Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chen v R [2018] NSWCCA 157 Hearing dates: 4 July 2018 Decision date: 01 August 2018 Before: Meagher JA at [1] Schmidt J at [2] Button J at [3] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – appeal against sentence – asserted error of sentencing judge in finding that applicant was aware that the shipment of narcotics contained a 'significant amount' of illicit drugs – asserted error of sentencing judge giving excess weight to finding that applicant's motivation for offending was financial gain – sentence imposed asserted to be manifestly excessive – discussion of other sentences imposed for drug importation – applicant appreciated quantity of drugs was significant – applicant involved himself in the importation of a very large quantity of a prohibited drug in order to benefit financially – sentence imposed not manifestly excessive – appeal dismissed Legislation Cited: Criminal Code 1995 (Cth), ss 11.2, 307.1 Cases Cited: Chan, Lo and Nguyen v R [2010] NSWCCA 153 Obiekwe v R [2018] NSWCCA 55 R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 R v Onyebuchi; Ex parte Commonwealth Director of Public Prosecutions [2016] QCA 143 R v Tran, Tran & Nguyen [2013] NSWCCA 136; (2013) 233 A Crim R 167 Stipkovich v The Queen [2018] WASCA 63 Webber v The Queen [2014] NSWCCA 111 Xiao v R [2018] NSWCCA 4 Category: Principal judgment Parties: Qiang James Chen (Applicant) Regina (Respondent) Representation: Counsel: I Lloyd QC (Applicant) L Crowley (Respondent) Solicitors: George Sten & Co (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2014/299294 Publication restriction: Nil. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2017] NSWDC 187 Date of Decision: 17 July 2017 Before: Letherbarrow SC DCJ File Number(s): 2014/299294 Judgment 1. MEAGHER JA: I agree with Button J. 2. SCHMIDT J: I agree with Button J. 3. BUTTON J: Introduction 1. From 20 March 2017 until 29 March 2017, Mr Qiang James Chen (the applicant) stood trial before his Honour Judge Letherbarrow SC and a jury of twelve in the District Court at Sydney. At the conclusion of that trial, the applicant was found guilty of an offence of aiding and abetting the importation of a commercial quantity of a border controlled drug (namely, 14.14 kilograms of methamphetamine), contrary to ss 11.2(1) and 307.1 of the Criminal Code 1995 (Cth) (the Code). The maximum penalty was imprisonment for life and/or a fine of $1,275,000. On 17 July 2017, the applicant was sentenced to a head sentence of imprisonment for 12 years, with a non-parole period of 7 years 2 months. Grounds of appeal 1. There is no appeal against the conviction. In support of an application for leave to appeal against sentence, the following grounds were notified and pressed at the hearing before us: 1. The learned sentencing judge erred in finding that the applicant was aware that the shipment of narcotics the subject of the single count on the indictment contained a 'significant amount' of illicit drugs (ROS [14]). 2. The learned sentencing judge erred in giving excess weight to a finding that the applicant's motivation for his offending was financial gain in circumstances where there was no evidence that the applicant was to or did in fact receive significant monies for his role (ROS [40]). 3. The sentence imposed upon the applicant was manifestly excessive. 1. A degree of oral refinement of the first two grounds was provided by senior counsel for the applicant at the hearing, and I shall explain that development when I come to recount his submissions in support of them. Objective features, and objective seriousness 1. The following is derived from the remarks on sentence, which in turn adopted a statement of facts contended for by the Crown. (I interpolate that, relevantly to ground one, defence counsel at first instance accepted the accuracy of that statement of facts for the purposes of the sentence hearing, but disputed that the inference could be drawn that the applicant was aware of the large quantity of drugs that was particularised in the single count on the indictment.) 2. On 10 March 2014, the applicant, providing a false name, address, and phone number, signed a 12 month rental lease for a residence in the Sydney suburb of Riverwood. He paid over $2,000 as a rental bond, and stated that his uncle would be residing at the premises. He also purchased furniture and other items for the premises. 3. That same day, Mr Ah Fung Yau (a co-offender) arrived at Sydney Airport from Hong Kong, and checked into the City Lodge hotel. Afterwards, he was collected by the applicant and taken to the Riverwood address, along with his belongings. 