Regina v Kon Lim Chew [2004] NSWCCA 26

New South Wales Court of Criminal Appeal

CITATION : Regina v Kon Lim Chew [2004] NSWCCA 26 HEARING DATE(S) : 13 February 2004 JUDGMENT DATE : 25 February 2004

JUDGMENT OF : Sully J at 1; James J at 30; Hulme J at 31 DECISION : Leave to appeal against sentence granted; appeal against sentence dismissed

Customs Act 1901 (Commonwealth) LEGISLATION CITED : Justices Act 1902 (NSW) Criminal Appeal Act 1912 (NSW) The Queen v Olbrich [1999] 199 CLR 270 R v Gallagher [1991] 23 NSWLR 220 CASES CITED : The Queen v Shrestha [1991] 173 CLR 48 R v Klein [2001] NSWCCA 120 R v Kalache [2000] NSWCCA 2 Holloway v McFeeters (1956) 94 CLR 470 PARTIES : Regina Kon Lim Chew FILE NUMBER(S) : CCA 60352/03 COUNSEL : M. Cinque - Crown J. Hickleton - Appellant SOLICITORS : C'wealth DPP - Crown George Sten & Co. - Appellant

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0984` FILE NUMBER(S) : LOWER COURT Christie DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60352/03

SULLY J JAMES J HULME J 25 February 2004 REGINA v KON LIM CHEW Judgment 1 SULLY J: On 3 July 2002 the applicant, Mr. Chew, arrived in Sydney by air from Malaysia. He had previously ingested 59 small packages, each of which contained heroin powder. He was carrying these packages inside his body at the time of his entry into Australia. The total weight of the heroin thus carried by the applicant was 226.5 grams. The weight of pure heroin thus carried by the applicant was 71.8 grams. The estimated street value of the heroin thus imported by the applicant was in the order of $98,000 Australian dollars. 2 Members of the Australian Customs Service detained the applicant at the airport for an internal search. In that connection the applicant was transported to St. George Hospital. While en route to the hospital he told the accompanying officers that he was in fact concealing something internally and that he was willing to remove it and to give it to the officers who could then arrest the people to whom he, the applicant, was supposed to have given the packages in due course. Even at that early stage of his dealings with law enforcement authorities, the applicant was anxious to ensure that, should he give assistance to the authorities, he would be guaranteed return to Malaysia immediately and without prosecution. In his subsequent dealings with law enforcement authorities the applicant endeavoured, at every turn from first to last, to bargain with the authorities. 3 In due course the applicant was charged formally with having imported into Australia prohibited imports to which section 233B of the Customs Act 1901 (Commonwealth) applied, namely a quantity of heroin being not less than the traffickable quantity applicable to that drug. The traffickable quantity prescribed by statute in connection with heroin is 2 grams. The offence thus charged against the applicant attracted, upon conviction, a statutory maximum penalty of, relevantly, imprisonment for 25 years. 4 The applicant pleaded guilty in the Local Court and was committed, pursuant to section 51A of the Justices Act 1902 (NSW), for sentence to the District Court. In due course the applicant stood for sentence before his Honour Judge Christie QC. The applicant adhered to his plea of guilty; and in due course his Honour formally convicted the applicant and sentenced him to imprisonment for 6 years with a non-parole period of 4 years. 5 The applicant now seeks leave to appeal against what he asserts to be the manifestly excessive severity of that sentence. 6 The first ground of appeal asserts that the learned primary Judge erred in law by reason of his having sentenced the applicant upon the basis that the applicant was a principal in the relevant importation, when in fact the applicant was, and ought to have been sentenced upon the basis that he was, only a courier, and a mere courier at that. 7 The relevant legal principles have been re-visited and re-stated in the recent decision of the High Court of Australia: The Queen v Olbrich [1999] 199 CLR 270. There are, for present purposes, two particular principles that are to be drawn from that decision. First, and to quote from the majority judgment at 279 [19]: "Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did". Secondly, since it was the applicant who was contending that he should be sentenced on a basis mitigated by reason of the fact that he was nothing more than a courier, it was for him to satisfy the sentencing Judge on the balance of probabilities that such was the fact: see 199 CLR, 281[26], [27]. 8 Judge Christie, before whom the applicant gave evidence, proceeded upon the basis that it was for the applicant to establish on the balance of probabilities that he had been, in truth, nothing more than a courier. His Honour was of the view that the applicant had not discharged that burden of proof. This was, in my opinion, a finding of fact plainly open to his Honour upon the whole of the evidence then before him. 9 Once that point was reached, Judge Christie had then to deal with the applicant upon the basis that he was not a courier; that he was indubitably an importer; that there was no evidence to suggest that he was the master-mind, or one of a number of master-minds, behind a joint criminal enterprise; and that he fell to be sentenced, therefore, as somebody who had made a bare-faced attempt to bring into this country 72 grams by pure weight of heroin for advantage to himself. 10 Such an offence is, in terms of its objective criminal culpability, a serious offence against the public order of this country and the welfare of its citizens. 11 I apprehend that it might be useful, given the particular facts of the present case, to make the following additional observations: