissions, suggesting that the assistance provided by Mr Chan was “extremely limited”. The value of the assistance was the primary consideration in assessing the quantum of the discount (Yenice v R (1994) 72 A Crim R 234). De Campos was, according to the Crown, a very different case. A comparison between Mr Chan’s assistance and that provided by De Campos was, according to the Crown, “not to the point”. Her Honour had the task of making an assessment and giving an appropriate discount. Given the limited value of the assistance and the fact that it was not entirely truthful, the determination made by her Honour was, according to the Crown, entirely appropriate.

65 Dealing with these submissions, the suggestion by the applicant Chan that insufficient weight had been given to the assistance which he had provided, inevitably encounters the difficulties described by Latham CJ in Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 (reaffirmed in Mallet v Mallet [1984] HCA 21; 156 CLR 605 at 614; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 330). Latham CJ in Lovell said this: (at 519)

Sharp v Wakefield

unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.’

66 Here, it was not suggested and could not be suggested, that her Honour had failed to exercise her discretion. She read the material and made an evaluation. She was deliberately circumspect in her remarks. In the course of submissions, she acknowledged that a “small percentage” discount was appropriate. She ultimately allowed a five percent discount.

67 The confidential exhibit has been produced on appeal. It has been made available to the parties and examined by each member of the Court. The Court should plainly exercise the same circumspection in dealing with its contents. However, one does not need to go to the text of the letter to gain an impression of the assistance which has been provided. It was an approach made by Mr Chan a year after his arrest, when the trail of offending was cold. In this respect, it was different from the offer in De Campos to participate in a controlled operation when there was some prospect of arrest. The assistance by Mr Chan did not include future assistance. Nor did it include assistance in respect of his co-offender J, who was going to trial. The nature of his assistance was described by the Crown in submissions. It had some limited value as intelligence. It would not result in arrests or prosecutions. According to her Honour, it was truthful and accurate, except in one respect.

68 In Van Haltren v The Queen [2008] NSWCCA 274; (2008) 191 A Crim R 53, in the context of a sentence appeal where a complaint was made that an insufficient discount had been allowed for assistance to authorities, Johnson J said this: (at 74)

R v El Hani

Alchikh v The Queen

Assafiri v The Queen

69 The same comment could be made here. The assistance was late. It was of no practical benefit, beyond intelligence. No error has been demonstrated in the evaluation made by her Honour.

70 Let me pass to the ground common to each applicant. I will begin by looking at the role each played in the importation.

The role of each applicant.

71 In sentencing a federal offender, the Court is obliged by Pt 1B of the Crimes Act 1914 (Cth) (and specifically s 16A), to take account of a number of matters. They include “the nature and circumstances of the offence” (s 16A(2)(a)). Here, it was common ground that the offences were very serious. General deterrence was of great importance. Each offender acknowledged complicity in the importation into Australia of drugs with a gross weight of 15.01 kg, amounting to 10.01 kg of pure methamphetamine. Under s 314.4 of the Criminal Code Act 1995 (Cth), a marketable quantity of methamphetamine is 2 grams. A commercial quantity is 0.75 kg. The shipment was therefore 13.35 times a commercial quantity. The maximum penalty for the offence was life imprisonment or a significant fine, or both.

72 The importation was the work of professionals. The arrival of those involved was staggered over a number of months. J arrived on 27 May 2007, Mr Chan on 20 July 2007. Each procured several phones in false names. Each took instructions from Canada. The instructions included that the suitcases “had been put together by professionals, such that it would take at least two or three days to put them back together”. When taking delivery, they were told that the suitcases should be inspected. If there was any sign that they had been broken, they should walk away. The syndicate was plainly prepared to abandon the operation, notwithstanding the value of the drugs. Two cars were to be used. They were to arrive at the point where the drugs were to be received in one car and leave in another.

73 The High Court in The Queen v Olbrich [1999] HCA 54; 199 CLR 270 recognised that a Court dealing with such offences was likely to have less than full knowledge of the circumstances of importation. Gleeson CJ, Gaudron, Hayne and Callinan JJ said this: (at 278)

“16. ... Very often prosecuting authorities (and a sentencing judge) will have only the most limited and imperfect information about how it was that the accused person came to commit an offence for which he or she stands for sentence. Especially is that so where the accused has pleaded guilty and where the offence which the offender admits is one which had its genesis outside this country. Very often then it will not be possible to say, with any certainty, what exactly was done or intended by a person apprehended in the act of importing narcotics into Australia.”

74 Elsewhere, their Honours said this: (at 277)

“13. We do not accept that the identification of the precise nature of the accused’s involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process.”

75 Commenting on the practice in some cases of categorising the role of the offender, their Honours added: (at 278)

“14. ... Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate.”

