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Court of Criminal Appeal 10 June 2009

Chen v R

[2009] NSWCCA 157

DrugsFirearms & weapons
CRIMINAL LAW SENTENCING WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Chen v R [2009] NSWCCA 157
Court: New South Wales Court of Criminal Appeal
Date: 10 June 2009
Judge(s): Giles JA, Buddin J, Harrison J

Background

The appellant pleaded guilty in the Local Court to three offences and was sentenced in the District Court. The principal offence (Count 1) was ongoing supply of methylamphetamine (ice) on three or more separate occasions within a 30-consecutive-day period, an offence carrying a maximum of 20 years imprisonment. Two additional supply matters were taken into account on a Form 1 document. Count 2 alleged supply of methylamphetamine by operation of deeming provisions, and Count 3 alleged possession of a prohibited weapon (a Taser gun) without a permit.

The facts, set out in an Agreed Statement of Facts, revealed a sustained commercial drug operation. Police established a strike force targeting the appellant after receiving information from multiple sources. Using lawfully intercepted telephone calls and physical surveillance, investigators documented the appellant supplying or agreeing to supply ice on 28 separate occasions over the investigation period, with a minimum of 115.3 grams supplied and total estimated sale value of at least $28,800.

The sentencing judge in the District Court imposed a non-parole period of 4 years with a total term of 6 years 3 months on Count 1. Fixed terms of 2 years were imposed on each of Counts 2 and 3, ordered to be served concurrently with each other and with the Count 1 sentence. The appellant sought leave to appeal on the grounds that the sentencing remarks disclosed error and that the sentence was manifestly excessive.

  • Whether a factual error in the Agreed Statement of Facts (specifically, a reference to cocaine rather than ice for the 27 July transaction) was significant enough to constitute an error in sentencing
  • Whether the sentencing judge's remarks on sentence otherwise disclosed appellable error
  • Whether the overall sentence was manifestly excessive

Decision

The court granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach. The factual error in the Agreed Statement of Facts concerned the 27 July entry, which referred to cocaine ("Charlie") rather than ice. The court found this error did not affect the overall sentencing exercise in any material way, given the volume and pattern of the appellant's conduct across the full schedule of transactions.

On the question of manifest excess, the court assessed the objective gravity of the offending as high. The appellant was not a street-level dealer but was part of an organised commercial operation, with an established customer base, cutting agents, weighing equipment, and a shop-front run from his residential address. The court noted the length of his involvement, the number of individual transactions, and the total quantity of drugs supplied.

The court also observed that the sentences on Counts 2 and 3 were wholly subsumed within the Count 1 sentence, a feature indicating significant leniency had already been extended. This was particularly notable for Count 3, the Taser offence, which carried a standard non-parole period of 3 years and bore no connection to the drug offending. In ordinary circumstances, at least partial accumulation on that count would have been expected.

Comparison with the Court of Criminal Appeal's decision in R v Kamminga, where a 6-year head sentence was described as "remarkably high" for an ongoing supply offence, did not assist the appellant. The court found the present case disclosed substantially more serious criminality than that considered in Kamminga, and a similar head sentence here was not therefore manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A factual error in an Agreed Statement of Facts will not vitiate a sentence where the error is immaterial to the sentencing exercise as a whole, having regard to the full body of admitted conduct.
  • The Court of Criminal Appeal confirmed that involvement in a commercial, organised drug supply operation, with an established customer base and multiple supply chains, places an offender in a significantly more serious category than a retail or street-level dealer.
  • Where sentences on additional counts are made fully concurrent with a principal sentence, this is a factor indicating leniency, particularly where one of those counts carries a standard non-parole period and is unrelated to the principal offending.
  • Sentencing statistics and comparative decisions serve as a guide to available range, but do not set a ceiling. A sentence that appears high by statistical comparison will not be manifestly excessive where the facts disclose particularly serious criminality.
  • In dismissing the appeal, the court declined to read R v Kamminga as establishing that a 6-year head sentence for ongoing supply was outside the available range, finding the offending in this case was materially more serious than in that decision.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)

Cases
- Adams v R (2008) 244 ALR 270
- Ibbs v The Queen (1987) 163 CLR 447
- R v Kamminga [2003] NSWCCA 337
- R v Smiroldo [2000] NSWCCA 120
- Veen v The Queen (No 2) (1988) 164 CLR 465