R v Chua [2001] NSWCCA 50

New South Wales Court of Criminal Appeal

CITATION : R v Chua [2001] NSWCCA 50 FILE NUMBER(S) : CCA 60661/00 HEARING DATE(S) : 2 March 2001 JUDGMENT DATE : 2 March 2001

PARTIES : Regina v Boon Hock Chua JUDGMENT OF : Heydon JA at 1; Bell J at 26; Smart AJ at 27

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0501 LOWER COURT JUDICIAL Kinchington DCJ OFFICER :

COUNSEL : R Sutherland (Crown) T Buddin SC (Respondent) SOLICITORS : Commonwealth Director of Public Prosecutions Legal Aid Commission of New South Wales CATCHWORDS : Criminal Law - Sentencing - Knowingly concerned in prohibited importation of commercial quantity of heroin - Crown appeal against alleged manifest inadequacy of sentence - Whether special circumstances existed to take case outside R v Wong sentencing range - Whether ratio of non-parole period to head sentence should have been greater than 54 per cent - Confession and full co-operation with law enforcement authorities - Plea of guilty - Remorse and contrition - Whether respondent's admissions vital in establishing the prosecution's case against him - R v Wong and Leung (1999) 48 NSWLR 340 LEGISLATION CITED : Customs Act 1901 R v Bernier (1998) 102 A Crim R 44 CASES CITED: R v Karacic [2001] NSWCCA 12 R v Ngui (2000) 111 A Crim R 593 R v Wong (1999) 48 NSWLR 340 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60661/00

HEYDON JA BELL J SMART AJA

Friday, 2 March 2001

REGINA v Boon Hock CHUA

JUDGMENT 1 HEYDON JA: This is an appeal by the Crown against the sentence imposed on the respondent on the grounds of its alleged manifest inadequacy. 2 On 13 September 2000 the respondent pleaded guilty to the charge of having been knowingly concerned in the importation into Australia of a prohibited import to which s 233B of the Customs Act 1901 applies, being narcotic goods consisting of a quantity of heroin not less than the commercial quantity applicable to heroin. 3 Kinchington DCJ, QC, sentenced the respondent to 6 years' imprisonment with a non-parole period of 3 years and 3 months. It may be accepted that that was a lenient sentence; the question is whether it was appellably wrong. 4 The essence of the Crown complaint is that in R v Wong (1999) 48 NSWLR 340 this Court provided an indicative range of 8 to 12 years' imprisonment for importations of between 1.5 and 3.5 kilograms of heroin; that the quantity involved here was 1.9264 kilograms; that, contrary to the sentencing judge's opinion, there were no special features sufficient to take the case outside the range indicated in R v Wong; and that the ratio of non-parole period to head sentence should have been about two-thirds, not about 54 percent. 5 At 7.45 pm on 4 May 2000, the respondent arrived at Sydney Airport on a Qantas flight from Bangkok. At 8.50 pm an officer of the Australian Customs Service stopped the respondent as he was heading to the "Green Nothing to Declare" exit. He and other officers questioned the respondent and examined his bags. In the course of conversation about the respondent's Buddhism, the respondent showed them a small tattoo on his lower left arm. He was asked if he had more tattoos. He said he had two on his chest, and lifted his shirt to reveal them. It was noticed that there was an abrasion on his skin and some tape around his back. The sentencing judge described what happened next as follows (AB 17.7-19.1): "A search was then conducted by the Customs Service of the terminal area and located in one of the toilet areas was a blue carry bag, which on examination contained a white powder when subject to a presumptive drug test proved to be heroin. Those packages were consistent with being packages that could be carried on the body of a person. The powder in the packages was ultimately subject to analysis and found to contain heroin of 69.8 to 74.3 per cent purity, and it has been estimated the pure weight of heroin contained in those packages was 1,926.4 grams. The offender was interviewed, and during the course of that interview he admitted that he had taken those packages out of Bangkok. He informed the officers in the course of that record of interview that he had been recruited, I think, in Singapore, flown to Bangkok where the packages had been attached to his body, and received instructions to hand them over in the course of the flight to Australia to another person, whom he would meet on that flight. He says that that was done in the course of the flight. He identified the packages that were found in the toilet area as being the packages that he had taken out of Bangkok, and [which] he had given to the person on the flight to Sydney. He also informed the police that, so far as he was aware, the final destination of the heroin was to be Christchurch in New Zealand, but that he did not know how it was to get there after he handed it to the man on the flight to Sydney. He also indicated that his air fare and the sum of $1,500 which was found in his possession were provided to him by the persons behind the operation. He says that the only name that he knew was the name Ben and he had a phone number he was to contact. Enquiries made by the Australian Federal Police force in regard to the phone number and the name Ben did not help the investigating authorities locate anyone else connected with the importation of the heroin into Australia. The estimated wholesale value of the heroin was just over $500,000, and it had an estimated street value of just over $5,500,000." 6 Initially the respondent was charged with importing heroin, and he pleaded guilty to that charge on 18 August 2000 before the Chief Judge of the District Court. He adhered to that plea when he was brought before the sentencing judge for sentence on 11 September 2000. After the evidence had closed and addresses had been completed, the sentencing judge opined that the facts proved did not establish importation, as distinct from being knowingly concerned in importation. The Crown asked for an adjournment and the matter was stood over to 13 September 2000. The charge was amended from importation to being knowingly concerned in importation. The respondent pleaded guilty to the amended charge and after further argument and a short period of reservation the respondent was sentenced. 7 The operative parts of the sentencing judge's reasoning so far as they bear on the determination of his sentence were as follows (AB 19.4-20.8, 21.2-22.8 and 23.2-.8): "He is a young man now aged twenty-eight, having been born on 25 December 1972. He is a citizen of Singapore. He is single and has no family or no children. At the time he was recruited to bring this heroin on to the plane whose destination was Australia, he was unemployed, although he had previously worked as a driver and a butcher. He had previously been to Australia in 1989 with his family. He has no prior criminal convictions in Australia, and I am not aware that he has any prior criminal convictions either in Singapore or anywhere else in the world. He has pleaded guilty to this charge and has co-operated with the authorities from the outset. Indeed, it could be said that if he had exercised his right of silence when questioned by the customs officials and the Australian Federal Police, that they would have had no material which would have established his connection with the heroin found in the toilet cubicle at Sydney Kingsford Smith Airport. He has at no stage tried to hide his involvement as a courier in this operation to bring the heroin into Australia so that it could be re-exported apparently to Christchurch in New Zealand. I accept his pleas of guilty and his co-operation with the Australian Federal Police at the early stage that it was done as a genuine sign of his remorse and contrition for the criminal act he got involved in on this occasion. He has been in custody since his arrest on 4 May this year. While in custody, he has pursued a number of educational courses, and certificates relating to those courses are contained in exhibit 1 herein. I will have copies of those certificates made. The copies will stay with the file and the originals will be returned to him. I now turn to a consideration of the sentence I must subject him to. The offence of being knowingly concerned in the importation of a commercial quantity of heroin into Australia is indeed a serious criminal one. As I have previously indicated, the maximum penalty available to me in respect of this type of offence is life imprisonment. Both from a general and a specific deterrent point of view, I must subject the prisoner to a severe penalty. It seems to me that none of the sentencing options other than a full-time custodial sentence is available to me in this case. This is an unusual case. … As I have indicated, I am satisfied that from the prisoner's co-operation with the authorities from the outset and his forthrightedness during the course