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Court of Criminal Appeal 23 May 2018

Ching v R

[2018] NSWCCA 101

Drugs
CRIME APPEAL SENTENCE CURIAL HARDSHIP ALLEGED MANIFEST EXCESS

Citation: Ching v R [2018] NSWCCA 101
Court: Court of Criminal Appeal, New South Wales
Date: 23 May 2018
Judges: Basten JA, Johnson J, Adamson J

Background

The appellant was a Hong Kong citizen convicted by jury of importing a marketable quantity of methamphetamine (623.4 grams pure) into Australia, contrary to s 307.2(1) of the Criminal Code (Cth). She had concealed the drug inside a cognac bottle in her luggage and attempted to disguise it as a duty-free purchase. The offence carried a maximum penalty of 25 years' imprisonment.

The sentencing judge in the District Court imposed a term of 8 years and 9 months' imprisonment, with a non-parole period of 4 years and 10 months. It was accepted throughout the proceedings that the appellant did not know the quantity of the drug or its value.

The appellant had no prior criminal history and suffered from significant physical and mental health conditions, including ovarian cancer, rheumatoid arthritis, and Major Depressive Disorder. She sought leave to appeal against the sentence on four grounds.

  • Whether the sentencing judge erred by taking into account the weight and value of the imported drug when the offender was unaware of those matters
  • Whether the sentencing judge failed to properly account for the appellant's mental illness in considering general and specific deterrence
  • Whether the potential loss of the appellant's Hong Kong Housing Commission accommodation while in custody constituted extra-curial hardship warranting further mitigation (raised as fresh evidence)
  • Whether the sentence was manifestly excessive in all the circumstances

Decision

Ground 1: Weight and value of the drug. The Court of Criminal Appeal rejected the argument that weight and value must be disregarded in sentencing simply because the offender was unaware of them. Relying on the High Court's decision in Wong v The Queen, the Court distinguished between treating drug weight as the "chief" sentencing factor (which would be an error) and treating it as one relevant factor among many. The sentencing judge had done the latter, and that approach was open to her.

Ground 2: Mental illness and deterrence. The Court found that the sentencing judge did take the appellant's mental health into account. Her Honour accepted that the appellant met the criteria for Major Depressive Disorder, that a custodial sentence would weigh more heavily on her as a result, and that this warranted some moderation of sentence. The Court was not persuaded that any error was made in how the mental illness was applied to the deterrence analysis.

Ground 3: Loss of housing commission accommodation. The Court declined to admit the proposed fresh evidence relating to the appellant's risk of losing her Housing Commission accommodation in Hong Kong. The sentencing judge had already noted the appellant's fear of losing that accommodation in her remarks on sentence. The evidence did not meet the requirements for admission as fresh or new evidence on appeal, and no error was established on this ground.

Ground 4: Manifest excess. The Court applied the established principle that manifest excess requires a conclusion that the sentence was unreasonable or plainly unjust, not merely that a different sentence was open. Given the objective seriousness of the offence, the maximum penalty of 25 years, and the careful way in which the sentencing judge addressed the subjective matters, the Court was not persuaded that the sentence fell outside the available range. Leave to appeal was refused on all grounds.

Orders Made

  • Leave to appeal against the sentence imposed by the District Court on 31 March 2017 refused.

Key Takeaways

  • A sentencing court does not err merely by considering the weight and estimated street or wholesale value of imported drugs, even where the offender was unaware of those matters. The error condemned in Wong v The Queen was treating weight as the "chief" factor, not referring to it as one relevant consideration among many.
  • Where an offender's circumstances are otherwise similar to a co-offender's, the quantity of drugs imported may lawfully be used to assess the relative seriousness of the offending.
  • A diagnosis of Major Depressive Disorder is a recognised basis for moderating sentence, particularly where it supports findings that custody will weigh more heavily on the offender and that specific deterrence is of lesser significance. The Court of Criminal Appeal confirmed the sentencing judge had applied that principle correctly here.
  • Refusing the appeal, the Court reiterated that manifest excess is a conclusion about the result of the sentencing exercise, not a separate analysis of process. An applicant must show the sentence was unreasonable or plainly unjust, not simply that a lighter sentence was open.
  • Proposed fresh evidence on appeal will not be admitted where the sentencing judge had already addressed the substance of that evidence in her reasons, and the formal requirements for fresh evidence are not met.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth) s 307.2(1)

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64