76 Later, their Honours said this: (at 279)

“19. ... If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. In that context, a distinction between ‘couriers’ and ‘principals’ may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a ‘courier’ or a ‘principal’ must not obscure the assessment of what the offender did.”

77 It is useful to begin by examining what her Honour said about each offender. A number of issues arise. First, was her Honour’s description of what each offender had done, and her characterisation of his role (where that was made) a view available on the evidence? Secondly, if so, was the sentence imposed upon that offender within the available range for a person so described?

78 In sentencing the applicants Chan and Lo, her Honour identified the following matters common to both: (ROS 4)

“This offence is extremely serious. The importation was carefully planned and steps were taken to conceal the identities of the principals, who distanced themselves from direct involvement as is evident from the telephone intercepts. The pure weight of the drug imported was approximately thirteen times higher than the minimum weight for the commercial quantity, which is 0.75 kilograms. Ten kilograms of pure methamphetamine is a substantial commercial quantity, the weight of the drug being one of the many factors relevant to the sentence to be imposed. The offenders’ motivation to become involved must have been purely financial gain as neither is a drug user.”

79 Her Honour then dealt with their respective roles, beginning with Mr Chan. She said this: (ROS 4/5)

“The offender Chan played a greater role than Lo. I do not accept that Chan’s role could be equated to that of a courier. His role was of a middle man, if it is necessary to ascribe a label to it. He took instructions from a person in Canada who was clearly senior to him in the hierarchy. He occupied a trusted position as is evidenced by the fact that he was here to oversee the operation. I note that Mr Chan stayed away from the premises at Bankstown until the consignment was delivered and checked by (J).”

80 Her Honour then made the following comment concerning the offender Lo: (ROS 5)

“As to the offender Lo, it is common ground that his involvement was limited to the day of his arrest that being 23 August 2007 as outlined previously. His role, in my view, is lower than that of a courier.”

81 Her Honour’s general comments apply equally to Mr Nguyen, although he was an occasional drug user. In respect of his role, her Honour said this: (ROS 5)

“The part that this offender played in this large-scale importation was as a driver for (J) on 17 August 2007, and as a lookout on 23 August 2007. He also gave instructions to (J) on that day, when he told him to cut the plastic wrappings around the bags, as I have previously outlined.”

82 Counsel for Mr Chan submitted that it was not open to her Honour to find that the applicant Chan was a “middle man”, overseeing the operation. Rather, he was a “courier/transporter”. Mr Chan, it was acknowledged, occupied a position of trust and had come to Australia a month before (20.7.07), knowing that the importation of drugs would shortly take place. However, it was submitted that the person overseeing the operation was J. He arranged for the drugs to be retrieved from Customs and delivered to Mr Chan. It was then Mr Chan’s task to transport the drugs to the purchaser. On the evidence, his role did not commence until the day of his arrest (23.8.07). Once at the premises, he plainly took instructions from the principal in Canada, whom he referred to as “boss”. It was clear from the conversation that he was receiving information for the first time as to the amount of the drugs (5 kilograms in each case) and the manner of concealment. He was not a manager. He made no managerial decisions.

83 The Crown responded that such submissions had been made to the sentencing Judge and rejected. It was open to her Honour, according to the Crown, to regard Mr Chan as the operation’s man on the ground, arriving in Australia in advance, to oversee the operation.

84 In my view, there was no error. First, the coincidence of Mr Chan’s arrival and the intelligence received from Canada, that an importation was imminent, is a fragment of information that, with other evidence, provides insight into Mr Chan’s role. It was acknowledged that Mr Chan arrived in Australia aware that the importation was about to take place. Secondly, Mr Chan, like J, procured a number of phones. One is known to have been procured in a false name. It is reasonable to suppose the other was as well. Only one was lawfully intercepted soon after his arrival. Thirdly, Mr Chan ultimately telephoned J on 23 August 2007, a matter of hours before the suitcases were delivered to the Bankstown address. It is clear from the call that Mr Chan already knew of the arrangements for their delivery. It is reasonable to infer, as counsel acknowledged, that he had been in communication with J or Canada, or someone associated with the importation, before 23 August 2007. Fourthly, Mr Chan was, to a significant degree, insulated from risk. As her Honour observed, he stayed away from the Bankstown premises until the suitcase had been delivered and inspected. He only came to the premises after he had been given repeated assurances by J that everything was “alright”. Those who had to deal with customs agents and Customs were exposed to far greater risks, as J recognised in his conversation with Canada when he asked: (supra [20])

“19 ... Is it too risky or what? They can fucken say all they want, we’re the ones who go in there and we’ll cop it.”