4. From 10 March 2014 until Mr Yau's arrest on 1 May 2014 about six weeks later, the applicant travelled to the Riverwood address approximately twice a week in order to convey money to Mr Yau for his living expenses. The applicant subsequently asserted that he was paid $100 for each occasion on which he travelled to the Riverwood address. 5. On 7 April 2014, the applicant contacted Cathay Pacific under a false name to enquire whether Mr Yau's flight booking that had related to 1 April 2014 could be extended to 5 May 2014. The next day, Cathay Pacific contacted the applicant and advised him of the cost of the booking variation. The applicant told the ticketing agent that he may purchase a new ticket to Hong Kong for Mr Yau, instead of accepting the variation. 6. On 14 April 2014, a consignment of 31 cardboard boxes arrived at Sydney that contained "hoses and nozzles", and that was addressed to Mr Yau at the Riverwood address. The applicant telephoned Le Feng Australia, the logistics coordinator for the consignment, falsely identified himself as Mr Yau, and used the identification number that he had received from another person involved in the importation. The applicant requested two hours' notice of delivery, to ensure that he was at the address when the consignment arrived. 7. On 17 April 2014, Le Feng Australia contacted the applicant and advised him of a delay in the delivery of the consignment. 8. On 1 May 2014, members of the Australian Federal Police (AFP) attended the premises and arrested Mr Yau. The applicant was unaware of that development, and continued to attempt to contact Mr Yau by multiple telephone calls. He did, however, conduct Google searches, and examined the AFP website, for any references to recent arrests in Sydney for drug offences. 9. On 5 May 2014, Le Feng Australia contacted the applicant and arranged for the package to be delivered at midday to the Riverwood address. The applicant stated that his sister would be at the premises to sign for the receipt of the consignment. 10. On the same day, Ms Miu Fong Chan (another co-offender) arrived at Sydney airport from Hong Kong, and went to the Hotel Pensione. From there, she was collected by the applicant, and taken by taxi to a spot 80 metres short of the Riverwood address to "evade the attention of the authorities". The applicant provided Ms Chan with bedding for her to use at the premises. Later, the applicant went to a local shopping centre, in order to purchase food and a mobile phone for Ms Chan to use in the delivery, and gave those items to Ms Chan. After that, he returned to the city. 11. A member of the AFP attended the Riverwood address at about midday posing as the delivery driver. Ms Chan used her phone to contact the applicant, and then handed the phone to the putative delivery driver. The applicant confirmed over the phone that she could sign for the delivery. Ms Chan was then arrested. So was the applicant, but not before he disposed of a number of mobile phones. 12. A search of the applicant's residence was conducted on 3 June 2014. Located in the bedroom were: four Chinese licences depicting the applicant, all with false names or addresses or both; multiple mobile phones and SIM cards; and Mr Yau's passport and travel documents. 13. A scientific examination was conducted on 29 June of the 31 boxes of the consignment. One heavier hose was located in each box, and it had rubber stoppers in each end of the hose, securing a total of 37.31 kilograms of colourless liquid inside. This was assessed as containing 37.9% pure methamphetamine, leading therefore to a pure amount of 14.14 kilograms of methamphetamine, the street value of which is approximately $11.2 million (and wholesale value of which is approximately $4.1 million). 14. Separately in the remarks on sentence, the sentencing judge accepted the three inferences for which the Crown contended: that the applicant was "aware, or of the belief that, the shipment contained a significant amount of illicit drugs, rather than something less, primarily due to the extent of his efforts in assuring its delivery to the Riverwood address"; that the applicant "intended to aid and abet, counsel or procure the importation of illicit drugs in Australia"; and that the applicant "took steps in an attempt to avoid detection". 15. In determining the objective seriousness of the offending, the sentencing judge rejected the contention of defence counsel that his role was one of a facilitator or receiver or storeman, and instead found that the applicant had "a very significant role if not the major role in the receipt of the drugs into Australia prior to their distribution". The sentencing judge concluded that the applicant's role could be characterised as at a "middle management" level. 16. Further, the large quantity of the drugs imported and the multi-million dollar value of the shipment were considered to be relevant factors with regard to gravity. 