R v Tan [2001] NSWCCA 438

New South Wales Court of Criminal Appeal

CITATION : R v Tan [2001] NSWCCA 438 FILE NUMBER(S) : CCA 60370/01 HEARING DATE(S) : 24/10/01 JUDGMENT DATE : 24 October 2001

PARTIES : Regina Chiap Nam TAN JUDGMENT OF : Spigelman CJ; Studdert J; Ireland AJ

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0308 LOWER COURT JUDICIAL Dodd DCJ OFFICER :

COUNSEL : G J Bellew - Commonwealth Crown Mr C Jeffreys (sol) - applicant SOLICITORS : Commonwealth Director of Public Prosecutions - Crown Clive Jeffreys - applicant

Customs Act 1901 LEGISLATION CITED : Justices Act 1902 Commonwealth Crimes Act,1914 R v Thomson & Houlton (2000)49 NSWLR 383 R v Winchester 58 A Crim R 345; R v Carter (2001) NSWCCA 245 @ 13 Ryan v The Queen (2001) HCA CASES CITED: R v Levi (NSWCCA unreported 15 May 1997) R v Ferrer-Esis (1991) 55 A Crim R @ 231 R v Wong and Leung 48 NSWLR 340 R v Karacic (2001) NSWCCA 12 R v Gregory Paul Meggitt (1999) 107 A Crim R 257 R v Meloh (2001) NSWCCA 211 DECISION : Leave to appeal granted.; Appeal dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60370/01

