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Court of Criminal Appeal 19 March 2002

R v Chan

[2002] NSWCCA 71

Also reported as (2002) 128 A Crim R 119
Drugs
SENTENCE APPEAL HEAD SENTENCE NON PAROLE PERIOD HIERARCHY OF OFFENDERS IMPORTATION OF DRUGS

Citation: Chan v R [2002] NSWCCA 71
Court: NSW Court of Criminal Appeal
Date: 19 March 2002
Judge(s): Dowd J, Greg James J, Smart AJ

Background

The appellant, Chi Keung Chan, was a Hong Kong fisherman with no prior criminal history who was recruited in mid-1998 to drive a speedboat as part of a large-scale heroin importation operation. His role involved travelling from Hong Kong on the vessel MV Uniana, collecting heroin off the Thai/Burmese coastline, and ferrying 253.3 kilograms of pure heroin to Grant's Beach near Port Macquarie, where he was arrested in the early hours of 14 October 1998. He was found soaking wet in a wetsuit, surrounded by bags of heroin on the beach.

Chan pleaded guilty in the District Court to being knowingly concerned in the importation of a commercial quantity of heroin, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). The maximum penalty for that offence is life imprisonment. Shadbolt DCJ sentenced him to 13 years imprisonment with a non-parole period of 10 years, after applying substantial discounts for Chan's guilty plea, assistance already provided to authorities, and an undertaking to provide future assistance against three co-accused.

Chan sought leave to appeal against the severity of that sentence, arguing the head sentence and non-parole period were excessive in the circumstances.

  • Whether the sentencing judge erred in setting a starting point of 36 years for the objective criminality of the offence
  • Whether the discounts applied under s 16G of the Crimes Act 1914 (Cth) for the absence of remissions, and for the guilty plea and cooperation, were calculated correctly
  • Whether the resulting head sentence of 13 years and non-parole period of 10 years adequately reflected the gravity of the offence
  • Whether the non-parole period fell within an appropriate range given the accumulation of discounts applied

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error that would warrant interference with the sentence. The court accepted that a starting point of 36 years for the objective seriousness of the offence fell within the permissible range, though at least one member of the Court indicated a higher starting point would have been appropriate. The sophistication of the enterprise, the quantity of heroin involved, and Chan's sustained and specialist role over approximately six months all supported the serious assessment of his criminality.

The court found that the discounts applied by Shadbolt DCJ, including a 27 per cent reduction under s 16G (slightly below the usual one-third discount for the absence of remissions in New South Wales), were within the judge's permissible discretion. The court noted that the one-third s 16G reduction is not a fixed rule. The additional discounts for the guilty plea, cooperation already provided, and the undertaking of future assistance were also accepted as properly applied.

The Court expressed concern that the accumulation of large discounts risked producing a final sentence that did not sufficiently reflect the gravity of the offence and the requirement of just punishment. Taking account of all objective and subjective factors, including Chan's lack of prior convictions, contrition, rehabilitation prospects, and the likelihood of serving his sentence in the harsher conditions of protective custody, the court concluded it was not open to impose a lesser head sentence or non-parole period than that imposed at first instance.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • A starting point of 36 years for a very serious commercial heroin importation, involving 253 kilograms and a sophisticated transnational operation, was held to fall within the permissible sentencing range.
  • Under s 16G of the Crimes Act 1914 (Cth), courts must adjust sentences to account for the absence of remissions in New South Wales, but the commonly applied one-third reduction is not immutable and judges retain discretion to depart from it.
  • Accumulating multiple discounts (for remissions, guilty plea, cooperation, and future assistance undertakings) carries the risk that the resulting sentence may fail to adequately reflect the gravity of the offence; courts must guard against that outcome.
  • A defendant's lack of prior criminal history carries limited mitigating weight in cases involving very serious drug importation offences.
  • In dismissing the appeal, the Court confirmed that a sentence may be upheld even where an appellate judge would personally have selected a higher starting point, provided the sentence imposed falls within the range of sentences open to the sentencing court.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A, 16G, 21
- Customs Act 1901 (Cth), s 233B(1)(d)
- Criminal Appeal Act 1912 (NSW)
- Judiciary Act 1903 (Cth)

Cases
- Cheng v The Queen (2000) 74 ALJR 1482
- DPP (Cth) v El Karhani [1990] 21 NSWLR 370
- House v The King (1936) 55 CLR 499
- Lowe v R (1984) 154 CLR 606
- Power (1973) 131 CLR 623
- R v Budiman (1998) 102 A Crim R 411
- R v Bradley (1997) 137 FLR 314
- The Queen v Leroy [1984] 2 NSWLR 441
- Wong v The Queen; Leung v The Queen [2001] 76 ALJR 79
- LI [1998] 1 VR 637
- R v Cheung (WA) (1997) 97 A Crim R 283
- R v Tan (Vic) (1995) 78 A Crim R 300