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Court of Criminal Appeal 22 October 1999

R v Chung

[1999] NSWCCA 330

Drugs
CRIMINAL LAW SENTENCE LIFE SENTENCE

Citation: R v Chung [1999] NSWCCA 330
Court: NSW Court of Criminal Appeal
Date: 22 October 1999
Judge(s): Sully J, Ireland J, Hidden J

Background

The applicant was convicted in the District Court following a jury trial on a charge of supplying not less than the large commercial quantity of heroin. The offending spanned June to November 1993, and the sentencing judge assessed the quantity at approximately 63 kilograms, well above the statutory threshold of one kilogram for a "large commercial quantity."

The primary evidence against the applicant came from an accomplice whose role was substantially subordinate to his. That accomplice had already been sentenced separately after a Crown appeal, receiving a nine-year term partly in recognition of extensive cooperation with authorities. Evidence established that the applicant occupied a position toward the top of a well-organised criminal distribution network, financing and directing operations for purely financial gain.

Kirkham DCJ sentenced the applicant to imprisonment for life under section 33(3)(a) of the Drug Misuse and Trafficking Act 1985. Under section 33A(1) of the same Act, such a sentence means imprisonment for the term of the prisoner's natural life. The Court of Criminal Appeal understood this to be the first life sentence passed under that Act.

  • Whether a sentence of imprisonment for life was open to the sentencing judge on the facts, having regard to the applicant's role, culpability, and personal circumstances.
  • Whether the sentencing judge erred in the exercise of his discretion such that appellate intervention was warranted.
  • What principles govern the imposition of a life sentence for serious drug trafficking offences.

Decision

Hidden J, with whom Sully J and Ireland J agreed, identified the applicable standard as the familiar principles governing appellate review of a judicial discretion. The question was not whether the Court of Criminal Appeal would itself have imposed a life sentence, but whether it had been shown that Kirkham DCJ fell into error. Hidden J concluded that, on the facts, it was open to his Honour to find the applicant's culpability warranted the maximum penalty.

The applicant's conduct satisfied the criteria set out in section 431B(2) of the Crimes Act 1900: the offending involved a high degree of planning and organisation, the use of others acting at his direction, his sole or principal responsibility for planning, organising and financing the operation, high-purity heroin, and purely financial motivation. Hidden J acknowledged that the applicant had no recorded convictions and a disturbed upbringing, but found those matters were wholly outweighed by the community interest in retribution and deterrence.

Hidden J also noted the obvious gravity of a natural life sentence and observed that in many serious drug trafficking cases a very long fixed term, with a minimum term ensuring a significant proportion of life in custody, would represent an appropriate and severe response. A life sentence, however, remained an available outcome where the circumstances justified it.

Sully J added separate observations drawing on a passage from Allen J in an earlier unreported decision concerning murder. His Honour reasoned that the same principles applied, adapted appropriately, to the gravest drug trafficking offences. He characterised the applicant as falling within the category of an offender embarking on a course of criminality so serious that only the prospect of the maximum available punishment could deter it.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that imprisonment for life under sections 33(3)(a) and 33A(1) of the Drug Misuse and Trafficking Act 1985 means imprisonment for the term of the prisoner's natural life, with no prospect of release.
  • In dismissing the appeal, the Court found it was open to the sentencing judge to conclude that the applicant's position near the top of a large, organised drug distribution network, combined with the scale, purity, and financial motivation of the offending, warranted the statutory maximum.
  • A sentence of imprisonment for life will not be imposed lightly; in many serious drug trafficking cases, a lengthy fixed term with a substantial minimum will be the appropriate response, even where the offending is grave.
  • No error in the exercise of sentencing discretion was established, and appellate intervention requires more than the appellate court reaching a different conclusion from the sentencing judge.
  • The criteria in section 431B(2) of the Crimes Act 1900, though arising in another statutory context, were noted as a relevant reference point for identifying features that may support a life sentence in cases of serious drug supply.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 33(3)(a), 33A(1)
- Crimes Act 1900 (NSW), ss 19A, 431B(2)
- Sentencing Act 1989 (NSW)

Cases:
- Huang (1994) 78 A Crim R 111
- R v Rose [1999] NSWCCA 327
- R v Garforth (CCA, unreported, 23 May 1994)
- R v Petroff (Hunt J, unreported, 12 November 1991)
- Veen v The Queen [No 2] (1987-88) 164 CLR 465
- Baker (unreported, CCA (NSW), 20 September 1995) (Allen J)
- Cheung Wai Man & ors (unreported, 22 March 1991) (Sully J)