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11
Court of Criminal Appeal 2 August 2017

Chong v R

[2017] NSWCCA 185

Drugs
CRIMINAL SENTENCING PLEA OF GUILTY PROCEDURAL FAIRNESS WHETHER SENTENCE MANIFESTLY EXCESSIVE DRUG OFFENCE

Citation: Chong v R [2017] NSWCCA 185
Court: NSW Court of Criminal Appeal
Date: 2 August 2017
Judges: Basten JA, Harrison J, Schmidt J

Background

The appellant pleaded guilty to supplying not less than the large commercial quantity of methylamphetamine under s 25 of the Drug Misuse and Trafficking Act 1985 (NSW). He was arrested at Sydney's Central Station in December 2015 while carrying 923 grams of the drug at 78.5% purity, intending to transport it by train to Perth. He had arrived in Australia on a working holiday visa approximately six weeks earlier.

In the District Court, Hatzistergos DCJ sentenced him to a total of 8 years and 3 months imprisonment, with a non-parole period of 5 years and 4 months. The offence carried a maximum of life imprisonment and a standard non-parole period of 15 years, reflecting a 2015 regulatory amendment that had halved the threshold weight triggering the "large commercial quantity" classification for methylamphetamine.

The appellant sought leave to appeal on two grounds: that the sentencing process was procedurally unfair, and that the sentence was manifestly excessive.

  • Whether the sentencing judge made adverse factual findings that went beyond the agreed facts and were not sought by the prosecutor, thereby denying the appellant procedural fairness.
  • Whether the finding that the appellant's role was "somewhat more than a courier" was open on the evidence.
  • Whether the sentence of 8 years and 3 months was manifestly excessive, having regard to comparable cases and the effect of the 2015 regulatory amendments.

Decision

Procedural unfairness: purpose of travel

The sentencing judge found that the appellant had come to Australia for the purpose of delivering the drugs to Perth, and had arranged and paid for the rail trip himself for that purpose. Basten JA held that this finding was not sourced in the agreed facts, was not sought by the prosecutor, and could not reasonably have been anticipated by the appellant. Travelling to Australia specifically to engage in criminal activity would, if established, be a serious aggravating factor. Because that finding was made without any prior indication and without the prosecutor advancing it, the Court held it should not have been made and that procedural unfairness was established.

Procedural unfairness: role as courier

The agreed facts recorded that the appellant was to be repaid his travel costs, taken to dinner, and paid a handling fee. The appellant's statements to a forensic psychologist also referred to a drug debt as the motivation for the task. The prosecutor conceded the appellant's role appeared to be that of a courier. Despite acknowledging uncertainty about the precise arrangements, the sentencing judge characterised the appellant as "somewhat more than a courier." The Court of Criminal Appeal held that no such finding was open on the evidence, and that, at minimum, it should not have been made without prior notice to the appellant.

Manifestly excessive sentence

Because the procedural unfairness findings required resentencing, the Court did not need to determine whether the sentence was manifestly excessive on some independent basis. Schmidt J, who undertook the principal analysis on this issue, examined comparable cases including those decided before and after the 2015 regulatory amendment. Her Honour concluded that, in light of the increased penalties introduced by that amendment and the differences in quantity, role, and sentencing context across the comparison cases, the sentence was not manifestly excessive. The appeal was nonetheless dismissed because no lesser sentence was warranted on resentencing.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court must not make adverse factual findings that were not sought by the prosecutor and could not reasonably have been anticipated by the offender from the agreed facts; doing so constitutes a denial of procedural fairness.
  • Where the agreed facts and prosecution concessions pointed to a courier role, the Court of Criminal Appeal found it was not open to characterise the offender's involvement as "somewhat more than a courier" without prior notice and supporting evidence.
  • The 2015 regulatory amendment reducing the threshold for the "large commercial quantity" of methylamphetamine (from 1 kg to 500 g) signals a legislative intention to increase sentences for offending involving quantities between those thresholds, although this does not require an immediate or mechanical uplift in every case.
  • Establishing procedural unfairness does not automatically lead to a reduced sentence on appeal; the Court of Criminal Appeal may dismiss an appeal if resentencing produces the same or no lesser outcome.
  • In comparing sentences across cases, courts must account for differences in quantity, role, applicable sentencing regime, and whether comparable sentences were themselves within the appropriate range.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25(2)
- Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Crimes Act 1900 (NSW), s 93TA

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- Butters v R [2010] NSWCCA 1
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Lowndes v The Queen (1995) 195 CLR 665; [1999] HCA 29
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Lam v R; Lam v R [2015] NSWCCA 87
- Cherdchoochatri v R (2013) 277 FLR 126; [2013] NSWCCA 118
- Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242
- R v Tak Hok Chong [2016] NSWDC 248 (the decision under appeal)
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- AB v R [2013] NSWCCA 273
- Govindaraju v Regina [2011] NSWCCA 255
- R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172
- Regina v Shi [2004] NSWCCA 135
- R v Leroy [1984] 2 NSWLR 441