of being interviewed by the Australian Federal Police that at no stage did he try to hide his involvement in this operation. I am satisfied from all the material that has been placed before me that he was a courier and that his role was to partake in the chain of carriage of this drug, this prohibited drug, into Australia. As I said, both from a general and a specific deterrent point of view, it must be brought home not only to the prisoner but also to others who might be tempted to act as couriers or play a part, even though they consider it a minor part, in the importation of illicit drugs into Australia, that if they do and they are caught they will be severely dealt with by this Court. In recent years, the Supreme Court of New south Wales in exercising its jurisdiction as a Court of Criminal Appeal has set down sentencing guidelines in relation to the importation of heroin in the case of R v Wong and Leung. Those guidelines would indicate that so far, for those involved in the importation or those connected with the importation of a low range commercial quantity of heroin, that is, between one and a half kilograms to 3.5 kilograms, can look forward to being subject to terms of imprisonment between eight and twelve years in the ordinary case. As I have indicated, this is no ordinary case. It has a number of unusual features, one being the fact that the accused pleaded guilty when charged with importation; did not seek to hide behind the fact that that importation charge could not be proved; and when it was changed to one of being knowingly concerned in the importation of this commercial quantity of heroin, he also pleaded guilty to that charge. Another unusual feature is that it was only through questioning of the prisoner that the part that he played in the bringing of this heroin into Australia was ascertained. To some extent, it could be said that he has been subject to a double jeopardy, not in the true sense of that word, but in the broader sense of that word. In any event, I am satisfied that his remorse and contrition is of the highest order that one could have in regard to remorse and contrition, that he is entitled to the benefit of that. He is entitled to a benefit on his sentence, which is otherwise appropriate, discounted because of his early plea. He has admitted his guilt and pleaded at the first available opportunity. … I have already indicated that I think this is a case in which I must subject him to a full-time custodial sentence. I also note that the prisoner is not a national of this country, and that any sentence he will serve will be served without the support of close family or friends. It is highly unlikely that he will have anyone visiting him while he is in custody from his own family or from his friends. Of course, that is something that he would have expected if he was caught bearing in mind his connection with this country. In all the circumstances of this case, and bearing in mind it is an unusual one, I think that it falls just outside the sentencing guidelines referred to in the case of Wong and Leung. It seems to me that an overall prison sentence in the vicinity of some six years is an appropriate sentence to subject the prisoner to in this case, and to fix a non parole period of three years and three months in relation to it in the special circumstances of this matter, special and unusual circumstances of this matter." 8 The Crown identified the unusual features on which the sentencing judge relied in the following terms (written submissions, p 6): "(i) The fact that the accused pleaded guilty when charged with importation and that he did not seek to hide behind the fact that that importation charge could not be proved and that when changed to a charge of being knowingly concerned, he also pleaded guilty to that charge. (ii) It was only through questioning of the prisoner that the part he played in the bringing of the heroin into Australia was ascertained. (iii) His remorse and contrition was of the highest order entitling him to a benefit on sentence which would be further discounted because of his early plea." 9 The Crown then advanced the following submissions (written submissions pp 7-10): "The Crown respectfully submits that the features identified by the learned trial judge were not such as to take the case outside the guideline judgment, nor 'out of the ordinary' in respect of comparable cases. It is respectfully submitted that his Honour erred in concluding that the importation charge could not itself have been proved. A person who consigns goods into Australia, who posts them for collection within Australia, or who physically carries them onto an aeroplane which will land in Australia, is guilty of the act of importing a prohibited import irrespective of whether he physically carries the item personally, utilizes innocent agents such as the postal service or hands it to another participant in a joint enterprise. As observed by the High Court in White v Ridley [(1978) 140 CLR 342]: 'the applicant did not himself bring the cannabis into Australia; it was brought in by the airline. However, it is well settled at common law that a person who commits a crime by the use of an innocent agent is himself liable as a principal offender'; per Gibbs J at 346 (see also Stephen J at 353; Jacobs at 360). The present Respondent did not abandon any available defence. To the extent that there was a change of charge in the Indictment to which the Respondent again entered a plea of guilty, there were neither any alteration in the objective level of criminality, nor was there any special circumstances (such as Bernier abandoning a possible defence of duress) which entitled the Respondent to any particular discount. The fact that the prisoner had indicated his part in the bringing of the heroin into Australia through questioning was similarly not a matter which attracted any special element of leniency. The objective circumstances would conceivably have justified a conclusion that the Respondent had carried the heroin from Bangkok and that he had removed the body packs after disembarking from the plane. He presumably had then hidden the heroin within the toilet cubicle in the terminal building. The fact that the Respondent gave an account, which was accepted by the Crown, to the effect that he had removed the heroin whilst still on the plane and given it to a third party, was not a factor which removed the case out of the 'ordinary'. There was no element of 'double jeopardy' either in the circumstance of the altered Indictment, or in the circumstances of the Respondent's disclosures. The Respondent had admitted his guilt and had adhered to a plea of guilty from the earliest opportunity. He was entitled for that to be appropriately taken into account. However it is noted that the table of sentences handed up by the Crown in Wong & Leung and indeed the comparables to which Judge Kinchington was taken in the present case, were matters in which couriers and others lower in the hierarchy (where one could be ascertained) had in fact pleaded guilty. The learned sentencing judge in the present matter placed undue reliance upon the admissions and the plea of guilty because of his conclusion that the Crown had no case without the admissions. Whilst the Respondent pleaded guilty at an early point in time, it is to be observed that his confession was made only after the authorities had discovered his carry bag and arose in the circumstances where the Respondent must