New South Wales Court of Criminal Appeal CITATION: Ng v R (Cth) [2010] NSWCCA 232 HEARING DATE(S): 13 August 2010 JUDGMENT DATE: 14 October 2010 JUDGMENT OF: McClellan CJatCL at 1; Hulme J at 28; Davies J at 31 DECISION: Grant leave to appeal but dismiss the appeal. CATCHWORDS: CRIMINAL LAW - whether the sentence imposed upon the applicant was manifestly excessive - assessment of the criminality of the applicant - whether the sentencing judge erred in the applicability of comparable cases - relevance of applicant's prior convictions in assessing prospects of rehabilitation LEGISLATION CITED: Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth) CATEGORY: Principal judgment Bernier v R (1998) 102 A Crim R 44 Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194 R v Jain [2004] VSCA 20 R v Liu [2005] NSWCCA 378 R v Ong [2007] VSCA 206; (2007) 176 A Crim R 366 CASES CITED : R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525 R v SC [2008] NSWCCA 29 R v Spiteri [1999] NSWCCA 3 R v Studenikin [2004] NSWCCA 164 R v Tyler and Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458 R v Wong & Leung (1999) 48 NSWLR 340 Speer v R [2004] NSWCCA 118 PARTIES: Chin Swee Ng (Applicant) The Crown (Cth) FILE NUMBER(S): CCA 2009/4599 COUNSEL: S Kluss (Applicant) N Adams (Crown) SOLICITORS: Greenfield Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/11/0204 LOWER COURT JUDICIAL OFFICER: Norrish DCJ LOWER COURT DATE OF DECISION: 14 August 2009 IN THE COURT OF CRIMINAL APPEAL 2009/4599 McCLELLAN CJ at CL HULME J DAVIES J THURSDAY 14 OCTOBER 2010 NG, Chin Swee v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to one count of importing a commercial quantity of heroin contrary to s 307.1 of the Criminal Code Act 1995 (Cth) ("the Code"). The offence carries a maximum penalty of life imprisonment. 2 The pure quantity of the heroin was 2.445 kg. The minimum quantity of heroin required to constitute an offence against s 307.1 is 1.5 kg. The estimated street value of the heroin was between $293,400 and $1,711,500. The estimated wholesale value was between $857,500 and $960,400. The applicant pleaded guilty at the Central Local Court and was sentenced to a term of imprisonment of 11.25 years imprisonment with a non-parole period of 7.25 years. The relevant facts 3 The applicant, now 49, is a citizen of Singapore. On 30 September 2008 he arrived at Sydney International Airport aboard Malaysia Airlines flight MH 123 from Kuala Lumpur. When he arrived at the Customs desk, his baggage was searched and scanned. The scans indicated the presence of heroin concealed in toiletries and food items located in the applicant's baggage. Although the applicant admitted that he owned the items, he denied having any contact with heroin or with any other drug and denied that the items contained heroin. 4 Subsequent forensic analysis of the items revealed a net weight of 4.361 kg of heroin with a purity ranging between 69.2% and 74.4%. Remarks on sentence 5 In assessing the objective criminality of the offence, his Honour characterised the applicant's role as an importer of the drugs and not a mastermind. In light of his relative lack of sophistication, his Honour found that the applicant was unlikely to have participated at a level above that of a courier. He was motivated to take part in the importation by the promise of clearance of a SGD$11,000 gambling debt plus a financial reward of SGD$9000. Although his Honour accepted that the applicant lacked specific knowledge about the nature and quantity of the drugs he was carrying, his Honour rejected any suggestion that the applicant was ignorant of the quantity of drugs. The applicant's assertion that he believed he was carrying MDMA was likewise dismissed. 6 When considering the applicant's subjective circumstances, his Honour applied a 25% discount to reflect the willingness to facilitate the course of justice evidenced by the applicant's early plea of guilty. He was correct to do so. 7 His Honour accepted that the applicant was from a disadvantaged background and that during his incarceration in Australia he would be isolated from his family and friends in Singapore. The applicant expressed remorse although his Honour made the following observations: "I accept that the prisoner at the very least is very regretful for his involvement in this matter because he has been detected. The prisoner's cultural background and educational level may not provide him with the capacity to fully empathised with the implications of his conduct for the wellbeing and the health of Australian citizens had the heroin found its way on to the streets." 