Regina v Dennis Hong Wong

[2003] NSWCCA 261

CITATION:	Regina v Dennis Hong Wong [2003] NSWCCA 261
HEARING DATE(S):	3 September 2003
JUDGMENT DATE:	3 September 2003
JUDGMENT OF:	Meagher ACJ at 14; Sully J at 1; Kirby J at 15
DECISION:	Leave to appeal granted; Appeal against sentence dismissed
CASES CITED:	Baker, unreported, 10/12/90, per Hope JA Radford (2002) NSW CCA 122 per Smart AJ Totten (2003) NSW CCA 207 per James J
PARTIES :	Regina Dennis Hong Wong
FILE NUMBER(S):	CCA 60041/01
COUNSEL:	R. Sutherland SC - Crown T. Game SC - Appellant
SOLICITORS:	Commonwealth DPP - Crown Jeffreys & Associates - Appellant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	00/11/0589
LOWER COURT JUDICIAL OFFICER :	Nash ADCJ

60041/01

MEAGHER JA
SULLY J
KIRBY J

3 September 2003

REGINA v DENNIS HONG WONG

Judgment

1 SULLY J: The applicant, Mr Wong, stood trial in the District Court upon an indictment charging him with having been knowingly concerned in the importation into Australia of heroin. The particular importation was of a quantity weighing eighty-eight kilograms in impure form and sixty-four kilograms in pure form. As the learned primary Judge, Nash DCJ, correctly observed:

“It goes without saying that this is an exceptionally large quantity of heroin to be brought here to be released on those members of our community who use that insidious drug.”

2 The applicant, when arraigned pleaded not guilty. He was found guilty by the jury. He was subsequently sentenced to imprisonment for twenty years with a non-parole period of thirteen years.

3 The applicant now applies for leave to appeal against the asserted severity of that sentence. Only one ground has been advanced, namely:

“The sentencing Judge erred in giving no weight to the fact that the applicant was serving his sentence in protective custody.”

4 The applicant was represented at the sentence proceedings by a solicitor with very extensive experience in criminal cases. The applicant gave no evidence in those proceedings. Evidence was led from two of his siblings, but none of it bears upon the sole issue arising in the present application.

5 In due course Judge Nash commenced to deliver oral remarks on sentence. As his Honour was doing so, the applicant’s solicitor interrupted, and the following interchange occurred:

“JEFFREYS: I really do apologise. There is something I told my friend this morning. I did not call evidence but I wanted to indicate to your Honour at some stage and I failed to, and I apologise for that.
The prisoner is in protection, and will serve his sentence in protection. He is in protection because when he went into the gaol he was stood over by, he believes, people of the 5T gang, who demanded money. The money was not paid and his life was threatened, so he signed himself into protection.
HIS HONOUR: I can’t act on that without evidence.
JEFFREYS: Every time I have seen him he has been on protection.
HIS HONOUR: This is one of the problems that your client faces, that there has been not a word from him in this case, either at trial or now. What you have said has been noted.
JEFFREYS: Your Honour can certainly accept that he is in protection. I understand your Honour’s concern as to the reason.
HIS HONOUR: Why can I accept that? I am not suggesting that you are not telling me something that you have been told.
JEFFREYS: Whenever I go to Parklea gaol he is in a separate wing which is a protection wing, and I actually go and see him in the protection wing.
HIS HONOUR: Are you able to assist, Mr Crown?
CROWN PROSECUTOR: I am not. My friend told me this morning exactly what Mr Jeffreys has said.
HIS HONOUR: On the terms put before me by way of evidence today this seems to come into the much more important category. I am surprised you overlooked something as important as that, because you have conducted your case so well.
CORRECTIVE SERVICES OFFICER: That is correct, there is a strict protection ban on this warrant.
CROWN PROSECUTOR: We don’t know why.
HIS HONOUR: It may not apply if he is moved to some other prison. Is there anything on there to state why he is in protection?
CORRECTIVE SERVICES OFFICER: Not at all. They don’t give us a reason.
CROWN PROSECUTOR: All I am able to say is that my understanding is one can ask to be put in protection and one can ask to come out of protection. I have no knowledge as to any reason, justification or fact behind any request and I didn’t even know about it until this morning.
JEFFREYS: I think it is something which given five minutes we would be able to establish.
SHORT ADJOURNMENT
CROWN PROSECUTOR: I undertook to speak to the gaol authorities myself and I have been on the phone until a few moments ago. I have been advised a number of things: firstly, the gaol authorities confirm that the prisoner is on protection; secondly, he is in protection at his own request. I am advised by the person that I spoke to, whose name was Waddell, that they can get there by the motion of the authorities in some circumstances.
HIS HONOUR: They won’t put them in protective custody against their will, will they?
CROWN PROSECUTOR: That is my understanding. The prisoner apparently visited the reception committee at Parklea and the reason that is noted pursuant to this reception committee discussion is molestation/assault as a fear, and there is then a subsequent blue form. I don’t completely follow why a blue form was filled in, but he indicated a nominated individual that he knew from Silverwater gaol and expressed some concerns about being stood over by that person, and that is included in the file. It was very quickly paraphrased to me. Obviously if we need to get a copy that is going to take some time. I am not in a position to assist your Honour immediately with any specific authorities.
HIS HONOUR: Did he nominate who this person was?
CROWN PROSECUTOR: I understand he did, yes.
HIS HONOUR: He expressed concern about being stood over or concern because he had been stood over?
CROWN PROSECUTOR: I understood it was concern that he had been stood over at Silverwater, but I have to say it was a very brief conversation in a wind blown street, I wouldn’t want to be swearing affidavits to the terms of the phraseology that was used.
HIS HONOUR: Is this person now at Parklea?
CROWN PROSECUTOR: I don’t know that, your Honour. Most of the time we were waiting we were being pushed from one office to another and listening to wait music so it was a very brief conversation until we were asked to come into court.
JEFFREYS: It is a matter which your Honour takes into account if you have a prisoner who is in protection and is to serve his sentence in protection.
HIS HONOUR: I would need some evidence about that. We don’t even know if this person is in the same gaol as him. It has been known for people to state things to Corrective Services Officers before they have been sentenced to get this, and if it is taken into account then they get off protective custody and not have any further problem and it has been taken into account.
JEFFREYS: My experience is that it is unusual for somebody who goes into protection to sign themselves out, and in fact I have appeared for many people who have gone into protection some years ago and each time they are arrested they go back into protection because if they don’t the people in the main think they are being put into the main to become informers, because a lot of people -
HIS HONOUR: I would need to know more about it to act on it.
JEFFREYS: It is obviously a matter which in my submission is a matter which can affect length of sentence.
HIS HONOUR: Yes, it can, generally not too often a very lengthy sentence; even then it can be. Let’s assume, for instance, that, instead of having immunity Tang pleaded guilty to the same charge that your client was on. One would expect in those circumstances he would serve his sentence in protective custody and that would certainly be taken into account, apart from other things that would be taken into account also. There doesn’t seem to be anything in that case of the captain of the vessel to which you referred me, it was taken into account by Wood J.
JEFFREYS: I think it is now accepted that the 50 per cent can be taken into account.
HIS HONOUR: One of the special things one has to take into account in Federal matters is this, of course, it is provided for in the Act. To what extent one takes it into account is a matter of discretion and judgment. Do you want to adduce any further evidence?
JEFFREYS: The only evidence I wish to put before your Honour is the type of material that we have spoken of, that we have made an inquiry about. The document itself will indicate what he said and the name of the individual, and records would be able to indicate whether that person was in the gaol at that particular time.
HIS HONOUR: I am not going to complete the matter now. It is 20 past four, it is not fair to the staff.
JEFFREYS: It is a situation that is all my doing. I wrote on my file on Monday to subpoena the prison file, and didn’t. I don’t want you to proceed with the matter without -
HIS HONOUR: When do you want me to adjourn it to? We might be able to fit it in one day next week; what about Friday 22 December ten o’clock?
JEFFREYS: Friday it is.”

