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Court of Criminal Appeal 17 August 2011

Chong v R

[2011] NSWCCA 182

Drugs
CRIMINAL LAW PLEA OF GUILTY COCAINE CRIMINAL HISTORY PROVIDED BY INTERPOL PARTICULAR OUTCOMES NOT IDENTIFIED LESSER SENTENCE WARRANTED

Citation: Chong v R [2011] NSWCCA 182
Court: New South Wales Court of Criminal Appeal
Date: 17 August 2011
Judges: McClellan CJ at CL, Simpson J, Fullerton J

Background

The applicant, a 25-year-old US citizen of Korean descent, flew into Sydney from Los Angeles on 10 May 2009 with 420.5 grams of cocaine (yielding 151.1 grams of pure cocaine) concealed in her underclothing. She gave false answers to customs officers, initially denied carrying drugs, and attempted to negotiate with officers before eventually producing the cocaine. She also carried a small vial with traces of crystal amphetamine.

Following a plea of guilty in the District Court to importing not less than the marketable quantity of a border controlled drug (cocaine) under s 307.2 of the Criminal Code (Cth), the applicant was sentenced to six years' imprisonment with a non-parole period of three years and six months.

The applicant sought leave to appeal that sentence, contending that the sentencing judge erred in his treatment of her criminal history, improperly introduced an "exceptional circumstances" threshold into the sentencing discretion, and imposed a sentence that was manifestly excessive.

  • Whether the sentencing judge erred in concluding that the applicant's overseas criminal record did not entitle her to "any particular leniency"
  • Whether the sentencing judge erred by treating "exceptional circumstances" as a prerequisite to exercising any significant leniency in the sentencing discretion
  • Whether the resulting sentence of six years was manifestly excessive in all the circumstances

Decision

On the first ground, the Court of Criminal Appeal found no error. Although the applicant's overseas criminal record had been provided via an Interpol document that did not always identify the outcome of charges, there was independent evidence of her record. The agreed statement of facts described an "extensive criminal history including narcotic offences," the psychiatrist's report referred to a prior prison term, and the applicant herself acknowledged her record in evidence. The sentencing judge treated the record as essentially neutral rather than as an aggravating factor, and correctly observed that it did not attract any particular leniency, consistent with the established principle that the absence of prior convictions carries reduced weight in drug importation offences.

On the second ground, the Court found error. The sentencing judge's remark that "there is not a great deal of latitude in these matters, barring exceptional circumstances or the provision of significant assistance" introduced an impermissible threshold test into the exercise of the sentencing discretion. Drug importation sentencing requires an instinctive synthesis of all relevant factors, not a gatekeeping condition of "exceptional circumstances" before leniency becomes available. The Court also rejected the prosecution's submission that the applicant's case was in fact exceptional, finding that her circumstances were broadly similar to those of many drug couriers considered in cases such as Wong v The Queen and De La Rosa.

On the third ground, the Court found that, taken together, the erroneous "exceptional circumstances" reference and the resulting sentence length warranted intervention. Comparing the sentence to the range of comparable cases surveyed in De La Rosa, the applicant's six-year head sentence matched the longest in the relevant category. The Court was satisfied that the erroneous test explained the sentence selected, and that a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; original sentence quashed
  • Applicant re-sentenced to imprisonment for five years and three months, commencing 10 May 2009 and expiring 9 August 2014, with a non-parole period of two years and nine months, with release on parole on 9 February 2012

Key Takeaways

  • Imposing an "exceptional circumstances" threshold as a precondition to exercising meaningful leniency in drug importation sentencing constitutes an error of principle that can vitiate the sentence.
  • Under s 16A(2)(m) of the Crimes Act 1914 (Cth), a sentencing court must have regard to an offender's character and antecedents where relevant and known; however, the absence of prior convictions carries diminished mitigating weight in drug importation cases.
  • Where an overseas criminal record is provided by Interpol in a form that does not always record the outcome of charges, independent evidence (including admissions in agreed facts, psychiatric reports, and the offender's own evidence) can nonetheless establish the existence of that record for sentencing purposes.
  • Sufficient evidence of a prior criminal record existed in this case even without reliance on the Interpol document alone, given multiple corroborating sources before the sentencing court.
  • In dismissing the first ground but upholding the second, the Court of Criminal Appeal demonstrated that a single sentencing error, when it can be shown to have influenced the sentence actually selected, is capable of warranting resentencing even where the resulting term falls within a plausible range.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 307.2, 314.1, 314.4
- Crimes Act 1914 (Cth), s 16A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 273 ALR 324
- Hili v The Queen [2010] HCA 45; 84 ALJR 195
- The Queen v Cameron [2002] HCA 6; 209 CLR 339
- Wong v The Queen [2001] HCA 54; 207 CLR 584