Regina v Wai Fung Chung [2000] NSWCCA 153

New South Wales Court of Criminal Appeal

CITATION : Regina v Wai Fung Chung [2000] NSWCCA 153 FILE NUMBER(S) : CCA 060046/99 HEARING DATE(S) : 20/04/2000 JUDGMENT DATE : 20 April 2000

PARTIES : Regina v Wai Fung Chung JUDGMENT OF : Priestley JA at 27; Sperling J at 26; Foster AJA at 1-25

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/1062 LOWER COURT JUDICIAL Patten DCJ OFFICER :

COUNSEL : J V Agius SC for the Respondent A.P. Cook for the Appellant SOLICITORS : Commonwealth Director of Public Prosecutions for the Respondent Legal Aid Commission of New South Wales for the Appellant CATCHWORDS : Appeal against sentence. - Knowlingly concerned in the importation into Australia of prohibited imports, namely narcotic goods consisting of a quantity of heroin, being not less than the commercial quantity applicable to heroin. - Listening device placed within the consignment. - Possession of a firearm. LEGISLATION CITED : ss 16A & 17A of the Commonwealth Crimes Act 1914 s 233B of the Customs Act 1901 R v Wong & Leung (1999) NSW CCA 420 CASES CITED: Lowe v Regina (1984) 154 CLR 606 at 610 Postiglione v Regina (1996-7) 189 CLR 295 DECISION : Leave to appeal granted.; The appeal be dismissed.