85 Fifthly, it was plain and acknowledged by counsel for Mr Chan, that he held a position of trust. He was not a foot soldier. He was brought in at the end, once the group believed it had successfully landed the drugs. He was to manage the next important stage, that is, the delivery of the drugs to the purchaser, in return for substantial money. The agreed facts, it will be remembered, included the following which, for convenience, I repeat: (agreed facts p 10)

“During the course of the investigation it was revealed Chan has access to a large sum of money, suspected of being about $300,000 both as profits of the sale of previous shipments of methamphetamines and to pay for various stages of the importation of the commercial quantity of border controlled drugs.’

86 Mr Chan did not give evidence. He did not provide an explanation for his access to large sums of money.

87 Finally, Mr Chan recruited Mr Lo (and Lau) to assist in the task, once the suitcases had been delivered.

88 It was open, in my view, to her Honour to regard Mr Chan as a middle man whose task was to oversee the operation.

89 Turning to the applicant Lo, the position is more complicated. Mr Lo gave evidence. His evidence, however, was not entirely satisfactory. It was given through an interpreter. He was asked by his counsel when he first learned that there were prohibited drugs in the suitcases (T 9). In a long answer, he said that Mr Chan had been checking the suitcases and closed them as he approached. Intuitively, he at once “came to know that ... something was illegal”. He said he had behaved “negligently and recklessly” in the matter. He should have gone away “once I noticed there was something ... ” (T 10).

90 The Crown then cross examined. The cross examination included the following: (T 11)

91 Counsel for Mr Lo then sought a brief adjournment. Her Honour left the bench and counsel had the opportunity of speaking to Mr Lo. When the matter resumed, in answer to his own counsel, he said this, referring to Mr Chan by his nickname “Frankie”: (T 12)

92 The Crown did not further cross examine on this issue. Therefore, little is known about Mr Lo’s precise role.

93 In the course of submissions the Crown conceded, somewhat charitably, that Mr Lo’s role was confined to the day of his arrest, 23 August 2007. That concession ignored the coincidence of Mr Lo’s arrival (with Mr Lau) at about the same time as Mr Chan (21.7.07 cf Chan 20.7.07) and his association with Mr Chan. However, that was the basis upon which her Honour sentenced and characterised Mr Lo as “lower than a courier”. On this appeal there has been no challenge to that finding. The dispute in his case is confined to the sentence which was then imposed upon the basis of that finding.

94 Her Honour, in her sentencing remarks, did not comment upon Mr Lo’s evidence or make any particular findings beyond those identified. Mr Lo had plainly endeavoured to distance himself from the task Mr Chan was required to perform, namely obtaining the drugs from within the suitcases. Mr Lo owned a shoulder bag in which the tools used to break open the bags were ultimately found in the taxi. The agreed facts, which he admitted, included a statement that he, Chan and Lau, had in their possession the “shoulder bag containing the electric saw, grinder and disks” (agreed facts [47]), in addition to the suitcases. It would be very strange for Mr Chan to take Messrs Lo and Lau to Bankstown at such a crucial stage of an illegal operation which had brought him from Canada to Australia, unless Mr Lo were there to assist in obtaining the drugs from the suitcases and to safely transport them to the purchaser. However, that was not a matter explored either in cross examination or on sentence.

95 Turning, then, to Mr Nguyen, again there was no challenge to the findings made by her Honour. It was plain that Mr Nguyen had been the driver for J. He had become involved at an earlier stage. He was party to the attempts made to have the suitcases with the drugs released by Customs. On the day the drugs were delivered, he acted as the cockatoo, driving for hours around the area to ensure that nothing was amiss. He conveyed that intelligence to those waiting for the arrival of the suitcases. He also, as her Honour observed, made a suggestion concerning the removal of plastic from the suitcases to make it easier to transport them.

96 It was not disputed that Mr Nguyen, in terms of his criminality, was between Mr Lo and Mr Chan. Counsel for Mr Nguyen, however, complained that his participation “was extremely limited” and “on par, if only marginally above, that of Lo”.

97 Counsel for the Crown, in response, reminded the Court of the submissions made by Mr Nguyen’s counsel during the sentencing hearing. That submission was in these terms: (T 5, 4.9.09)

“(COUNSEL): Needless to say, of course, your Honour, we would be arguing that there is a considerable distance between Mr Nguyen and the two persons further up the hierarchy, that’s Chan and (J). He’s obviously well above Lo who comes in on the day and who one can only say his displayed a very poor sense of timing.”