17. His Honour assessed the applicant's motivation to be financial gain, however acknowledged that there was no evidence that he actually received significant payment for his role. 18. His Honour also considered that s 11.2(3) of the Code permits a finding of guilt to be based on either actual knowledge or recklessness as to the nature of the substance imported. As the jury determined the applicant's guilt based upon a Crown case alleging the former, the sentencing judge stated that whilst that finding could not aggravate the offending, "regard must be had to this fact". 19. All in all, the sentencing judge concluded that the objective seriousness of the offending was "in the mid-range". 20. The sentencing judge took into account pre-sentence custody, and therefore backdated the commencement of the sentence to 29 March 2017. Subjective features 1. Again, the following are matters generally accepted in the remarks on sentence. 2. Dr Marcelo Rodriguez prepared a psychological report on 26 June 2017 that was tendered in the defence case. The applicant was born in China in 1986, and from the age of 3 was in the care of his maternal grandmother. He came to Australia in 1999 at about age 13. The applicant told Dr Rodriguez that his childhood in China was "pretty bad", as he was subject to "organised and persistent" bullying at school for many years, which left him with "chronic self-esteem issues". When he arrived in Australia, he knew little English, missed his grandmother, and felt that his parents were "strangers", which in turn led to "feelings of abandonment by his parents". 3. The applicant was married at age 23, however divorced in 2014 as "she had been unfaithful to him". He reported some mild depressive symptoms following his divorce and that this "probably" led to the applicant making friends with the "wrong people". At the time of sentencing, he was reportedly in a supportive relationship, and stated that he and his romantic partner planned to marry on his release. 4. At the time of the offending, the applicant was aged 28. Notably, he had been convicted of one previous offence in 2015 of (deemed) supply of a prohibited drug, dealt with by way of the imposition of a two year bond. 5. The sentencing judge found no evidence of remorse, as the applicant still asserted his innocence following the jury's verdict. 6. As for his involvement in the drug milieu, the applicant reported to Mr Rodriguez that he had met some "Chinese friends" who had introduced him to taking methamphetamine, of which he was using approximately $150 a week at the time of the offences. He claimed that that use finished when he was charged with possession in 2014, however the sentencing judge considered this to be a reference to the June 2015 offending. He reported to Dr Rodriguez that he had recovered from his dependence on methamphetamines, and did not believe that he required any ongoing treatment. 7. Dr Rodriguez found the applicant to show signs of anxiety and hyper-vigilance, and concluded that he had an adjustment disorder with an anxious mood, an "appropriate reaction to his current circumstances given that he is about to be sentenced". Dr Rodriguez also expressed the view that the applicant met the criteria for a substance use disorder. 8. He expressed the view that the applicant "falls into a low loading of risk factors associated with general re-offending", and was also of the view that he required "long term drug and alcohol counselling in conjunction with individual relapse prevention with a psychologist to address his substance disorder", as he was at a "moderate risk of relapse into substance use". The applicant did not meet the criteria for diagnosis of a personality disorder. 9. Dr Rodriguez opined that the applicant's prospects of rehabilitation were "encouraging". The sentencing judge concluded that the applicant's prospects of rehabilitation were "above average", due to the presence of an intimate partner, future employment, support from his parents, the absence of an extensive criminal history, the proposition that the applicant was not anti-social (no doubt apart from his repeated offending with regard to prohibited drugs), and the view that his offending could be "explained by some psychological factors and a substance use disorder, which are treatable". 