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District Court 14 September 2012

R v Kho

[2012] NSWDC 232

Drugs
CRIMINAL LAW SENTENCE FOLLOWING JURY TRIAL

Citation: R v Kho [2012] NSWDC 232
Court: District Court of New South Wales
Date: 14 September 2012
Judge(s): Berman SC DCJ

Background

A jury convicted the offender of supplying more than a commercial quantity of heroin following a trial concluded in August 2012. The offence arose from events on 16 January 2009, when police observed the offender and his cousin travel from Chatswood to the Sydney CBD, where they met a third man at a city café. That third man arrived carrying a suitcase.

After a brief meeting, the offender took the suitcase, hailed a taxi, and directed the driver toward Chatswood. Police intercepted the vehicle shortly after departure and arrested both men. The suitcase contained 13.99 kilograms of heroin at approximately 70 per cent purity, roughly fourteen times the commercial quantity threshold.

The offender, a 38-year-old Singaporean national with no prior criminal convictions anywhere in the world, had previously been convicted of this same offence and sentenced by another judge. That conviction was overturned on appeal due to the incompetence of his trial counsel, leading to the retrial and the present sentencing exercise.

  • What was the offender's role and relative position in the drug supply hierarchy compared with his co-offenders?
  • What sentence was appropriate having regard to parity with the sentences imposed on the co-offenders by another judge?
  • Whether, and to what extent, the sentence imposed on the offender by the same judge in the earlier (overturned) proceedings was relevant to the current sentencing exercise.
  • What weight should be given to personal circumstances, including the offender's lack of prior convictions, his conduct in custody, and the hardship of serving a sentence in a foreign country?
  • Whether special circumstances existed to justify extending the parole period at the expense of the non-parole period.

Decision

Berman SC DCJ found that the quantity and purity of the heroin placed the offence at the serious end of the scale. However, the judge assessed the offender's role as less significant than that of either co-offender. Video evidence showed the offender appearing disengaged during the café meeting, and telephone records revealed no contact between the offender and either of the other two men in the lead-up to the transaction. The judge also noted the well-established principle that those higher in drug supply networks tend to avoid physical handling of drugs, reinforcing the view that the offender was a lower-level participant.

The judge declined to receive the sentencing remarks from the earlier proceedings before Judge Bennett, who had imposed an 18-year head sentence on the offender in those overturned proceedings. Berman SC DCJ reasoned that the evidence before him in the retrial may have differed from that before Judge Bennett, and that he was bound to sentence on the evidence admitted in the trial he had presided over. The Crown did not contest the characterisation of the offender as lower in the hierarchy than his co-offenders.

On parity, the judge noted that Tan (also convicted after trial) would have received 18 years without his assistance discount, and Loh would have received 16 years without his plea and assistance discount. The offender, assessed as playing a lesser role than both, was sentenced below those benchmarks. The judge confirmed that parity operates in favour of an offender, not the Crown.

Personal circumstances carried some weight. The offender had no prior convictions, had demonstrated industriousness and rehabilitation in custody, and faced the added hardship of serving his sentence away from his family in Singapore. The judge acknowledged the impact on the offender's elderly parents but found it insufficiently exceptional to reduce the sentence on that basis alone, though it was taken into account as an aspect of the conditions of custody the offender would experience.

Orders Made

  • The offender was sentenced to imprisonment from 16 January 2009.
  • Non-parole period: 7 years, expiring 15 January 2016.
  • Head sentence: 12 years imprisonment.
  • Order for destruction of the drugs (if not already destroyed).

Key Takeaways

  • A sentencing judge conducting a retrial following an overturned conviction is not bound by the sentence imposed in the earlier proceedings and may decline to receive the prior sentencing remarks, particularly where the evidence adduced at the two trials may have differed.
  • The District Court assessed the offender's role as lower in the supply hierarchy than his co-offenders, drawing on video evidence of disengagement during the transaction and the absence of telephone contact with either co-offender in the lead-up to the offence.
  • Parity in sentencing operates in one direction only: an offender is entitled to rely on co-offenders' sentences to avoid a justifiable sense of grievance, but the Crown cannot invoke parity to argue for a higher sentence.
  • Where an offender is serving a first custodial sentence, this may constitute special circumstances justifying an extension of the parole period relative to the non-parole period.
  • Hardship flowing from serving a sentence in a foreign country, including separation from family, can be taken into account as adding to the conditions of custody, though an offender who commits an offence abroad has limited grounds to rely on consequential disadvantages of serving a sentence there.

Legislation and Cases Referenced

No specific legislation or cases were cited in the judgment text or provided metadata. The offence involved supply of more than a commercial quantity of heroin under the relevant New South Wales drug supply provisions (not expressly identified in the judgment).