Citation: Regina v Heeng UNG [2000] NSWCCA 195
Court: New South Wales Court of Criminal Appeal
Date: 29 May 2000
Judge(s): Ireland J, Hulme J, Smart AJ
Background
The appellant was convicted in the District Court of being knowingly concerned in the importation into Australia of not less than the commercial quantity of heroin. He was sentenced to 16.5 years imprisonment with a non-parole period of 11 years. The heroin in question weighed approximately 54.5 kilograms pure and had a wholesale value of around $14.5 million and a street value approaching $110 million.
The Crown case rested entirely on circumstantial evidence. There was no dispute that heroin had been imported or that the appellant was involved in the importation. The sole issue at trial was whether the appellant knew the shipment contained heroin. The Crown alleged that the appellant was closely associated with a co-offender, Mrs Vo, who arranged the importation through her company, and that his conduct and the surrounding circumstances demonstrated the requisite knowledge.
The key piece of contested evidence arose from a listening device recording made during the unloading of the container at a shop in Lansvale. The recording captured Mrs Vo, while the appellant was inside the container, calling out words which the Crown interpreted as asking whether he knew which boxes contained the heroin. The appellant appealed against both his conviction and sentence.
Legal Issues
- Whether the statements made by the co-offender (Mrs Vo) during the unloading operation were admissible, given that they were made out of court and were potentially hearsay
- Whether the purpose for which the statements were admitted was proper, given that they were used as evidence of the appellant's knowledge
- Whether the trial judge was required to give the jury a warning about the risks of acting on a co-offender's evidence, even in the absence of any request for such a warning
- Whether the sentence of 16.5 years was manifestly excessive
Decision
The Court dismissed the conviction appeal on all grounds. On the admissibility of Mrs Vo's statements, the Court found that the evidence had been admitted not for the truth of any assertion contained in it, but for the circumstantial inference it supported about the appellant's state of knowledge. No objection had been taken to the admissibility of the evidence at trial, and no warning had been sought from the trial judge.
On the question of whether the trial judge was obliged to give an unrequested warning about the co-offender's evidence, the Court found no basis for concluding that the absence of such a warning constituted error. The appellant had not sought the warning, and the circumstances did not require the judge to give one of his own motion in a way that would ground an appellate ground of appeal.
On sentence, Smart AJ concluded that the sentence, while heavy, was well within the permissible range. The sentencing judge had found that the appellant was not a principal but had played a significant facilitative role, and had known that a large quantity of heroin was involved. The judge had also taken into account the absence of remissions in New South Wales when adjusting the head sentence from 25 years down to 16.5 years.
Hulme J agreed with the orders but expressed a note of reservation. His Honour observed that, given the quantity of heroin involved (some 36 times the minimum commercial quantity) and its extraordinary value, there was a substantial argument that the sentence was actually below the appropriate range, though no final conclusion was required as the Crown had not appealed.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted.
- Appeal against sentence dismissed.
Key Takeaways
- Statements made by a co-offender at the scene of an offence may be admissible not as hearsay, but as circumstantial evidence from which inferences about an accused's knowledge can be drawn, provided the evidence is not admitted for the truth of any assertion it contains.
- Where no objection to admissibility was raised at trial and no warning was requested from the trial judge, an appellate court will be slow to find error in the absence of such a warning regarding a co-offender's evidence.
- A sentencing court may legitimately adjust a federal head sentence downward to account for the absence of remissions in New South Wales, consistent with the principles established in cases such as El Karhani.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a sentence of 16.5 years for facilitating the importation of more than 54 kilograms of pure heroin was within the permissible range, even where the offender was not found to be a principal.
- Hulme J's separate observation that the sentence may have been below the appropriate range illustrates the very high end of culpability that courts associate with large-scale commercial heroin importations, even for participants whose roles fall short of the organising principal.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
- Customs Act (Cth)
- Crimes Act 1914 (Cth), s 16G
Cases:
- Walton v The Queen (1988-1989) 166 CLR 283
- R v Chin (1985) 69 ALR 1
- Lee v The Queen (1998-1999) 195 CLR 594
- R v Sandford (1994) 72 A Crim R 160
- El Karhani (1991) 51 A Crim R 123
- Lee Vanit v R (1997) 190 CLR 378
- R v Olbrich (1999) 73 ALJR 1550