Seah v The Queen

[2011] NSWCCA 269

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Hoon Tiong SEAH v R [2011] NSWCCA 269
Hearing dates:	24 June 2011
Decision date:	14 December 2011
Before:	McClellan CJ at CL at [1]; Hidden J at [2]; Johnson J at [37]
Decision:	Leave to appeal granted, appeal dismissed.
Catchwords:	CRIMINAL LAW - application for leave to appeal against sentence - importing heroin - complaints that sentencing judge gave undue weight to quantity of drug - status of Wong and Leung guidelines - other complaints concerning weight given to remorse, co-operation with authorities and rehabilitation - no question of principle
Legislation Cited:	Criminal Code 1995 Crimes Act 1914 (C'th)
Cases Cited:	R v Wong and Leung [1999] NSWCCA 420, 45 NSWLR 340 R v Cheung and Choi [2010] NSWCCA 244, 203 A Crim R 398 Wong v The Queen [2001] HCA 64, 207 CLR 584 DPP (Cth) v De La Rosa [2010] NSWCCA 194, 205 A Crim R 1
Category:	Principal judgment
Parties:	Hoon Tiong Seah (applicant) Regina (respondent)
Representation:	M Paish (applicant) P M McGuire (respondent) Stephen Tully - Tully & Co Solicitors (applicant) Carole Ruthchild - Solicitor for the Commonwealth Director of Public Prosecutions (respondent)
File Number(s):	2009/71507
Decision under appeal	Date of Decision: 2010-02-12 00:00:00 Before: Blackmore DCJ File Number(s): 2009/71507

Judgment

1. McClellan CJ at CL: I agree with Hidden J.

1. Hidden J: The applicant, Hoon Tiong Seah, pleaded guilty in the District Court to importing a marketable quantity of heroin, an offence under s 307.2(1) of the Criminal Code 1995 (Cth) which carries a maximum sentence of 25 years imprisonment. He was sentenced to imprisonment for 8 years with a non-parole period of 5 years, to date from 25 July 2009, the day of the offence and of his arrest. He seeks leave to appeal against that sentence.

Facts

1. The facts can be summarised briefly. The applicant and another offender, Boon Leng Kuek, travelled to Australia from Malaysia, arriving on 25 July 2009. Each of them was found by customs officers to be carrying a quantity of heroin secreted in his shoes. The applicant brought in 571 grams of a substance which contained 423.6 grams of pure heroin. Mr Kuek was carrying a somewhat larger quantity.

1. Strictly speaking, the two men were not co-offenders in the same criminal enterprise. They knew each other and travelled to Australia together, but each was charged with the amount of heroin he imported.

1. After initially denying any knowledge of the drugs, both of them claimed to have been given the shoes by a contact in Kuala Lumpur. They booked their flights and paid for them with money supplied by that person. Each of them expected to receive between $10,000 and $20,000 when they returned to Malaysia. The street value of the drug brought in by the applicant was estimated to be between $494,200 and $847,200. The street value of the drug brought in by Mr Kuek was somewhat higher.

1. The sentencing judge dealt with them as couriers, noting that they were not part of a distribution network for drugs in Australia and were not to gain any benefit other than the amount they were promised upon their return to Malaysia. His Honour treated them as equally culpable and sentenced Mr Kuek to the same sentence as the applicant. There was no complaint in this court that there should have been differentiation of sentence between the two men, and it is not necessary to refer to the other evidence bearing upon the sentence of Mr Kuek.

Subjective case

1. The applicant is Singaporean. He was 37 years old at the time of the offence. He had been dealt with in Singapore for offences described as robbery, being a member of an unlawful society, rioting, and the intentional omission to give information of an offence by a person bound to inform. Investigating police were unable to obtain further information from the Singaporean authorities about that criminal history. The applicant gave evidence that the robbery was committed when he was 19 years old and led to his being placed on probation. In his remarks the sentencing judge referred only to the robbery, noting that the precise nature of that conviction was unclear but that it bore no resemblance to the seriousness of the present offence. He had regard to it only insofar as it deprived the applicant of a finding that he was a person of prior good character.

1. His background was sketched in a psychological report which was in evidence. He was unmarried. His upbringing in Singapore was generally unremarkable. However, when he was 14 years old his father was killed in a work accident, and he left school and went to work. He worked consistently until the year before the offence, when he lost his job because of the impact of the global financial crisis upon his employer. He had a girlfriend who ran a clothing store, and she also was forced to close her business. He had borrowed money for his house and his car and was struggling to repay it.

1. It was because of this financial difficulty that he became involved in the offence. He told the psychologist, and affirmed in evidence in the sentence proceedings, that he had borrowed some money from a "loan shark", who was applying pressure to him to repay it and threatening to damage his property if he did not do so. He had a history of the abuse of alcohol and illicit drugs beginning in his mid-teens, but during this period that abuse increased. The man who had engaged him to bring the heroin into Australia had been his supplier of drugs on occasions. During this same period his girlfriend terminated their relationship. The psychologist reported that he appeared to have been suffering from symptoms of reactive depression at the time of the offence.

The application

1. There are four grounds of the application. They relate to the weight his Honour gave to the quantity of drug involved, to evidence of the applicant's remorse and his co-operation with the authorities, and in the assessment of his prospects of rehabilitation.

Quantity of drug

1. Neither the Crown prosecutor in this court nor counsel for the applicant, Mr Paish, had appeared in the District Court. Mr Paish submitted that the sentencing judge had given undue weight to the quantity of the drug involved at the expense of other considerations. In the sentence proceedings, towards the end of submissions, His Honour referred to this court's guideline judgment relating to drug importation in R v Wong and Leung [1999] NSWCCA 420, 45 NSWLR 340. Addressing the prosecutor, he observed that that case had "some application." There was then the following exchange:

"HIS HONOUR: And the range is now fairly confined, if you look at the quantities they were above the quantities that applied in a number of other cases, but there are other considerations.

[PROSECUTOR]: That was going to be my point.

HIS HONOUR: They can't expect to be given the bottom of the range, they won't be given the top of the range. It's kind of a middle-range, really, so-to give you an idea".

1. Mr Paish noted that in Wong and Leung the range of sentence in the guideline for the quantity of drug in the present case was six to nine years imprisonment. He noted that the sentence of eight years imposed upon the applicant is roughly in the middle of that range, consistent with the approach His Honour foreshadowed in the exchange with the prosecutor. Such an approach, he submitted, would demonstrate error.

1. It is unnecessary to recount the subsequent history of the Wong and Leung guidelines. It was sketched by Simpson J, with whom McClellan CJ at CL and Buddin J agreed, in R v Cheung and Choi [2010] NSWCCA 244, 203 A Crim R 398, at [78]-[90]. Wong and Leung was the subject of a successful appeal to the High Court: Wong v The Queen [2001] HCA 64, 207 CLR 584, in which members of the court were critical of the selection of the weight of the drug as the chief factor in fixing the appropriate sentence. Nevertheless, the guidelines continued to be seen as "a useful guide" in subsequent decisions of this court. However, after a review of the reasoning in the judgments in the High Court, Simpson J concluded that that approach could no longer be sustained.

1. Her Honour put it this way at [90]:

"In the light of the criticisms made by the High Court, I am unable to see how the selected sentences can stand as 'a useful guide'. With respect to those who have thought otherwise, I have come to the view that the proposition that the Wong guideline sentences continue to operate as 'a useful guide' cannot withstand scrutiny".

1. Mr Paish argued that His Honour placed undue emphasis on the quantity of the drug, and failed to give adequate weight to the matters favourable to the applicant in accordance with the criteria laid down in s 16A (2) of the Crimes Act 1914 (C'th). It should be noted, however, that in his remarks on sentence His Honour made no reference to the Wong and Leung guidelines. This court has observed more than once that a sentencing judge's reasons are not to be gleaned from exchanges with the parties' representatives in submissions, but from the remarks on sentence.

1. In any event, it is not clear from the exchange between His Honour and the prosecutor which I have quoted what weight he contemplated giving to the quantity of the drug. He referred to there being "other considerations", a proposition to which the prosecutor assented. The prosecutor had put her submissions on sentence in writing. In those submissions she did not rely upon the guidelines, noting the High Court's criticism of them. What she did submit, correctly, was that the weight of the drug remains a relevant and significant matter in determining the seriousness of the offence.

1. The quantity of the drug was one of the factors to be weighed in the balance in arriving at an appropriate sentence. Whether in that balancing exercise His Honour gave appropriate weight to the factors favourable to the appellant is a matter which arises when considering the other grounds of the application. However, I am not persuaded that His Honour placed an emphasis on the quantity of the drug which it did not deserve. This ground is not made out.

Remorse

1. This ground complains that his Honour failed to deal with evidence of the applicant's remorse.

1. His Honour accepted that both the applicant and Mr Kuek had pleaded guilty at the first reasonable opportunity. He noted that the pleas saved police resources and court time. He also saw the pleas as facilitating the course of justice and found that, even though they were entered in the face of an overwhelming prosecution case, they were entitled to "a significant discount" from the sentence which might otherwise have been imposed.

1. The psychologist observed in her report that the applicant "acknowledged the inappropriateness of his criminal conduct, appearing remorseful, and he was able to see the impact that his offending had upon the Australian community." The applicant's evidence-in-chief concluded as follows:

" Q. How do you feel about becoming involved in this offence?

A. I feel remorse, shouldn't be doing that.

Q. In what way?

A. Because I have been bringing harm to people in Australia."

1. This evidence was not challenged in cross-examination. However, in his remarks his Honour made no reference to it or to the passage in the psychologist's report. Indeed, he said nothing about remorse at all. Mr Paish submitted that it was a matter which his Honour should have dealt with in his remarks and, indeed, that his Honour should have accepted the unchallenged evidence of remorse and given it appropriate weight in determining the sentence.

1. However, this court does not have the advantage of having seen the applicant give evidence. It may be that his Honour was not impressed by the applicant's expression of remorse, which could have appeared as formulaic and insincere. In this regard, it is notable that no submission about remorse was made to his Honour by the applicant's solicitor, or by the prosecutor in her written submissions or in oral argument.

