R v Pang

[1999] NSWCCA 4

Reported Decision: 105 A Crim R 474

New South Wales

Court of Criminal Appeal

CITATION:	R v Pang [1999] NSWCCA 4 revised - 08/03/99
FILE NUMBER(S):	CCA 60669/98
HEARING DATE(S):	12 February 1999
JUDGMENT DATE:	12 February 1999
PARTIES :	Tack Lee Pang
JUDGMENT OF:	Meagher JA; Wood CJatCL; Barr J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Kirkham DCJ

COUNSEL:	T L Buddin SC (Appellant) G J Bellew (Crown)
SOLICITORS:	Legal Aid Commission of NSW Commonwealth DPP
CATCHWORDS:	CRIMINAL LAW - sentencing; appeal against sentence; whether trial judge erred in not allowing sufficient discount for assistance to authorities ; whether trial judge erred in not making allowance for absence of remissions within NSW Criminal Justice System when setting non-parole period
ACTS CITED:	Customs Act 1901 s 233B Crimes Act 1914 (Cth) ss 16A 16G l 21E
DECISION:	Aplication allowed; Sentence below quashed; Sentence of imprisonnment for five years with a non-parole period of three years imposed

IN THE COURT OF
CRIMINAL APPEAL

No. 60669/98

MEAGHER JA
WOOD CJ at CL
BARR J

FRIDAY 12 FEBRUARY 1999

REGINA v TACK LEE PANG


The applicant pleaded guilty to an offence of being knowingly concerned in the importation of a commercial quantity of heroin, contrary to s 233B(1)(d) of the Customs Act 1901 . His role in the importation was that of a courier. He collected and signed for the heroin, and delivered it to an intermediary.

He was sentenced to a term of six years with a non-parole period of five years. He challenged the sentence on the basis that his Honour erred in not allowing a sufficient discount for the assistance provided by the applicant, and in not making any allowance for the absence of remissions within the NSW Criminal Justice System when setting the non-parole period.

HELD (allowing the application):

(1) Involvement at any level of drug importation must attract a significant sentence, in the interests of deterrence.

(2) However in this case the assistance given by the applicant was of such a high order as to attract a significant discount. The statements provided by the applicant were full and frank, and his assistance, both in relation to investigations and his undertaking to give evidence against his co-accused, was of real value.
Cartwright (1989) 17 NSWLR 243, followed.

(3) There is no fixed tariff for the reduction that should be given for assistance: it has ranged between 20 and 50 per cent. However the end result must not be so far out of touch with the circumstances of the case, as to constitute an affront to the community;
Gallagher (1991) 53 A Crim R 248 followed; Chu , NSWCCA, 16 October 1988, unreported, Behar , NSWCCA, 14 October 1998, unreported, Raz , NSWCCA, 17 December 1992, unreported, Perrier and Richardson (1990) 59 A Crim R 164, considered.

(4) In this case a 25 per cent discount was insufficient. A discount of 50 per cent more appropriately reflected the genuine co-operation of the applicant, and the value of his assistance.

(5) His Honour also erred in not extending the discount given for the absence of remissions in this State to the non-parole period. The period set for non-parole is usually between 60 and 66 per cent of the head sentence, although there is no fixed rule and it will depend on the particular circumstances of the prisoner. However in this case the non-parole period was 83 per cent of the head sentence, which was far too high.
Paull (1990) 20 NSWLR 427, El Karhani (1990) 21 NSWLR 370, Robertson , NSWCCA, 6 November 1998, Behar ( op.cit .), Bernier NSWCCA, 19 May 1998, Drazkiewicz , NSWCCA, 12 November 1993, considered.

ORDERS PROPOSED


(1) Application allowed
(2) Sentence below quashed
(3) Sentence of imprisonment for five years with a non-parole period of three years imposed.