98 Counsel for Mr Nguyen, in this Court, raised a number of additional issues, although they were not, as the Crown pointed out, grounds of appeal. Three matters were identified. First, it was said that her Honour had not given “sufficient weight” to a particular aspect of the applicant’s subjective case. Medical certificates relating to Mr Nguyen’s parents were tendered. Both parents needed help in their daily lives. Mr Nguyen’s mother was blind. However, as set out above (supra [52]), her Honour noted that Mr Nguyen was not the primary carer of his parents before he went into custody. There was no suggestion that their hardship was exceptional by reason of his imprisonment.

99 The second matter concerned Mr Nguyen’s vulnerability to recruitment in the criminal enterprise by reason of his gambling. However, gambling, generally, does not warrant leniency (Le v R [2006] NSWCCA 136, per Latham J at [32]). In Assi v Regina [2006] NSWCCA 257, Howie J said this: (at [27])

R v Molesworth

100 So there is a rule (where addiction does not operate to mitigate the offence) and there are rare exceptions. Wood CJ at CL provided insight into the exceptions in R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346, when he said this in the context of drug addiction:

“[273] In my view the relevant principles are as follows:

(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;

(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:

R v Bouchard

R v Nolan

(ii) the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;

(iii) the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act; ... ”

101 Here, Mr Nguyen’s actions in support of the joint enterprise were not impulsive. Nor do the other circumstances identified by Wood CJ at CL apply (cf Ourdi v R [2009] NSWCCA 46; (2009) 193 A Crim R 381 at [34] ff).

102 The final matter concerned the discount allowed for Mr Nguyen having pleaded guilty. The plea was entered on the day the trial was scheduled to begin. It had been foreshadowed some days before. Her Honour allowed a ten percent discount, which was entirely appropriate. Foreshadowing the plea a couple of days in advance, enabling the cancellation of witnesses, did not entitle the applicant to a discount greater than ten percent.

103 So there is no substance in the additional complaints made on behalf of Mr Nguyen. Returning to the submission that Mr Nguyen was “on a par or marginally above” the applicant Lo, I reject that submission. Mr Nguyen was involved longer than Mr Lo. He did more to further the enterprise than Mr Lo. It was open to her Honour to characterise his role and his culpability in relation to his co-accused as higher than Mr Lo.

104 So, accepting her Honour’s findings, were the sentences imposed upon the applicants excessive?

Were the sentences manifestly excessive?

105 The complaint by the applicant Chan, in the Notice of Appeal, was not directed so much at the length of the sentence, as the sentence in the context of his alleged role in the enterprise. It will be remembered that the ground was expressed in these terms: (supra [53])

2. Her Honour erred in Her Honour’s assessment of the role of the appellant as a ‘middleman’ in the organisational hierarchy. The appellant’s role was a ‘courier’ or ‘transporter’. As such the starting point of the sentence was excessive.

106 The written submissions elaborated as follows: (AS (Chan) [41])

R v Speer

R v Otto

R v Mas Rivadaria and Ors

(

R v Kardoulias and Ors

R v Riddell

107 Reference was also made to Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458.

108 In respect of the applicant Lo, counsel submitted that the starting point was more appropriate for an offender who had performed a far more critical role than Mr Lo. Attention was drawn to R v Kevenaar, Dedoes and Pan [2004] NSWCCA 210; (2004) 148 A Crim R 155.

109 The submissions made by counsel for Mr Nguyen concentrated upon Mr Nguyen’s role and other aspects that have already been described. There was, nonetheless, a general assertion that his sentence was manifestly excessive.

110 The Crown responded by referring to the guideline judgment in this Court in R v Wong and Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340. That case concerned a very large importation of heroin by persons who each played a significant role. The Chief Justice, in the course of his judgment, referred to a large number of cases involving drug importation. It was, he believed, appropriate to promulgate a guideline, which was not intended to apply to the principal of the organisation or a person high in the hierarchy (at 365 [141]). Spigelman CJ said this: (at 366 [142])

R v Jurisic

R v Henry.

(2 grams-200grams)

(200 grams-1 kilogram)

(1 kilogram-1.5 kilograms (heroin))

(1.5 kilograms-3.5 kilograms (heroin))

(3.5 kilograms- 10 kilograms)”

111 The sentencing range presupposed a discount (generally about 30%) by virtue of s 16G of the Crimes Act 1914 (Cth). That section has since been repealed. In determining the sentencing range in the context of the present appeals, an adjustment was, according to the Crown, therefore appropriate.

112 The High Court on appeal, however, was critical of such a table as a guideline (Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584). The weight of the narcotic imported was not determinative. Indeed, it was not necessarily the chief factor in determining sentence, having regard to the range of issues which the Court was obliged to consider under s 16A of the Crimes Act 1914 (Cth). Notwithstanding these remarks, the Crown, on these appeals, submitted that the judgment of the Chief Justice remained a useful guide in the context of sentencing persons at the lower end (R v Mas Rivadavia and Ors [2004] NSWCCA 284; (2004) 61 NSWLR 63 at 65). By that measure, according to the Crown, the starting points selected by her Honour in each case were within the available sentencing range, having regard to the quantity of drugs imported and the role which each offender played.

