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Court of Criminal Appeal 9 April 1999

Regina v Chi Wah Ho

[1999] NSWCCA 67

Drugs
CRIMINAL LAW SENTENCING 17 KGS OF PURE HEROIN INVOLVED

Citation: Regina v Chi Wah Ho [1999] NSWCCA 67
Court: NSW Court of Criminal Appeal
Date: 9 April 1999
Judge(s): Studdert J, Stein JA, Smart AJ

Background

The appellant, a Hong Kong national, pleaded guilty in the District Court to possessing a commercial quantity of heroin contrary to s 233B of the Customs Act. The charge arose from events in July 1997 when approximately 17 kg of pure heroin was imported into Australia concealed in marble furniture, delivered to premises in Concord, Sydney.

The appellant made three visits to those premises, broke apart the furniture, discovered the heroin, weighed it, and placed it in bags which were later collected by a third party. Police arrested the appellant at his hotel, finding $10,000 cash, and tools consistent with the furniture-dismantling exercise. His female companion was also found to have prior drug-related convictions in Hong Kong alongside the appellant.

District Court Judge Gibson QC sentenced the appellant to 14 years' imprisonment with a non-parole period of nine years. The maximum penalty under the Customs Act for this quantity was life imprisonment. The appellant sought leave to appeal, arguing the sentence was manifestly excessive and affected by several errors of principle.

  • Whether the sentencing judge erred in classifying the appellant as occupying a role "somewhere between a courier and a warehouser" rather than as a mere courier
  • Whether the sentencing judge erred in treating the appellant's female companion's prior drug convictions in Hong Kong as a relevant sentencing consideration
  • Whether the overall sentence of 14 years with a nine-year non-parole period was manifestly excessive

Decision

The Court of Criminal Appeal rejected the appellant's account to police, which Studdert J described as "fanciful." The appellant had claimed he discovered the heroin only after being asked by a mysterious contact to dismantle the furniture, and that he feared reprisals if he fled. The objective evidence, including the three organised visits to the premises, the use of mobile phones, and the methodical weighing and repacking of the drugs, supported the sentencing judge's conclusion that the appellant's role exceeded that of a mere courier. That characterisation was open to the judge on the facts.

On the companion's prior convictions, the Court found no error. The sentencing judge's observation that the appellant's female companion had also been his accomplice in prior Hong Kong drug offences was a relevant consideration in assessing the appellant's background and prior conduct. The Court found the remark was not an inappropriate one.

As to manifest excess, the Court distinguished this case from the lower end of the commercial range. Relying on the Court's earlier decision in Bernier, Studdert J noted that sentences of eight and a half to eleven years are appropriate for courier-level importation at the lower end of the commercial range. The present case involved a quantity approximately eleven times the statutory commercial minimum, and a role greater than a simple courier. The Court found the sentence of 14 years with a nine-year non-parole period was within the available range and altogether appropriate.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's characterisation of an offender's role is a factual finding that will stand where it is open on the evidence, even where the offender offers an exculpatory account.
  • A sentence of 14 years with a nine-year non-parole period for possession of approximately 17 kg of pure heroin (roughly eleven times the commercial quantity threshold) was held to fall within the available sentencing range where the maximum penalty was life imprisonment.
  • Sentencing ranges established in earlier decisions for quantities at the lower end of the commercial range do not operate as a ceiling; significantly larger quantities warrant proportionately heavier sentences.
  • The prior criminal history of a co-offender who accompanied the appellant to Australia was a legitimate consideration in the sentencing exercise, not an error of principle.
  • Under the Customs Act (ss 233B and 235(2)), possession of heroin in quantities at the commercial level attracts a maximum of life imprisonment, and for sentencing purposes heroin and cocaine offences are treated as equally serious (per R v Ferrer-Esis).

Legislation and Cases Referenced

Legislation:
- Customs Act, ss 233B, 235(2)

Cases:
- R v Winchester (1992) 58 A Crim R 345
- R v Bernier (unreported, NSWCCA, 19 May 1998)
- R v Ferrer-Esis (1991) 55 A Crim R 231