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District Court 3 February 2020

R v Chie

[2020] NSWDC 5

DrugsFirearms & weapons
SENTENCING COMMONWEALTH AND STATE OFFENCES SUPPLY COCAINE POSSESS PROHIBITED FIREARM. SENTENCING RELEVANT FACTORS ON SENTENCE VALUE OF LATE GUILTY PLEAS

Citation: R v Chie [2020] NSWDC 5
Court: District Court of New South Wales
Date: 3 February 2020
Judge: Haesler SC DCJ

Background

The offender pleaded guilty to four offences arising from events in October and November 2017. The most serious was an attempt to possess a commercial quantity of unlawfully imported cocaine, with a pure weight of approximately 15.4 kilograms, concealed within hollow granite tile blocks shipped from Valencia, Spain to Port Botany. Australian Border Force had intercepted and removed the cocaine before the offender and his co-offender searched the warehouse attempting to locate it.

The remaining offences were a State charge of supplying 85 grams of cocaine, possessing an unregistered shortened .22 rifle, and possessing ammunition without the required authority. The offender had been taken into custody on 10 November 2017, and the guilty pleas were entered on 9 November 2018, after a trial date had been set.

Sentencing proceedings commenced in October 2019 but were part-heard. Several factual disputes required resolution before the final sentence could be imposed. A co-offender, referred to as AE, had previously been sentenced in separate proceedings.

  • What were the appropriate factual findings for sentencing purposes, given that a number of facts from the agreed facts document remained in dispute?
  • What utilitarian discount applied to guilty pleas entered after a trial date had been fixed?
  • How should parity with the co-offender's sentence be approached?
  • How should the totality principle be applied when sentencing for multiple discrete Commonwealth and State offences?
  • What non-parole period was appropriate given the need for a meaningful parole period?

Decision

His Honour resolved the factual disputes and proceeded to sentence on the basis of established facts, applying the principle that disputed facts must be proved by the prosecution beyond reasonable doubt before being used adversely against an offender. The guilty pleas were entered after a trial date had been fixed, and the court assessed their utilitarian value at 15%, applying that discount to the indicative sentence for each offence.

The court considered parity with the co-offender AE, who had been sentenced in earlier proceedings. His Honour assessed the relative culpability of each offender and arrived at sentences that reflected the offender's individual circumstances, including a finding of low risk of reoffending and relevant personal background.

On the Commonwealth importation count, the court identified a starting point of 12 years imprisonment before the 15% discount, resulting in a sentence of 10 years and 2 months. The court emphasised the need for a meaningful and extended parole period, reflecting the offender's prospects of rehabilitation and the practical function of supervised release after a lengthy term.

Applying the totality principle across the Commonwealth and State offences, the court structured the sentences to achieve a just overall outcome without double-counting. The aggregate NSW sentence of 3 years (with a non-parole period of 1 year and 10 months) was set to run before the Commonwealth sentence, producing a total effective sentence of 11 years and 5 months, with eligibility for parole after 7 years, approximately 60% of the total.

Orders Made

  • The offender was convicted on all four counts.
  • Offence 4 (possession of ammunition): no punishment imposed; matter disposed of under s 10A Crimes (Sentencing Procedure) Act 1999, as punishment was considered inexpedient given time spent and to be spent in custody.
  • A 15% discount for utilitarian value of the guilty pleas was applied to each indicative sentence.
  • Offence 2 (supply prohibited drug): indicative sentence of 2 years 6 months imprisonment.
  • Offence 3 (possess prohibited firearm): indicative sentence of 1 year 8 months imprisonment.
  • Aggregate NSW sentence of 3 years imprisonment, with a non-parole period of 1 year and 10 months, commencing 10 November 2017; NSW sentence expires 9 November 2020.
  • Commonwealth sentence (offence 1, attempted possession of imported border controlled drug): 10 years 2 months imprisonment, commencing 9 February 2019; non-parole period of 5 years 9 months, expiring 8 November 2024.
  • Total effective sentence: 11 years 5 months, with parole eligibility after 7 years; parole period of 4 years 5 months.

Key Takeaways

  • A 15% utilitarian discount applied where guilty pleas were entered after a trial date had been fixed, reflecting the more limited (though still real) value of a late plea in reducing the burden on the court and the prosecution.
  • Parity between co-offenders requires a careful assessment of individual culpability; a difference in sentence does not necessarily constitute error if the sentencing court identifies material differences in the offenders' roles and circumstances.
  • Under the totality principle, where an offender faces multiple discrete Commonwealth and State offences, the sentencing court must structure the sentences so that the overall outcome is just and proportionate, and does not exceed what the totality of the criminality warrants.
  • The District Court treated the need for a substantial parole period as a significant structural consideration, particularly where an offender faces a lengthy non-parole period and there is a genuine prospect of rehabilitation.
  • Disputed facts tendered in aggravation at sentence must be proved by the prosecution beyond reasonable doubt before the court may act on them adversely to the offender.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), s 307.5(1)
- Crimes Act 1914 (Cth), s 19AL
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Firearms Act 1996 (NSW), ss 36(1), 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Court Suppression and Non-publication Orders Act 2010 (NSW)
- Criminal Procedure Act 1987 (NSW), s 166

Cases
- Afu v R [2017] NSWCCA 246
- Barbaro v The Queen (2014) 253 CLR 58
- Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208
- Green v The Queen (2011) 244 CLR 462
- Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Hili v The Queen (2010) 242 CLR 520
- Lau v R [2010] NSWCCA 43
- MAK v R [2006] NSWCCA 381
- Markarian v The Queen (2005) 228 CLR 357
- Mooney v R [2016] NSWCCA 231
- Power v The Queen (1974) 131 CLR 623
- R (Cth) v AE (District Court (NSW), 15 May 2019, unrep)
- R (Cth) v Chie [2019] NSWDC 346
- R v Borkowski [2009] NSWCCA 102
- R v Clinch (1994) 72 A Crim R 301
- R v Holland [2011] NSWCCA 65
- R v Mackellar (No 3) [2014] NSWSC 106
- R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106