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7
Court of Criminal Appeal 17 June 2002

Regina v Cheng

[2002] NSWCCA 225

Drugs
SENTENCING SEVERITY APPEAL WHETHER MANIFESTLY EXCESSIVE.

Citation: Regina v Cheng [2002] NSWCCA 225
Court: NSW Court of Criminal Appeal
Date: 17 June 2002
Judge(s): Adams J; Carruthers AJ

Background

The appellant, a young Malaysian-born woman who had migrated to Australia with her mother in 1987, was convicted by jury in the District Court of one count of conspiracy to supply heroin in an amount not less than a large commercial quantity. The offence, under the Drug Misuse and Trafficking Act 1985, carries a maximum penalty of life imprisonment. A "large commercial quantity" of heroin is defined as 1 kilogram.

The prosecution case established that between March and June 1999, the appellant participated in a network supplying heroin to an undercover Queensland police officer through a series of coordinated transactions. Police intercepted telephone calls indicating that the appellant took and relayed orders, arranged deliveries, and on at least one occasion alerted a co-conspirator that police were following her.

At first instance, Judge Knight DCJ sentenced the appellant to 14 years' imprisonment with a non-parole period of 8 years, both dating from 3 July 1999 when she was taken into custody. The appellant sought leave to appeal against the severity of that sentence.

  • Whether the sentence of 14 years with an 8-year non-parole period was manifestly excessive in all the circumstances.
  • Whether the sentencing judge gave adequate weight to the appellant's subjective circumstances, including her youth, lack of prior criminal history, and positive conduct in custody.
  • Whether a variation to the statutory ratio between head sentence and non-parole period was warranted by special circumstances.

Decision

The Court of Criminal Appeal reviewed a series of comparable sentencing decisions involving large commercial quantity heroin offences, including cases where offenders had pleaded guilty and received discounted sentences. The court found the case of Pham particularly instructive. In that matter, the court had confirmed a head sentence with a nominal starting point of 14 years, reduced by 25% for a guilty plea, for an offender classified as a "secondary principal" with prior criminal history and a history of drug use.

By contrast, the appellant in the present case had no prior criminal record, was relatively young (approaching 28 at the time of the appeal), had demonstrated exemplary conduct in custody, and had good prospects for rehabilitation. These subjective circumstances, the court found, were significant and had not been adequately reflected in the sentence imposed.

The court concluded that the sentence of 14 years fell outside the range of the sentencing discretion available to the District Court judge. Taking into account the appellant's role, the relevant comparable cases, and the weight of her subjective circumstances, the court reduced the head sentence to 12 years and fixed a non-parole period of 7 years, also finding that special circumstances justified departing from the standard statutory relationship between the head sentence and non-parole period.

Orders Made

  • Leave to appeal granted and the appeal allowed.
  • The sentence imposed by Knight DCJ quashed.
  • In substitution, the appellant sentenced to 12 years' imprisonment, commencing 3 July 1999 and expiring 2 July 2011.
  • Non-parole period of 7 years fixed, commencing 3 July 1999 and expiring 2 July 2006, on which date the appellant becomes eligible to apply for release to parole.

Key Takeaways

  • The Court of Criminal Appeal confirmed that subjective circumstances, including youth, absence of prior criminal history, good conduct in custody, and rehabilitation prospects, can justify reducing a sentence that would otherwise fall outside the available discretionary range.
  • A nominal starting point of 14 years for a large commercial quantity heroin conspiracy offence may be appropriate, but the final sentence must reflect significant discounts where the offender's personal circumstances warrant it.
  • Comparative sentencing decisions involving guilty pleas are relevant to calibrating a sentence after trial, but the absence of a guilty plea discount does not automatically mean the head sentence should equal the nominal starting point applied in those cases.
  • "Special circumstances" justifying an extended parole period (that is, a longer gap between head sentence and non-parole period than the statutory default) were found to exist on the facts, given the appellant's rehabilitation prospects and the length of time she would spend in custody.
  • Sufficient evidence of a "middle management" role in a drug supply network, established through telephone intercepts and surveillance, can sustain a conviction and places the offence at the more serious end of the sentencing range, even where the offender has no prior record.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 26, 33(3)(a)
- Customs Act 1901 (Cth), s 233(1)

Cases:
- R v Cassar [1999] NSWCCA 152
- R v Dodd (1991) 57 A Crim R 349
- R v Hong (Lu) and Lam (Vi) [2000] NSWCCA 213
- R v Liang, unreported, CCA 2/6/95
- R v Paul Kon Lim, unreported, 28/9/93
- R v Pauna, unreported, CCA 2/12/97
- R v Pham [2001] NSWCCA 307
- R v Wan & Phan [2001] NSWCCA 501
- R v Wong & Leung (1999) 48 NSWLR 340
- R v Wong & Leung (2001) 76 ALJR 79