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District Court 10 May 2019

R v Chan; R v Kwan

[2019] NSWDC 507

Drugs
CRIMINAL SENTENCE AFTER TRIAL OFFENDERS ROLES PARITY SUBJECTIVE MATTERS

Citation: R v Chan; R v Kwan [2019] NSWDC 507
Court: District Court of New South Wales
Date: 10 May 2019
Judge: King SC DCJ

Background

Two co-offenders, referred to here as Chan and Kwan, were sentenced following a jury trial in which both were found guilty of attempting to possess a commercial quantity of methamphetamine, contrary to s 307.5(1) of the Criminal Code Act 1995 (Cth). The pure quantity involved was 81.4 kilograms, and the offending occurred between approximately 15 and 24 February 2017 in Sydney.

The facts, agreed between the parties for sentencing purposes, described an elaborate operation involving the concealment of drugs beneath the floorboards of a shipping container imported from China. Chinese authorities had detected the drugs before departure and notified Australian officials, who replaced the substance with an inert substitute and installed surveillance devices before the container was delivered. Both offenders were arrested on 24 February 2017 near the Doonside home of Chan's parents, having been under police surveillance.

A third co-offender, Vakatalesau, played a coordinating role in the scheme, including arranging storage facilities and using a false identity. The sentencing proceedings for Kwan and Chan were heard together, with the judge also mindful of a separate sentencing for Vakatalesau to follow on the same day.

  • What sentence was appropriate for each offender given the gravity of the offence, the commercial quantity of the drug, and the offenders' respective roles?
  • Were the roles and subjective circumstances of Chan and Kwan sufficiently comparable to warrant identical sentences?
  • How should the parity principle apply across all three co-offenders, including Vakatalesau?
  • What weight, if any, should be given to prospects of rehabilitation and remorse where both offenders were convicted after a defended trial and expressed no contrition?

Decision

The District Court found that the offence was at the very serious end of the scale. The quantity of pure methamphetamine, 81.4 kilograms, far exceeded the commercial quantity threshold and represented an enormous potential for harm in the community. The maximum penalty for the offence is life imprisonment, reflecting the legislature's view of such conduct.

The court examined the roles of both Chan and Kwan in detail. Despite some differences in the specific acts each performed, the judge could not discern any significant difference in their overall roles in the scheme or in their subjective circumstances. This conclusion, informed by the parity principle as discussed in De La Rosa v R [2010] NSWLR 1 and related authorities, led the court to impose identical sentences on both offenders.

On subjective matters, both offenders had been convicted after a defended trial in the face of what the judge described as an overwhelming Crown case. Neither had acknowledged guilt nor expressed remorse or contrition. The court found it impossible to forecast any meaningful prospect of rehabilitation in those circumstances, though it noted that the lengthy sentences would afford both offenders substantial time for reflection.

The judge also took into account the need to achieve parity with Vakatalesau, acknowledging that exercise involved some difficulty. The court found a low risk of reoffending in respect of each offender but gave this limited weight in the absence of any acknowledgement of wrongdoing.

Orders Made

  • Both Chan and Kwan convicted of attempt to possess a commercial quantity of a border controlled drug (methamphetamine, 81.4 kg pure) contrary to s 307.5(1) of the Criminal Code Act 1995 (Cth).
  • Each sentenced to 23 years imprisonment.
  • Non-parole period of 15 years, commencing 24 February 2017.
  • Parole release date: 23 February 2032.
  • Balance of term: 8 years, expiring 23 February 2040.

Key Takeaways

  • Where co-offenders played roles of equivalent seriousness and their subjective circumstances were materially similar, the parity principle required the imposition of identical sentences, even where minor differences in specific acts existed.
  • A conviction after a defended trial, combined with an absence of remorse or acknowledgement of guilt, significantly limited the weight a sentencing court could give to rehabilitation as a mitigating factor.
  • Under s 307.5(1) of the Criminal Code Act 1995 (Cth), the maximum penalty of life imprisonment reflects the extreme seriousness with which Parliament treats commercial-quantity drug importation offences, and a pure quantity of 81.4 kg attracted a sentence at the severe end of the range.
  • The District Court applied agreed facts prepared by the parties as the factual foundation for sentencing, supplementing them with surveillance evidence tendered by the Crown.
  • Achieving parity across multiple co-offenders sentenced on the same day required careful consideration even where the sentencing proceedings were conducted separately.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 307.5(1)

Cases
- De La Rosa v R [2010] NSWLR 1
- R v Budiman (1998) 102 A Crim R 411
- R v Cheung Yai Man & Ors, NSWSC (22 March 1991, unreported)
- R v Le Cerf (1975) 13 SASR 237
- R v Morabito (1992) 62 A Crim R 82
- R v Nguyen; R v Phan (2010) A Crim R 106
- R v Olbrich (2000) 117 A Crim R 326
- R v Pang (1999) 105 A Crim R 474
- R v Stanbouli [2003] NSWCCA 355
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584