Regina v Poh Hwa CHEW [2004] NSWCCA 132

New South Wales Court of Criminal Appeal

CITATION : Regina v Poh Hwa CHEW [2004] NSWCCA 132 HEARING DATE(S) : 23/4/04 JUDGMENT DATE : 23 April 2004

JUDGMENT OF : Simpson J at 1; Bell J at 2; Shaw J at 42 DECISION : 1. Leave to appeal is granted; 2. Allow the appeal and quash the sentence imposed in the District Court; 3. In lieu thereof sentence the applicant to a term of five years and three months imprisonment to date from 29 August 2002. That sentence will expire on 28 November 2007; 4. Specify a non-parole period of three years and three months to date from 29 August 2002 and to expire on 8 November 2005

LEGISLATION CITED : Customs Act 1901 Crimes Act 1914 (Cth) Lowe v The Queen (1984) 154 CLR 606 CASES CITED : R v Dukino; R v Moshref [2003] NSWCCA 379 R v Thomson and Houlten (2000) 49 NSWLR 383 PARTIES : Poh Hwa CHEW (Applicant) Regina (Respondent) FILE NUMBER(S) : CCA 60027/04 COUNSEL : M Thangaraj (Applicant) R Bromwich (Respondent) SOLICITORS : Catherine Hunter (Applicant) Cth DPP

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/1123 FILE NUMBER(S) : LOWER COURT Christie DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60027/04

Simpson J Bell J Shaw J

Friday 23 April 2004 REGINA v Poh Hwa CHEW Judgment 1 SIMPSON J: The Court is in a position to deliver judgment. I ask Bell J to deliver the first judgment. 2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed on the applicant by his Honour Judge Christie (the Judge) sitting in the District Court on 19 March 2003. 3 The applicant pleaded guilty on arraignment on 24 January 2003 to an indictment charging him that, on 29 August 2002 at Sydney, he did import into Australia prohibited imports namely narcotic goods consisting of a quantity of heroin of not less than the traffickable quantity contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). 4 The maximum penalty for this offence is imprisonment for 25 years and/or a fine of $500,000. 5 On 7 March 2003 the Judge sentenced the applicant to a term of six and a half years' imprisonment to date from 29 August 2002. That sentence was expressed to expire on 28 February 2009. A non-parole period of four and a half years was specified. That non-parole period will expire on 28 February 2007. 6 The facts upon which the applicant was sentenced were contained in an agreed statement that formed part of Ex A on the sentence hearing. The following summary is taken from that statement. 7 The applicant arrived in Sydney Kingsford Smith International Airport aboard a Malaysian Airways flight from Kuala Lumpur on the morning of 29 August 2002. The co-offender, Pic Thoong Leong, travelled with him on the same flight. On arrival the Australian Customs Service referred both men to the Department of Immigration. The applicant admitted to officers of that department that he was carrying objects internally and that he had been paid to do so. He was at that time suffering from abdominal pain. The Australian Federal Police attended the airport. He agreed to be internally examined by medical staff. He was conveyed to the St George Hospital at Kogarah where a CT scan revealed numerous foreign objects in his digestive system. He admitted to having swallowed 111 pellets. In the period between 29 August and 31 August 2002 the applicant passed 111 foreign objects containing heroin. The gross weight of the heroin was 421.7 grams. The pure weight was later found to be 303.5 grams. 8 The co-offender, Mr Leung, passed 94 objects containing heroin. The gross weight of the heroin came to 351.5 grams. The pure weight was assessed at 248.8 grams. 9 In the course of his interview with the police the applicant gave details relating to the overseas organiser of the importation. The police were not able to identify this person or to take the investigation further in this respect. 10 The applicant described the hotel at which he and Mr Leong had stayed at the time that they swallowed the pellets. He said that he was to receive between 7000 and 8000 Malaysian dollars for his role in the importation. He said he did not know the contents of the pellets before he travelled to Australia. He and Mr Leong had been together in the same hotel room at the time that each swallowed the pellets. 11 The applicant had been provided with pocket money for the trip and understood that he was to receive the bulk of his payment upon his return to Kuala Lumpur. 12 The applicant said that he did not know what he was supposed to do with the pellets after his arrival. Mr Leong had a mobile phone on which the two could be contacted in Australia. 13 The applicant did not give evidence at the sentence hearing. A pre-sentence report prepared by an officer attached to the Silverwater Parole Unit was in evidence. The sources of information for that report comprise an interview with the applicant conducted with the assistance of an interpreter and telephone interviews with representatives of the Department of Immigration and the Australian Federal Police. 14 The applicant was aged 22 years at the date of the offence. He is a citizen of Malaysia. His elderly parents and other members of his family reside in Malaysia. His parents were aware he had been imprisoned in Australia but had not been informed of the reasons for it. He has a close relationship with his family and expressed concerns to the Probation Officer about his parents, neither of whom are in good health. 15 The applicant had been married for approximately 12 months at the date of his arrest. The couple do not have children. He had a history of casual employment in factories in Malaysia. He had achieved a level of education equivalent to Year 7. He denied any past association with elicit drugs. 16 The applicant gave the Probation Officer an account that following his marriage he had obtained a loan of 5000 Malaysian dollars to purchase furniture and other necessities. He had been unable to meet the loan repayments because he was unemployed. He had been approached by a person who was aware of his financial situation and he agreed to travel to Australia importing the objects for the sum of 7000 Malaysian dollars. 17 The co-offender, Pic Thoong Leong, pleaded not guilty and stood trial before his Woods DCJ and a jury. He was convicted. On 30 May 2003 he was sentenced to a term of imprisonment of eight years. A non-parole period of five years and three months was specified. 18 The applicant challenges the sentence on two grounds. In the light of the conclusion to which I have come it is necessary to consider ground 2 only.