IN THE COURT OF CRIMINAL APPEAL

No 60046/99

PRIESTLEY JA SPERLING J FOSTER AJA

THURSDAY 20 APRIL 2000

REGINA v WAI FUNG CHUNG

JUDGMENT

1 FOSTER AJ: This is an application for leave to appeal against the sentence imposed upon the applicant by Judge Patten in the District Court, New South Wales, Criminal Jurisdiction on 22 January 1999. 2 The applicant had pleaded guilty on 29 June 1998, being the first day of his trial, to a charge that between 27 July 1997 and up to 12 September 1997 at Sydney and elsewhere, he was knowingly concerned in the importation into Australia of a prohibited import to which s 233B of the Customs Act, 1901 applied, namely heroin of not less than the commercial quantity applicable to that drug. 3 The amount involved was well within the description of "a substantial commercial quantity" (see R v Wong and Leung (1999) NSW CCA 420), being an amount of heroin 6.5334 kilograms gross weight, and being equivalent to 4.775 kilograms pure heroin. As such, it was three times the commercial quantity of 1.5 kilograms prescribed under Schedule 6 of the Customs Act, 1901. 4 It may be observed at the outset of these reasons that the sentence guidelines for an importation of such size, referred to in Wong is ten/fifteen years' imprisonment, that pattern of sentencing being intended to apply to couriers and persons low in the hierarchy of the importing organisation. 5 It appears that the applicant was remanded for sentence after his plea and at the time of his sentence he had been in custody since his arrest on 12 September 1999. 6 The facts shortly stated are: on 31 July 1997, heroin arrived at Sydney Airport on a flight from Thailand. It was contained within twenty-three stereo speakers which were packed in three express post mail packages. The Australian Federal Police intercepted the packages, removed the bulk of the heroin, made a substitution of an innocuous substance and, thereafter, undertook a controlled delivery to the address on the packages. 7 The delivery was made to the nominated address, where possession was taken by two of the applicant's co-offenders, Messrs Lee and Nguyen. These persons then took the packages to an address in Auburn, which was occupied by a co-offender Mun Loi Lau. After the packages had been delivered, the deliverers departed. Shortly thereafter the applicant Chung arrived at the premises. 8 An authorised listening device had been secreted between the stereo speakers which enabled the Federal Police Officers to listen to a conversation between Messrs Chung and Lau which took place at the Auburn premises. It was apparent that the two men were engaged in opening the packaging and dismantling the speakers. 9 Patten DCJ found that the record of conversation indicated that the applicant had knowledge of the contents of the consignment. He also noted that there was reference made by the applicant to previous consignments. Other aspects of this conversation satisfied the judge "beyond reasonable doubt that the prisoner was, in the chain of command relating to the illegal operation, superior to Lau." He was not however a principal but nevertheless "played a more significant role than Lau." His Honour noted that during the conversation which was recorded, the prisoner had described himself as "just a soldier". 10 The applicant, when interviewed after arrest, at first denied being aware that the speakers contained the illegal drugs. However, a search conducted under warrant of his home produced evidence pointing to guilty knowledge of the importation. A pair of scales were located and telephone records showed that, in the relevant period, there had been some 133 telephone calls between him and his co-offenders, strongly suggesting an organising role. 11 The applicant was an Australian citizen, forty-three years of age. He had been unemployed for a year, except for part time work as a cook in a restaurant. He suffered from a condition described as rheumatic valvular disease but, as his Honour found, was not in need of any particular treatment. 12 In sentencing the applicant, his Honour had regard to s 17A and s 16A of the Commonwealth Crimes Act and adjusted, as he said, downwards one third the sentence he would have regarded as otherwise appropriate to the offence. This took into account matters to be considered under s. 16A. He made allowance for the plea of guilty, which had saved the State the expense of a trial but was made in circumstances where the case against the applicant was strong. He noted that apart from the plea, there had been no exhibition of remorse or contrition by the applicant. He also took into account favourable information from the prison authorities. 13 The offence was, of course, a most serious one. The head sentence of fourteen years dating from the date of his arrest and expiring on 11 September 2011, together with a non-parole period of nine years expiring on 11 September 2006, could, in my view, be regarded as a moderate sentence in the circumstances that his Honour found, namely that the applicant had an organisational role which, clearly, would have placed him in a position in the hierarchy, higher than the persons contemplated in the sentencing guidelines to which I have earlier made reference. 14 In this appeal, as I apprehend it, no attack is made upon the general appropriateness of the sentence imposed. However it is submitted there should be a reduction of the sentence, so that parity may be achieved with the sentence imposed by another judge on the co-offender Lau. 15 It is put that the difference between the two sentences was manifestly excessive and would "give rise to a justifiable sense of grievance or give the appearance that justice has not been done", (per Gibbs CJ in Lowe v Regina (1984) 154 CLR 606 at 610). 16 Guidance is also to be obtained in this area from Postiglione v Regina (1996/7) 189 CLR 295 where disparity in sentencing was fully considered. Gummow J stated at 323: "The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done." 17 The co-offender Lau was sentenced on 14 May 1998 by Judge Blanch, (Chief Judge of the District Court). He pleaded guilty to the same charge. He also pleaded guilty to two additional charges arising out of his arrest. There was found, in his premises, an unlicensed pistol which had its serial number erased. These facts led to a charge for possession of an unlicensed firearm and also the possession of a firearm which had had its serial number defaced. Lau was sentenced to imprisonment for twelve years with a non-parole period of eight years. In respect of the firearms offence he was sentenced to fixed terms of two years and four years which were to be concurrent with the sentence for the drug offences. 18 His Honour observed that the evidence on the tapes indicated that the applicant "was clearly the person in control", and that Lau was following his instructions with knowledge that the drugs were in the boxes which had been imported. He said, in relation to Lau, "that he was a willing participant. He was prepared to allow his house to be used by Mr Fung, and prepared to help Mr Fung to open the boxes. It is not clear how much further he was prepared to go than that." 19 In relation to the firearms offences, his Honour indicated their effect on the total sentence as follows: "I take into account in fixing this sentence the matters involving possession of a gun, a very serious factor, in addition to the other matters and I adjust the sentence I have chosen on the basis of the principle of total criminality. The explanation given for the gun is not very convincing and possession of a loaded firearm in conjunction with the value of the heroin is a very significant factor." 20 Judge Blanch, in sentencing also took into account Lau's age of sixty years and also that, because of his limited understanding of English, he would undergo particular hardship in gaol. 21 Lau appealed to the Court of Criminal Appeal against the severity of his sentence and his appeal was dismissed. Blanch DCJ's description of Lau as having been "a willing participant" was approved. . He was also described as "an intermediary". The respective roles of the two men in the hierarchy of commission of the offence was accepted as correct. It was also accepted that the non-parole period imposed reflected Lau's age and the isolation he will suffer during imprisonment because of his nationality and language. 22 The fact that Patten DCJ made no express reference, when considering matters of parity between the sentence he was about to impose on the applicant and sentences imposed already on co-offenders, to the firearm offence for which Lau received a concurrent sentence, has been made the basis of this present appeal. It is submitted that, had the firearm matters not been present, Lau would have received a significantly lower sentence for the importation than he did. Having regard to this posited lower sentence, there was a difference between the sentence received by the applicant and the hypothetical sentence received by Lau which was manifestly excessive and should, necessarily, lead to a reduction in both head sentence and non-parole period imposed upon the applicant. 23 I do not agree. In the first place I am not persuaded that Patten DCJ failed to take into account the firearm sentences which had been imposed upon Lau. They were obvious matters for consideration. Moreover, I am not satisfied that, when taken into account, any disparity is shown such as to lead to a relevant justifiable sense of grievance. 24 It is clear that perfect parity in sentencing can never be achieved, except in the most unusual circumstances where all relevant sentencing factors are the same in the case of each offender. In the present case, it is clear that Patten DCJ, Blanch DCJ and the Court of Criminal Appeal, were all persuaded that the applicant's role was significantly superior to that of Lau. There was also a significant difference in the subjective factors. It may well be that, had it not been for the firearm offences, Lau would have received a lower sentence than he did. Even so, the gap between the sentence imposed upon him and that imposed upon the applicant would not necessarily have resulted in the difference being "manifestly excessive", having regard to the different roles played in the offence in question. 25 I am not persuaded that an appellable disparity has been demonstrated. Accordingly, I would propose that: