Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ching v R [2018] NSWCCA 101 Hearing dates: 23 May 2018 Date of orders: 23 May 2018 Decision date: 23 May 2018 Before: Basten JA at [1]; Johnson J at [2]; Adamson J at [3] Decision: Refuse leave to appeal against the sentence imposed by the District Court on 31 March 2017. Catchwords: CRIME – appeal – sentence – taking into account value and weight of drug imported when not known to offender – alleged error in failing to take mental illness into account – whether loss of housing commission accommodation while in custody amounts to extra-curial hardship – alleged manifest excess Legislation Cited: Criminal Code (Cth) s 307.2(1) Cases Cited: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Pui Yee Ching (Applicant) Regina (Respondent) Representation: Counsel: M C Ramage QC (Applicant) S Callan (Respondent) Solicitors: Jeffreys Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2015/329587 Decision under appeal Court or tribunal: District Court at Sydney Jurisdiction: Criminal Date of Decision: 31 March 2017 Before: Woodburne SC DCJ File Number(s): 2015/329587 Judgment 1. BASTEN JA: On 31 March 2017 Judge Woodburne delivered careful and comprehensive reasons for sentencing the applicant, not attended by reviewable error. I agree that leave to appeal should be refused for the reasons given by Justice Adamson. 2. JOHNSON J: For the reasons given by Adamson J, I agree that leave to appeal against sentence should be refused. 3. ADAMSON J: The applicant was convicted, following a trial by jury, of importing a marketable quantity of a border controlled drug, 623.4g of pure methamphetamine, contrary to s 307.2(1) of the Criminal Code (Cth). The offence carried a maximum penalty of 25 years' imprisonment and/or a fine of 5,000 penalty units ($900,000). She was sentenced by Woodburne SC DCJ to a term of 8 years 9 months' imprisonment commencing on 9 November 2015 and expiring on 8 August 2024, with a non-parole period of 4 years 10 months expiring on 8 September 2020. 4. The applicant seeks leave to appeal on the following grounds: 1. The sentencing judge erred in sentencing on the basis of the weight and value of the drug if marketed in Australia. 2. The sentencing judge erred in failing to properly take into account the applicant's mental illness with respect to general and specific deterrence. 3. Fresh or new evidence and extra-curial punishment. 4. Manifest excess. The facts 1. At the sentence hearing, the sentencing judge accepted that the statement of facts tendered by the Crown, to which the applicant did not take issue on sentence, accurately reflected the basic facts established by the evidence at trial relating to the importation. For present purposes it is necessary only to summarise these facts. 2. The applicant, a citizen of Hong Kong, arrived at Sydney International Airport on 9 November 2015. In the baggage hall she retrieved from her suitcase a red box labelled "Remy Martin Fine Champagne Cognac VSOP" which contained a Remy Martin bottle, containing methamphetamine. The applicant put the box into a duty-free shopping bag which already contained two packets of cigarettes. Her Honour found that the purpose of this act was to represent, falsely, that the Remy Martin bottle had been legitimately purchased duty-free. 3. The statement of facts recorded, and her Honour found, that the total quantity of pure methamphetamine was 623.4g; and that the value of drugs was estimated to be between $159,860 and $191,832 if sold wholesale and between $319,720 and $399,350 if sold on the street. 4. The applicant did not give evidence on sentence. She relied on a report of psychiatrist Dr Richard Furst dated 22 February 2017, together with notes and documents from Justice Health and from medical records from Hong Kong. What that material established was included in her Honour's findings as to subjective matters which can be summarised as follows. 5. The applicant was born in 1972 and was 43 years old at the date of the offence and 44 years old at the date of sentence. She had no criminal history. She was diagnosed with ovarian cancer when pregnant with her daughter. Her husband left her before the child was born. She previously worked as a stock keeper and in the hospitality industry. She had been unemployed for two to three years before her arrival in Sydney and lived in housing commission accommodation in Hong Kong which she was fearful that she would lose while incarcerated in Australia. Her daughter was studying business at university. The remarks on sentence 1. The sentencing judge found that the applicant was reckless as to the fact that the substance was a border controlled drug and that her motivation was to make a modest profit. Her Honour found that the applicant was a courier but assessed her role by reference to her conduct. It was common ground that there was no suggestion that the applicant was aware either of the quantity of methamphetamine involved or its potential value. 