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Court of Criminal Appeal 17 December 1999

REGINA v CHEUNG

[1999] NSWCCA 421

Drugs
CRIMINAL LAW VERDICT FACTUAL BASIS OF VERDICT ENQUIRY BY JUDGE OF JURY DISCRETION SENTENCE

Citation: Regina v Cheung [1999] NSWCCA 421
Court: New South Wales Court of Criminal Appeal
Date: 17 December 1999
Judge(s): Newman J; Simpson J; Hidden J

Background

The applicant, a Senior Inspector in the Hong Kong Customs Service, was convicted after trial in the Supreme Court of being knowingly concerned in the importation of approximately 38 kilograms of pure heroin into Australia, contrary to the Customs Act (Cth) 1901. The heroin was shipped from Hong Kong via Vanuatu, concealed within a freezer and water heater, and arrived at a Sydney container terminal in May 1989. The Crown's case was that the applicant had instigated, planned, coordinated, financed and supervised the entire operation, exploiting his law enforcement position and his relationships with informants to facilitate the drug network.

Following conviction in May 1993, the sentencing judge, Badgery-Parker J, imposed a sentence of life imprisonment with a non-parole period of twenty-one years and eleven months, deemed to have commenced in February 1990. The applicant lodged a conviction appeal, which was dismissed in November 1997, but did not initially lodge a sentence appeal in time, believing incorrectly that his original Notice of Appeal had included one.

The present application for leave to appeal against sentence was therefore filed years out of time. Given the seriousness of the matter and the applicant's genuine but mistaken belief about the original notice, the Court of Criminal Appeal agreed to hear the application on its substantive merits.

  • Whether the sentencing judge was obliged to ask the jury the specific factual basis upon which it had reached its guilty verdict, before proceeding to sentence.
  • Whether the sentencing judge erred in his approach to finding the facts for sentencing purposes, given that the Crown had advanced two distinct bases for the guilty verdict.
  • Whether the applicant's motive (said to be protection of informants rather than personal gain) should have resulted in a significantly reduced sentence of three to five years.
  • Whether the life sentence was manifestly excessive, including whether this was properly characterised as a "worst type of case."
  • Whether any error constituted a wrong decision on a question of law causing a substantial miscarriage of justice under the Criminal Appeal Act 1912.

Decision

The Court dismissed the appeal, with Simpson and Hidden JJ agreeing with Newman J's reasons and the proposed order. Newman J granted leave to appeal given the seriousness of the matter, but found no error warranting appellate intervention.

On the question of whether the sentencing judge should have asked the jury the factual basis for its verdict, the Court held that there is a discretion to make such an enquiry, but no obligation to do so. Badgery-Parker J was not required to seek clarification from the jury before proceeding to sentence, and his decision not to do so was not an error.

On the sentencing facts, the trial judge was entitled to find the facts himself following the verdict. The Court noted that, while it may have been preferable for the indictment to have contained two counts reflecting the significantly different bases on which the Crown put its case, no such point had been taken at trial or in the earlier conviction appeal. It was therefore open to the sentencing judge to arrive at the factual conclusions he did, consistent with the approach approved in the relevant authorities.

The applicant's submission that his motive had been to protect informants, and that this warranted a sentence of three to five years, was rejected. The sentencing judge had emphatically declined to accept that the applicant was motivated by altruism, and the Court upheld that finding. The jury's verdict necessarily reflected an intention to participate in the unlawful importation, and motive could not have formed part of the jury's deliberations on that question.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge has a discretion, but not a duty, to ask a jury the specific factual basis for its guilty verdict before proceeding to sentence.
  • Where the Crown advances two distinct bases for a conviction but no separate counts are included on the indictment and no objection is raised at trial or on conviction appeal, the sentencing judge may find the facts for sentencing purposes in a manner consistent with the jury's verdict generally.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's factual findings adverse to an applicant's claimed motive will not be disturbed on appeal where those findings are open on the evidence.
  • No error was established in characterising the offending as among the worst of its type: a law enforcement officer exploiting his position to instigate, plan and coordinate a large-scale heroin importation represented an extreme case warranting a life sentence.
  • Late applications for leave to appeal against sentence may still be entertained by the Court of Criminal Appeal in cases of sufficient seriousness and where a genuine (though mistaken) belief explains the delay.

Legislation and Cases Referenced

Legislation:
- Customs Act (Cth) 1901, s 233B(1)(d)
- Criminal Appeal Act 1912 (NSW), s 61

Cases:
- R v Isaacs (1996–97) 41 NSWLR 374
- Veen v The Queen (1979) 143 CLR 458
- R v Low (1991) 57 A Crim R 8
- R v Petroff (1980) 2 A Crim R 101
- R v Cawthorne [1996] 2 Cr App R (S) 445
- R v Warner [1967] WLR 1209
- R v Kingswell (1985) 159 CLR 264
- R v Bright [1916] 2 KB 441
- R v Martin [1981] 2 NSWLR 640
- R v Cheung (CCA, unreported, 21 November 1997)