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Court of Criminal Appeal 17 December 2014

Chime v R

[2014] NSWCCA 304

Drugs
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION WHETHER JUROR FELL ASLEEP DURING TRIAL APPEAL APPEAL FROM SENTENCE

Citation: Chime v R [2014] NSWCCA 304
Court: Court of Criminal Appeal, New South Wales
Date: 17 December 2014
Judges: Bathurst CJ, Adams J, R A Hulme J

Background

The appellant was convicted in February 2012 on nine counts of aiding and abetting the importation of marketable quantities of border controlled drugs (heroin, cocaine, and methamphetamine) and one count of dealing with money believed to be proceeds of crime totalling over $500,000. The drugs were concealed in packages mailed to Australia and addressed to false identities linked to the appellant. Police found a large volume of incriminating material at his home, including false identification documents, drug residue, and financial transaction records.

In July 2012, the appellant was sentenced to a head term of 12 years imprisonment with a non-parole period of 7 years. The appellant appeared unrepresented before the Court of Criminal Appeal, having been represented at trial.

The appellant challenged both his conviction and his sentence across a broad range of grounds, many of them procedural.

  • Whether the trial judge improperly directed the jury to find that the appellant was the person depicted in photographic evidence
  • Whether a juror fell asleep during the trial
  • Whether the jury deliberation facilities induced poor judgment or pressured the jury into returning a verdict before members were ready
  • Whether the trial judge erred in directing the appellant to answer questions in English
  • Whether the interpreter fell asleep during the trial and, if so, what consequences followed
  • Whether the appellant's trial legal representative was mistaken or negligent in failing to call certain witnesses
  • Whether the absence of that evidence caused a miscarriage of justice
  • Whether the overall sentence was manifestly excessive
  • Whether the sentencing judge gave inappropriate weight to the appellant's psychological condition, failed to adequately consider his status as a first offender, and failed to consider his mental health history and family circumstances
  • Whether the sentencing judge erred in calculating the amount of money laundered

Decision

The Court dismissed all grounds of the conviction appeal. Adams J (with whom Bathurst CJ and R A Hulme J agreed) found that the various procedural complaints, including allegations about a sleeping juror, inadequate deliberation facilities, interpreter issues, and the conduct of trial counsel, lacked substance. No miscarriage of justice was established on any of those grounds.

On the sentence appeal, the Court similarly rejected the majority of the grounds. The sentencing judge had considered the appellant's psychological condition, family circumstances, and first-offender status. The judge's reference to a total money laundering figure of "at least $500,000" was supported by the exhibits tendered at trial, which showed transfers totalling just over $524,000, and the count charged required only that the value be $100,000 or more.

One limited error was identified in the sentence for count 6 (the importation involving at least 2 grams of heroin on 20 August 2010). The sentencing judge had stated the overall sentence before formally pronouncing the sentence on that individual count, creating an inconsistency. Adams J characterised this as a slip rather than a deliberate error, and the Court corrected it by quashing the sentence on count 6 and substituting a sentence of 2 years imprisonment. The overall head term and non-parole period remained unchanged.

The appellant also applied for bail to allow him to assist police by making contact with co-offenders. The Court noted it had no power to grant bail for that purpose, though it acknowledged the application was not an entirely empty gesture and may have indicated some degree of contrition.

Orders Made

  • The appeal against conviction was dismissed.
  • Leave to appeal against sentence was granted.
  • The appeal against sentence was dismissed, except as to the sentence on count 6.
  • The sentence on count 6 was quashed and replaced with a sentence of 2 years imprisonment, commencing 29 February 2012 and ending 28 February 2014.

Key Takeaways

  • A broad range of trial irregularity complaints, including allegations of sleeping jurors, inadequate deliberation facilities, interpreter issues, and counsel error, will not succeed without establishing that a miscarriage of justice actually occurred.
  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the prosecution case, which rested on documentary evidence, fingerprints, and items seized from the appellant's home, provided a sufficient evidentiary foundation to support the jury's verdict.
  • Where a sentencing judge misstates an individual count's sentence after having already announced the intended overall outcome, that error may be corrected on appeal by substituting the appropriate term, without disturbing the totality of the sentence.
  • An application for bail to enable an appellant to assist police by contacting co-offenders falls outside the scope of the Court's bail powers.
  • Under the Criminal Code Act 1995 (Cth), an offence of aiding and abetting the importation of border controlled drugs carries a maximum penalty of 25 years imprisonment; the money laundering offence under s 400.4(1) carries a maximum of 20 years where the value is $100,000 or more.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 307.2(1), 11.2(1), 400.4(1)

Cases:
- Gallagher v The Queen (1986) 160 CLR 392
- Mickelberg v The Queen (1989) 167 CLR 259
- R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
- Salmon v R [2012] NSWCCA 119