2. Her Honour referred to the weight of methamphetamine imported by the applicant and its estimated wholesale and street value and noted that "the quantity . . . imported by the offender [applicant] was over 311 times the marketable quantity prescribed and in that respect, although it is by no means determinative, there was a significant breach of the section." 3. Her Honour concluded that the offence "is properly to be regarded as a serious one". 4. Her Honour referred to the subjective matters summarised above and noted the applicant's fear of losing her housing commission accommodation. Her Honour found that the applicant had a history of physical and mental health difficulties, including ovarian cancer, rheumatoid arthritis and depression. She suffered from depression and anxiety in custody and was concerned about the welfare of her daughter, who has had her left ovary and duct removed. The sentencing judge accepted that the applicant was experiencing difficulties in gaol due to her lack of English and reported assaults which caused bruising. Her Honour accepted Dr Furst's opinion that the applicant met the criteria for Major Depressive Disorder and would require continuing psychiatric treatment while in custody, as well as medical supervision to manage her arthritis and monitor the risk of a recurrence of cancer. 5. The sentencing judge noted the applicant's submission that, although her mental condition had neither caused, nor contributed to, the offence, it should be taken into account on three bases: that she was an inappropriate vehicle for general deterrence; the custodial sentence would weigh more heavily on her; and that it was also relevant to reduce the weight to be given to specific deterrence. 6. The sentencing judge found that there was insufficient evidence to conclude that the family hardship was exceptional but accepted that the applicant's "serious medical conditions, both physical and mental, are matters that properly call for some mitigation of sentence". Her Honour accepted that the applicant's depression would mean that a custodial sentence would "weigh more heavily on her" and that account should be taken of her physical conditions and chronic anxiety. 7. Her Honour considered the applicant to have good prospects of rehabilitation, although she had shown neither remorse nor contrition for her conduct. Nor had she co-operated with police or offered assistance. Her Honour noted that the account the applicant gave to police was exculpatory and lacking in credibility. 8. Her Honour emphasised the importance of general deterrence, even in a case where "some moderation is appropriate". Her Honour considered that there was a lesser need for specific deterrence, having regard to the effect on the applicant of imprisonment and separation from her daughter. The grounds of appeal The first ground: weight and value of the drug 1. The applicant submitted that it was erroneous for the sentencing judge to approach the sentencing exercise on the basis that the weight, quantity and value of the drug imported was significant in circumstances where it was accepted that the applicant was not aware of any of these matters. The applicant argued that her Honour's approach was contrary to the correct approach sanctioned by the High Court in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [64] and [70] (Gaudron, Gummow and Hayne JJ). The applicant highlighted the passage at [70] where their Honours said: "The selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle." 1. The applicant further submitted that no weight should be given to either the wholesale or street value of the drug in assessing the applicant's objective criminality in circumstances where she was not shown to be aware of any of these matters. 2. I am not persuaded that her Honour regarded the weight or value of the drug imported as either "the chief" or "a chief" factor in the sentence imposed. Rather, her Honour took the weight and value of the drug imported into account as one of many facts relevant to sentencing, as she was entitled to do. The size, and concomitant value, of the importation are relevant factors, even where it is not shown that the offender knows of these matters, but was merely reckless as to the quantity of drugs. 3. In Wong v The Queen the error identified by the High Court was that this Court attributed "chief importance" [70] to the weight of the drug. However, the High Court (at [67]) accepted that the amount of the drug "can have significance in fixing the sentence that is to be imposed on an offender". It did not limit the relevance of weight to circumstances where the offender knew the weight, although it was accepted that it would tend to have greater significance in circumstances where an offender knew the weight. Further, where the circumstances of importation are the same or similar, the only differentiating factor may be the amount of the drug involved. In such cases, the amount of the drug may be used to assess the seriousness of one importation as greater than that of another: see the authorities referred to in R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 at [72(e)] (Johnson J, Macfarlan JA and R A Hulme J agreeing). 