have presumed at that time that the authorities would have been able to discover his fingerprints on either the bag or the body packs which contained the heroin. The fact that subsequent fingerprint analysis failed to yield identifiable fingerprints did not alter the perception which must have been in the Respondent's mind on the day of his arrest that such evidence was likely to be able to be ascertained and thereby able to link him, together with the other surrounding circumstances, with the carry bag and the heroin. In the course of the sentencing proceedings the case officer from the Australian Federal Police was cross-examined by counsel for the Respondent about the importance of the admissions which had been made: 'Q. The fact was that without those admissions you wouldn't have much of a case against him, would you agree with that? A. At that stage, yes ' (AB 8). The significance of the officer's response: ' At this stage, yes' , is an important one. The Respondent had made full admissions regarding his activities and his knowledge of the importation being in relation to heroin, both to the customs officers at the airport and to the police in a formal interview. He had pleaded guilty and proceeded to the District Court by way of a paper committal and had reaffirmed that all of the heroin in the carry bag had been transported by him in the course of a second interview at the jail referred to during cross-examination by Ms Flannery (AB 8). The fact was that the admissions made at the stage of arrest were such that without them there was 'not much of a case' at that stage . However the circumstances in which the location of sticking plaster by which means the body packs had been adhered to the skin of the Respondent, combined with the finding of the body packs still bearing tape in a bag containing an item of clothing belonging to the Respondent, was such that in the event of a plea of Not Guilty, further investigations were clearly available to be undertaken by the Crown. In the light of the early and continuing plea of guilty, there was no focus on questions such as the size and number and spacing of the markings on the torso and legs of the Respondent which might have been able to be aligned with the body packages of heroin and the tape adhering thereto in the event of a forensic contest. Similarly, consideration was not needed to be given to the question of DNA testing which would presumably have been well able to establish the fact that the sticking plaster attached to the body packs had been taped to the body of the Respondent. The Crown acknowledges the significance and importance to be attached to admissions of guilt and to pleas of guilty. However, in the circumstances of the present case the learned sentencing judge placed too much emphasis on the admissions and understated the position of the Crown case in reaching a conclusion that there would have been 'no material which would have established his connection with the heroin', if he had exercised his right to silence. The case was not one in which a significant added element of leniency arose because of ' the disclosure of an otherwise unknown guilt of an offence' , nor was it one ' where it was unlikely that the guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence ': see R v Ellis (1986) 6 NSWLR 603 at 604. Whilst appropriate acknowledgment and encouragement needs to be given in respect of confessions and pleas of guilty, this ought not to result in the imposition of a sentence which might be perceived as manifestly inadequate by reference to other factors such as the quantity of narcotic involved. Comparative sentences specifically brought to the attention of the sentencing judge, in addition to the guideline judgment and cases referred to therein, were contained in a document handed to the sentencing judge. They each involved confessions at the earliest opportunity and subsequent pleas of guilty. Degrees of assistance to the authorities were also involved as indicated in the individual cases." 10 The first significant criticism which the Crown made was that the "importation charge could not be proved". The second, and related, significant criticism is that the respondent's admissions were not vital in establishing the case against him. 11 First, the citation of White v Ridley is not material: the person to whom the respondent delivered the heroin was not an "innocent agent" but a guilty principal offender. 12 Secondly, although the Crown now evidently submits that the respondent was guilty of importation, before the sentencing judge it apparently thought otherwise, because it acquiesced in the sentencing judge's suggestion that the respondent was not guilty of importation and sought an adjournment, and amended the charge (AB 9 line 31-10 line 36). 13 Thirdly, the sentencing judge's view that if the respondent had remained silent the Crown would have had no material linking him with the heroin is, on the evidence before him, correct. However, the Crown argument appears to be that if the respondent had made no admissions, even though there were no identifiable fingerprints on the blue carry bag or on the packets containing the heroin (AB 8 lines 25-30), it would have been possible to link the accused with those items because of the finding in the bag of "an item of clothing belonging to the" respondent, the possibility of aligning the markings on the respondent's body with the packages, and the possibility of conducting DNA testing. There was no evidence that the clothing belonged to the respondent beyond his admission (AB 44.2): hence ex hypothesi if he made no admissions that would not have linked him to the bag. It must be questionable whether the alignment procedure would have proved guilt beyond a reasonable doubt. Even if one assumes that DNA testing could have proved guilt beyond a reasonable doubt - there is no evidence that it would have and the Crown fairly conceded that there was a degree of speculation in thinking that it would have - the Crown's reasoning does have the by-product of highlighting the immense extent to which the respondent, by making admissions, saved the prosecution and the court time and trouble. The reasoning also has an unpalatable aspect: it suggests that if no admissions had been made, the prosecution would have tried to prove the accused guilty of a particular line of conduct which at trial it in fact accepted the respondent did not carry out. Of course that endeavour by the prosecution would have been an entirely innocent one, but that does not alter the fact that the argument under consideration is making appeal to the circumstance that the prosecution would have been seeking to prove a case which one now knows is wrong and which is contrary to that which it accepted as being correct at the sentencing hearing. 14 Fourthly, on the assumption that the sentencing judge's opinion about the lack of evidence in the absence of the respondent's admissions was founded on a submission put by the respondent to the sentencing judge, which seems likely, it is significant that on 13 September 2000 the counsel then appearing for the Crown said of the events of 11 September 2000 (AB 11 lines 45-52): "The Crown relies on the evidence submitted on Monday. I indicated to your Honour that I agreed with the submissions made on behalf of the offender in relation to the significance of his admissions in relation to the strength of the Crown case, and I don't resile from that position, your Honour."