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Court of Criminal Appeal 17 April 2009

Cheun v R

[2009] NSWCCA 116

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE

Citation: Cheun v R [2009] NSWCCA 116
Court: New South Wales Court of Criminal Appeal
Date: 17 April 2009
Judge(s): Giles JA, Grove J, Hall J

Background

The applicant, an offender who had travelled from Canada to Australia, was arrested at Sydney premises where a large shipment of ecstasy tablets was being unpacked. The consignment, originating from Canada and valued at approximately $40 million on the street, comprised over 257,000 tablets. The sentencing judge found the applicant occupied a role equivalent to a middle manager in the drug importation hierarchy.

The applicant pleaded guilty on the day his trial was set to commence to a charge of attempting to possess a commercial quantity of an unlawfully imported controlled drug. He subsequently signed an undertaking under section 21E of the Crimes Act 1914 to cooperate with law enforcement, including by giving evidence against co-offenders. The Australian Federal Police rated his assistance as "high."

The District Court sentenced the applicant to 17 years and 6 months imprisonment with a non-parole period of 11 years. The sentencing judge applied an overall discount of 30 percent from a notional starting point of 25 years: 10 percent for the guilty plea and 20 percent (split equally between past and future assistance) for his cooperation.

  • Whether the sentencing judge applied an insufficiently low discount for the applicant's past and future assistance to law enforcement authorities
  • Whether the range of 20 to 50 percent referred to in the case law as the discount for assistance represented a discount for assistance alone, or a combined figure that also included any discount for a guilty plea

Decision

The applicant's primary argument was that the 20 percent discount for assistance was too low given the high police rating of his cooperation. He relied on statements in SZ v Regina suggesting that the customary discount for assistance in New South Wales ranged from 20 to 50 percent, submitting that a 20 percent assistance discount placed him at the very bottom of that range without adequate justification.

The Court of Criminal Appeal rejected this argument. The Crown's submission, which the Court accepted, was that the applicant had misread the relevant authorities. The figures cited in SZ v Regina and endorsed from R v El Hani referred to a combined discount encompassing both the guilty plea and the assistance. The Court confirmed that, prior to the guideline judgment in R v Thomson, the established practice was for sentencing judges to give a single discount covering both matters, and that Thomson did not change that practice.

On the facts, the combined discount of 30 percent (10 percent for the plea and 20 percent for assistance) fell comfortably within the recognised range. The Court also noted that there was no evidence of restrictions or deprivations in the applicant's custodial conditions as a result of his protective custody placement, a factor that had in earlier cases been treated as potentially increasing the discount.

The Court concluded that a combined discount of 30 percent could not be characterised as so low that no reasonable sentencing judge, exercising sound discretion, could have arrived at that figure. The single ground of appeal was not made out.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that figures cited in the authorities as the range for discounts for assistance (20 to 50 percent) represent a combined discount that includes any reduction for a guilty plea, not a discount for assistance alone.
  • A sentencing judge who gives separate, itemised discounts for a plea of guilty and for assistance is applying the same underlying approach, provided the combined total falls within the established range.
  • No error was established in a combined 30 percent discount where the guilty plea was not entered early and where there was no evidence of onerous custodial conditions arising from the offender's protected status.
  • Where an offender in protective custody cannot demonstrate actual restrictions or deprivations beyond those experienced by the general prison population, this limits the weight that custodial hardship can add to the discount for assistance.
  • In dismissing the appeal, the Court reinforced the principle that sentencing discretion will not be disturbed merely because a different judge might have assessed the discount differently, provided the assessment is within a range open to a reasonable exercise of that discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 21E

Cases
- SZ v Regina (2007) 168 A Crim R 249
- R v El Hani [2004] NSWCCA 162
- R v Mostyn (2004) 145 A Crim R 304
- R v Sukkar (2006) 172 A Crim R 151
- R v Thomson (2000) 49 NSWLR 383