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Court of Criminal Appeal 7 November 2003

Regina v Jack Chick Chen

[2003] NSWCCA 326

Also reported as (2003) 138 A Crim R 433
Drugs

Citation: Regina v Jack Chick Chen [2003] NSWCCA 326
Court: NSW Court of Criminal Appeal
Date: 7 November 2003
Judge(s): Meagher JA, Sully J, Kirby J

Background

The appellant was convicted in the District Court of conspiring to import commercial quantities of heroin into Australia between January and April 2000. The Crown case established that he was the principal organiser of a sophisticated, ongoing importation scheme in which heroin was concealed within parcels of ostensible computer parts shipped from Hong Kong to Sydney. The operation involved a network of co-conspirators handling freight collection, vehicle logistics, and distribution.

The conspiracy involved four identified consignments over a five-week period. Three of those consignments contained heroin, including one interception by police that yielded approximately 2.807 kilograms of pure heroin. The fourth was a "dummy" run, apparently designed to test whether law enforcement had compromised the network following an earlier arrest.

The appellant initially pleaded not guilty and stood trial before a jury. He changed his plea to guilty on 3 July 2002, after the Crown case was nearly complete. He was sentenced in the District Court to 40 years imprisonment with a non-parole period of 26 years.

  • Whether the 40-year head sentence was manifestly excessive having regard to the objective gravity of the offending
  • Whether insufficient weight was given to the discount for the Commonwealth provision under section 16G of the Crimes Act 1914 (Cth), which requires a court to take into account that the offender will not be eligible for remissions available under State law
  • Whether the parity principle was properly applied, given that a co-conspirator (Phillip He) received a significantly lower sentence
  • Whether procedural unfairness at the committal stage, arising from alleged failure to disclose evidence, warranted further reduction of sentence

Decision

Sully J (with whom Meagher JA and Kirby J agreed) found that the original sentence was excessive and required correction on two related grounds: the section 16G discount was too low, and insufficient weight was given to parity with the co-offender Phillip He.

The court accepted that the objective seriousness of the offending was at the highest end of the spectrum. The appellant was the principal architect of a large-scale, commercially motivated importation conspiracy. Those findings supported a severe sentence. However, the sentencing court had applied a section 16G discount of only 20 per cent, below the ordinary range of 30 to 33 per cent, without sufficient justification. Sully J acknowledged that range is not fixed, but held that departing from it here produced an end result disproportionate to the circumstances.

On parity, the court examined the sentence received by co-conspirator Phillip He, who had pleaded guilty at an earlier stage and received a lesser sentence. The court found that a justified sense of grievance arose from the disparity and that this factor reinforced the need to recalibrate the sentence downward. The non-parole period was also recalculated as approximately 75 per cent of the head sentence, rather than the lower conventional range, reflecting the seriousness of the offending.

The appellant's additional argument, that procedural unfairness at the committal stage should have produced a further discount, was rejected. Sully J found that the core claim, that an earlier guilty plea would probably have been entered had disclosure occurred sooner, was wholly unsupported by credible evidence.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence allowed; sentence passed in the District Court quashed
  • Appellant sentenced to imprisonment for 31 years, commencing 9 April 2000 and expiring 8 April 2031, with a non-parole period of 23 years expiring 8 April 2023

Key Takeaways

  • The Court of Criminal Appeal confirmed that the section 16G discount (compensating a federal offender for the absence of State remissions) ordinarily falls within a range of 30 to 33 per cent, but that range is not rigid. A departure from it is permissible where the standard range would produce a sentence disproportionate to the circumstances of the offence.

  • Where a court departs downward from the section 16G range, the resulting sentence must still satisfy the requirement under section 17A of the Crimes Act 1914 (Cth) of being of a severity appropriate to the circumstances of the offence.

  • The parity principle remained operative even where the co-offender who received a lower sentence had pleaded guilty at an earlier point. The court considered the relative positions of the co-offenders and concluded that the disparity was sufficient to give rise to a justified sense of grievance.

  • An appellant's claim that earlier disclosure of evidence would have produced an earlier guilty plea, with flow-on benefits for sentencing, must be supported by credible evidence. Bare assertion or probability arguments without evidential foundation will not suffice.

  • In cases of large-scale commercial heroin importation where the offender is the principal organiser, courts will recognise the extreme objective seriousness of the offending. Sentence reductions based on procedural or statutory factors will be calibrated against that backdrop, not applied mechanically.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B
- Drug Misuse and Trafficking Act (NSW)
- Crimes Act 1914 (Cth), ss 16G, 17A
- Criminal Appeal Act 1912 (NSW)

Cases
- Postiglione v The Queen (1996-7) 189 CLR 295
- Lee Vanit & ors v The Queen (1997) 190 CLR 378
- Wong v The Queen (2001) 207 CLR 584
- Cameron v The Queen (2002) 76 ALJR 382