Citation: Regina v Kon Lim Chew [2004] NSWCCA 26
Court: New South Wales Court of Criminal Appeal
Date: 25 February 2004
Judge(s): Sully J; James J; Hulme J
Background
The appellant arrived in Sydney by air from Malaysia in July 2002, having ingested 59 small packages of heroin powder. The total weight of the heroin was 226.5 grams, with a pure heroin content of 71.8 grams and an estimated street value of approximately $98,000. He was detained by Australian Customs officers at the airport and transported to hospital, where the packages were recovered.
The appellant was charged with importing prohibited imports under section 233B of the Customs Act 1901 (Cth), an offence attracting a maximum penalty of 25 years imprisonment. He pleaded guilty and was committed to the District Court for sentencing.
District Court Judge Christie QC convicted the appellant and sentenced him to 6 years imprisonment with a non-parole period of 4 years. The appellant sought leave to appeal against that sentence, contending it was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by treating the appellant as a principal importer rather than a mere courier, and whether the appellant had discharged the burden of establishing his role as a courier on the balance of probabilities.
- Whether the sentencing judge gave adequate weight to evidence of the appellant's cooperation with authorities, including information he had provided.
- Whether the overall sentence was manifestly excessive having regard to objective seriousness, mitigating factors, and any discount for the guilty plea.
- Whether a guilty plea can, as a matter of principle, be taken as evidence of contrition and remorse.
Decision
On the courier issue: The Court of Criminal Appeal confirmed that the burden rested on the appellant to establish, on the balance of probabilities, that he was nothing more than a courier. This follows the High Court's reasoning in The Queen v Olbrich (1999) 199 CLR 270, which also warns that labelling an offender a "courier" or "principal" must not displace a proper assessment of what the offender actually did. Judge Christie had found the appellant had not discharged that burden, and the Court of Criminal Appeal held that finding was plainly open on the evidence.
On cooperation with authorities: The Court noted that a relevant document evidencing the appellant's assistance had been placed before the sentencing judge. Sully J declined to recount its contents in detail but was satisfied the sentencing judge had appropriately considered whatever assistance was provided, and that this ground of appeal was not made out.
On manifest excess: The Court held the sentence of 6 years with a 4-year non-parole period was not manifestly excessive for an offender who had imported 72 grams of pure heroin without an established basis for treating him as a mere courier. Sully J made extended observations about the seriousness of drug importation offences and the role of courts, customs authorities, and deportation powers as complementary lines of defence against prohibited imports.
On the guilty plea and remorse: Hulme J added important observations on the sentencing judge's remark that a guilty plea "has to be taken as an expression of contrition and remorse." Hulme J stated this proposition is simply wrong. Contrition and remorse are findings of fact to be established on the evidence, not inferred automatically from a guilty plea. Particularly where the prosecution case is strong and a substantial discount for the plea is available, naked self-interest may equally explain the plea, and no inference of remorse should be drawn unless the evidence supports it.
Orders Made
- Leave to appeal against sentence granted.
- Appeal against sentence dismissed.
Key Takeaways
- Under The Queen v Olbrich, where an offender contends a mitigating characterisation (such as being a "mere courier"), the onus rests on that offender to establish it on the balance of probabilities; failing to do so entitles the sentencing court to proceed on the basis of the bare facts of the importation.
- The Court of Criminal Appeal confirmed that a guilty plea does not, in itself, constitute evidence of contrition or remorse; those matters are findings of fact requiring evidentiary support, assessed by reference to all circumstances including the strength of the prosecution case and the incentive of a sentencing discount.
- In dismissing the appeal, the Court affirmed that importing approximately 72 grams of pure heroin with no established mitigating role attracts significant custodial sentences, with 6 years and a 4-year non-parole period falling within the acceptable range.
- Sully J's observations about the interplay between courts, law enforcement agencies, and executive deportation powers are descriptive of the existing legal framework rather than a recalibration of sentencing principles.
- No inference of remorse should be drawn from a guilty plea where the Crown's case is strong; the offender bears the onus of establishing contrition through evidence assessed on its merits.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), s 233B
- Justices Act 1902 (NSW), s 51A
- Criminal Appeal Act 1912 (NSW)
Cases:
- The Queen v Olbrich [1999] 199 CLR 270
- R v Gallagher (1991) 23 NSWLR 220
- The Queen v Shrestha (1991) 173 CLR 48
- R v Klein [2001] NSWCCA 120
- R v Kalache [2000] NSWCCA 2
- Holloway v McFeeters (1956) 94 CLR 470