8

IN THE COURT OF
CRIMINAL APPEAL

No. 60669/98

MEAGHER JA
WOOD CJ at CL
BARR J

FRIDAY 12 FEBRUARY 1999

Regina V Tack Lee PANG

JUDGMENT

1 WOOD CJ at CL: The applicant seeks leave to appeal against the severity of a sentence comprising a term of six years with a non-parole period of five years imposed on him by Judge Kirkham in the District Court.
2 This sentence followed his plea of guilty to an offence of being knowingly concerned in the importation of a commercial quantity of heroin, contrary to s 233B (1)(d) of the Customs Act 1901. The quantity of pure heroin involved was 2495.6gms, having a street value in the vicinity of $3.5m.
3 The role of the applicant in the importation was that of a courier. His specific task was to collect and sign for the heroin, which had been packaged within ten hollowed out computer instruction books, once it arrived in Sydney from Bangkok and then to deliver it to an intermediary. He had been recruited for this role in Kuala Lumpar and he was to receive 15,000 Malaysian ringitt, together with the costs of air fares for himself and his wife and their expenses.
4 The planned importation had been discovered in Bangkok and, unbeknown to any of the conspirators involved, became the subject of an authorised and controlled importation involving Thai Police and the Australian Federal Police. Electronic and physical surveillance was established in respect of several suspects, including, Alan Sui Lun Li, John Giang Diou Kook, Wei Fen Mei and others. After the arrival of the heroin in Sydney, substitute blocks were delivered to an address in Summer Hill. The applicant signed for and received the consignment and, in accordance with instructions from Kook, he effected the delivery. Surveillance officers lost contact at this point, but monitoring of several telephone services reveals the frustration experienced by those higher up in the importation/distribution chain once they discovered that the commodity they received was not, in fact, heroin.
5 The prisoner was arrested as he was about to leave the country. He initially denied any involvement in any offence and declined to assist police. Later that day his attitude changed and he agreed to assist the police with covert inquiries. Apart from the active assistance that he provided in the investigations that followed, he has also signed an undertaking to give evidence in proceedings against Li, Kook, Mei and another person.
6 In sentencing the applicant, his Honour accepted that his role was towards the lower end of the chain of culpability; That he had expressed contrition through his plea of guilty and offer of assistance; that he had no prior convictions; that the business he conducted in Malaysia had collapsed since his arrest with consequent hardship to his family; that by reason of his youth, he had favourable prospects of rehabilitation; that he would serve a sentence in protective custody and in a country which was foreign to him and that his assistance was genuine and extensive. Not all of these considerations justify much by way of leniency in the case of those involved in organised drug importation syndicates. For example, a claim to prior good character in cases of this kind is of limited value: Ferrer-Esis (1991) 55 A CrimR 231 at 238; as is the fact that the prisoner may be separated from his family in a country that is not his own: Bushell CCA NSW 17 July 1998 unreported. Moreover, involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served.
7 The objective and subjective circumstances taken into account by his Honour were correctly and sufficiently identified, both so far as that is required at general law, and by the Crimes Act (Commonwealth) s 16A. No relevant factor has been identified as having been overlooked.
8 The sentence has been challenged upon the basis that his Honour erred in not allowing a sufficient discount for the assistance provided by the applicant, and in not making any allowance for the absence of remissions within the NSW Criminal Justice System, when setting the non-parole period.
9 In coming to the sentence imposed, his Honour expressly stated in accordance with Gallagher (1991) 53 ACrimR 248 at 257 and s 21E of the Crimes Act 1912 (Commonwealth) that, but for the applicant's assistance, he would have imposed a head sentence of ten years and a non-parole period of seven years. By reason of the applicant's co-operation, that sentence was then reduced by two years to a head sentence of eight years with a non-parole period of five years. His Honour next applied s 16G of the Crimes Act to that adjusted head sentence to account for the non-availability of remissions within the New South Wales Criminal Justice System. The effect was to reduce the head sentence by a further 25 percent to one of six years imprisonment. The non-parole period was not reduced and in percentage terms amounts to 83 percent of the head sentence.
10 In my view, the application has been made good, both in relation to the extent of the discount given for assistance and in relation to the failure to pass on the discount when fixing a non-parole period.
