Citation: Regina v Chanthaboury [2001] NSWCCA 74
Court: New South Wales Court of Criminal Appeal
Date: 23 March 2001
Judge(s): Wood CJ at CL, McClellan J, Smart AJ
Background
The appellant was a courier who arrived at Sydney Kingsford Smith Airport on a flight from Buenos Aires carrying a suitcase concealing approximately one kilogram of cocaine within its framework, in contravention of s 233B(1)(b) of the Customs Act 1901 (Cth). He and a co-offender agreed to cooperate with police in a controlled delivery, which led to the arrest of the person who came to collect the drugs. The appellant then participated in a recorded police interview and admitted knowledge of the importation.
After a first trial ended with a hung jury, the appellant pleaded guilty on the first day of the second trial. He was sentenced in the District Court to seven and a half years imprisonment with a non-parole period of four and a half years.
The appellant sought leave to appeal against the severity of that sentence, arguing that the sentencing judge had failed to make sufficient allowance for the assistance he had provided to authorities.
Legal Issues
- Whether the sentencing judge gave adequate weight to the assistance the appellant provided to police, including the controlled delivery and his recorded admissions
- Whether the sentence was excessive when measured against the guidelines set out in R v Wong & Leung for couriers importing trafficable quantities of cocaine in the one to two kilogram range
- Whether the discount for the guilty plea was appropriately calibrated, given it was entered only on the first day of the second trial
Decision
The Court of Criminal Appeal accepted that the relevant sentencing guidelines placed an appropriate head sentence for a courier importing between one and two kilograms of cocaine in the range of seven to ten years. Given the quantity involved (in the order of one kilogram or slightly over), and the appellant's role, the Court considered a sentence toward the higher end of that range was warranted before applying any discounts. Only a modest discount for the guilty plea was appropriate, because it was not entered until the commencement of the second trial.
The Court found that the assistance provided by the appellant was significant. He cooperated fully with police in the controlled delivery, gave a detailed record of interview, and offered to give evidence at the trial of the person who collected the drugs. The police confirmed he made an honest attempt to identify others involved in the importation and distribution network. The Court also noted the appellant would serve his sentence in protective custody due to the risk of reprisal, a circumstance flowing directly from his cooperation.
McClellan J held that a sentence of eight and a half years (after the plea discount but before the cooperation discount) was appropriate. A further reduction for assistance brought the head sentence down to six years. The Court was satisfied the sentence imposed at first instance was excessive because it failed to give sufficient weight to the cooperation.
Orders Made
- Leave to appeal granted
- Original sentence quashed
- Appellant sentenced to six years imprisonment commencing 4 August 1998, with a non-parole period of four years commencing on the same date
Key Takeaways
- A significant and genuine offer of cooperation with authorities, including participation in a controlled delivery and willingness to give evidence at a co-offender's trial, can warrant a substantial reduction in sentence beyond any discount for a guilty plea.
- Under the sentencing guidelines affirmed in R v Wong & Leung, couriers importing cocaine in the one to two kilogram range attract a head sentence in the range of seven to ten years, with the precise point within that range depending on the quantity and the offender's specific role.
- Where a guilty plea is entered only at the commencement of a second trial (after a hung jury at the first), only modest utilitarian value attaches to that plea, and the discount is correspondingly limited.
- The Court of Criminal Appeal treated the need to serve a sentence in protective custody, arising from the risk of reprisal for cooperation, as a relevant sentencing consideration.
- In dismissing the comparison with the co-offender's sentence, the Court assessed the appellant's assistance as greater than that of his co-offender, justifying a more substantial discount despite the co-offender having faced a full trial.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), s 233B(1)(b)
- Crimes Act 1914 (Cth), s 16G
Cases:
- R v Wong & Leung (1999) 108 A Crim R 531
- R v K [2000] NSWCCA 200
- R v Ngui & Tiong (2000) 111 A Crim R 593
- R v Karacic [2001] NSWCCA 12
- R v Thompson; R v Houlton (2000) 49 NSWLR 383
- R v Derbas (1983) 6 Petty Session Review 2881
- R v Chow (1987) 30 A Crim R 103
- R v Mai & Tran (1992) 60 A Crim R 49
- R v Cartwright (1989) 17 NSWLR 243
- R v Raz (unreported, 17 December 1992, NSWCCA)
- R v Laurentiu & Becheru (1992) 63 A Crim R 402