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Court of Criminal Appeal 4 April 2006

LAW, Chun Hing v REGINA

[2006] NSWCCA 100

Drugs
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE EXTENSIVE DRUG IMPORTATION OPERATION CASE IN THE WORST CATEGORY OFFENDERS WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: LAW, Chun Hing v REGINA [2006] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 4 April 2006
Judge(s): McClellan CJ at CL, James J, Buddin J

Background

The appellant was convicted by jury of conspiring to import not less than the commercial quantity of heroin into Australia, in connection with an ongoing operation between December 1993 and January 1995. The conspiracy involved at least five separate airfreighted consignments from Bangkok, each concealed within wooden crates falsely described as containing vases or glass sculptures. The appellant was personally involved in at least four of those importations, renting premises under aliases, collecting consignments, and remitting money to overseas accounts.

This was the appellant's second trial. His original conviction before Ireland J, which resulted in a sentence of life imprisonment without parole, had been quashed by the Court of Criminal Appeal. On retrial before Sully J, he was again convicted and sentenced to life imprisonment with a non-parole period of 30 years, running from 2 October 1996 when he was first taken into custody.

The appellant sought leave to appeal against the severity of that sentence. The application was filed significantly out of time, though the Crown was unable to demonstrate any prejudice from the delay.

  • Whether the appellant had a justifiable sense of grievance arising from disparity between his sentence and those imposed on co-offenders
  • Whether the sentencing judge erred by failing to take into account the unavailability of remissions under the relevant sentencing regime
  • Whether the sentence of life imprisonment with a 30-year non-parole period was manifestly excessive, having regard to comparable decisions involving serious drug importation offences

Decision

The Court granted leave to appeal despite the significant delay, finding no prejudice to the Crown. However, on each substantive ground, the appeal was dismissed.

On the disparity argument, the Court found no justifiable sense of grievance. The appellant's role as a key organiser of the importation enterprise, both in Australia and overseas, distinguished him from the co-offenders with whom comparisons were drawn. His degree of involvement warranted a more severe sentence than those imposed on others in the conspiracy.

The Court reviewed the non-parole periods imposed in comparable cases across Australian jurisdictions, including decisions involving large single importations and multi-importation conspiracies. While some cases involved greater quantities of drugs or offenders with prior convictions, the Court found that the appellant's participation in four separate large-scale importations as part of a continuous criminal operation placed his offending at the highest level of criminality. The 30-year non-parole period, though high, was within the appropriate range.

The Court also confirmed that the appellant's offending fell squarely within the "worst case" category. A sentence of life imprisonment was appropriate, and no error was established in the sentencing judge's approach.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that an ongoing, multi-importation heroin conspiracy involving a key organiser can properly be characterised as falling within the "worst case" category, justifying a sentence of life imprisonment.
  • A disparity argument will not succeed where the sentence differential reflects a genuine difference in the offender's role and degree of criminality within the conspiracy.
  • In assessing whether a non-parole period is manifestly excessive, the court will review comparable sentences across Australian jurisdictions, weighing factors such as drug quantity, prior convictions, and the nature of the offender's participation.
  • No error was established in the sentencing judge's failure to make a specific adjustment for the unavailability of remissions, given the overall structure and length of the sentence imposed.
  • Filing an appeal significantly out of time will not automatically defeat a grant of leave where the Crown cannot demonstrate actual prejudice.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(cb)
- Crimes Act (Cth)

Cases:
- Lee Vanit v The Queen (1997) 190 CLR 378
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v Bartle & Ors (2003) 181 FLR 1
- R v Campillo Vaquere [2004] NSWCCA 271
- R v Cheung Ying-Lun (1999) 154 FLR 259
- R v Chung Tak Chan [2005] NSWCCA 154
- R v De La Espriella-Velasco [2002] WASCA 131
- R v Flavel [2001] NSWCCA 227
- R v Gonzalez-Betes [2001] NSWCCA 226
- R v Ismunandar and Siregar (2002) 136 A Crim R 206
- R v Kelleher (1996) 89 A Crim R 215
- R v Mooseek [1995] VCC 318
- R v Neale (2004) 148 A Crim R 493
- R v Ng [2001] NSWCCA 305
- R v Perrier (No 2) (1991) 1 VR 717
- R v Reaves (2004) 147 A Crim R 26
- R v Stanbouli (2003) 141 A Crim R 531
- R v Suarez-Mejia (2002) 131 A Crim R 577
- R v Tisilandis (1982) 2 NSWLR 430
- R v Wei Ming Chen and R v Khong Hoi Lau (2002) 130 A Crim R 300
- Wangsaimas & Ors v R (1996) 133 FLR 272