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Court of Criminal Appeal 14 July 2000

Regina v Chen

[2000] NSWCCA 267

Other
CRIMINAL LAW AND PROCEDURE SENTENCE SERIOUS CIRCUMSTANCES OF OFFENCE

Citation: Regina v Chen [2000] NSWCCA 267
Court: NSW Court of Criminal Appeal
Date: 14 July 2000
Judge(s): Meagher JA, Grove J, Bergin J

Background

The applicant, an Australian citizen originally from Fujian Province in China, was convicted after trial in the Sydney District Court of conspiring with others to bring non-citizens into Australia unlawfully. The offence related to events in April 1990, when 69 people were concealed aboard a vessel travelling from Hong Kong toward the eastern Australian coast. The applicant played a sufficiently significant role in the organisation to receive a large cash transfer, part of which funded the purchase of a boat intended to ferry the concealed passengers from the incoming vessel to shore.

The plan was ultimately frustrated when the applicant damaged that boat, rendering it unnavigable. Notwithstanding that, the conspiracy was well advanced and the Crown case was serious. The applicant was sentenced to 15 months' imprisonment, with release on recognisance after 12 months subject to a further three-year good behaviour bond. A vessel valued at $35,000 to $40,000 was also forfeited.

The applicant sought leave to appeal against the severity of his sentence, raising two discrete challenges to the sentencing judge's approach.

  • Whether the sentencing judge erred in applying the reduction required by section 16G of the Commonwealth Crimes Act, which obliges a court to account for the absence of remissions in the state where sentence is served (New South Wales having no remission system)
  • Whether the ratio of the recognisance release order to the total sentence (approximately 80 percent) was disproportionate, given that the generally accepted range for a non-parole period sits between 60 and 66.67 percent of the total sentence

Decision

On the section 16G ground, the Court of Criminal Appeal found no error in the sentencing judge's approach. His Honour had expressly stated he turned his mind to the section 16G requirement, and the Court accepted that statement. While arithmetic suggested some departure from the commonly applied one-third reduction for the absence of remissions, the Court noted that the one-third figure is no more than an approximation and that any departure in this case was not substantial in the overall context of the matter.

On the non-parole period ground, the Court acknowledged that the 12 months served against a 15-month total represented roughly 80 percent, exceeding the usual 60 to 66.67 percent range. However, the sentencing judge retained a proper discretion to assess the seriousness of the applicant's involvement and to depart from the typical proportion. His Honour had also factored in pre-sentence custody and the section 16G adjustment. The Court found the outcome was within the available range of discretion.

Leave to appeal was granted, but the appeal itself was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed
  • Orders of the Court as proposed by Grove J

Key Takeaways

  • The one-third reduction for the absence of remissions under section 16G of the Commonwealth Crimes Act is an approximation only; a sentencing court's departure from that figure will not constitute error if it falls within a reasonable range given the overall circumstances.
  • A non-parole period exceeding the commonly cited 60 to 66.67 percent range does not automatically constitute a sentencing error, provided the sentencing court has exercised its discretion appropriately and addressed the relevant factors.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an explicit statement by a sentencing judge that a statutory requirement was considered will generally satisfy the appellate court that the requirement was addressed, even where the judge provided limited reasons for the precise figure reached.
  • The circumstances of this offence were characterised as serious: 69 persons were secreted in a vessel carrying no legitimate cargo, and the applicant occupied a position of sufficient trust or seniority to control substantial funds and arrange shore-side logistics.
  • Where the maximum penalty has been increased by the legislature after an offence is committed, the Court applied the penalty framework in force at the time of the offence.

Legislation and Cases Referenced

Legislation:
- Commonwealth Crimes Act, section 16G (requirement to account for absence of remissions)
- Migration Act (the provision under which the conspiracy charge was laid, section not specified in the judgment)

Cases cited (as referenced in argument, not analysed in the judgment):
- El Karhani
- Beeforth
- Bradley
- Spiteri