113 Dealing with these submissions, one should not overlook that each applicant faced an offence where the maximum penalty was life imprisonment. That penalty is an index of the seriousness with which Parliament views the offence (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 per Gleeson CJ, Gummow, Hayne and Callinan JJ at [31]). The outcome in cases where a lesser offence was involved are of limited relevance. The amount imported was 10.01 kg, that is 13 times the quantity of crystal methylamphetamine (“Ice”) that would attract a charge where the maximum penalty was life imprisonment. Accepting, therefore, that the offences were extremely serious, as her Honour recognised (ROS 4), what was the available sentencing range, having regard to the role of each applicant? As set out above, the parties identified three sources potentially capable of providing insight, namely:

the guideline judgment ( R v Wong & Leung (supra));
statistics maintained by the Judicial Commission and the Commonwealth;
a comparison of the sentences on appeal with sentences imposed in other cases where the facts were similar.

114 Dealing with these suggestions, I believe that, in view of the comments by the High Court, the guideline judgment is of limited assistance when determining the sentencing range. Further, it is not entirely clear that the table was intended to reflect sentences after trial or after a plea of guilty (and, if the latter, the assumption made as to the timing of that plea) (cf DPP (Cth) v De La Rosa [2010] NSWCCA 194, per McClellan CJ at CL at [192]). That said, the weight of the drugs remains a most important matter. In R v To and Ors [2005] NSWCCA 362; 157 A Crim R 80, Howie J said this: (at [110])

Wong v The Queen

115 In DPP v De La Rosa (supra), in the context of similar, although lesser, offences, Simpson J made the following comments: (at [307]-[308])

Wong

308 If that were not so, then there would be no greater deterrent (general or specific) to the importation of 1.99 kilograms than there is to the importation of 2 grams. The greater the quantity, the nearer it is to the cut off point for a marketable quantity, and to the starting point of a commercial quantity, the closer to the maximum the penalty must be. Of course, quantity is not the only consideration, and must be tempered by other factors. To my mind, however, this is a case in which the quantity of the drug involved is a very significant factor. ...”

116 The statistics maintained by the Judicial Commission and the Commonwealth are also, in the context of these offences, of limited assistance. First, the breadth of each offence, whether under s 233B of the Customs Act 1901 or Pt 9.1 of the Criminal Code Act 1995 (Cth) (which included s 307.5(1)) is considerable, in terms of the weight of the drug imported. The statistics, of course, do not include any reference to the weight of the drug. Secondly, they do not reveal the role played by the offender. Thirdly, statistics do not disclose the motivation of the offender, and whether he was acting for financial gain or driven by a drug addiction or some other problem.

117 Because of the opaque nature of statistics, inevitably attention is directed to individual cases, said to share features in common with the sentence under discussion. However, again, there is difficulty with that approach, as described by Hunt CJ at CL in R v Morgan (1993) 70 A Crim R 368, where he said this: (at 371)

range

Lowe

‘The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.’”

118 Attempts have been made (including in Wong & Leung), to survey a broader range of cases involving particular offences, attempting to identify a pattern and individual features important to the sentencing discretion. In R v Lee [2007] NSWCCA 234, McClellan CJ at CL upheld a Crown appeal in respect of a sentence imposed in the District Court relating to a massive importation of heroin (76.3 kg). The respondent played a senior role in the importation ([37]). The Crown (Cth), in support of its submission, prepared a table which included almost 50 cases. Each was described in terms of the offence, the drug, the quantity of drug, the plea, and the sentence imposed. A short description was also provided of the aggravating and mitigating factors ([36]). When resentencing the respondent, that material was taken into account. It is also relevant and of some interest in the context of the present appeals.

119 More recently in DPP (Cth) v De La Rosa (supra), again in the context of a Crown appeal, where the Crown relied heavily upon the table in R v Wong & Leung ([186] ff), McClellan CJ at CL examined a wide range of cases concerning drug importations ([197] ff). The cases were analysed in order to identify relevant groupings ([200]). In respect of the importation of a commercial quantity of drugs, either under s 233B of the Customs Act 1901, or s 307.1 of the Criminal Code Act 1995 (Cth), the groupings were as follows:

Group 1: High quantity (tens or hundreds of kilograms); high value (tens of millions of dollars); large reward (hundreds of thousands of dollars) although finding of reward not required; not guilty plea in half of cases; no assistance; no remorse; mastermind, principal or part of organising committee; high degree of responsibility.