1. I have given this ground of the application serious consideration. Remorse is usually a significant factor on sentence although, obviously, the weight to be given to it will depend upon the circumstances of the particular case. It is given statutory recognition (expressed as contrition) in s 16A(2)(m) of the Crimes Act . It would have been preferable for his Honour to have said something about it. However, if there had been evidence of the applicant's remorse worthy of evaluation, it is unlikely that a judge as experienced in this area of the law as his Honour would have overlooked it. I am fortified in that view by the fact that both the applicant's solicitor and the prosecutor were silent about the matter.

1. I am also persuaded by the submission of the Crown prosecutor in this court that the evidence of remorse was "extremely limited", and that such remorse as there was was sufficiently recognised by the discount of sentence which his Honour allowed for the applicant's plea of guilty, notwithstanding the strength of the prosecution case. There is, of course, significant overlap between remorse and the facilitation of the course of justice by a plea of guilty. This ground is not made out.

Co-operation with authorities

1. While the applicant gave a false account to customs officers, he admitted the offence to officers of the Australian Federal Police. To that extent his Honour found that he had co-operated with the authorities, while noting that "that co-operation was in the face of him being caught, in effect, red-handed ... ." Co-operation with law enforcement agencies in the investigation of the offence in question or of other offences is a matter required to be taken into account by s 16A(2)(h) of the Crimes Act .

1. A little earlier in his remarks, his Honour dealt with the question whether either the applicant or Mr Kuek was entitled to "any discount for assistance to authorities." By this he was clearly referring to the provision of information other than their own involvement in the offence. He concluded that neither of them was. He noted that Mr Kuek had provided some information about a person overseas said to be a senior person in the drug syndicate, but that information proved to be "of no practical significance." As for the applicant, he found that he had provided "no relevant assistance."

1. Mr Paish submitted that his Honour erred in giving no weight to the applicant's co-operation with the authorities by making admissions about his own involvement, which he described as "an independent mitigating feature." He noted that the applicant admitted to police not only his actions in bringing in the drug but also that he knew what he was doing, thereby admitting the fault element that needed to be proved to establish the offence.

1. I can see no error in his Honour's approach to this issue. As I have said, his Honour recognised that the applicant had co-operated with the authorities to the extent of admitting his offence, but noted that he did so after it had been detected and at a time when the evidence against him was compelling. As the Crown prosecutor in this court pointed out, without his admission the fault element could readily have been inferred from the circumstances.

1. In my view, his Honour gave the applicant's co-operation with the police such recognition as it deserved. This ground is not made out.

Rehabilitation

1. Finally, Mr Paish submitted that his Honour failed appropriately to assess the applicant's prospects of rehabilitation.

1. What his Honour said was this:

"It is likely that when he returns to Singapore he will not engage in this sort of behaviour again. His arrest here would remove his utility as a courier of drugs in any case. That is not the same as saying that he has good prospects of rehabilitation. This offence was engaged in to make money. If he was short of money in the future, for example, if unable to obtain employment, I am far from satisfied that he would not again engage in some form of criminal activity to make money. However, that will not be in Australia, and it is perhaps of little relevance to the sentence that I will pass here."

1. The applicant's solicitor did address his Honour about this issue, submitting that the offence arose out of the circumstances in which the applicant found himself at the time and that he would be unlikely to commit further offences. Mr Paish drew our attention to material in the psychological report, in addition to that to which I have already referred, from which it appears that he enjoyed the support of his family, both emotionally and financially, that his outlook had improved while he had been in custody and that he had insight into his history of substance abuse. He endorsed these matters in his evidence, affirming his intention to refrain from using illegal drugs on his release. None of this was challenged by the prosecutor in cross-examination of the applicant or in submissions to his Honour.

1. Notwithstanding that material, his Honour's assessment of the applicant's prospects of rehabilitation was guarded. However, here also, this court cannot know how the applicant presented when he gave his evidence about his outlook for the future. As the Crown prosecutor in this court pointed out, his Honour's finding on this issue was neutral. He did not find the applicant's prospects of rehabilitation to be poor. Rather, he thought it unlikely that he would re-offend upon his return to Singapore but saw a risk that he might do so if he again found himself in financial difficulty. It cannot be said that that finding was not open to his Honour.

1. I might add that his Honour does not appear to have seen that risk as a significant matter bearing upon sentence. In an observation which, with respect, I would not endorse, he appears to have treated it as of little moment because any re-offending by the applicant would occur in his native country and would not affect the Australian population. However that may be, I am not persuaded that this ground is made out.

Orders

1. Accordingly, none of the challenges to the sentencing process has been made good. If any of the grounds had been established, Mr Paish argued that a more lenient sentence was warranted. He referred to the examination of sentencing patterns for offences of this kind by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194, 205 A Crim R 1, particularly at [220] - [223]. However, it is not necessary to evaluate this argument because it is not a ground of the application that the sentence is, in any event, manifestly excessive.

1. I would grant leave to appeal but dismiss the appeal.

1. Johnson J: I agree with Hidden J.

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Decision last updated: 16 February 2012