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. Ground 2: 19 It is submitted that the relationship between the sentence imposed upon the applicant and that imposed on Mr Leong gives rise to a justifiable sense of grievance on the part of the applicant. 20 The Judge accepted that the applicant entered a plea of guilty at what was described as more or less the first available opportunity. The Judge did not quantify the extent of the discount allowed for the plea. 21 In written submissions the Crown noted that the ratio between the head sentence and the non-parole period imposed on the applicant and on Mr Leong differed. In the Crown's submission it is appropriate to assess the challenge that the applicant makes by comparing the respective non-parole periods and consider whether they give rise to a justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606; R v Dukino; R v Moshref [2003] NSWCCA 379 at [28]. 22 The non-parole period imposed upon the applicant is one of 54 months. The non-parole period imposed on Mr Leong is one of 63 months. Looked at in this way the applicant's non-parole period may be seen to reflect a discount of 14% when compared to the non-parole period imposed on Mr Leong. The guideline judgment in R v Thomson and Houlten (2000) 49 NSWLR 383 does not have direct application to the sentencing of Commonwealth offenders. Nonetheless, the Crown acknowledged that the approach to the discount to be given in sentencing Commonwealth offenders in recognition of their willingness to facilitate the course of justice is conformable with the reasoning in Thomson. In the Crown's submission the primary consideration in determining where in the range a particular case should fall is the timing of the plea. 23 The applicant was found to have entered a plea at more or less the earliest possible time. In the Crown's submission it was reasonable, in the circumstances of this case, for the Court to find that the applicant had a justifiable sense of grievance when comparing his sentence to the sentence imposed on his co-offender. In making this concession the Crown did not concede that the sentence imposed was excessive or that it was in any other respect infected by error. 24 After sentence was imposed the applicant agreed to give evidence at the trial of Pik Thoong Leong. In written submissions the Crown observed that Mr Leong had advanced a defence at trial that is often difficult to rebut and that may have succeeded without the benefit of the applicant's evidence. This material refers to events that occurred after the date of sentence and is not relevant unless this Court comes to re-sentence upon a finding of error. 25 In light of the Crown's concession to which I have referred I consider that ground 2 has been made good and that the applicant should be granted leave to appeal. Having regard to the stance taken by the Crown I am of the view that the Court should embark upon a re-sentencing of the applicant. In addition to the material contained in the pre-sentence report, it is proper upon the re-sentencing of the applicant to take into account the assistance that he provided to the authorities, including his assistance in giving evidence in the proceedings against Pik Thoong Leong. 26 The Crown provided us with a letter of assistance signed by Federal Agent Wunsch, countersigned by Federal Agent Grenin, setting out details of the assistance provided. It is sufficient to note that the document to which I have referred provides a sound evidentiary basis for the Crown's acknowledgment that the prosecution of Pik Thoong Leong may not have succeeded without the benefit of the applicant's evidence. 27 The letter of assistance refers to the information supplied by the applicant at the time of his initial interview. He identified the hotel in Kuala Lumpur where he and Mr Leong consumed the packages containing drugs. In evaluating the usefulness of this information it is noted that the Royal Malaysian Police had established that the same hotel had been used on two previous occasions by persons who had consumed packets containing narcotics prior to traveling to Australia. 28 No additional persons have been identified as being involved in the importation as a result of the interview conducted by the members of the Australian Federal Police with the applicant. The information supplied by him was characterised as having been of low level intelligence value. 29 It is proper to take into account the assistance provided by the applicant to the authorities, being both the low level intelligence information to which I have referred and the assistance in the prosecution of his co-offender. It is a factor to which s 16A(2)(h) of the Crimes Act 1914 (Cth) directs attention. 30 In written submissions the Crown noted the community's interests in encouraging participants in a criminal activity to assist in securing the conviction of their co-offenders. It is proper to have regard to that matter and I consider the applicant is entitled to a significant discount but not one that is at the higher end of the range. 31 It is appropriate to quantify an aggregate discount that reflects both the applicant's willingness to facilitate the course of justice, evidenced by his early plea of guilty, and his cooperation with law enforcement agencies in the investigation and prosecution of the offence with which he and his co-offender were charged. 32 This is not a case in which the assistance provided by the applicant has led to the detection and prosecution of persons above him in the hierarchy of the drug importation. 33 It is to be expected that, in giving evidence for the Crown, he has placed himself at some risk within the prison community. There is nothing to suggest that this latter consideration is of greater prominence in this case than might be expected in any case in which a prisoner gives evidence on behalf of the Crown at a criminal trial. 34 I consider it appropriate to allow an aggregate discount of approximately 35% reflecting both the plea of guilty and the assistance to the authorities. This is not a case in which there is any question of a discount to reflect future assistance. Any greater discount in the circumstances of this case would produce a result that, in my view, would not be proportionate to the gravity of the offence of importing a substantial quantity of heroin into Australia. 35 It is necessary to take into account the considerations to which s 16A(2) of the Crimes Act directs attention. I have already referred to the nature and circumstances of the offence. The Judge was satisfied that, on balance, the applicant had established that his role in the commission of the offence was that of a courier. I consider that finding to be the appropriate one and would approach the re-sentencing upon the same basis. The offence does not form part of a course of conduct but was correctly characterised by the Judge as being a one-off offence. 36 The applicant has, by his plea and assistance to the authorities, demonstrated contrition. That circumstance is reflected in the aggregate discount to which I have referred. 37 I take into account the applicant's prior good character. The other considerations to which s 16A(2)(m) of the Crimes Act directs attention do not give rise to matters that require particular consideration in the circumstances of this case. 38 The applicant is a person whose prospects of rehabilitation should be assessed as reasonable. There is nothing in the evidence to suggest that the Court should have regard to the probable effect of the sentence on the applicant's family or dependants. 39 It is appropriate to take into account the sentence imposed on Pik Thoong Leong by his Honour Judge Woods. The Crown has not brought a challenge against it. 40 In the circumstances I consider that a sentence of eight years prior to a discount of the order of that to which I have referred is an appropriate starting point. For these reasons the orders that I propose are as follows: Orders 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. 41 SIMPSON J: I agree. 42 SHAW J: I agree. 43 SIMPSON J: The orders of the Court will be as proposed by Bell J. oOo Last Modified: 05/07/2004 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.