New South Wales Court of Criminal Appeal CITATION : Regina v Cheng [2002] NSWCCA 225 FILE NUMBER(S) : CCA 60232/01 HEARING DATE(S) : 5 June 2002 JUDGMENT DATE : 17 June 2002 PARTIES : Regina v Josephine Cheng JUDGMENT OF : Adams J at 1; Carruthers AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0477 LOWER COURT JUDICIAL His Honour Judge Knight OFFICER : COUNSEL : Applicant - A.P. Cook Crown - D. Frearson SOLICITORS : Applicant - Barber & Massey Crown - S.E. O'Connor CATCHWORDS : Sentencing - severity appeal - conspiracy to supply a prohibited drug (heroin) in an amount not less than a large commercial quantity - appellant classified as "middle management" - whether manifestly excessive. LEGISLATION CITED : Customs Act 1901 (C'Wealth) s 233(1) Drug Misuse and Trafficking Act 1985, ss25(2), 26, 33(3)(a) R v Cassar [1999] NSWCCA 152 R v Dodd (1991) 57 A Crim R 349 R v Hong (Lu) and Lam (Vi) [2000] NSWCCA 213 R v Lu Hong & Ors [2000] NSWCCA 213 R v Liang, unreported, CCA 2/6/95 CASES CITED: R v Paul Kon Lim, unreported, 28/9/93 R v Pauna, unreported, CCA 2/12/97 R v Pham [2001] NSWCCA 307 R v Wan & Phan [2001] NSWCCA 501 R v Wong & Leung (1999) 48 NSWLR 340 R v Wong & Leung (2001) 76 ALJR 79 DECISION : Application for leave to appeal granted; Appeal allowed. For orders see par 37. IN THE COURT OF CRIMINAL APPEAL 60232/01 ADAMS J CARRUTHERS AJ Monday, 17 June 2002 REGINA v Josephine CHENG Judgment 1 ADAMS J: I agree with Carruthers AJ. 2 CARRUTHERS AJ: Josephine Cheng seeks leave to appeal against a sentence imposed upon her by his Honour Judge Knight DCJ at the Sydney District Court on 19 April 2001. On 13 November 2000 the applicant was convicted by a jury following a thirteen day trial on one count of conspiracy to supply a prohibited drug (heroin)onHonHonHon in an amount not less than a large commercial quantity pursuant to ss 25(2), 26, 33(3)(a) of the Drug Misuse and Trafficking Act 1985, which offence carries a maximum penalty of life imprisonment and/or a fine of $550,000. A large commercial quantity of heroin is 1 kilogram. 3 His Honour sentenced the applicant to imprisonment for a period of fourteen years commencing on 3 July 1999 (the date upon which she was taken into custody and refused bail) and expiring on 2 July 2013. His Honour fixed a non-parole period of eight years commencing on 3 July 1999 and expiring on 2 July 2007. 4 The applicant was born in Malaysia on 13 June 1974 and is therefore approaching her twenty-eighth birthday. Her father died when she was eight years of age and she came to Australia with her mother in 1987. The applicant is the youngest of six children. She completed her higher school certificate in New South Wales in 1992 and commenced university study in 1993, initially studying for a Bachelor of Science degree and subsequently transferring to an Arts degree. She was still in the process of studying for that degree at the time of her arrest on 3 July 1999. 5 The applicant has a supportive family and has never been in any trouble with the criminal law prior to the subject offence. 6 His Honour had before him a pre-sentence report dated 5 February 2001 under the hand of Ms Nicci Wilson, Probation and Parole Officer, Silverwater Parole Unit, Mulawa Correctional Centre. 7 Although Ms Cheng claims that she has never used drugs she stated to Ms Wilson that she gambles "a lot" claiming she had a "habit" for the twelve months prior to her coming into custody. She stated she went to the Casino every day. 8 The applicant informed Ms Wilson that she does not believe her gambling is a significant problem and she does not intend to engage in counselling whilst in custody. The applicant denied any involvement in the offence for which she was convicted, stating she believed that she was found guilty because the jury judged her "on her Asian appearance and that the jury were often asleep and not listening to the evidence". 9 I note, however, that a notice of abandonment of the conviction appeal was filed on 9 May 2002. 10 The relevant facts which formed the basis upon which his Honour sentenced the applicant have been summarised and adopted by his Honour as follows (with formal emendations): "In March 1999 the applicant lived in Campsie; she had some associates, including David Quoc Diep, Van Sang Nim and Michael Yu. At the beginning of March 1999 an under cover Queensland police officer, who went by the assumed name of Michael James White made contact with Diep; they arranged that Diep should sell or supply to White 2 oz of heroin; White came to Sydney and on 2 Mar 99 he went to the carpark at Central Station; Diep met him there and they drove together to Parker Street, which is near Central Station; on the way White handed Diep $8,400, and when they got to Parker Street, Nim handed White a packet of white compressed powder; Diep and Nim then went over to the applicant who was in Parker St with her car and they all walked off together. During the course of that day there was surveillance of Diep by officers of police and they continued to carry out surveillance on him and those associated with him, among whom was the applicant. The white compressed substance was later analysed and found to contain heroin and to weigh 56 grams, that is more or less 2 oz. As a result of these events police officers obtained a warrant under which they intercepted calls made over Diep's mobile telephone. Among such calls were some between Diep and the applicant in which he ordered from her what the Crown says was heroin. On many occasions during this period the applicant took part in telephone conversations with Diep which the Crown says concerned the supply of heroin in some of which the Crown says she took orders for its supply. A few days after he had come to Sydney, on 9 Mar 99, White again ordered 1 oz of heroin from Diep; he wanted it delivered in Brisbane that day and Diep agreed, for a higher price; he then telephoned the applicant and arranged to buy 1 oz of heroin from her; she must have provided it because Diep flew to Brisbane that afternoon and met White who collected him in a car; while they were driving together White handed Diep $8,000; they then got out of the car and went for a walk; they walked down a flight of steps and Diep indicated to White to walk back up the step on which was a packet of white powder. The powder was later analysed and found to contain heroin and to weigh 28.236 grams, which is about 1 oz. On 11 March 1999 the applicant again ordered from the applicant what the Crown says is heroin; during that day the applicant herself was under surveillance by police officers one of whom saw her talking on a mobile telephone while driving her car; at about that time in a telephone call intercepted over his mobile telephone number she told Diep that she was being followed and cancelled a delivery to him. A few days later, on 16 March 1999, White again contacted Diep by telephone and ordered 1 oz of heroin from him; after that Diep telephoned Yu to arrange a meeting, and then on the telephone ordered 2 oz of heroin from the applicant; the applicant must have delivered heroin to Diep because later Diep and Yu met in a café near the George St theatres & Diep drove Yu to Central Station; then Yu was seen at the interstate bus terminal there; he arrived in Brisbane by bus the following morning and Diep telephoned White with directions where to meet Yu; White and Yu met outside a hotel and they got in White's car where they exchanged $6,000 and a bag of white rocks. When the rocks were analysed they were found to contain heroin and to weigh 27.804 grams, that is about 1 oz. In Brisbane Diep and Yu spoke by telephone and Yu reported to Diep; when he returned to Sydney Yu telephoned Diep to arrange a meeting; Yu then went to the Haymarket area and then Diep and the applicant met in the same area and went together to the Saigon Metro Restaurant in George Street; On 9 Apr 99 there was a meeting in the 'New York at the Movies' another café near the George St theatre complex, between Diep, Nim and one Mark Derapas; when they had left the café Derapas went to the airport where at about 8.30 pm he boarded a Qantas flight for Brisbane; when he arrived at Brisbane he was stopped and searched and was found to have with him white rocks and powder. They were later analysed and found to contain heroin; the Crown case is that Derapas had received that heroin from the applicant's associates, Diep and Nim. On 12 Apr 99 police officers obtained a further warrant under which they were authorised to intercept telephone calls over the applicant's mobile telephone; from time to time they obtained warrants authorising interception of calls over other mobile telephones she used; some of them are in Cantonese or partly in Cantonese and partly in English. On 16 April 99 there were telephone calls between White and Diep in which it was arranged that Diep would supply 1 oz of heroin to White and at a little after noon that day White went to the carpark at Central Station and parked his car there; Diep got in and they drove off; Diep made a telephone call and White handed him a McDonalds bag containing $5,200; he parked in Parker Lane where he saw Nim; Nim came over to his car and handed White a black pouch containing white rocks. They were later analysed and found to contain heroin and to weight 27.8 grams or about 1 oz. On 21 May 1999, in telephone conversations, there was an acceptance by the applicant of an order for the purchase of two 350 gram blocks of heroin by a male, and the supply by her associates and under her supervision on that day. On 25 May 99 in telephone conversations the applicant arranged for the sale of 6 lumps or ounces of what the Crown says was heroin to a man called Simon and 2½ lumps or ounces to a woman called Jackie; that evening Yu went to Claremont Street, Campsie where he approached a car from which he apparently collected something, and then walked to the applicant's house; on the telephone he told her he had a cake or 350 grams of heroin; after a while he and the applicant then went in her car to North Terrace, Campsie where she parked; under telephone supervision of the applicant Yu then approached Jackie and entered her car for a short drive; then he put an object under a car parked in South Terrace which the driver of it picked up; during the evening the applicant spoke frequently to Jackie and to Yu to make sure that the supplies to Jackie and Simon took place. On 14 June 1999 in telephone conversations the applicant arranged with Yu and Raymond Tsang that they should supply two 350 gram blocks of what the Crown says was heroin in Melbourne and on the same day they travelled to Melbourne in accordance with those arrangements and on her instructions. On the evening of 30 Jun 1999 the applicant went to 16 Grove Street, Marrickville where she had a meeting with a man who drove a Victorian registered car; the Crown says the meeting was about the sale of heroin; later until 3 July 1999 the applicant had many telephone calls with a man, the effect of which was the Crown says an agreement for the supply by her of one unit of 350 grams of heroin; she also had telephone calls with Yu to whom she gave instructions. In telephone calls she was told the last three figures of a telephone number and an address. The Crown says that the telephone number was that of the purchaser and the address was where Yu was to deliver the heroin. The instructions she gave Yu were that he was to go by bus to Melbourne from the interstate terminus at Central Station and return the following day by plane; he was to be paid $1,500; she told him to pack only the heroin in a bag. At about 5.45 pm on 3 Jul 99 Yu went to the bus terminus at Central Station; police officers were waiting there and he was arrested; he was searched and was found to be in possession of a block which on analysis was found to contain heroin and to weigh 350 grams; he also had a piece of paper with a mobile telephone number the last three figures of which were those told to the applicant and the delivery address in Victoria. Police officers then went to the applicant's house at 16 Byron Street, Campsie and arrested her; they searched there and found $1,520 in cash, (Yu had been promised $1,500)' a Motorola Startax mobile telephone used by her in telephone conversations that had been intercepted; in her car they found a list of motor vehicles including those used by police officers in surveillance of her. On 4 August 1999 police officers again went to her house to search and they found a Nokia mobile telephone also used by her for telephone conversations that were intercepted." 11 The evidence established that the applicant supplied an aggregate of approximately 2 kilograms of heroin in the various transactions, with an overall average purity of 73.6%. 12 In sentencing the applicant his Honour referred to the guideline judgment of this Court in R v Wong & Leung (1999) 48 NSWLR 340, relating to offences under s 233(1) of the Customs Act 1901 (C'wealth) 13 His Honour referred to the fact that it was quite plain in that judgment that the ranges indicated were intended to apply to couriers and persons low in the hierarchy of the importing organisation and that the ranges were not intended to apply to persons higher in the hierarchy. 14 His Honour said that the amount of heroin the subject of the instant conspiracy would have attracted under the guideline judgment a sentence of eight to twelve years by way of a head sentence for a courier. His Honour concluded, however, that the applicant was a person "at the very least in the middle of the hierarchy", classified as "middle management" and accordingly needed to be dealt with more severely. 15 Allowing for the fact that the guideline judgment was concerned with the importation of heroin as distinct from supplying it within New South Wales his Honour nevertheless used it as a benchmark to indicate that an appropriate head sentence for the applicant was one of fourteen years. 16 His Honour then determined that there were special circumstances arising from the applicant's prior absence of any record of criminal offences, her relative youth and the model fashion in which she has behaved whilst in custody. Thus it seemed to his Honour that the applicant's prospects for successful rehabilitation were very high. 17 The first ground of appeal is that his Honour fettered his sentencing discretion by relying upon an erroneous consideration, namely the adoption of the guideline judgment as providing a benchmark by analogy for the applicant's sentence. It was argued that offences under the Customs Act 1901 are categorised by reference to the pure quantity of the narcotic under consideration. The amounts stipulated in the guideline judgment are, however, pure amounts. Plainly, it was argued, the criminality attaching to two kilograms of pure heroin is more significant than that attaching to two kilograms of a substance which, by nature of the provisions in the Drug Misuse and Trafficking Act, falls within the definition of heroin because it contains a proportion of heroin. 18 Further, it was argued that to follow the guideline judgment was erroneous because the guideline was suggestive of a "mathematical approach of which there are said to be increments to … a pre-determined range of sentences": see R v Wong & Leung (2001) 76 ALJR 79 at pars 74-75. 19 Thus it was argued that despite his Honour being conscious of the application of the guidelines to importation offences, he fell into error in the use of the guidelines. 20 Thus in the result, it was argued, his Honour failed properly to assess for himself the applicant's criminality and then, by also considering relevant subjective matters, fix the appropriate sentence. 21 I do not find it necessary, however, for the resolution of this application to resolve the legal argument which I have thus summarised. 22 It was finally submitted on behalf of the applicant that the subject sentence is manifestly excessive for a twenty-six year old woman with no criminal history, even if her role in the offence was that of "upper middle management", to use his Honour's categorisation. 23 Reliance was sought to be placed upon the relevant JIRS sentencing statistics which it was said, demonstrate that the subject sentence is very much at the top of the range. 24 The statistics are of very limited assistance in relation to the subject offence when one considers a sentence following a plea of not guilty for a person within the age range of twenty-one to thirty years. Obviously the present case was not included in the statistics because under head sentences/full terms within that age range there is a sample of only two cases, one attracting a head sentence of six years and the other a head sentence of seven years. 25 Within the same category there are only two cases insofar as the non-parole period/minimum/fixed terms are concerned. One offender attracted a sentence within that category of four years and the other six years. 26 A different picture is disclosed when one looks at head sentences/full terms for all offenders. Here there is a sample of twenty-seven cases. The highest sentence was fourteen years (one offender), the next highest twelve years (two offenders) and the next lowest is ten years (five offenders). 27 As to non-parole periods/minimum terms/fixed terms/all offenders, of the twenty-seven cases one received ten years, three received eight years and four received seven years. 28 The crown submitted (inter alia) that although the sentence imposed was condign, it was appropriate to reflect the objective seriousness of the offence and in present circumstances subjective features were of less significance: see for example R v Dodd (1991) 57 A Crim R 349 at 354. Further, those who sell drugs but do not use them are regarded as in the worst category of offenders in drug related crimes: see R v Liang (unreported, CCA, 2 June 1995 per Sully J at pars 5-6); R v Pauna, (unreported, CCA, 2 December 1997 at 12). 29 Pauna is authority for the proposition that each case must be considered on its own facts and while statistics are of limited value substantial drug dealing justifies heavy penalties. 30 I have found it of assistance to consider a number of prior cases decided in this Court relating to the subject offence, albeit I have not sought to differentiate between a charge of supply under s 25(2) of the Act and one of conspiracy to supply by the application of s 26. 31 Cases which provide some guidance are R v Qing Quan Liang (unreported, 2 June 1995); R v Paul Kon Lim (unreported, 28 September 1993); R v Hong (Lu) and Lam (Vi) [2000] NSWCCA 213 (20 April 2000); R v Lu Hong & Ors [2000] NSWCCA 213 (20 April 2000); R v Pham [2001] NSWCCA 307 (13 August 2001); R v Wan & Phan [2001] NSWCCA 501 (23 November 2001. In each of the above cases there was a plea of guilty. A case in which there was a conviction following a plea of guilty is R v Cassar [1999] NSWCCA 152 (28 May 1999). 32 The case which I found to be particularly helpful is Pham. Pham pleaded guilty to supply of not less than a large commercial quantity of a prohibited drug (heroin); two counts supply prohibited drug (heroin) and one count supply prohibited drug. In relation to the s 25(2) matter this Court confirmed the sentencing judge's head sentence of ten years and six months with a non-parole period of seven years and eleven months. Pham was categorised as a "secondary principle" in the relevant drug ring. He was aged about thirty at the time of the offences and had a prior criminal history. 33 It was accepted by this Court that the starting point by way of a nominal head sentence adopted by the sentencing judge was fourteen years on the basis that a discount of 25% was allowed for the plea of guilty and contrition. The offender had a history of prior drug use. The quantity of heroin in the s 25(2) matter was 2.1 kilograms with a component of 893 grams of pure heroin. 34 A review of the cases together with an assessment of the criminality involved in the subject offence, after balancing the subjective factors leads me to the conclusion that Knight DCJ imposed a sentence which was outside the discretionary range available to him. 35 There are significant subjective circumstances in this case. There is the relative youth of the applicant, the fact that she has no prior criminal record, there are good prospects for rehabilitation, and whilst in custody she has conducted herself in an exemplary manner. 36 The case is one in which (as his Honour found) there are special circumstances which justify a variation in the statutory relationship. 37 In the circumstances I would propose the following orders: (1) The application for leave to appeal be granted and the appeal allowed. (2) The sentence imposed by Knight DCJ be quashed. (3) In lieu thereof the applicant be sentenced to imprisonment for twelve years to date from 3 July 1999 and to expire on 2 July 2011. (4) A non-parole period of seven years be fixed to date from 3 July 1999 and to expire on 2 July 2006, on which date the applicant will be eligible to apply for release to parole. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.