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Court of Criminal Appeal 18 September 2020

Chong v R

[2020] NSWCCA 235

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE DRUG OFFENCES FAILURE SUFFICIENTLY TO STATE REASONS NO LESSER SENTENCE WARRANTED

Citation: Chong v R [2020] NSWCCA 235
Court: NSW Court of Criminal Appeal
Date: 18 September 2020
Judges: Macfarlan JA; Fagan J; Cavanagh J

Background

The applicant, a Malaysian national, was recruited to coordinate the interstate trafficking of methyl amphetamine within Australia. The scheme involved concealing drugs inside spare tyres of motor vehicles driven from Perth to Sydney, with each run carrying approximately 10kg of methamphetamine. The applicant played a central operational role: he travelled to Hong Kong for training, helped equip a Perth-based co-offender, sourced suitable premises in Sydney for unloading deliveries, and personally rescued a stranded drug consignment in regional Victoria before his arrest on 1 December 2015.

In the District Court at Sydney, the applicant pleaded guilty to supplying a prohibited drug (methyl amphetamine) in a quantity not less than the large commercial quantity of 30kg, and to participating in a criminal group by directing its activities. Judge Mahoney SC sentenced him to 15 years imprisonment with a non-parole period of 10 years on the primary count, and a concurrent fixed term of five years on the criminal group count.

The applicant sought leave to appeal, arguing the sentencing judge made several errors in the sentencing process and that the sentences were manifestly excessive.

  • Whether the sentencing judge erred by double counting aggravating factors, specifically by treating the absence of regard for public safety and the potential for financial gain as aggravating circumstances when those features are inherent in large commercial drug supply offences.
  • Whether the sentencing judge erred by failing to make an express finding as to the applicant's remorse.
  • Whether the sentencing judge erred by failing to expressly consider the applicant's lack of prior convictions, good character, prospects of rehabilitation, and likelihood of reoffending.
  • Whether the sentences were manifestly excessive.

Decision

Double counting of aggravating factors: The Court accepted that the sentencing judge had erred. The features cited as aggravating, namely disregard for public safety and the potential for financial gain, were in fact inherent in any large commercial drug supply operation of this nature. Treating them as additional aggravating factors amounted to double counting and constituted a recognised sentencing error.

Failure to find remorse and address rehabilitation: The Court also found that the sentencing judge erred by not making express findings about remorse and prospects of rehabilitation. The applicant had submitted a handwritten letter and psychological report supporting claims of remorse and rehabilitative effort in custody. The sentencing judge's reasons did not adequately address these matters, which fell short of the required standard for stating reasons.

Effect of the errors: Despite finding these errors established on certain grounds, the Court conducted its own assessment of the appropriate sentence. It accepted that the financial gain involved was no greater than ordinarily expected from multi-kilogram methamphetamine supply, and that the degree of public safety disregard was not elevated beyond what is inherent in large commercial drug trafficking. Giving full weight to remorse, rehabilitative efforts in custody, and the applicant's subjective circumstances, including his background of poverty, debt, and limited English, the Court concluded that no lesser sentence was warranted.

Objective seriousness: The Court agreed with the sentencing judge's characterisation that the primary count fell above the mid-range of objective seriousness and the criminal group count was within the mid-range. The quantity involved, at 60 times the large commercial threshold, and the applicant's significant coordinating role across multiple states, supported those assessments.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Treating the potential for financial gain and disregard for public safety as aggravating factors in large commercial drug supply offences may constitute impermissible double counting where those features are inherent in that class of offending.
  • A sentencing judge is required to make express findings on remorse and prospects of rehabilitation where those matters are placed before the court through evidence. Silence on those issues in the remarks on sentence falls short of the requisite standard of reasons.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that identified sentencing errors do not automatically result in a reduced sentence. The appellate court may conduct its own assessment and, if satisfied no lesser sentence is warranted, dismiss the appeal notwithstanding the errors.
  • A defendant's role as an on-the-ground operational coordinator for a transnational drug trafficking enterprise, even where directions were received from overseas superiors, may attract a significant finding of objective seriousness where the scheme could not have been realised without that contribution.
  • Subjective factors such as impecuniosity, cultural obligation, gambling-related debt, and personal circumstances in custody may be accepted and given weight, yet still prove insufficient to reduce a sentence where the objective gravity of the offending is high.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 93T(4A)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Farkas v R [2014] NSWCCA 141
- Mansour v R [2011] NSWCCA 28
- Prculowski v R [2010] NSWCCA 274
- Tadrosse v R (2005) 65 NSWLR 740; [2005] NSWCCA 145
- Thomas v R (Commonwealth) [2006] NSWCCA 313
- Wat v R [2017] NSWCCA 62