10. As I have said, the sentence ultimately imposed for this Commonwealth offence comprised a head sentence of 12 years imprisonment, and a non-parole period of 7 years and 2 months. Ground one The learned sentencing judge erred in finding that the applicant was aware that the shipment of narcotics the subject of the single count on the indictment contained a 'significant amount' of illicit drugs (ROS [14]). Submissions 1. In written submissions, senior counsel for the applicant accepted that there was "ample" evidence that the applicant rented the Riverwood premises that were used as the delivery address for the shipment of the illegal drugs. It was also accepted that the applicant was to arrange for acceptance of delivery by another person, and to pay that person whilst awaiting the package. 2. It was submitted, however, that the prosecution adduced no evidence that the applicant was aware of the number of packages, or their weight, and no evidence that the applicant saw the contents of the shipment, or was aware of their general description. 3. To the contrary, it was submitted that the only awareness the applicant had was that a package was to be delivered that contained illegal drugs. In particular, attention was drawn to the fact that one kilogram of methamphetamine had a value of something in the order of $300,000, and the small expense of the applicant in arranging receipt of the package could not establish, beyond reasonable doubt, knowledge that what was being imported was a "significant amount of illicit drugs". It was submitted that that should have led the sentencing judge to conclude the offending was of "lower objective seriousness". 4. As I have said, there was a degree of refinement in oral submissions. It was explained that the point was more that, even accepting the correctness of the general finding that the applicant had appreciated that he was involved in the importation of a "significant" quantity of prohibited drugs, that permits of a very broad range of quantities. Attention was invited to an exchange in the proceedings on sentence, during which the sentencing judge said "I have no trouble in finding beyond reasonable doubt that he must have known that there was a significant amount of drugs. Whether that's 1 kilo or 10 kilos frankly is speculation, I suppose". 5. Senior counsel for the applicant (who also appeared for him at first instance) submitted that, bearing in mind that aggravating features on sentence must be proven beyond reasonable doubt, this Court should approach the finding in the remarks on sentence as encompassing an appreciation by the applicant that he was involving himself in the importation of a quantity of drugs that was at the lower end of the range of what could be called "significant". And it was said that that would inform our reflection upon ground three. Determination 1. In accordance with the ultimate approach of senior counsel for the applicant, I shall not determine this ground separately. Rather, I shall take into account the propositions that underpin it in determining ground three. 2. I would not uphold ground one as a separate ground. Ground two The learned sentencing judge erred in giving excess weight to a finding that the applicant's motivation for his offending was financial gain in circumstances where there was no evidence that the applicant was to or did in fact receive significant monies for his role (ROS [40]). Submissions 1. In written submissions, senior counsel for the applicant invited attention to the applicant's recorded interview with police, which was said to be the only evidence about the applicant's financial reward for his involvement in the offence. As I have said, he claimed it to be the sum of $100, with which he was provided every time he visited the Riverwood address. It was submitted that the sentencing judge placed undue weight on the finding that the applicant's motivation for the offending was financial gain. 2. Again, there was a degree of refinement in oral submissions. Similarly to the approach taken with regard to ground one, it was said that, bearing in mind that the financial reward established beyond reasonable doubt was fairly paltry, this Court would reflect on the propositions underpinning ground two when considering ground three. Determination 1. Again, in accordance with the ultimate approach taken by senior counsel for the applicant at the hearing, I shall reflect on his submissions about the role of the question of motivation, and the quantum of financial gain, when discussing ground three. 2. I would not uphold ground two as a separate ground. Ground three The sentence imposed upon the applicant was manifestly excessive. Submissions 1. As discussed above, the applicant relied on the two previous grounds to establish error in the assessment of the objective gravity of the offending, which led, it was said, to the offence imposed being manifestly excessive. Determination 1. Turning to my determination of this ground, the applicant played the role of middle man in the importation of over 14 kilograms of pure methamphetamine, which had a wholesale value of over $4 million, and a street value of over $11 million. His conviction occurred after trial, and there could be no question of remorse. His background, whilst hardly privileged or fortunate, did not feature profound deprivation. Nor did the applicant suffer from any psychiatric illness or psychological difficulty, other than his addiction to amphetamines. There is an obvious need to impose upon persons who involve themselves in the importation of very significant quantities of prohibited drugs sentences that will serve the purposes of denunciation, specific deterrence, and, perhaps most importantly, general deterrence. 