R v Minh CHEUN [2011] NSWCCA 5

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Minh CHEUN [2011] NSWCCA 5 Hearing dates: 19 November 2010 Decision date: 07 February 2011 Before: Simpson J at 1, Price J at 2, Garling J at 49 Decision: The Crown appeal be dismissed. Catchwords: CRIMINAL LAW - sentencing - Crown appeal - sentence reduced by assistance - partial failure to provide assistance - s 21E Crimes Act (Cth) - reasonable excuse - onus of proof Legislation Cited: Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) International Transfer of Prisoners Act 1997 (Cth) Local Courts (Criminal and Applications Procedure) Rule 2003 (repealed on 18 December 2009) Cases Cited: R v YZ [1999] NSWCCA 263 R v Springer [2009] NSWCCA 144 DPP (Cth) v Haunga [2001] VSCA 73 Category: Principal judgment Parties: Director of Public Prosecutions (Cth) (Applicant) Minh Cheun (Respondent) Representation: Counsel: R Sutherland SC (Crown) Mr R M Sweet (Respondent) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Leader Law Group (Respondent) File Number(s): CCA 2007/15367 Decision under appeal Jurisdiction: 9101 Date of Decision: 2008-03-07 00:00:00 Before: Judge Hulme SC File Number(s): DC 07/11/0166

Judgment 1SIMPSON J : I agree with Price J. 2PRICE J : The Crown appeals the sentence imposed upon the respondent in the District Court on 7 March 2008 on the ground that he without reasonable excuse did not co-operate with law enforcement agencies, as required by the undertaking made by him on 9 November 2007 pursuant to s 21E Crimes Act 1914 (Cth). 3The respondent had pleaded guilty to a single count of attempting to possess a commercial quantity of 3,4 methylenedioxy-methamphetamine (ecstasy) pursuant to ss 11.1(1) and 307.5(1) Criminal Code 1995 (Cth). 4The maximum penalty for such an offence is life imprisonment. Hulme SC DCJ (the sentencing judge) sentenced the respondent to imprisonment for 17 years 6 months with a non-parole period of 11 years. 5The respondent was sentenced with the benefit of a twenty per cent discount on sentence for past and future co-operation and the Crown contends that the respondent, without reasonable excuse, failed "in part" to co-operate in accordance with his signed undertaking. It is not the Crown case that the respondent has failed entirely to co-operate in accordance with the undertaking. The Crown accepts that the respondent in conformity with his undertaking conferred with the solicitor for the Commonwealth Director of Public Prosecutions and counsel briefed in respect of committal proceedings and gave evidence over three days in the Local Court. The respondent, however, before he re-commenced his testimony on the fourth day declined to answer further questions. The Crown contends that the respondent's refusal to continue answering questions was highly significant as it ultimately caused the complete failure of the prosecution case against two co-accused who had been arrested on an understanding that the respondent would comply with his undertakings. The Crown asks that the respondent's sentence be increased with regard to the 2 years 6 months which was allowed as a discount in respect of "future assistance". A discount of 10 per cent was specifically allowed by the sentencing judge for future co-operation. 6Section 21E(3) Crimes Act , relevantly, is as follows: "Where an appeal is begun under this section against the inadequacy of a sentence, or of a non-parole period, that was reduced because of a person's undertaking to co-operate with law enforcement agencies, the court hearing the appeal: (a) if it is satisfied that the person has failed entirely to co-operate in accordance with the undertaking-must substitute for the reduced sentence or reduced non-parole period the sentence, or non-parole period, that would have been imposed on, or fixed in respect of, the person but for that reduction; and (b) if it is satisfied that the person has failed in part to co-operate in accordance with the undertaking-may substitute for the reduced sentence or reduced non-parole period such a sentence, or such a non-parole period, not exceeding in length the sentence that could be imposed, or the non-parole period that could be fixed, under paragraph (a), as it thinks appropriate." 7This Court has held on an appeal under s 21E Crimes Act that there is an onus on the Crown to satisfy the Court beyond reasonable doubt that the failure of an offender to co-operate in accordance with his undertaking was without reasonable excuse: R v YZ [1999] NSWCCA 263 at [20] per Sully J; R v Springer [2009] NSWCCA 144 at [45] per James J. No good reason was advanced by the Crown as to why this Court should not follow this line of authority. 8The respondent argues that the Crown cannot comply with its onus to satisfy this Court beyond reasonable doubt that his failure to cooperate, in accordance with his undertaking, was without reasonable excuse. The respondent says that he complied with his undertaking until it came to his notice that his mother's address in China had been disclosed to the co-offenders when his statement, which included her address, was served as part of the prosecution brief. He was fearful that his family members who resided at that address might be harmed if he continued to give evidence. He sought legal advice and eventually declined to give any further evidence. By failing to delete his mother's address from the statement which was served on the co-offenders, the respondent submits that the Crown failed to comply with rule 12 of the Local Courts (Criminal and Applications Procedure) Rule 2003 (repealed on 18 December 2009) which then applied to the committal proceedings. 9Rule 12(1) relevantly provided that a copy of a written statement served on an accused person in committal proceedings must not disclose the address of the person who made the statement or of any other living person unless the address is a materially relevant part of the evidence or a magistrate makes an order permitting the disclosure in the statement. The Crown does not submit that a magistrate made a disclosure order. Before venturing further, it is convenient to summarise the facts upon which the respondent was sentenced and the extent of the respondent's co-operation.