Group 2: High quantity; high value; guilty plea; principal, member of upper management or ‘essential’ role with moderate to very high level of responsibility; reward in tens of thousands of dollars although finding of reward not indicative.

Group 3: Quantity generally below 7 kg; mid-range role; discount for assistance, cooperation; plea not indicative.

120 The judgment included a schedule of the cases in each group, identifying features relevant to the objective seriousness of the offence, the subjective case and the sentences imposed. Basten JA, however, was critical of the categorisation which appeared “to be based on a self-fulfilling premise, identified by the ‘head sentences’ imposed” (at [138]). Simpson J, in the same case, said this: (at [293])

Wong v The Queen; Leung v The Queen

121 Her Honour added: (at [303]/[304])

“303 A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.

Wong and Leung

122 Against that background, let me deal with the specific cases identified by counsel as providing particular insight into the error said to have been made by the sentencing Judge. It will be remembered that counsel for Mr Chan referred to a number of cases (supra [106]). They included R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525, where the applicant pleaded guilty to importing 2.136 kg of cocaine (the threshold for a commercial quantity being 2 kg). In his interview with the police, the offender acknowledged he had been offered money to fly to Brazil, where he was fitted with a corset containing drugs and provided with a false passport. He then flew to Australia, where he was apprehended. The sentencing Judge in the District court, in her remarks, said this: (at [9])

“ ... I reject the submission that the prisoner was a mere courier in the sense that he played no part in the organisation of the importation. His role in the commission of this offence indicates a greater level of criminality than the naive recruit the prisoner would have the Court accept. What position in the hierarchy of importation the prisoner occupied cannot be determined, but that should not deflect the Court from assessing the prisoner’s criminality on the basis of the available evidence. The available evidence signals a level of criminality of a reasonably high order. ...”

123 Hall J (with whom Hidden J agreed), said this: (at [96])

principal

R v Mas Rivadavia

124 Sully J (dissenting) described the applicant as a “significant and serious player”. He added: (at [19])

“19. There could be, surely, no sensible disputing that the objective criminality of this offender was very serious indeed. He walked into this country, deliberately and with full awareness of what he was doing, with a little over 2 kilograms by pure weight of cocaine, a drug the abuse of which causes serious damage both to the abusers themselves and to the society of which they are a part. ...”

125 The Court of Criminal Appeal reduced the sentence from 14 years imprisonment with a non parole period of 8½ years, to 10½ years imprisonment with a non parole period of 7 years, reflecting, in part, an acceptance of a larger discount for the plea of guilty.

126 Plainly, Mr Otto was at high risk having drugs in his possession as he came through Customs. Risk is usually the hallmark of a person lower in the hierarchy. Here, in contrast, Mr Chan ultimately took delivery of the suitcases at a time when it was thought to be safe. The narcotics being carried by Mr Otto weighed considerably less than the drugs imported by the enterprise in this appeal (slightly in excess of a commercial quantity cf 13 times a commercial quantity). The adjusted starting point for the sentence imposed upon Mr Otto (allowing for a 25% discount for a plea of guilty) was approximately 14 years.

127 Speer v Regina (supra) involved the importation of heroin (2.54 kg), the threshold for a commercial quantity being 1.5 kgs. Speer was a courier. He had a gambling addiction. He had agreed to participate in the crime in order to clear his gambling debts. The sentencing Judge found that he was unlikely to reoffend. After a late plea (10%), he was sentenced on appeal to 9 years imprisonment with a non parole period of 6 years. The starting point, before discount, was therefore about 10 years. Although the case was relied upon by counsel for Mr Chan, the true comparison was with the applicant Lo, who was characterised by her Honour as “below a courier”. Her Honour’s starting point in respect of Mr Lo was also 10 years (supra [6]). Again, it is relevant that the quantity of drugs involved in the present importation exceeded the commercial quantity by more than 13 times.

128 Counsel for Mr Chan also referred to R v Mas Rivadaria and Ors (supra) and R v Kardoulias and Ors [2005] NSWCCA 456; (2005) 159 A Crim R 252. Both were Crown appeals. Both concerned traffickable quantities of drugs (708.5 grams of heroin in the case of Mas Rivadaria and 1.395 kg of heroin in the case of Kardoulias). The maximum penalty was 25 years, not life. The sentence upon Mas Rivadaria was 8.25 years with a non parole period of 5.25 years. The sentence upon Kardoulias was 13½ years imprisonment with a non parole period of 8½ years.