2. As for the submissions underpinning ground one, it is in the nature of the mental elements necessary for proof of the Commonwealth offence of importation that there will often be a lack of clarity about the awareness of an offender of the precise quantity of the illicit drug that was being imported. But here it was patently clear that substantial time, money, and effort was being expended by those involved in the joint criminal enterprise, and that none of that would have occurred unless the quantity of drug involved, and the profit to be derived from it, made all of that worthwhile. 3. In similar vein, in my opinion the precise financial gain that the applicant was to earn from his criminal involvement is not of great moment. Clearly, he was neither duped into playing his part, nor doing so as an act of charity or friendship. The whole point of running the risk of being part of a reasonably sophisticated importation is surely, except in most unusual circumstances, to derive financial gain from it. 4. It is useful to interrupt this analysis of this particular case for a moment, and reflect upon other sentences imposed for broadly similar offences of importation, both in New South Wales and elsewhere. 5. In Riddell v R [2009] NSWCCA 96; (2009) 194 A Crim R 524, the offender pleaded guilty to attempting to possess a commercial quantity of pure cocaine (over 3 kilograms) and possessing a commercial quantity of pure cocaine (over 8 kilograms). His role was assessed as an essential part of the drug importation as a storeman. He pleaded guilty at the earliest opportunity and received a 25% discount. It was also found he engaged in this criminal activity under duress. 6. On a successful Crown appeal, Mr Riddell was re-sentenced to a total effective head sentence of imprisonment for 11 years with a non-parole period of 7 years. 7. In Chan, Lo and Nguyen v R [2010] NSWCCA 153, the offenders Mr Chan and Mr Lo pleaded guilty to attempting to possess a commercial quantity of methamphetamine, in an amount over 10 kilograms, and Mr Nguyen pleaded guilty to aiding and abetting the importation of methamphetamine. The co-offenders all had no prior convictions. Mr Chan and Mr Lo's motivation was found to be purely financial gain, whereas Mr Nguyen was an occasional drug user. Mr Chan (as middle man) was found to play a greater role than either of his co-offenders, with Mr Nguyen (as a driver and lookout) being higher than that of Mr Lo (his role being lower than that of a courier). 8. The proposition on appeal that the sentences were manifestly excessive was rejected, with the sentences of Mr Chan (head sentence of imprisonment for 12 years 6 months with a non-parole period of 7 years 6 months), Mr Lo (head sentence of imprisonment for 7 years 6 months with a non-parole period of 4 years 6 months), and Mr Nguyen (head sentence of imprisonment for 10 years with a non-parole period of 6 years) remaining undisturbed. 9. In R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106, the co-offenders were sentenced by different judges and for different charges. Mr Nguyen pleaded guilty to importing a commercial quantity of cocaine (over 27 kilograms) and methamphetamine (over 13 kilograms), and Ms Pham pleaded guilty to the importation of the same amount of cocaine. In sentencing Ms Pham, the sentencing judge took into account the importation of the same amount of methamphetamine. Both the co-offenders were assessed as having a significant role in these offences. Each had no prior criminal convictions. 10. The proposition on the Crown appeal that the sentences were manifestly inadequate was upheld, with Mr Nguyen being re-sentenced to a total head sentence of imprisonment for 18 years with a non-parole period of 12 years, and Ms Pham being re-sentenced to a head sentence of imprisonment for 15 years with a non-parole period of 10 years. 