SPIGELMAN CJ STUDDERT J IRELAND AJ

Wednesday, 24 October 2001

REGINA v Chiap Nam TAN JUDGMENT

1 SPIGELMAN CJ: I invite Ireland AJ to deliver the first judgment. 2 IRELAND AJ: This is an application for leave to appeal against the alleged severity of sentence imposed upon the applicant on 15 May 2001 in the Sydney District Court. 3 On that day, the applicant pleaded guilty on arraignment before his Honour Judge Dodd to a charge that on or about 19 October 2000 at Sydney he, without reasonable excuse, had in his possession not less than the commercial quantity of methylenedioxymethamphetamine (commonly known as Ecstasy) which was reasonably suspected of having been imported into Australia in contravention of s 233B of the Customs Act 1901. 4 The facts upon which Judge Dodd proceeded to sentence, as disclosed in his remarks on sentence, and as derived from a facts declaration prepared by the Australian Federal Police, are the following. 5 On 28 March 2001 at Central Local Court the applicant pleaded guilty to possession of the drugs in question, pursuant to the provisions of section 51A of the Justices Act. Apparently the relevant documentation was lost by the Court. Nevertheless, the concession was made that the applicant was to be treated as having pleaded guilty at the earliest opportunity. 6 Between June and October 2000, Australian Federal Police conducted an investigation concerning members of a Singaporean and Chinese syndicate allegedly responsible for shipping narcotics to Australia, Canada, the United States of America and Europe. During the course of that investigation, the applicant, who had arrived in Australia on 16 August 2000, came under notice of the authorities. 7 In the course of the investigations, police intercepted a number of mobile telephone services used by the applicant, which resulted in the identification of a person by the name of Cong Tam Dang (Dang), who was an associate of the applicant, with whom the applicant resided at premises 7 Worland Street, Yagoona. 8 On 19 October police intercepted a telephone call made by the applicant to a person who identified himself as "Sam" and who was later identified as Yeung Chi Wai (Yeung). The applicant and Yeung agreed to meet at the Airport Hilton Hotel, where the meeting took place under surveillance of police. Contact was made by the applicant with Dang by telephone, during which the applicant said, "I've got a job. I'm going out for work." 9 During the course of this surveillance, a further co-offender, Lim Cheong Boon (Lim), was observed to meet with Yeung, following which a black suitcase was placed in the boot of the applicant's motor vehicle. The black suitcase was taken by the applicant to the premises 7 Worland Street, Yagoona. 10 Following the intercepted telephone call, at about 8.25 pm on 19 October 2000, Yeung and Lim were arrested by police, each being in possession of A$40,000 in cash. The applicant was, a short time later, arrested, following which a search warrant was executed upon the premises at 7 Worland Street, Yagoona. In the course of that search, the black suitcase was located and found to contain approximately 14 kilograms of multicoloured tablets, which tested positive to the presence of amphetamines. Dang was arrested at that time. 11 Upon analysis, the contents of the suitcase were established to be approximately 46,229 tablets which contained a total pure weight of 34 methylenedioxymethamphetamine (Ecstasy) of approximately 6.15 kilograms. The applicable commercial quantity pursuant to the Customs Act for this substance is 500 grams. The estimated street value of these narcotics is approximately A$2.5 million. 12 In his remarks on sentence, Judge Dodd noted the following subjective matters. 13 The applicant at the time of sentence was aged forty-six years, was unemployed and is a Singaporean national. He was born and educated in Singapore to the age of seventeen, and has been employed in various occupations as a cook, car salesman and manager in the textile industry. It was accepted that the applicant had owned a textile business in Indonesia, however, this business was lost in riots which occurred in Indonesia in 1998 and 1999. He is married to an Indonesian national who resides in Thailand with her family. There is a daughter, born of that union in June 1999. 14 In proceeding to sentence, Judge Dodd identified the applicant as:- "... not a principal in relation to this importation, but your role was, for want of a better description, as a middle man. As I have indicated, the best description of it, it seems to me, is that your role was to arrange or organise the distribution of the Ecstasy tablets in Australia in conjunction with Mr Dang." 15 As required by s 17A of the Commonwealth Crimes Act, his Honour determined that in the circumstances the only appropriate punishment was a full custodial sentence. The maximum penalty prescribed for this offence is life imprisonment. The commercial quantity applicable to Ecstasy under the Customs Act, 1901 is, as I have mentioned, 500 grams. The quantity in question is, accordingly, in excess of twelve times the commercial quantity. 16 Recognition was given to the need for general deterrence and the view taken by the courts that Ecstasy is a middle range drug and that, as a general approach, harsher penalties are deemed appropriate where higher range drugs, such as heroin and cocaine, are involved. 17 In considering the discount to be given to the applicant for his early plea, the sentencing judge referred to the guideline judgment in Regina v Thomson & Houlton (2000) 49 NSWLR 383 in the following terms:- "In the case of Thomson in the New South Wales Supreme Court, relevant strictly speaking only to State offences, the range of discount for a plea of guilty resulting in an administrative saving of time and expense was put at 10 to 25 per cent. The Crown submits that this case strictly speaking does not apply as a guideline to Federal offences and that proposition cannot be denied. However, on general principles, as the Crown concedes, some discount must be given to you on this basis. The Crown submits that the case against you was strong and thus, whilst the plea of guilty entitles you to an element of leniency, the degree of that leniency is related to the otherwise likelihood of conviction at trial in accordance with Ellis reported at (1986) 6 NSWLR 603, and the Crown submits that a plea in the face of a strong Crown case will not accord as much weight as when a plea is entered in a weaker Crown case. In all the circumstances of this case, it seems to me that I should give you the benefit of a 20 per cent discount for your plea of guilty on the basis that it has saved the community much time and expense of a trial, but on the other hand the Crown case was relatively strong." 18 His Honour noted also the following aspects:- 19 the applicant's sole motive being financial gain; 20 present case this was of little consequence, particularly in the absence of prior convictions, noting that in the light of the applicant being a foreign national coming to Australia only for the purpose of committing criminal offences; 21 the applicant's fluency in English, not requiring an interpreter, but nevertheless serving his sentence in a foreign country, isolated from family; 22 the requirement to have regard to those matters set out in s 16A of the Commonwealth Crimes Act; 23 the provisions of section 16G of the Commonwealth Crimes Act, pursuant to which a reduction of sentence for absence of remissions is approximately one-third of sentence; 24 a ratio between non-parole period and head sentence of approximately sixty per cent. 25 Four grounds of appeal are relied on. Ground 1: The trial judge erred in failing to give appropriate consideration to the applicant's plea of guilty. 26 The applicant contends that the finding of the trial judge, that the Crown case was relatively strong, required a further finding that his guilty plea was some indication of contrition as it could not be said that the plea was based upon a recognition of the inevitable. Hence, the fact of contrition should have been considered in arriving at the appropriate discount for the applicant's plea. 27 The passage of the judge's remarks on sentence to which I have referred is relied upon as indicating that the discount of 20 per cent was arrived at by taking into account the strength of the Crown case. The respondent submits that, apart from the fact of the plea, there was no other contrition demonstrated by the applicant, who neither gave evidence nor called evidence from which remorse or contrition could be deduced. 28 The evaluation of the discount to be given for an early plea is a discretionary exercise distinct from the strength of the Crown case. The discount for the plea is generally to be considered in the light of the time when it was entered, and the extent of utilitarian benefit flowing to the community by reference to the complexity or otherwise of the particular case. The strength of the Crown case is a matter directly relevant to the issue of contrition and remorse. Regina v Thomson and Houlton (2000) 4 NSWLR 383; R v Winchester 58 A Crim R 345; R v Carter (2001) NSWCCA 245 at 13. 29 However, as has been made clear by the learned Chief Justice here presiding in Thomson and Houlton, at para 117:- "Furthermore, the plea is of itself equivocal with respect to remorse. A plea may be entered as an acceptance of the inevitable or in order to obtain such advantage as may be afforded in the circumstances. In such a case, a plea does not indicate genuine remorse or contrition. Indeed, even a plea of not guilty to a particular offence may be consistent with genuine remorse as to the effect of the offender's particular conduct acknowledged to constitute a lesser offence to which an accused is not or not then charged." 30 The discount of twenty per cent is, in my view, at the high end of the guideline range postulated in Thomson. The intervention of this Court depends upon whether, in re-sentencing, a higher discount would result. In my view, it would not. To the extent the sentencing judge fell into error in arriving at the discount for plea, the result did not disadvantage the applicant. Ground 1 is not made out. Ground 2: The trial judge erred in failing to take into account that Ecstasy is a "middle range" drug. 31 That ground may be shortly dealt with. The remarks by his Honour at paras 7 and 8, and his reference to what was said by Wood J (as his Honour then was) in R v Schaal (NSWSC unreported 8 September 1989) and in the judgment of this Court in R v Pell (1971) 1 NSWLR 247, on a proper reading make plain his recognition of Ecstasy as a "middle range" drug. Nevertheless, his Honour gives recognition to the gravity with which the Legislature views the distribution of prohibited drugs as exemplified in the authorities cited. Ground 2 is not made out. Ground 3: His Honour erred in failing to give appropriate consideration to the applicant's prior good character. 32 The passage cited by the applicant from the sentencing judge's remarks on sentence is but part of what was said by his Honour. When the whole of what was said by his Honour is considered, in my view, it cannot be said that error is demonstrated. His Honour at pages 9 and 10 of his remarks on sentence said:- "As to your character you have no known prior criminal convictions. However, it seems to me that in this case that is of little consequence. Courts have said in certain cases that prior good character is of less significance in drug cases than in other cases and the usual leniency extended to first offenders does not ordinarily benefit those involved in the illicit drug trade and in particular it would seem to me that that applies to the case of foreign nationals coming to Australia only for the purpose of committing criminal offences." 33 In Ryan v The Queen (2001) HCA 21 McHugh J at page 8 cited with approval what was said by Gleeson CJ, then presiding in this Court, in R v Levi (NSWCCA unreported 15 May 1997) at page 5 as follows:- "There is certain ambiguity about the expression 'good character' (in the sentencing context). Sometimes it refers only to an absence of prior convictions and has a rather negative significance, and sometimes it refers to something more of a positive nature involving or including a history of previous good works and contribution to the community." 34 As previously noted, the applicant arrived in Australia on 16 August 2000. The events in question took place within three months of his arrival, when he was arrested. His "good character" was appropriately to be seen as not attracting benefits associated with good works or contributions to the community, but was noted by his Honour and was taken into account. 35 In Ferrer-Esis (1991) 55 A Crim R 231 Hunt J, with whom Gleeson CJ and Lee CJ at CL agreed, said:- "The judge did take into account the circumstance that the respondent had no previous convictions. That was an error. Couriers are usually selected because they have no criminal record, and this Court has on many occasions said that the usual leniency extended to first offenders does not ordinarily benefit couriers." A number of authorities are cited. 36 In the present case, the role of the applicant was certainly higher in the hierarchy than a courier, being a middle man responsible for distribution and safe housing of the drugs. Nevertheless, similar considerations are not inappropriate. I would reject ground 3. Ground 4: The sentence imposed was, in the circumstances, manifestly excessive. 37 Reliance is placed in support of this ground upon certain statistics of the Judicial Commission and the consideration of the guideline judgment in R v Wong and Leung 48 NSWLR 340 and also the decision of this Court in R v Karacic (2001) NSWCCA 12. The submission, as I understand it, is made that when considerations are given to these statistical matters and the fact that the drug in question in this case is a middle range drug, together with what is suggested as an appropriate adjustment for the fact that the applicant is a middle man and not a courier, or a person low in the hierarchy, the sentence of fifteen years with a non-parole period of nine years is manifestly excessive. 38 There can be no doubt that the amount of narcotic involved in this case is extremely high. The value, as I have said, is assessed at A$2.5 million. In my view, this is a case in which little guidance is to be gleaned from the statistical material, where it would seem that an importation of narcotics of this magnitude has not been dealt with. 39 However, we have had drawn to our attention the case of Gregory Paul Meggitt (1999) 107 A Crim R 257, where a considerably larger importation of narcotics was under consideration. It is, however, appropriate to recognise that Meggitt is a case which, in my view, highlights the difficulty to be encountered by courts in comparable considerations, the distinguishing features in Meggitt's case being the level of involvement of the accused person and the presence of the critical factor of assistance to authorities. For completeness, we were referred also to a further decision in R v Meloh [2001] NSWCCA 211. 40 Relevant considerations include, first of all, that the legislative attitude is reflected in the maximum penalty appropriate to this offence, being life imprisonment. As I have said, the quantity involved of 6.15 kilograms of pure MDMA or Ecstasy was more than twelve times the commercial quantity of 500 grams. 41 As made clear in the material before the Court, the applicant was not a courier or person low in the hierarchy, but was the person responsible in Australia for the distribution of the drug following its arrival and its safe custody in the hands of the distributor until it had been passed to the public. 42 As pointed out by the Crown, the evidence supports the conclusion that the applicant was to derive considerable financial reward, that is to say, $50,000 for his part in the enterprise. There was no demonstrated contrition on the part of the applicant other than the plea of guilty. All of these matters were taken into account by the learned sentencing judge in determining the sentence to be imposed. 43 In my view, whilst the sentence is on any view a substantial one, and may be categorised as at the top of the range, nevertheless it cannot be said to be outside the ambit of the discretion available to his Honour, nor can it be said to be manifestly excessive. 44 I would propose that leave to appeal be granted and that the appeal be dismissed. 45 SPIGELMAN CJ: I agree with what Ireland AJ has said. With respect to the fourth ground of appeal, the only thing that gave me some concern was whether the head sentence of fifteen years was excessive. I should say I regard, as Ireland AJ has just said, that it should be at the very top of the range in the circumstances of this case, particularly having in mind the size of the importation and the significant role played by the applicant in the criminal organisation responsible for the importation. 46 To identify the head sentence as being at the top of the range is not to say that the non-parole period would also be at the top of the range. Indeed, the non-parole period was the minimum ratio of sixty per cent of the head sentence. The comments I have made about the head sentence do not apply to the non-parole period. 47 I agree with the orders proposed by Ireland AJ. 48 STUDDERT J: I also agree. 49 SPIGELMAN CJ: The orders are as his Honour Ireland AJ has proposed. **********