Cheun v R [2009] NSWCCA 116

New South Wales Court of Criminal Appeal

CITATION: Cheun v R [2009] NSWCCA 116

HEARING DATE(S): 17 April 2009 JUDGMENT OF: Giles JA at 19; Grove J at 1; Hall J at 20

EX TEMPORE JUDGMENT DATE: 17 April 2009

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - "Discount" for past and future assistance - Figures in authorities referring to "combined discount" including allowance for plea of guilty - No error in assessment by sentencing judge

LEGISLATION CITED: Crimes Act 1914

CATEGORY: Principal judgment

SZ v Regina [2007] 168 A Crim R 249 R v El Hani [2004] NSWCCA 162 CASES CITED : R v Mostyn [2004] 145 A Crim R 304 R v Sukkar [2006] 172 A Crim R 151 R v Thomson (2000) 49 NSWLR 383

PARTIES: Minh CHUEN - Applicant REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2007/15367

COUNSEL: C Bruce SC - Applicant W Abraham QC - Respondent/Crown

SOLICITORS: Legal Aid Commission - Applicant Commonwealth Director of Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/11/0166

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 7 March 2008

IN THE COURT OF CRIMINAL APPEAL CCA 2007/15367

GILES JA GROVE J HALL J

17 April 2009 Minh CHEUN v R Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Hulme DCJ at Sydney District Court. On the day scheduled for commencement of trial, the applicant pleaded guilty to a single count of attempting to possess a commercial quantity of an unlawfully imported controlled drug. The substance consisted of tablets of methlylenedioxymethamphetamine (MDMA) commonly called ecstasy. A prescribed maximum penalty of imprisonment for life is available for such an offence. His Honour sentenced the applicant to imprisonment for 17 years 6 months with a non-parole period of 11 years. 2 The facts found by the learned sentencing judge are not in dispute and, given the limited challenge in the ground of appeal to which I will turn, an abbreviated summary extracted from the remarks on sentence will suffice for present purposes. 3 On 5 June 2006 a container arrived in Melbourne from Canada containing cardboard boxes labelled as ink or toner. Secreted within a large number of the boxes were 2,572 vacuum sealed bags each containing about 100 ecstasy tablets, in all some 257,200 tablets. Police seized these and substituted inert replacements. An estimated street value of the drug of $40 million was made. 4 The boxes were moved from storage eventually unpacking being commenced at premises in Yagoona in New South Wales. 5 The applicant arrived in Australia on 21 June 2006. He was born in China and had become a Canadian citizen and travelled on a Canadian passport. Police were monitoring activity concerning the boxes by visual surveillance and authorized use of listening devices and telephone interception. The applicant made calls concerning the removal of the boxes from storage and their relocation. In other calls he spoke of needing a rest, of a preference that the boxes be left untouched noting an expectation that it would make a big difference if he were found with the packages after they had been opened and a request that someone else perform the task of opening, in response to which the applicant was reminded that he was committed to the enterprise. Nevertheless he was told that another person was being sought and he was to keep watch on "the stuff". The applicant complained about the paucity of payment which he had received up to that time. In terms of the hierarchy his Honour found that the applicant was not a principal but equivalent to something like a middle manager. 6 In the event the applicant was arrested at the Yagoona premises on 29 June 2006 where the consignment was being unpacked. On that morning the applicant had been on the telephone about the number of packages and was expressing concern about a perceived shortfall. He received instructions to make a complete record. 7 The sole ground of appeal is that "his Honour failed to give the applicant an appropriate discount for assistance". 8 The applicant pleaded guilty on 18 June 2007. Dated 9 November 2007 the applicant and his counsel signed an undertaking pursuant to s 21E of the Crimes Act 1914 in the usual form promising to cooperate with law enforcement agencies including by the giving of evidence against co-offenders. His Honour referred to this aspect in his remarks on sentence: "The offender signed an undertaking to give evidence in proceedings against any of his co-offenders. That has not of course been necessary in the cases of Zeng and Au. The Crown may possibly call him to give evidence in proceedings against two others who have been charged and perhaps two others who have not as yet been charged. He has provided three statements to police. His assistance has been rated by the Australian Federal Police as 'high'. The offender is being held in protective custody at the Special Purpose Centre at Long Bay. I was not provided with any evidence as to any restrictions or deprivations that might be involved in such an arrangement. I accept, however, that the custodial authorities will be limited in the options they have as to classification and transfer of the offender whilst he is serving his sentence. If the level of perceived threat to his safety remains as it is at present he will likely serve the entirety of his sentence where he presently is. On the basis of this assistance I propose to discount the sentence to be imposed upon the offender by twenty per cent. Half of that is for assistance to date and half is for the promised future assistance." 9 His Honour recorded that but for the applicant's plea of guilty and past and future assistance he would have assessed a sentence of 25 years imprisonment. It follows that, arithmetically, he applied an overall discount of thirty percent made up of ten percent for the plea, and ten percent each for past and future assistance. 10 In a succinctly stated written submission on behalf of the applicant counsel submitted that the discount customarily given in New South Wales for assistance lay in the range of twenty to fifty percent. It was stated that this was recently acknowledged in SZ v Regina [2007] 168 A Crim R 249 and that there was no explanation why his Honour applied a discount which "appears so low" having regard to a police rating of the value of assistance as high and the detail contained in confidential evidence about assistance which was placed in a sealed envelope in accordance with the usual practice. We have been able to read the contents. It confirms the rating estimate, which no doubt had taken into account the number of alleged co-offenders about whom the applicant provided information. 11 It is the Crown submission that the applicant's contention is based upon an erroneous understanding of the judgments in SZ. The error is in the isolation of the stated discount so as to represent assistance only whereas, properly understood the stated range included any discount for a plea of guilty. The Crown submission is correct. The judges in SZ (Buddin J, Howie J in agreement with additional comments and Simpson J in agreement with both) endorsed what had earlier been observed by Howie J in R v El Hani [2004] NSWCCA 162: "Prior to R v Thomson (2000) 49 NSWLR 383 it was the almost invariable practice for a sentencing judge to indicate that a single discount was being given for both the plea and the assistance. ….. The guideline judgment in Thomson was not intended to change the established practice in that regard." 12 The endorsement in SZ expressly recognized some mistaken references in El Hani to some other cases and no detraction from the endorsement emerges therefrom. 13 As the passage from his Honour's remarks on sentence above quoted reveals, there was no evidence of any restrictions or deprivations being suffered by the applicant as a result of his being kept in protection. 14 In SZ the observations of Howie J in R v Sukkar [2006] 172 A Crim R 151 were noted. (Although reported in an earlier volume, SZ was decided on 11 January 2007 whereas Sukkar had been decided on 30 March 2006). 15 His Honour said (at 153): "However, it is no longer inevitable that an offender who has provided assistance will serve the sentence in more difficult conditions. As was pointed out in R v Mostyn [2004] 145 A Crim R 304 the experience of this Court at least has been that prisoners who have provided assistance are not serving their sentences, or even a significant part of their sentences, in any more onerous conditions than prisoners in the general prison population." 16 Thus the combined discount received by the applicant has been, as above stated, calculated as thirty percent. The plea of guilty was by no means an early plea and no specific complaint has been made at an assessment of its value represented by the equivalent of ten percent. 17 In my view it cannot be said that a combined discount of thirty percent is so low that no reasonable assessment could be made at that level by a judge in the sound exercise of discretion. The ground of appeal is not made out. 18 I would grant leave to appeal against sentence but dismiss the appeal. 19 GILES JA: I agree. 20 HALL J: I also agree. **********