129 Reference was also made by counsel for Mr Chan to R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524, which concerned the importation of 3.8 kg of cocaine. The offender was a storeman who agreed to participate in the offence, having been threatened if he failed to do so. He was a person of good character, apart from a minor assault. He entered an early plea (25%). On a Crown appeal, he was sentenced to 11 years imprisonment with a non parole period of 7 years. Adjusting that sentence for the early plea, the starting point was 14 years 8 months. The starting point in the case of Mr Chan was 17 years 10 months. Again, however, one must recognise the significant difference in the quantity of drugs (13 times the commercial quantity in Chan cf less than 2 times in Riddell).

130 None of these cases, to my mind, suggest that the starting point selected by her Honour was outside the available range.

131 Finally, in the context of the submissions by counsel for Mr Chan, let me deal with Tyler v R; R v Chalmers (supra). Counsel pointed out that the sentence ultimately imposed, on a Crown appeal against Chalmers, was 12 years imprisonment with a non parole period of 8 years. Yet the quantity of drugs imported was greater (20 to 30 kg of cocaine) and the offender’s involvement “at managerial level”. Chalmers was sentenced after trial. The case, it was suggested, illustrated the excessive nature of the sentence imposed upon Mr Chan.

132 The charge against Chalmers was that he conspired to import between 20 and 30 kg of cocaine from South America. Tyler’s role was to travel to South America with $50,000 and another co-defendant to purchase the drugs. Once purchased, they were to be concealed within his baggage, and returned to Australia. Arrangements had been made with baggage handlers at Sydney Airport to ensure their safe passage through Customs.

133 In the District Court, the sentencing Judge concluded that the role of Chalmers was merely to obtain the ticket for the courier, Tyler. His role, therefore, was significantly lower than that of Tyler (and the courier who accompanied him). He had not travelled overseas “in the expectation that he would return with a substantial quantity of drugs” (at 470). On appeal, Simpson J (Spigelman CJ and Harrison J agreeing) held that the sentencing Judge’s characterisation of Chalmers’ role was erroneous. Another conspirator, North, was described as playing “a very significant managerial role in the enterprise” (at 461). Chalmers was a friend of North and, in the course of the conspiracy, had a deal of contact with him. He provided the funds for North to travel within Australia and for Tyler to travel to Buenos Aries, organising their travel in each case (at 470 [74]). In that context, Simpson J said this: (at 470)

“75. I think there is considerable substance in the propositions put on behalf of the Crown. In particular, the observation concerning the absence of any intention that Chalmers would travel overseas and return with drugs, as somehow diminishing his role, in my opinion, represents a misconception of the hierarchy of a drug conspiracy. Ordinarily, it is those who actually carry the drugs who are at the bottom of the hierarchy; in general, the higher the position in the hierarchy, the greater the distance from physical contact with the drugs themselves. Those in ‘managerial’ roles are usually able to distance themselves from that physical contact. This, alone, in my opinion demonstrates error in the fact finding exercise.”

134 The conspiracy was considerably advanced when it was thwarted (at 475). Having found error, her Honour was obliged to re-sentence. Chalmers, whilst pleading not guilty to the conspiracy charge, had pleaded guilty to the charge of supply. He suffered from Bipolar disease. In that context, her Honour said this: (at 475)

R v Lee

I consider the appropriate range of head sentences is of 12 to 16 years.

135 Here, the role of Mr Chan, as a trusted middle man overseeing the importation and insulated from risk to some degree, was also essentially middle management. The drugs were imported, although intercepted. The range identified by her Honour is not remarkably different from the starting point selected by the sentencing Judge.

136 Let me move from Mr Chan to the submissions made on behalf of Mr Lo. Counsel for Mr Lo said this: (AS (Lo) [17]-[18])

R v Kevenaar, Dedoes & Pan

18. Following a successful Crown Appeal sentences imposed were (Kevenaar) 7 years NPP 4 years 6 months, (Dedoes) 7 years 9 month NPP. Both offenders were more involved than Mr Lo, yet were judged to be lower level offenders. Pan was judged to be involved at a higher level and therefore his sentence was at a higher starting point. The starting points for Kevenaar and Dedoes followed deduction of discounts.”

137 The case involved the importation of almost 6 kg of pure MDMA or Ecstasy ([11]). The offenders were charged under s 233B(1)(c) of the Customs Act 1901, where the maximum penalty was life imprisonment and a fine not exceeding $750,000.

138 On a Crown appeal, Hulme J referred to the role of each offender, as described by the sentencing Judge, in these terms: (at [10])

“10. Acting Judge Mahoney found that the level of involvement of Messrs Kevenaar and Dedoes was about equal and found that they could not be regarded as much more than peripheral on the very edge of the operation. His Honour thought that Mr Pan was significantly more involved but slightly less than a middle man. ...”

