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Court of Criminal Appeal 1 August 2018

Chen v R

[2018] NSWCCA 157

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL DISMISSED

Citation: Chen v R [2018] NSWCCA 157
Court: NSW Court of Criminal Appeal
Date: 1 August 2018
Judge(s): Meagher JA, Schmidt J, Button J

Background

The appellant was convicted by a jury in the District Court at Sydney of aiding and abetting the importation of a commercial quantity of methamphetamine, specifically 14.14 kilograms (with a street value of approximately $11.2 million). The offence arose from a scheme in which the appellant leased premises under a false name, accommodated and supported overseas co-offenders, and coordinated the delivery of 31 boxes concealing liquid methamphetamine. He was sentenced to 12 years' imprisonment with a non-parole period of 7 years and 2 months.

The appeal was against sentence only. The appellant argued that the sentencing judge made specific factual errors and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding that the appellant knew the shipment contained a "significant amount" of illicit drugs, when the precise quantity had not been proven beyond reasonable doubt.
  • Whether the sentencing judge gave excessive weight to a finding of financial motivation, given no evidence of significant actual payment to the appellant.
  • Whether the sentence of 12 years with a 7 year 2 month non-parole period was manifestly excessive.

Decision

On the first ground, Button J rejected the argument that the sentencing judge was wrong to find the appellant appreciated the quantity was significant. As a matter of common sense, the court found that the scale and planning of the appellant's involvement made it inevitable he understood a substantial quantity was involved, even if the precise figure was not proven.

On the second ground, the court accepted that only limited, modest payments could be proven beyond reasonable doubt. Nonetheless, it held that the sentencing judge did not err in treating financial gain as a relevant motivation. The appellant had involved himself in the importation of a very large quantity of a prohibited drug for financial benefit, and that characterisation remained accurate regardless of the amount actually received.

On manifest excess, Button J surveyed comparable sentences from intermediate appellate courts across Australia and concluded the sentence was "not insubstantial" but did not reach the threshold of manifestly excessive. The appellant's role had been assessed as "middle management," central to the importation, with significant planning. The court noted the Crown had conceded a sentencing error in failing to apply a utilitarian discount for the guilty plea as required by Xiao v R, but found this did not warrant a lesser sentence in the circumstances.

All three grounds failed, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court may infer that an offender appreciated the quantity of drugs involved was significant, even without proof of precise knowledge, where the totality of the offender's conduct strongly supports that inference.
  • Financial motivation remains a valid aggravating consideration at sentencing even where the actual payments received were modest and unquantified, provided the offending was undertaken with the purpose of financial gain.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that a Crown concession of sentencing error does not automatically result in a reduced sentence; the court must still be satisfied that a lesser sentence is warranted in law.
  • The appellant's role was characterised as "middle management," reflecting sustained operational involvement including accommodation of co-offenders, coordination of deliveries under false identities, and steps to evade detection, rather than a mere storeman or receiver function.
  • Comparisons with sentences imposed in other Australian intermediate appellate courts formed part of the court's analysis in assessing whether a sentence for commercial drug importation was manifestly excessive.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 11.2, 307.1

Cases
- Chan, Lo and Nguyen v R [2010] NSWCCA 153
- Obiekwe v R [2018] NSWCCA 55
- R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
- R v Onyebuchi; Ex parte Commonwealth Director of Public Prosecutions [2016] QCA 143
- R v Tran, Tran & Nguyen [2013] NSWCCA 136; (2013) 233 A Crim R 167
- Stipkovich v The Queen [2018] WASCA 63
- Webber v The Queen [2014] NSWCCA 111
- Xiao v R [2018] NSWCCA 4