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Court of Criminal Appeal 14 December 2011

Hoon Tiong SEAH v R

[2011] NSWCCA 269

Drugs
CRIMINAL LAW IMPORTING HEROIN STATUS OF WONG AND LEUNG GUIDELINES NO QUESTION OF PRINCIPLE

Citation: Hoon Tiong SEAH v R [2011] NSWCCA 269
Court: NSW Court of Criminal Appeal
Date: 14 December 2011
Judges: McClellan CJ at CL; Hidden J (principal judgment); Johnson J

Background

The appellant, a 37-year-old Singaporean national, pleaded guilty in the District Court to importing a marketable quantity of heroin into Australia, an offence under s 307.2(1) of the Criminal Code 1995 (Cth) carrying a maximum of 25 years imprisonment. He had arrived from Malaysia with 571 grams of substance containing 423.6 grams of pure heroin concealed in his shoes, with a street value estimated between approximately $494,000 and $847,000. He was sentenced to 8 years imprisonment with a non-parole period of 5 years, commencing on the date of his arrest.

The appellant had acted as a courier, recruited in part through financial pressure: he had lost his job during the global financial crisis, had borrowed money from a loan shark, and had been involved with the man who recruited him as a prior drug supplier. A psychological report indicated he had been experiencing symptoms of reactive depression at the time of the offence.

He sought leave to appeal against the sentence on four grounds, each relating to the weight the sentencing judge gave to various factors: the quantity of heroin, evidence of remorse, cooperation with authorities, and prospects for rehabilitation.

  • Whether the sentencing judge placed undue weight on the quantity of drug imported, improperly applying the Wong and Leung guideline sentences as a sentencing framework
  • Whether the sentencing judge gave adequate weight to evidence of the appellant's remorse
  • Whether the sentencing judge adequately considered the appellant's cooperation with authorities
  • Whether the sentencing judge's assessment of the appellant's rehabilitation prospects was open on the evidence

Decision

On the question of drug quantity and the Wong and Leung guidelines, the Court noted that the sentencing judge made no reference to those guidelines in his remarks on sentence. The Court reaffirmed that a judge's reasons are to be found in the remarks on sentence, not in exchanges with counsel during submissions. Independently, the Court confirmed (consistent with R v Cheung and Choi) that the Wong and Leung guideline sentences can no longer operate as "a useful guide" following the High Court's criticism in Wong v The Queen [2001] HCA 64. Drug quantity nonetheless remains a relevant and significant factor in assessing the seriousness of an importation offence.

On remorse, the Court found that the sentencing judge had accepted the appellant's remorse as genuine, recorded it in the remarks on sentence, and taken it into account. No error was established in the treatment of this factor.

On cooperation with authorities, the Court found the sentencing judge had considered the limited cooperation offered: the appellant had initially denied knowledge of the drugs and only later disclosed the circumstances. His Honour treated the cooperation as a mitigating factor but appropriately modest in weight given its nature and extent. No error was identified.

On rehabilitation, the Court acknowledged the appellant's supportive family, improved outlook in custody, and insight into his substance abuse history. However, the sentencing judge's assessment was guarded rather than adverse: his Honour found it unlikely the appellant would reoffend upon returning to Singapore but identified a risk if he again faced severe financial difficulty. The Court found this assessment was open on the evidence, and declined to disturb it. The Court noted, without endorsing it, the sentencing judge's observation that any future reoffending would occur in Singapore and would not affect the Australian population.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Wong and Leung guideline sentences for drug importation offences no longer operate as "a useful guide" following the High Court's decision in Wong v The Queen, as confirmed by the Court of Criminal Appeal in R v Cheung and Choi and reiterated here. Drug quantity remains a relevant and significant sentencing factor, but it cannot be the predominant organising principle.

  • A sentencing judge's reasoning is to be drawn from the remarks on sentence, not from exchanges with counsel during the course of submissions. The Court declined to infer error from such exchanges where the remarks themselves disclosed no reliance on the impugned approach.

  • Where a sentencing judge accepts remorse and records it in the remarks on sentence, the absence of separate elaboration does not, without more, establish that the factor was given insufficient weight.

  • Rehabilitation assessments that are guarded rather than clearly adverse will not readily be disturbed on appeal. A finding that reoffending is unlikely but not impossible, particularly if tied to identifiable circumstances such as financial hardship, is capable of being open to a sentencing judge on the evidence.

  • In dismissing the appeal, the Court declined to consider whether the sentence was manifestly excessive, as this had not been raised as a separate ground of appeal.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), s 307.2(1)
- Crimes Act 1914 (Cth), s 16A(2)

Cases
- R v Wong and Leung [1999] NSWCCA 420, 45 NSWLR 340
- Wong v The Queen [2001] HCA 64, 207 CLR 584
- R v Cheung and Choi [2010] NSWCCA 244, 203 A Crim R 398
- DPP (Cth) v De La Rosa [2010] NSWCCA 194, 205 A Crim R 1