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District Court 1 March 2019

R v Chee Hui Tiew

[2019] NSWDC 35

Drugs

Citation: R v Chee Hui Tiew [2019] NSWDC 35
Court: District Court of New South Wales
Date: 1 March 2019
Judge: Mahony SC DCJ

Background

The offender, a Malaysian citizen, arrived in Australia in May 2015 and became involved in a drug trafficking syndicate operating out of Sydney. The syndicate imported methylamphetamine concealed within wax-impregnated shelving packed inside flat-pack furniture boxes. The offender's role was primarily that of storeman and delivery person: he stored boxes of drug-impregnated shelving at his Burwood premises and delivered two boxes to a police informant in late November 2015.

Police executed search warrants in late November and early December 2015, recovering a combined 67.477 kilograms of pure methylamphetamine from the Burwood and Fairfield premises. The offender was arrested on 1 December 2015 and had been in custody for over three years by the time of sentencing.

The offender pleaded guilty on 26 April 2018, after the matter had been listed for trial, following negotiation that resulted in an amended indictment. He was one of several co-offenders, all Malaysian nationals, sentenced in connection with the same trafficking operation.

Legal Issues

  • What was the appropriate assessment of the objective seriousness of the offence, having regard to the quantity of drugs and the offender's role within the syndicate?
  • Whether the offender's gambling debt, the assault he suffered, and his fear for his family's safety constituted duress sufficient to operate as a mitigating factor at sentencing.
  • What discount, if any, applied to the sentence for the late guilty plea?
  • Whether special circumstances existed to justify a different ratio of non-parole period to total sentence.
  • How the principle of sentencing parity applied, having regard to sentences imposed on co-offenders Ho and Seong.

Decision

Objective Seriousness

The court assessed the objective seriousness of the offence as above the mid-range for a section 25(2) Drug Misuse and Trafficking Act 1985 offence (at [53]). The large commercial quantity threshold is 500 grams; the 67.477 kilograms involved here was many times that amount. While the offender's role was substantially that of a storeman, the court found he had also facilitated the supply by having his name used to register the business "Harbour Progress" and by personally delivering two boxes of drug-impregnated shelving to a police informant (at [53]). The court rejected the submission that the level of planning and financial gain did not go beyond what might ordinarily be expected for this class of offence, finding those characteristics were clearly and significantly in play (at [55]).

Duress

The court rejected the offender's claim that duress operated as a mitigating factor (at [56]). Although the offender had been assaulted by a person to whom he owed a gambling debt and feared further violence against his family, the court found he had made no attempt to seek support from family or friends, or to alert authorities in Malaysia or Australia. The court applied the reasoning in Hernandez v R [2013] NSWCCA 51, finding clear choices were available to the offender other than participation in the criminal conduct (at [40], [56]).

Guilty Plea Discount

The court applied a 10% utilitarian discount to reflect the late guilty plea, entered after the matter was listed for trial and in the face of a strong Crown case (at [55], [62]).

Special Circumstances

The court declined to find special circumstances, notwithstanding the offender's diagnosis with a gambling disorder, his language difficulties, and his likely lack of visitors during custody (at [61]). The court found that, as this was his first period of custody, the length of the sentence would afford sufficient time for rehabilitation (at [61]).

Parity

The court applied the parity principle, comparing the offender's sentence with those of co-offenders Ho and Seong (at [57]-[60]). Ho had received a head sentence of 13.5 years with a 10-year non-parole period, but was a trusted and key player in the syndicate, was 59 years old, in poor health, and had received a 25% discount. Seong had received 11 years with a non-parole period of 7 years and 10 months, also with a 25% discount and a finding of special circumstances. The court determined that the differences between the offender's circumstances and those of his co-offenders justified a higher sentence, given the greater quantity involved and the lesser discounts applying (at [59]-[62]).

Orders Made

  • The offender was convicted of supply of a prohibited drug greater than a large commercial quantity, namely 67.477 kilograms of methylamphetamine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985.
  • Sentenced to a non-parole period of 10 years and 10 months commencing 1 December 2015, terminating 30 September 2026.
  • Balance of term: 1 October 2026 to 31 May 2030 (total head sentence of 14 years and 6 months).
  • Cash of approximately $1,480 found on the offender at arrest forfeited to the State pursuant to section 18(1).
  • Leave granted pursuant to section 19(3)(a) for the forfeited property to be disposed of forthwith.

Key Takeaways

  • The District Court confirmed that an offender's role within a drug trafficking syndicate is a paramount consideration in assessing objective seriousness, even where the quantity of drugs involved is very large: a storeman and delivery role can still yield an above-mid-range finding where the offender's facilitation of the supply was integral to the syndicate's operation (at [53]).

  • A claim of duress as a mitigating factor at sentencing requires more than an assault and a generalised fear of further violence. Where an offender had access to family, friends, and law enforcement but sought none of their assistance before participating in serious criminal conduct, the court will not treat duress as established (at [56]).

  • Planning and financial gain are not automatically disqualified as aggravating factors merely because they are inherent in large commercial supply offences. Where those characteristics are present to a significant degree, they remain available as aggravating considerations (at [55]).

  • Sentencing parity requires courts to compare an offender's sentence with those of co-offenders, but justified differences in role, discount, age, health, and the quantity of drugs involved can produce materially different sentences without giving rise to a justifiable sense of grievance, consistent with Lowe v R (1984) 154 CLR 606 (at [57]-[62]).

  • A first-time custodial sentence and diagnosis of a gambling disorder did not, in this case, establish special circumstances sufficient to alter the ratio of non-parole period to head sentence. The court found the length of the sentence itself provided adequate opportunity for rehabilitation (at [61]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999
- Drug Misuse and Trafficking Act 1985

Cases
- Hernandez v R [2013] NSWCCA 51
- Lowe v R (1984) 154 CLR 606
- Wat v R [2017] NSWCCA 62