11. In R v Tran, Tran & Nguyen [2013] NSWCCA 136; (2013) 233 A Crim R 167, the offenders pleaded guilty to offences of importing a commercial quantity of over 6 kilograms of heroin. A 25% discount was applied for the early pleas of guilty. They were all aged 20 at the time of the offending. They were all assessed to have played an essential role in the offending, with Mr Nguyen performing a major role, Mr Peter Tran in a lesser but significant role, and Mr Aaron Tran playing the least important role. 12. The proposition on the Crown appeal that the sentences were manifestly inadequate was rejected, with the sentences of Mr Aaron Tran (head sentence of imprisonment for 4 years 6 months and to be released after serving 2 years 9 months pursuant to a recognisance release order), Mr Peter Tran (head sentence of imprisonment for 7 years 6 months with a non-parole period of 4 years 6 months), and Mr Nguyen (head sentence of imprisonment for 9 years with a non-parole period of 5 years 6 months) left undisturbed. 13. In Webber v The Queen [2014] NSWCCA 111, the offender pleaded guilty to importing a commercial quantity of cocaine, in the amount of something over 2.2 kilograms. He had no prior convictions. The offender played a significant role in the importation of a consignment contained in an engine block. The sentencing judge found no evidence to suggest any motive other than financial gain. A 25% discount was allowed for the early guilty plea, and there was some deduction in sentence for delay. 14. The proposition on appeal that the sentence was manifestly excessive was rejected, and the head sentence of imprisonment for 11 years with a non-parole period of 7 years was undisturbed. 15. In R v Onyebuchi; Ex parte Commonwealth Director of Public Prosecutions [2016] QCA 143, the offender pleaded guilty to aiding and abetting the importation of a commercial quantity of methamphetamine, in the amount of something over 790 grams. He had no prior convictions, and was aged 29 years. His role was not that of a principal, but was essential to the exercise. He stood to benefit financially from his role. His plea was entered at the earliest opportunity, and he was found to be remorseful and to possess reasonable prospects of rehabilitation. 16. On a successful Crown appeal, Mr Onyebuchi was re-sentenced to a head sentence of imprisonment for nine years, with a non-parole period of four years six months. 17. In Obiekwe v R [2018] NSWCCA 55, the offender pleaded guilty to importing a commercial quantity of methamphetamine, in the amount of over 17 kilograms. He had no prior convictions and was aged 31 years. His role in the importation was central and involved a significant degree of planning. 18. The Crown conceded error on appeal, as the sentencing judge did not take into account the utilitarian discount for his guilty plea in accordance with Xiao v R [2018] NSWCCA 4. However, the Court found no lesser sentence was warranted in law. The head sentence of imprisonment for 12 years with a non-parole period of seven 7 was maintained. 19. Finally, in Stipkovich v The Queen [2018] WASCA 63, the offender was convicted following a trial of one count of attempting to possess a commercial quantity of methamphetamine, in an amount of over 7 kilograms. He had a criminal record that included a previous drug-related offence of possessing a smoking implement, and was aged 47 years. His role was assessed as being "pivotal in the process". Despite being found guilty, the offender maintained his innocence. 20. The proposition on appeal that the sentence was manifestly excessive was rejected, and the head sentence of imprisonment for 14 years with a non-parole period of 7 years was undisturbed. 21. Returning now to my analysis of the circumstances as a whole of the applicant, it may be accepted that it was not proven that the applicant was aware of the precise quantity of the drug that was being imported. But as a matter of common sense, he certainly must have appreciated that it was a significant quantity. 22. Similarly, even allowing for the proposition that the only financial gain that could be proven beyond reasonable doubt were the reasonably limited payments that he received, still and all he involved himself in the importation of a very large quantity of a prohibited drug in order to benefit financially. 23. Bearing in mind not only those unassailable facts, but also all of the other aspects of the matter, and in the context of my brief conspectus of other sentences imposed or countenanced by intermediate appellate courts throughout Australia, I think that the sentence imposed upon the applicant can be described as not insubstantial. It does not, however, possess the attribute of being manifestly excessive. 24. I would therefore not uphold ground three. Conclusion and proposed orders 1. In short, I would not uphold any ground of appeal against sentence, whether considered individually or as a whole. 2. I therefore propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed. ********** 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: 01 August 2018