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Court of Criminal Appeal 2 October 2020

Cheng v R

[2020] NSWCCA 252

Drugs
CRIME SENTENCE APPEAL AGAINST SENTENCE TOTALITY PRINCIPLE FOUND GUILTY ON FIVE COUNTS DEGREE OF OVERLAPPING CRIMINALITY

Citation: Cheng v R [2020] NSWCCA 252
Court: Court of Criminal Appeal, New South Wales
Date: 2 October 2020
Judge(s): Bathurst CJ, Price J, N Adams J

Background

The appellant was a Chinese national who travelled to Australia to participate in a Hong Kong-based criminal syndicate engaged in importing, manufacturing, and supplying methylamphetamine. He was convicted after trial on five counts, including importing a commercial quantity of methylamphetamine (over 72 kilograms), taking part in manufacturing, two counts of supplying a commercial quantity, and dealing with proceeds of crime.

The sentencing judge in the District Court imposed separate sentences for each offence, resulting in a total term of 20 years imprisonment with a non-parole period of 14 years. The sentence was backdated to the date of arrest in May 2015. The resulting ratio of non-parole period to head sentence was 70 per cent, which is the statutory default under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Despite finding special circumstances (a ground that allows a court to reduce the non-parole period below the statutory ratio of 75 per cent), the sentencing judge expressly stated that the overall structure was intended and reflected the appropriate outcome. The appellant challenged the sentence on two grounds before the Court of Criminal Appeal.

  • Whether the sentencing judge misapplied the totality principle when structuring multiple consecutive and concurrent sentences across five counts
  • Whether the degree of accumulation produced a sentence that was crushing on the offender or manifestly excessive
  • Whether the sentencing judge erred by failing to give effective practical effect to her finding of special circumstances in the final sentence structure

Decision

On the totality ground, the Court of Criminal Appeal found no error in the sentencing judge's approach. Her Honour had carefully considered the overlapping criminality across the counts and structured the accumulation of sentences to reflect the total criminality involved without producing a result that was crushing or unjust. The Court was satisfied that the overall sentence of 20 years with a 14-year non-parole period was a just and appropriate measure of the appellant's total offending.

On the special circumstances ground, the Court confirmed that a finding of special circumstances does not obligate a sentencing judge to vary the statutory ratio. Relying on R v Fidow [2004] NSWCCA 172, the Court affirmed that the extent of any variation remains a matter quintessentially for the sentencing judge. Where the judge expressly states that the resulting sentence structure reflects her intended outcome, no error arises merely because the ratio remains at the statutory default.

The Court distinguished this case from Ibrahim v R [2019] NSWCCA 188, where a finding of special circumstances had produced only a marginal and unexplained reduction that made "a mockery" of the finding. Here, the sentencing judge was explicit about her intention, and the Court found no ambiguity in whether the final structure reflected her expressed purpose. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) does not require a sentencing judge to reduce the non-parole period below the statutory ratio of 75 per cent; the extent of any variation is a matter for the sentencing judge's discretion.
  • Where a sentencing judge expressly states that the final sentence structure reflects her intended outcome after a special circumstances finding, the Court of Criminal Appeal will not readily identify error, even if the non-parole period remains at the statutory default ratio.
  • The Court of Criminal Appeal confirmed the distinction between cases where a special circumstances finding produces no meaningful adjustment (which may constitute error, as in Ibrahim v R) and cases where the judge has consciously and explicitly addressed the issue.
  • In dismissing the totality challenge, the Court affirmed that the relevant question is whether the overall sentence is a just and appropriate measure of the total criminality, not whether the degree of accumulation could have been structured differently.
  • Offending involving sophisticated international drug importation syndicates, spanning multiple discrete criminal acts across importation, extraction, supply, and proceeds dealing, can properly attract a high degree of accumulation without the resulting sentence being characterised as crushing.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 307.1(1), 400.6(1), 11.1(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2), 29
- Crimes Act 1914 (Cth), Part 1B
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)

Cases
- Cahyadi v R [2007] NSWCCA 1
- House v The King (1936) 55 CLR 499
- Ibrahim v R [2019] NSWCCA 188
- Johnson v the Queen (2004) 78 ALJR 616
- Kliendienst v R [2020] NSWCCA 98
- Nguyen v The Queen (2016) 256 CLR 656
- Pearce v The Queen (1998) 194 CLR 610
- R v Fidow [2004] NSWCCA 172
- R v MAK and MSK (2006) 167 A Crim R 159
- R v Nykolyn [2012] NSWCCA 219
- R v Simpson (2001) 53 NSWLR 704
- Regina v Cramp [2004] NSWCCA 264