6 Upon the resumption of the part-heard proceedings, some materials, not before this Court, were tendered. According to the written submissions of the Crown in the present application, these materials consisted of:

“... a case note from the Department of Corrective Services and a record relating to the request for protection.”

7 Once again, the applicant neither gave, nor called, any supplementary oral evidence.

8 Judge Nash, in the course of his Honour’s resumed remarks on sentence, said this:

“The sentencing process was adjourned last week when Mr Jeffreys, quite properly, interrupted my reasons for sentence to inform me of something that he had inadvertently overlooked, that is, that you are serving your sentence in protective custody. You informed the prison authorities that you had received a threat from a member of the 5T gang and that you were afraid of molestation and/or assault or worse if you were not placed in protective custody. The fact that someone serves a sentence in protective custody may be taken into account by the Court, generally when a person who has been involved in an offence is being sentenced for that offence and where that person has co-operated with the investigating police and/or the prosecuting authorities and/or has agreed to give evidence in relation to other persons allegedly involved in the offence. Everyone who goes to gaol, especially for an offence of this nature or, as was the case when you went into protective custody, an alleged offence of this nature, takes the risk of being stood over by others who are even worse then an offender such as you. I accept that you are serving your sentence in protective custody at the present time. I accept that you gave as a reason for this the threat to which I have referred and that you sought protective custody as a result. I accept that the threat more than likely occurred but, as has been pointed out in the past, it is the duty of the Department of Corrective Services to protect inmates from any form of threat, abuse, assault and the like from other prisoners. The court just does not know for how long you will serve your sentence in this manner and, in all the circumstances of this case, I consider that it does not, in the ultimate, affect the sentence that should be imposed. As I have adverted to, it would be different if you had assisted in one or more of the matters to which I have just recently referred and, as a result, put yourself at risk.
I have been referred to a number of decisions of Judges at first instance and on appeal, some of which are relevant to your case. I do not propose to refer to any of them but I take them into account.”

9 The just resolution of the only issue now arising does not call for any extended consideration of the objective and subjective features of the applicant’s case. It is, however, apposite to take note of the following remarks of Judge Nash:

“Whatever your position was, and I am inclined to think it was one of mid management, you were an important member of this smuggling ring which was well organised, to have arranged from people in China to get the heroin and conceal it as they did in the cargo that was known to be sent in the name of Swan Furniture to the factory. When you got involved in this you knew the risks ... You were just plain greedy.”

10 There is no dearth of curial authority respecting the relevant legal principles. It suffices to refer to, without quoting the detail of: Baker, unreported, 10 December 1990, per Hope JA; Radford (2002) NSW CCA 122 per Smart AJ at par 26, (noting in particular what is there said about the need for credible evidence proving relevant facts and circumstances in connection with detention in protection); Totten (2003) NSW CCA 207 per James J at pars 43 and 44.

11 When these collected principles are applied to the given facts of this case, then it seems to me that the learned sentencing Judge did not err in the manner now submitted. His Honour plainly considered the matter of protective custody. He concluded, correctly in my opinion, that he had insufficient evidence of substance of the kinds referred to in the decisions earlier cited. I take his Honour to have dealt with the issue upon the basis that would be suggested to any experienced sentencing Judge by the application of common sense and judicial experience, unsupplemented in the individual case by particular evidence. I see no error of principle in that approach. Had I come to the contrary conclusion, I would have had no hesitation in finding that another, and more lenient, sentence was not warranted in law.

12 The applicant has, in my opinion, no just grievance whatsoever about his sentence. He committed, with his eyes open and because of greed, a crime of great wickedness. It was strongly and correctly denounced. It was condignly and correctly punished.

13 I would grant leave to appeal. I would dismiss the appeal against sentence.

14 MEAGHER JA: I agree.

15 KIRBY J: I also agree.

16 MEAGHER JA: The order of the Court is the order proposed by Mr Justice Sully.

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Last Modified: 09/19/2003