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Court of Criminal Appeal 23 April 2004

Regina v Poh Hwa CHEW

[2004] NSWCCA 132

Drugs

Citation: Regina v Poh Hwa Chew [2004] NSWCCA 132
Court: New South Wales Court of Criminal Appeal
Date: 23 April 2004
Judge(s): Simpson J, Bell J, Shaw J

Background

The applicant, a 22-year-old Malaysian citizen, was arrested at Sydney Airport on 29 August 2002 after arriving on a flight from Kuala Lumpur. He admitted to customs and immigration officers that he had swallowed foreign objects for payment, and medical examination confirmed he had ingested 111 pellets containing heroin with a pure weight of 303.5 grams. He pleaded guilty on arraignment to importing a prohibited narcotic import contrary to the Customs Act 1901 (Cth).

A co-offender had travelled on the same flight and passed 94 pellets containing 248.8 grams of pure heroin. Unlike the applicant, the co-offender pleaded not guilty and stood trial. He was convicted and sentenced to eight years' imprisonment with a non-parole period of five years and three months. The applicant also gave evidence at the co-offender's trial.

In the District Court, Judge Christie sentenced the applicant to six and a half years' imprisonment with a non-parole period of four and a half years. The applicant sought leave to appeal against the severity of that sentence.

  • Whether the sentence imposed on the applicant, when compared to that imposed on his co-offender, gave rise to a justifiable sense of grievance amounting to appellable error.
  • Whether the discount applied to reflect the applicant's early guilty plea and assistance to authorities was adequate in the circumstances.

Decision

The Court focused on ground 2 of the appeal: the disparity between the applicant's sentence and that of his co-offender. The Crown conceded that comparing the respective non-parole periods revealed a discount of approximately 14% in favour of the applicant, and acknowledged that this was insufficient to reflect the applicant's early guilty plea entered at more or less the first available opportunity.

Bell J noted that although the guideline judgment in R v Thomson and Houlten does not apply directly to Commonwealth offenders, the underlying approach to discounting for a guilty plea is conformable with that reasoning. The applicant had also given evidence at the co-offender's trial after sentence was imposed, which constituted past assistance to authorities. The Crown did not concede the original sentence was excessive in isolation, but accepted the disparity comparison gave the applicant a justifiable sense of grievance.

Taking an eight-year starting point (consistent with the co-offender's sentence, which was unchallenged), the Court applied a discount for the early plea and assistance to authorities. Bell J concluded that any greater discount than that ultimately applied would have been disproportionate to the gravity of importing a substantial quantity of heroin. The applicant was re-sentenced to five years and three months with a non-parole period of three years and three months.

Orders Made

  1. Leave to appeal granted.
  2. Appeal allowed; sentence imposed in the District Court quashed.
  3. Applicant sentenced to five years and three months' imprisonment, commencing 29 August 2002 and expiring 28 November 2007.
  4. Non-parole period of three years and three months specified, commencing 29 August 2002 and expiring 8 November 2005.

Key Takeaways

  • A sentencing disparity between co-offenders can constitute appellable error where it gives rise to a justifiable sense of grievance, even if the original sentence is not otherwise shown to be excessive in isolation.
  • Where one offender pleads guilty at the earliest opportunity and another proceeds to trial and is convicted, the sentencing court must ensure the resulting difference in sentences adequately reflects the plea discount and any assistance rendered.
  • Although R v Thomson and Houlten does not apply directly to Commonwealth offenders, the Court of Criminal Appeal confirmed that its reasoning regarding plea discounts is conformable with the approach taken when sentencing under the Crimes Act 1914 (Cth).
  • Giving evidence at a co-offender's trial after sentence is imposed constitutes past assistance to authorities and was a factor taken into account in re-sentencing.
  • Proportionality to the gravity of the offence operates as a constraint on the extent of any discount, even where an early plea and assistance to authorities are both established.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(b)
- Crimes Act 1914 (Cth), s 16A(2)

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- R v Dukino; R v Moshref [2003] NSWCCA 379
- R v Thomson and Houlten (2000) 49 NSWLR 383