Citation: R v CHEA, Chhengly [2008] NSWCCA 78
Court: New South Wales Court of Criminal Appeal
Date: 21 April 2008
Judge(s): Tobias JA, James J, Hoeben J
Background
Seven Cambodian nationals pleaded guilty in the District Court to importing a marketable quantity of heroin into Australia, an offence under s 307.2(1) of the Commonwealth Criminal Code carrying a maximum penalty of 25 years imprisonment. All seven travelled on the same flight as part of a group, having swallowed heroin-filled pellets. They were intercepted at Sydney Airport after one respondent lost consciousness on the aircraft and required emergency surgery.
The quantities of pure heroin imported by each respondent ranged from 27.1 grams to 239.2 grams. All respondents were Cambodian nationals from impoverished backgrounds, many with little or no formal education, and all had lived through the Pol Pot regime and its aftermath. Most received a 20 percent sentencing discount for cooperation with authorities, in addition to discounts for their early pleas of guilty.
District Court Judge Williams sentenced all seven respondents. The Crown appealed against all sentences on the ground of manifest inadequacy. Two respondents, Oum and Yin, also appealed their own sentences, contending the non-parole periods set by the sentencing judge were disproportionately long relative to their head sentences.
Legal Issues
- Whether the sentences imposed by the District Court on all seven respondents were manifestly inadequate, warranting appellate intervention
- Whether the sentencing judge erred in his approach to fixing a starting point and making adjustments for subjective factors, pleas of guilty, and cooperation
- Whether the non-parole periods imposed on Oum and Yin were disproportionate to their head sentences, entitling those two respondents to have their sentences reduced
Decision
James J (with whom Tobias JA and Hoeben J agreed) dismissed the Crown appeal against all seven respondents. The Crown's sole ground of appeal was that the sentences were manifestly inadequate, meaning the Crown had to demonstrate the sentences fell "definitely outside the appropriate range." The Court found this had not been established.
The sentencing judge had adopted a starting point of approximately seven years and then made downward adjustments to reflect the strong subjective features common to all respondents, including their deprived backgrounds, low education, and experience under the Pol Pot regime. He also applied a further reduction for the assistance provided to authorities. The Court found this reasoning was within the permissible sentencing discretion, and that the small number of comparable cases relied upon by the Crown did not demonstrate error.
Regarding the appeals by Oum and Yin, the Crown's submission that their non-parole periods were disproportionate to the head sentences was largely overtaken by the success of those respondents' own appeals. The Court allowed the appeals by Oum and Yin, resulting in adjustments to their sentences.
The Court noted the sentencing framework derived from cases such as Wong v The Queen and subsequent authorities, which indicated that for low-level trafficable quantities of heroin (2 to 200 grams), an appropriate range of head sentences after the repeal of s 16G of the Commonwealth Crimes Act was between six and nine years. The sentencing judge's approach was consistent with that framework.
Orders Made
- Crown appeal dismissed against all seven respondents
- Appeals by Oum and Yin allowed
Key Takeaways
- In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that manifest inadequacy requires the Crown to demonstrate the sentence fell "definitely outside the appropriate range," a high threshold that was not met on the facts of this case.
- A sentencing judge's adoption of a starting point of approximately seven years for importing between 2 and 250 grams of heroin, followed by downward adjustments for subjective factors and cooperation, was held to be within the proper exercise of sentencing discretion.
- Extreme subjective hardship, including severe poverty, limited education, experience under the Pol Pot regime, and family separation, can carry significant weight in mitigation even for serious drug importation offences.
- Under the post-Wong sentencing framework for Commonwealth drug offences, the Court noted that head sentences for low-level trafficable quantities of heroin (2 to 200 grams) generally fell between six and nine years after the repeal of s 16G of the Commonwealth Crimes Act.
- A small sample of Crown-tendered comparable cases does not automatically dislodge a sentencing judge's reasoned approach where that approach is otherwise within the accepted range.
Legislation and Cases Referenced
Legislation:
- Commonwealth Criminal Code, s 307.2(1)
- Commonwealth Crimes Act (including former s 16G)
- Customs Act
- Criminal Appeal Act
Cases:
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584
- R v Wong; R v Leung (1999) 48 NSWLR 340
- The Queen v Olbrich (1999) 199 CLR 270
- R v Studenikin (2004) 60 NSWLR 1
- R v Rivadavia (2004) 61 NSWLR 63
- R v SC [2008] NSWCCA 29
- R v Wall [2002] NSWCCA 42
- R v Klein (2001) 121 A Crim R 90
- R v Karacic (2001) 121 A Crim R 7
- R v Budiman (1998) 102 A Crim R 411
- R v Laurentiu (1992) 63 A Crim R 402