R v Chung [1999] NSWCCA 330

New South Wales Court of Criminal Appeal CITATION : R v Chung [1999] NSWCCA 330 FILE NUMBER(S) : CCA 60215/98 HEARING DATE(S) : 13/10/1999 JUDGMENT DATE : 22 October 1999

PARTIES : Wing Piew Chung (applicant) Regina (respondent) JUDGMENT OF : Sully J at 1; Ireland J at 5; Hidden J at 7

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0178 LOWER COURT JUDICIAL OFFICER : Kirkham DCJ

COUNSEL : T R Bailey (applicant) R Ellis (respondent) SOLICITORS : Neil J O'Connor & Associates (applicant) Director of Public Prosecutions (respondent) CATCHWORDS : CRIMINAL LAW - sentence - supply of large commercial quantity of heroin - applicant highly placed in drug supply network - life sentence - ss33(3)(a), 33A(1) Drug Misuse and Trafficking Act 1985 Drug Misuse and Trafficking Act 1985 ACTS CITED : Crimes Act 1900 Sentencing Act 1989 Huang (1994) 78 ACrim R 111 R v Rose [1999] NSWCCA 327 CASES CITED: R v Garforth (CCA unreported 23 May 1994) R v Petroff (Hunt J unreported 12 November 1991) Veen v The Queen [No2] (1987-88) 164 CLR 465 DECISION : Leave to appeal granted. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

60215/98

SULLY J IRELAND J HIDDEN J

Friday 22 October 1999

REGINA v Wing Piew CHUNG

JUDGMENT

1 SULLY J: I have had the benefit of seeing in draft the judgment of Hidden J. I agree with his Honour that the appeal should be dismissed. I agree with the reasons given by his Honour in support of the making of that order. 2 I wish, however, to add some brief observations of my own concerning the appropriateness, in a case of the present kind, of the imposition of the statutory maximum penalty of imprisonment for life. 3 Hidden J draws attention to the obviously daunting implications of a sentence of life imprisonment. His Honour refers to portion of the judgment of Hunt J (as he then was) in Petroff (unreported, 12 November 1991). I do not disagree with anything said by Hidden J in these portions of his Honour's judgment. I would wish, however, to supplement what his Honour has said by drawing attention to the following extract from the judgment of Allen J in Baker (unreported, CCA (NSW), 20 September 1995): "Section 19A of the Crimes Act 1900 empowers this court to sentence a person convicted of murder to penal servitude for life. That is what such a sentence, if imposed, means. It means for life. It means that never can there be any hope of release. It means never, no matter how many decades go by, will the prison door be opened and the prisoner be allowed out again. It matters not whether he is sixty, seventy, or survives to eighty. He is there for life. Such a sentence cannot lightly be imposed in any civilised society. There are, of course, circumstances in which in a civilised society such a sentence may be called for. Such cases will be quite exceptional. But clearly they exist. The law so provides. It would be foolish in the extreme to attempt to give a list of the types of cases which would warrant the court taking this, the most extreme measure available to the law. Three, however, stand out in respect of murder. The first is the case of the professional killer, the person who cold-bloodedly assassinates others for gain. That is one category. Another is the case where the killer is so fundamentally psychotic that it could never be safe to release him back into the community. I may say that the evidence that that is so would, so far as I am concerned, need to be quite strong. The third is the case of an offender who embarks on such a course of criminality that nothing short of the knowledge that the most extreme punishment the law can give awaits him would deter him from continuing that course." 4 It is, of course, the case that Allen J was dealing with a life sentence imposed as punishment for the crime of murder rather than with a life sentence imposed for the worst kind of drug-related criminal conduct. I believe, however, that the substance of what his Honour had to say in the former context is equally applicable, mutatis mutandis¸ to the latter context. In my opinion the third of the exceptional categories to which Allen J refers, that is to say the category of "an offender who embarks on such a course of criminality that nothing short of the knowledge that the most extreme punishment the law can give awaits him would deter him from continuing that course", fits precisely the sort of offender with whom the Court is called upon to deal in the present particular case. In that connection, I wish to reaffirm for my own part the following propositions which I stated in the course of passing sentence in Cheung Wai Man & ors. (unreported, 22 March 1991): "1. The importation of heroin into this country in any amount and at any time constitutes a deliberate threat to the well-being of the Australian community. The same is to be said of any form of trafficking in heroin within this country. 2. The importation or the attempted importation of, and the trafficking or attempted trafficking in, a quantity of heroin of the amount here in question is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted. 3. In the face of such challenges each of the institutional supports of our society has a role to play. That of the Courts is to punish and deter according to law. Obviously, the Courts alone cannot meet adequately, let alone defeat, the challenge of which I have been speaking. What the Courts can do is to punish drug-related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the Courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who, ………………….. engage in drug-related crime when they are themselves not drug-dependent."