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11
Court of Criminal Appeal 28 October 2010

R (Cth) v Cheung; R (Cth) v Choi

[2010] NSWCCA 244

Also reported as (2010) 203 A Crim R 398
Drugs
CRIMINAL LAW COMMONWEALTH CRIMINAL CODE PARTICULAR OFFENCES DRUG OFFENCES CRIMINAL LAW OBJECTIVE GRAVITY OF OFFENCES

Citation: R (Cth) v Cheung; R (Cth) v Choi [2010] NSWCCA 244
Court: NSW Court of Criminal Appeal
Date: 28 October 2010
Judge(s): McClellan CJ at CL, Simpson J, Buddin J

Background

The two respondents pleaded guilty in the District Court to manufacturing a commercial quantity of methamphetamine, contrary to s 305.3(1) of the Criminal Code Act 1995 (Cth), an offence carrying a maximum penalty of life imprisonment. The offending involved processing large quantities of liquid amphetamine into crystalline form at a hotel in Hurstville, NSW, in May 2007. Combined seizures of methamphetamine exceeded 45 kilograms, with a street value potentially running into the tens of millions of dollars.

Sweeney DCJ sentenced each respondent to six years' imprisonment with a non-parole period of four years, commencing from the date of arrest. The Commonwealth Director of Public Prosecutions appealed, contending that both sentences were manifestly inadequate.

The appeals were heard in March 2009 but judgment was not delivered until October 2010, a delay of approximately 18 months. That delay arose from a series of procedural complications, including inadequate sentencing data, the commencement of a new statutory provision affecting Crown appeals, and the need to await a five-judge bench ruling on a significant construction question.

  • Whether the sentences of six years with four-year non-parole periods were manifestly inadequate for manufacturing a commercial quantity of methamphetamine under Commonwealth law
  • What comparable sentencing range applied, and whether state or Commonwealth comparators were the appropriate benchmark
  • Whether s 68A of the Crimes (Appeal and Review) Act 2001 (which removed double jeopardy as a consideration in Crown appeals) applied to appeals brought by the Commonwealth DPP
  • Whether, even if error were established, the Court should exercise its residual discretion to dismiss the Crown appeal

Decision

The Court delivered judgment following extended delays caused by three distinct complications: insufficient sentencing statistics furnished by the DPP despite repeated requests, the mid-appeal commencement of s 68A of the Crimes (Appeal and Review) Act 2001 with retrospective effect, and an unresolved question about whether that section applied to Commonwealth Crown appeals.

The question of s 68A's application to Commonwealth Crown appeals was resolved by a five-judge bench in R v De La Rosa [2010] NSWCCA 208, which held by majority that s 68A does apply. As a result, the Court in these appeals was precluded from taking into account any element of double jeopardy when considering whether to increase sentence, removing a protection that had previously operated in favour of respondents on Crown appeals.

Simpson J (with whom McClellan CJ at CL and Buddin J agreed) acknowledged an "uncomfortable feeling" that the sentences were inadequate, and noted that comparable cases suggested significantly higher sentences would not have been appealably excessive. However, the Court stopped short of making a final finding of manifest inadequacy, given its decision to exercise the residual discretion to dismiss.

Notwithstanding s 68A, the Court confirmed that a residual discretion to dismiss a Crown appeal remains, even where error is established, as affirmed in R v JW [2010] NSWCCA 49. The Court exercised that discretion here, citing two factors: the inordinate delay in resolving the appeals (through no fault of the respondents), whose non-parole periods were near expiry; and the DPP's failure to provide adequate sentencing data despite repeated court invitations, which had already deprived the respondents of protections formerly available under R v Wall. Both Crown appeals were dismissed.

Orders Made

  • Crown appeal in each matter dismissed

Key Takeaways

  • Section 68A of the Crimes (Appeal and Review) Act 2001 applies to Crown appeals brought by the Commonwealth DPP, following the majority decision in R v De La Rosa [2010] NSWCCA 208, meaning the double jeopardy element can no longer be taken into account in such appeals.

  • A residual discretion to dismiss a Crown appeal survives the enactment of s 68A, even where sentencing error is established or arguably established, as confirmed in R v JW [2010] NSWCCA 49.

  • In dismissing both appeals, the Court of Criminal Appeal relied on the combination of an 18-month appellate delay (for which the respondents bore no responsibility) and the imminent expiry of their non-parole periods as sufficient grounds to exercise that discretion against intervention.

  • The DPP's repeated failure to provide adequate sentencing statistics, despite multiple court requests, was identified as a contributing factor in the Court's refusal to intervene, and was noted to have already disadvantaged the respondents procedurally.

  • Where Crown appeals involve Commonwealth drug offences, comparable sentences under both Commonwealth and state law are relevant reference points, but adjustments may be required to account for factors such as guilty plea discounts, the former operation of s 16G of the Crimes Act 1914 (Cth), and whether the case proceeded to trial.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1914 (Cth), s 16G
- Criminal Code Act 1995 (Cth), s 305.3(1)
- Customs Act 1901 (Cth)
- Drug Misuse and Trafficking Act 1985 (NSW)

Key Cases:
- R v De La Rosa [2010] NSWCCA 208
- R v JW [2010] NSWCCA 49
- R v Wall [2002] NSWCCA 42; (2002) 71 NSWLR 692
- Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584
- R v Cameron [2002] HCA 6; (2002) 209 CLR 339
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208
- TYN v R [2009] NSWCCA 146; (2009) 195 A Crim R 345
- R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525
- R v Anderson [2004] NSWCCA 317
- R v Millerat [2005] NSWCCA 142
- R v Mascaro-Varillas [2002] NSWCCA 524
- R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1
- R v Rivadavia; R v El Akkaoui; R v Aksu [2004] NSWCCA 284; (2004) 61 NSWLR 63