11 The case is one where the assistance was of a very high order and such as to attract a significant discount. The applicant has been described by the Australian Federal Police as being of considerable, if not crucial, importance for the pending committal of Kook and Li, for any application that may be made for extradition of a co-offender, and for the prosecution of Mei who has recently been charged and is presently awaiting committal.
12 Upon the basis of the assessment that the statements provided by the applicant were full and frank, and that his assistance is of real value, both potentially and in actual fact, he clearly was entitled to a significant reduction on the sentence that would otherwise have been imposed: Cartwright (1989) 17 NSWLR 243 at 253.
13 There is no fixed tariff for the reduction that should be given for assistance, and so far no guideline judgment has been delivered in this area. However, the discount customarily given in this State for assistance, has ranged between 20 and 50 percent of the sentence that would otherwise have been imposed: Chu CCA NSW 16 October 1998 unreported and Behar CCA NSW 14 October 1998 unreported.
14 In Raz CCA NSW 17 December 1992 unreported this court by majority extended a discount of 55 percent in re-sentencing a courier who had assisted the authorities and given evidence against other offenders. In Perrier and Richardson (1990) 59 A CrimR 164 McGarvie J went so far as to suggest a discount of 66 2/3 percent may be appropriate to provide the necessary incentive for couriers to implicate their co-offenders.
15 Whatever discount is given, the imperative remains that the end result must not be so far out of touch with the circumstances of the particular offence, and of the particular offender so as to constitute an affront to community standards: Gallagher at 260.
16 In the present case I am persuaded a discount of 25 percent was insufficient to reflect the genuine co-operation of the applicant and the benefits that have flowed, and will potentially flow from his assistance. Rather, the case was appropriate, in my view, for a discount of 50 percent.
17 I am also of the view his Honour erred in not extending a flow on to the non-parole period for the allowance which was made in respect of the head sentence by reason of the absence of remissions in this State. Although in its terms s 16G of the Crimes Act requires the court to take the absence of remissions into account "in determining the length of the sentence" and the adjust then sentence accordingly: Paull (1990) 20 NSWLR 427 at 433 it has been held appropriate for the adjustment to flow on to the non-parole period: El Karhani (1990) 21 NSWLR 370 and Robertson CCA NSW 6 November1998 unreported. The non-parole period has normally been set between 60 and 66 percent of the head sentence: Behar at 13 and Bernier CCA NSW 19.5.98 unreported, although there is no fixed rule in that regard. In any given case it will depend upon the subjective circumstances of the prisoner and the benefits or otherwise, of offering the possibility of release on parole.
18 I am unaware of any reason in the present case for fixing a non-parole period that was as high as 83 percent of the head sentence. That proportion is in excess of the figure of 75 percent that was said by this court in Drazkiewicz CCA NSW 12.11.93 unreported, to be appropriate only for very serious cases. This is a very serious case but the proportion, in my view, was far too high. Accordingly, it becomes necessary to allow the application and to re-sentence the applicant.
19 The starting point of a head sentence for ten years with a non-parole period of seven years after allowance for the absence of remissions, but without allowance for assistance would, in my view, be appropriate. Applying a 50 percent discount for assistance that sentence should, in my view, be reduced to one of five years imprisonment with a non-parole period of three years.
20 I accordingly propose that the application be allowed, the sentence below be quashed and that in lieu thereof the applicant be sentenced to imprisonment for five years with a non-parole period of three years. For the purposes of s 21E of the Crimes Act I would further state that had there been no assistance, the appropriate sentence imposed would have been one of ten years imprisonment with a non-parole period of seven years. Had that assistance been confined to the provision of information alone without any undertaking to give evidence against the co-accused it would have, in my view, been appropriate for the sentence to be one of imprisonment for eight years with a non-parole period of five years.
21 MEAGHER JA: I agree.
22 BARR J: I also agree
23 MEAGHER JA: The orders will be as proposed by Wood CJ at CL. There is some statutory obligation to explain to your client what has happened or to cause somebody else to explain.
24 BUDDIN: Yes, I know what is going to come from your Honour and I am happy to take up the burden of that suggestion.

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