Citation: CHAN, LO and NGUYEN v REGINA [2010] NSWCCA 153
Court: NSW Court of Criminal Appeal
Date: 22 October 2010
Judge(s): Beazley JA; Kirby J; Johnson J
Background
Three offenders, referred to here by their roles, participated in a joint criminal enterprise to import 10.01 kilograms of crystalline methamphetamine (commonly known as "Ice") into Australia in August 2007. The drug was concealed within the linings of Samsonite suitcases that arrived as sea cargo from the United States, having been transhipped from Canada. Australian authorities, working with Canadian law enforcement, intercepted the shipment and arrested the three men on 23 August 2007.
Each offender pleaded guilty to a separate but related charge under the Criminal Code Act 1995 (Cth). Two were charged with attempting to possess a commercial quantity of a border controlled drug (methamphetamine) under s 307.5(1), while the third was charged with aiding and abetting the importation of a commercial quantity of methamphetamine under ss 307.1 and 11.2. The maximum penalty for each offence was imprisonment for life or a fine of $825,000, or both.
The three offenders were sentenced in the District Court by Hock DCJ at different times in 2009. Each received a different sentence reflecting his distinct role in the enterprise and a different discount for assistance provided to authorities. All three then sought leave to appeal to the Court of Criminal Appeal, arguing their sentences were excessive.
Legal Issues
- Whether the sentencing judge's findings about each offender's role in the joint criminal enterprise were open on the evidence
- Whether the discounts allowed for assistance to authorities (intelligence only, with no controlled operations or arrests resulting) were appropriate
- Whether the starting points adopted before discounting were too high, rendering the final sentences manifestly excessive
Decision
Kirby J (with Beazley JA and Johnson J agreeing) dismissed all three appeals. The court examined each offender's sentence individually, taking into account their different roles, personal circumstances, and levels of cooperation with authorities.
The first offender, who played an organising role in the enterprise, received a sentence of 12 years and 6 months with a non-parole period of 7 years and 6 months, after a 30% discount. The second offender, whose role was described as more peripheral, received 7 years and 6 months with a non-parole period of 4 years and 6 months, after a 25% discount. The third offender received 10 years with a non-parole period of 6 years, after a 10% discount, reflecting his role as an aider and abettor and the more limited nature of his assistance.
The court considered the applicable sentencing range for offences of this magnitude, drawing on comparable cases involving large commercial quantities of methamphetamine. It noted the sentencing judge had been entitled to treat the offences as falling towards the upper range of seriousness, given the quantity involved and the organised nature of the importation. The different discounts were justified by the different quality and utility of each offender's assistance: none had provided assistance leading to controlled operations or arrests, but their contributions varied in scope and value.
The court found no error in the sentencing judge's approach and concluded the sentences were not manifestly excessive having regard to each offender's individual role and the objective seriousness of the offending.
Orders Made
- Leave to appeal granted for Kin Fai Chan, but the appeal dismissed
- Leave to appeal granted for Chung Fung Lo, but the appeal dismissed
- Leave to appeal granted for Thanh Phan Nguyen, but the appeal dismissed
Key Takeaways
- In dismissing all three appeals, the Court of Criminal Appeal confirmed that where multiple offenders participate in a joint criminal enterprise, sentencing must assess each individual's specific role rather than applying a uniform approach across participants.
- A discount for assistance to authorities is not limited to cases where that assistance results in controlled operations or arrests. However, the extent of the discount appropriately reflects the utility and quality of the intelligence provided.
- Offences involving large commercial quantities of imported methamphetamine, organised across international networks, will attract substantial sentences even for participants whose roles are less central than the principal organisers.
- No error was established in the sentencing judge's findings about each offender's role, reinforcing that appellate courts will not interfere with factual findings at first instance unless they are clearly not open on the evidence.
- Under the Criminal Code Act 1995 (Cth), charges of attempting to possess and aiding and abetting the importation of a commercial quantity of a border controlled drug carry a maximum of life imprisonment, and starting points in the range of 10 to 18 years before discount were treated as consistent with comparable cases at this quantity level.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 307.1, 307.5(1), 11.2
- Crimes Act 1914 (Cth)
- Customs Act 1901
Cases:
- R v Ferrer-Esis (1991) 55 A Crim R 231
- De Campos v Regina [2006] NSWCCA 51
- Yenice v R (1994) 72 A Crim R 234
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270
- R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Wong and Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340
- Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- R v Kevenaar, Dedoes and Pan [2004] NSWCCA 210; (2004) 148 A Crim R 155
- R v Mas Rivadavia and Ors [2004] NSWCCA 284; (2004) 61 NSWLR 63
- Le v R [2006] NSWCCA 136
- Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524
- Van Haltren v The Queen [2008] NSWCCA 274; (2008) 191 A Crim R 53