139 Each offender was entitled to discounts for assistance and for late pleas. Hulme J (Simpson and Howie JJ agreeing) commented on the range of sentences before the application of discounts, in these terms: (at [116]-[117])

could be expected to fall within the range of 13 to 16 years.

R v Benais

‘The escalation in drug use in this country is a matter of notoriety, as is the effect of drug use and abuse on the wider community. While minds may and do differ on policies that should be adopted in relation to drug use and on drug addiction there is, as I perceive it, less controversy about tolerance of imported drugs such as Ecstasy.

Governments and Government agencies that struggle to control the importation of drugs deserve the support of the courts. Their efforts are diminished where courts fail to give that support. To fail to give the necessary support is to undermine the efforts that have been made by Governments and other agencies to control the spread of drug use.’

140 None of this material suggests to my mind that the sentences imposed were manifestly excessive, having regard to the respective roles of each applicant.

141 During the course of the hearing, application was made by counsel for Mr Lo for an extension of time for the lodgement of the application for leave to appeal. The application was not opposed and the extension of time was granted (T 2).

Orders.

142 In the circumstances, the orders I propose are as follows:

1. That the application for leave to appeal by Kin Fai Chan be granted, but the appeal dismissed.

2. That the application for leave to appeal by Chung Fung Lo be granted, but the appeal dismissed.

I agree with Kirby J.

**********

Citations

R v Nikolovska [2010] NSWCCA 153

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R v Lai; R v Wu [2019] NSWDC 771

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Statutory Material Cited

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Ma v R [2010] NSWCCA 320

De Campos v R [2006] NSWCCA 51

Lovell v Lovell [1950] HCA 52

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CITATION:	CHAN, LO and NGUYEN v REGINA [2010] NSWCCA 153
HEARING DATE(S):	7/7/10 26/7/10
JUDGMENT DATE:	22 October 2010
JUDGMENT OF:	Beazley JA at 1; Kirby J at 2; Johnson J at 143
DECISION:	1. The application for leave to appeal by Kin Fai Chan be granted, but the appeal dismissed. 2. The application for leave to appeal by Chung Fung Lo be granted, but the appeal dismissed. 3. The application for leave to appeal by Thanh Phan Nguyen be granted, but the appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - drug offences - importation 10 kg methamphetamine (Ice) - Criminal Code Act 1995 (Cth) s 307 - joint criminal enterprise - 3 offenders - different roles - whether findings as to role(s) open - discount for assistance - intelligence only - whether sentences excessive.
LEGISLATION CITED:	Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth) Customs Act 1901
CATEGORY:	Principal judgment
CASES CITED:	R v Ferrer-Esis (1991) 55 A Crim R 231 De Campos v Regina [2006] NSWCCA 51 Yenice v R (1994) 72 A Crim R 234 Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 Mallet v Mallet [1984] HCA 21; 156 CLR 605 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Van Haltren v The Queen [2008] NSWCCA 274; (2008) 191 A Crim R 53 The Queen v Olbrich [1999] HCA 54; 199 CLR 270 Le v R [2006] NSWCCA 136 Assi v Regina [2006] NSWCCA 257 R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 Ourdi v R [2009] NSWCCA 46; (2009) 193 A Crim R 381 Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 R v Kevenaar, Dedoes and Pan [2004] NSWCCA 210; (2004) 148 A Crim R 155 R v Wong and Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 R v Mas Rivadavia and Ors [2004] NSWCCA 284; (2004) 61 NSWLR 63 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 DPP (Cth) v De La Rosa [2010] NSWCCA 194 R v To and Ors [2005] NSWCCA 362; 157 A Crim R 80 R v Morgan (1993) 70 A Crim R 368 R v Lee [2007] NSWCCA 234 R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525 Speer v Regina [2004] NSWCCA 118 R v Kardoulias and Ors [2005] NSWCCA 456; (2005) 159 A Crim R 252 R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524
PARTIES:	Kin Fai CHAN (App) Chung Fung LO (App) Thanh Phan NGUYEN (App) REGINA (Resp)
FILE NUMBER(S):	CCA 2008/18556 (Chan); 2008/18557(Lo); 2008/18549 (Nguyen)
COUNSEL:	M Fanning (Chan & Lo) S Kluss (Nguyen) N Adams (Crown)
SOLICITORS:	Lloyd Truman Sadiq Solicitors (Chan & Lo) Greenfield Lawyers (Nguyen) M Catsanos - Cth DPP (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/11/1269 (Chan) 2008/11/1265 (Lo) 2008/11/1266 (Nguyen)
LOWER COURT JUDICIAL OFFICER:	Hock DCJ
LOWER COURT DATE OF DECISION:	17 April 2009 (Chan & Lo) 25 September 2009 (Nguyen)