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District Court 1 March 2019

R v Chun Keat Chong

[2019] NSWDC 36

DrugsPublic order & justice offences

Citation: R v Chun Keat Chong [2019] NSWDC 36
Court: District Court of New South Wales
Date: 1 March 2019
Judge(s): Mahony SC DCJ

Background

The offender, a Malaysian national, arrived in Australia in October 2015 as part of a transnational drug trafficking syndicate. He had been recruited in Malaysia after accumulating gambling debts of approximately $80,000 and developing a dependency on methylamphetamine. The syndicate's Australian operation had two arms: extracting methylamphetamine concealed in imported shelving boards, and transporting large quantities of the drug from Perth to Sydney hidden inside the spare tyres of Toyota Prado vehicles.

The offender's role centred on the second arm. He flew to Perth to help acquire tools for concealing drugs in the tyres, returned to Sydney to lease premises where drugs would be unloaded, served as the key point of contact for drivers travelling from Perth, and drove to Victoria to replace a blown tyre on a stranded vehicle whose spare was packed with drugs. He was to be paid $2,000 per vehicle plus a daily allowance and living expenses.

The offender was arrested on 1 December 2015 and remained on remand for over three years. He entered guilty pleas on 23 April 2018, when the matter was listed for trial, to supply of a prohibited drug in a quantity greater than a large commercial quantity and to knowingly directing the activities of a criminal group.

Legal Issues

  • What was the appropriate assessment of the objective seriousness of each offence, having regard to the quantity of drug involved and the offender's role?
  • What utilitarian discount applied to a late plea of guilty entered in the face of a strong Crown case?
  • How did the parity principle apply, given that co-offenders had already been sentenced to varying terms?
  • Whether special circumstances existed to justify a variation of the standard ratio between head sentence and non-parole period.
  • What sentence was appropriate across both offences, taking into account the offender's subjective circumstances including addiction, gambling debt, remorse, and hardship in custody?

Decision

Objective seriousness of the supply offence

The court found the objective seriousness of the supply offence under section 25(2) of the Drug Misuse and Trafficking Act 1985 to be above the mid-range (at [38]). The quantity involved, at least 30 kilograms and an anticipated 40 kilograms of methylamphetamine, was many times the large commercial quantity threshold of 500 grams (at [38]). The offender's active role in preparing the vehicles in Perth, leasing premises in Sydney, and travelling to Victoria to rescue a stranded drug vehicle all contributed to this finding (at [38]).

Objective seriousness of the directing offence

The court assessed the offence of knowingly directing the activities of a criminal group under section 93T(4A) of the Crimes Act 1900 as falling within the mid-range of objective seriousness (at [39]). Although the offender took instructions from syndicate controllers in Malaysia, he was responsible for directing activities on the ground in Australia (at [39]).

Discount for late plea

The court allowed a 10 percent utilitarian discount for the guilty plea, noting it was entered late and in the face of a very strong Crown case (at [41]). The defence had sought 15 percent, citing two weeks of negotiations before the plea was entered, but the court accepted the Crown's position of 10 percent (at [32], [41]).

Parity with co-offenders

The court applied the parity principle, which requires that sentences imposed on co-offenders not produce a justifiable sense of grievance or give the appearance that justice has not been done (at [43]). Co-offender Ho, charged with smaller quantities, received a head sentence of 13.5 years and a non-parole period of 10 years (at [44]). Co-offender Seong, whose offending involved 45 kilograms and who received a 25 percent discount, was sentenced to 11 years with a non-parole period of 7 years and 10 months (at [45]). The court treated the present offender's role as above mid-range on the supply count and comparable in several subjective respects to Seong, though with a lesser discount and a somewhat more active operational role (at [38], [41], [45]).

Special circumstances and subjective features

The court found special circumstances established, warranting a departure from the usual ratio between head sentence and non-parole period (at [47]). The offender's language difficulties, complete absence of visitors, addiction to methylamphetamine, and gambling debt leading to his recruitment all supported that finding (at [47]). The court also took into account his handwritten letter expressing remorse, attendance at bible study in custody, and the loss of his father while on remand (at [17], [18], [47]).

Orders Made

  • Convicted of supply of a prohibited drug greater than a large commercial quantity (not less than 30 kilograms of methylamphetamine) under section 25(2) of the Drug Misuse and Trafficking Act 1985: sentenced to a non-parole period of 10 years commencing 1 December 2015 and expiring 30 November 2025, with a balance of term of 5 years from 1 December 2025 to 30 November 2030 (total head sentence: 15 years).
  • Convicted of knowingly directing the activities of a criminal group under section 93T(4A) of the Crimes Act 1900: sentenced to a fixed term of 5 years commencing 1 December 2015 and expiring 30 November 2020, to be served concurrently with the principal sentence.
  • Convicted of possession of 0.63 grams of methylamphetamine (on the section 166 Certificate): conviction recorded with no further penalty under section 10A of the Crimes (Sentencing Procedure) Act.

Key Takeaways

  • A quantity of methylamphetamine that is many multiples of the large commercial quantity threshold, combined with an active operational role across multiple States, will support a finding of objective seriousness above the mid-range for a supply offence under the Drug Misuse and Trafficking Act 1985 (at [38]).

  • The District Court applied a 10 percent utilitarian discount for a guilty plea entered on the day of trial after two weeks of negotiations, treating the lateness of the plea and the strength of the Crown case as relevant factors that limited the discount below the 15 percent sought by the defence (at [41]).

  • Under the parity principle, differences in co-offenders' ages, health, quantity of drug involved, and available discounts can justify materially different sentences without producing a justifiable sense of grievance, provided those differences are identified and weighed (at [43]-[45]).

  • Special circumstances justifying a variation of the standard non-parole period ratio were established by a combination of language difficulties, social isolation in custody (including no family visits), drug addiction, and the circumstances of recruitment into the syndicate (at [47]).

  • Where an offender in a drug trafficking syndicate serves primarily as a domestic coordinator and point of contact, directing drivers and organising premises, that role may still be characterised as a substantial one attracting significant penalties, even if it is assessed as below that of the syndicate's senior Australian organisers (at [38]-[39]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Criminal Procedure Act 1986
- Drug Misuse & Trafficking Act 1985

Cases
- Le v R [2017] NSWCCA 26
- Lowe v R (1984) 154 CLR 606