4. The applicant's counsel below, in my view correctly, accepted in his written submissions to the sentencing judge: "The weight is just one of many factors to be considered in assessing the objective seriousness of the offence." 1. The applicant's counsel in this Court accepted that the size of the drug imported was relevant to sentence 2. I reject the applicant's submission that the sentencing judge was "improperly influenced" by the weight and value of the drug imported. I am satisfied that the weight and value of the drug imported were relevant considerations. Her Honour did not attribute to either "chief importance". The first ground has not been made out. The second ground: mental illness 1. The sentencing judge took the applicant's mental illness (Major Depressive Disorder) into account in each of the three ways identified by the applicant's counsel at the sentence hearing. The weight to be attributed to mental illness when considering the purposes of general and specific deterrence was a matter for the sentencing judge in the exercise of her Honour's sentencing discretion. The applicant has not demonstrated that her Honour failed to understand or apply the relevant principles to which the applicant referred. Indeed, the remarks on sentence indicate that her Honour clarified the applicant's submission on mental illness in the course of the delivering the remarks and proceeded to apply the principles as established by the authorities of this Court, including those summarised in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (McClellan CJ at CL). This ground has not been made out. The third ground: fresh or new evidence and extra-curial punishment 1. The applicant seeks to rely on a statutory declaration by her daughter dated 8 March 2018, which includes a statement that the applicant's lease for her unit was terminated in late October 2017, following notice given by the Housing Commission in late September 2017. Both events occurred after the sentence was passed on 31 March 2017. The applicant's daughter was not aware of the notices as she lives elsewhere and visited the applicant's unit only occasionally. The applicant's daughter made statements as to the prospects of the applicant obtaining accommodation in Hong Kong on her release, including that such accommodation was "extremely rare and hard to get". The applicant's daughter also deposed to her mother's distress at being incarcerated in Australia and the lack of prospect of her daughter ever having sufficient funds to visit her in gaol. 2. What the fresh, or new, evidence amounts to is a statement that the applicant's fears that she would lose her accommodation in Hong Kong, about which she told Dr Furst, and which were referred to in the remarks on sentence, have come to pass. The sentencing judge referred to and took into account the applicant's apprehension in her Honour's reasons referred to above. 3. I do not regard this evidence as materially adding to the evidence at the sentence hearing. Nor does it establish extra-curial punishment. Loss of public housing accommodation is a usual consequence of incarceration. On these bases, I am not persuaded that the further evidence ought be admitted. The third ground has not been made out. The fourth ground: manifest excess 1. The applicant submitted that the sentence imposed was manifestly excessive having regard to a number of factors. The factors identified were: that the applicant was reckless as to the amount or value of the drug; that she was only a courier; that she was likely to receive only a modest reward; that, as she had no criminal history, she ought be regarded as being of prior good character; that she had good prospects of rehabilitation; that she was suffering from serious mental and physical problems which made her imprisonment more onerous; and that she was culturally isolated because of her limited English and could not reasonably expect any visitors in gaol. 2. A claim of manifest excess requires the applicant to establish that the sentence imposed was unreasonable or plainly unjust, having regard to the principles that there is no single "correct" sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Whether a sentence is manifestly excessive is a conclusion. It is not necessary to identify any particular error in the process; it is the examination of the result that leads to the conclusion. 3. For the reasons given above with respect to the first three grounds, I am not persuaded that the applicant has shown any error in the process undertaken by the sentencing judge. Nor am I persuaded that there is any error in the conclusion, being the actual sentence imposed. The seriousness of the type of offence for which the applicant was sentenced is indicated by the maximum penalty of 25 years imprisonment. I am not persuaded that the sentence imposed was not open to the sentencing judge. 4. In my view, none of the four grounds of appeal proposed warrants a grant of leave. Proposed orders 1. For the reasons given above, I propose the following order: 1. Refuse leave to appeal against the sentence imposed by the District Court on 31 March 2017. ********** 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. Decision last updated: 24 May 2018