8 The applicant himself revealed that he had a criminal history in Singapore. Somewhat surprisingly, this record was not known to the prosecution nor, it would appear, to the Singaporean authorities. In 1991 he was sent to gaol for 1 year for a minor fine-related matter. In 1994 he was sent to gaol for 2 years for extortion. In 2002 he was sentenced to gaol for a period of 4 years for a piracy offence. Subsequently he committed a further piracy offence and was sentenced to a period of 5 years imprisonment although he was released in September 2008. His Honour found that some of these sentences were commuted or the subject of remissions. His Honour properly gave the applicant credit for his candour, observing that his openness was "a reason not to disbelieve all of his account". However, given what appeared to be the applicant's long-standing involvement with the criminal milieu in Singapore, his Honour was unable to conclude that the applicant has good prospects of rehabilitation. 9 The sentencing judge rejected the applicant's claim that he acted under duress, but accepted that his gambling problems and the prospect of a net profit of $20,000 provided an explanation for his involvement in the offence. His Honour agreed that the applicant had limited education but disagreed with the suggestion contained in the psychologist's report that the applicant possessed only "borderline intelligence". The applicant did not suffer any form of mental condition that was capable of explaining his offending. Applicant's submissions 10 The applicant's sole ground of appeal is that the sentence is manifestly excessive. The primary submission was that his Honour's starting point of 15 years was too high in light of the criminality of the applicant. 11 Although his Honour made reference to a number of comparable cases including Bernier v R (1998) 102 A Crim R 44, R v Liu [2005] NSWCCA 378 and R v Tyler and Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458, the applicant submitted that the relevant starting point was assessed "with particular reference" to the decisions of Speer v R [2004] NSWCCA 118 and R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525. It was said that, in fixing the starting point at 15 years, his Honour overlooked similarities between the present case and Speer as well as differences between the present case and Otto. 12 The offender in Speer imported 2.5411 kg of heroin. He agreed to act as a courier in exchange for a payment of $3500. He was a young man with a supportive family. He exhibited genuine contrition, had good prospects of rehabilitation and was deemed unlikely to re-offend. He had no prior convictions. He made an offer of assistance to the authorities although this was ultimately of no benefit. The sentencing judge accepted that Speer was unaware of the precise nature and quantity of the drugs he was carrying. A starting point of 10 years was applied, and a 10% discount awarded to account for his late plea of guilty. The resultant head sentence was 9 years. The applicant submitted that Speer: "provide[s] many salient features similar to the criminality involved in the applicant's offence and was within the sentencing range, however the starting point for the applicant was 50% higher." 13 The offender in Otto pleaded guilty to importing 2,136.8 g of cocaine. The cocaine had an estimated street value of more than $854,000. The sentencing judge was unable to positively identify Otto's precise role in the importation, but rejected his assertion that he was a "naïve courier." This was affirmed by Sully J on appeal, who noted that "on the given findings, Otto was in a real and substantial sense a serious and significant player in a serious and significant criminal enterprise having serious and significant adverse consequences for this country and its citizens" (at [21]). Otto's original sentence of 14 years with a non-parole period of 8.5 years was reduced on appeal to a term of 10.5 years with a non-parole period of 7 years. This incorporated a 25% discount for the plea of guilty. The notional starting point would have been 14 years. The applicant outlined what in its submission were a range of "dissimilar features" between Otto and the present case. The objective differences included the level of criminality involved (which Hall J in Otto described as "greater…than the naïve recruit" and "of a reasonably high order"), the impossibility of determining Otto's position in the hierarchy, and finally, the fact that the importation was "not…unsophisticated". The subjective differences included Otto's age (28 at the time of sentence), his clear prior record and his circumstances of impoverishment. The applicant submitted that: "the discussion of Otto turned on the assessment of the role of the offender and then the discount applicable for the plea; neither of these issues were unresolved features in the Applicant's matter. In the applicant's matter his honour [sic] found the applicant a courier and assessed the discount as 25%. No contest is made with these findings." 14 The applicant emphasised two additional matters. First, that although the sentencing judge rejected the applicant's claim of ignorance as to the nature and quantity of the drugs, his Honour made no positive finding that the applicant "had full knowledge of the size and nature of the importation." Second, that the prior convictions disclosed by the applicant were not such as to aggravate the sentence, and moreover, that the absence of drug convictions was not taken adequately into account in the applicant's favour. Crown submissions 15 Although the respondent accepted that Speer and Otto were of the "greatest assistance" to his Honour in the sentencing process, it did not agree that the starting point was assessed solely by reference to those decisions. Rather, it was submitted that: "His Honour took into account all relevant factors, balancing the objective seriousness of the offending and the need for general deterrence, with the Applicant's subjective features together with an appropriate discount for his willingness to facilitate the course of justice." 16 The Crown submitted that, in addition to the cases mentioned, his Honour had regard to comparable cases from the District Court and the sentencing ranges identified in R v Wong & Leung (1999) 48 NSWLR 340 (with appropriate adjustment to account for the repeal of s 16G of the Crimes Act 1914 (Cth)). His Honour also referred to the principles articulated in R v Studenikin [2004] NSWCCA 164 and R v SC [2008] NSWCCA 29. 17 At [18] of its written submissions, the respondent observed: "His Honour took all relevant factors into account and applied appropriate sentencing principles. The quantity of heroin imported, the fact that the Applicant was motivated by "personal profit", his lack of prospects for rehabilitation and the need for a strong component of general deterrence all militated heavily in favour of a substantial custodial penalty. When regard is had to the comparative decisions and the range in Wong and Leung , it may be said that His Honour fixed upon a sentence towards the upper end of the available range. It is nonetheless within that range. 18 The respondent was critical of the manner in which the applicant sought to make good its claim of manifest excess. This method involved a comparison between the facts of the applicant's case and those of Speer and Otto and a conclusion that the sentencing judge fell into error by disregarding certain salient similarities and differences between those cases and the applicant's case. It was said that this method was "tantamount to an argument on parity" and "cannot be sustained". Did the sentencing judge fall into error? 19 I am not satisfied that the sentencing judge erred in fixing a notional starting point of 15 years. It is clear from a careful review of both the remarks on sentence and the sentencing hearing transcript that his Honour took into account all relevant objective and subjective features of the case. His Honour naturally had particular regard to Speer and Otto, but that is not to say that other cases referred to by his Honour (though not specifically discussed) were not relevant to the outcome. 20 The applicant gains little from submitting that he lacked "full knowledge" of the nature of the importation or of the quantity of heroin involved. Couriers are seldom provided with anything more than the basic instructions needed to enable the undetected transportation of drugs from one point to another. That the applicant may not have been aware of the scale or organisational details of the importation is unremarkable. As to the applicant's knowledge of the quantity of drugs involved, I repeat the views expressed by his Honour at the sentencing hearing: "HIS HONOUR: … See you just put a submission to me I'd be satisfied on the balance that he had no knowledge of the amount of the drug that he was bringing in. But he knew the volume of drug he was bringing in, at least as a maximum because he actually was given all the containers which contained in part the drugs. If someone gives me a 10 kilogram package and says import this into Australia, it's no good saying he didn't know that there was 5 kilos of drugs there, or I didn't know there was 5 kilos of drugs there when I know that I'm importing a 10 kilo package. I'll have to assume that if I'm bringing drugs into the country, if I knew that a good proportion of the 10 kilogram package was made up of drugs. MORRIS: Yes well I accept he was aware that certainly a proportion of it was made up of drugs. HIS HONOUR: Yes but you said he had no – I'd be satisfied – he wasn't aware of the amount of drugs he was bringing. With the greatest of respect he knew precisely what he was bringing into the country in terms of volume because he packed it." 21 The applicant asserts that his prior convictions (not being drug-related) were incapable of aggravating the sentence imposed. That was plainly so, although his Honour was entitled to take them into account in assessing the applicant's likelihood of re-offending. The applicant's submission that "the fact that there were no recorded drug matters was a relevant feature that was not taken appropriately into account" should not be accepted. The presence of prior drug convictions may demand a greater penalty, but it does not follow that the absence of drug-related matters is a matter in mitigation. I have carefully reviewed the remarks on sentence. There is little doubt that his Honour gave proper weight to the fact that this was the applicant's first conviction for a drug offence. 22 Nor am I persuaded that his Honour overlooked relevant similarities between the present case and Speer or relevant differences between the present case and Otto. His Honour used these cases, quite correctly, as "reference point[s]", not as precedents. In any event, the fact that there may be comparable decisions with more lenient sentences does not end the matter. 23 The present case differs from Speer in critical respects. Speer was a young offender with no prior record; the applicant is middle aged and has spent some years imprisoned for prior offences. Speer had good prospects of rehabilitation; no such finding was made in relation to the applicant. Speer was unaware of the identity and quantity of the drugs he was carrying; the applicant was so aware. Speer's remorse was genuine; the applicant's was a product of his detection. And whereas Speer's prospect of rehabilitation were good, his Honour concluded in the present case that the applicant was likely upon his release to return to the fringes of society "if for no other reason than that of economic necessity". It is true that Otto involved a level of criminality greater than that exhibited by the applicant in the present case. Otto's role was assessed as being above that of a naïve courier and the court rejected his assertion that he played no part in planning the offence. On the other hand, Otto was a young man without a criminal record. 24 Neither Speer nor Otto prevented his Honour from fixing a starting point of 15 years. The sentence imposed by his Honour was within the range of appropriate discretion. That result is confirmed by a review of cases drawn from the schedule I published in Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194. 25 In R v Jain [2004] VSCA 20, a courier imported 1.559 kg of heroin using a false passport. The offender, 28, was a former businessman with no prior convictions. He exhibited remorse and had good prospects of rehabilitation. He was sentenced to a term of 10 years imprisonment (7 years non-parole). 26 In R v Ong [2007] VSCA 206; (2007) 176 A Crim R 366, the offender pleaded not guilty to importing 1.88 kg of cocaine. The offender, a 48 year-old Vietnamese migrant, had served 8 years in custody for a prior drug conviction. No finding was made as to his role in the importation scheme. A Crown appeal against a sentence of 15 years imprisonment (10 years non-parole) was dismissed. Order 27 I would grant leave to appeal but dismiss the appeal. 28 R S HULME J: I agree with the order proposed by McClellan CJ at CL and, subject to one matter, with his Honour's Reasons. My one reservation concerns his Honour's statement at [24] that the sentence imposed was within the range of appropriate discretion. There is a deal to be said for the view that the sentence under appeal is below what should have been imposed. 29 A review of prior decisions carried out in R v Wong & Leung (1999) 48 NSWLR 340 led the Chief Justice to the conclusion that 8 to12 years was an appropriate range for sentences for couriers who imported between 1.5 and 3.5 kilograms of heroin. An earlier review of such cases that I had carried out in R v Spiteri [1999] NSWCCA 3 at [22]-[33] led me to the view that the appropriate range of sentences for couriers importing 1½ - 3 kilograms of heroin fell between 9¼ and 11½ years. While there were obvious differences between the circumstances of many of the couriers encompassed within those reviews, it can fairly be said that the range covered what may be described as the normal run of such offenders. The Applicant imported 2.445 kg and there is nothing the circumstances of the Applicant or his offence to take him out of the normal range. 30 The sentences encompassed within those two reviews were imposed when Section 16G of the Crimes Act (Cth) was in operation, a section which had the effect of reducing the sentences which would otherwise have been imposed by about one-third. When the repeal of Section 16G is taken into account the sentence of 11¼ years including a non-parole period of 7¼ years imposed on the Applicant is lenient. 31 DAVIES J: I agree with McClellan CJ at CL. ********** 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. 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