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District Court 15 October 2021

R v Cheong

[2021] NSWDC 556

DrugsPublic order & justice offences
CRIME

Citation: R v Cheong [2021] NSWDC 556
Court: District Court of New South Wales
Date: 15 October 2021
Judge(s): Mahony SC DCJ

Background

A Malaysian national arrived in Australia in March 2015 and, over the following months, took on an organising role within a Malaysian-controlled drug trafficking syndicate operating in New South Wales. The syndicate imported and extracted methamphetamine concealed within wax blocks hidden inside laminated wooden shelves. The offender coordinated logistics on the ground: recruiting and briefing a civilian participant, securing premises for manufacture and storage, arranging communications equipment, obtaining identity documents, and directing another co-offender in drug handling and supply.

Police arrested the offender on 1 December 2015. On the same day, searches of premises connected to him revealed approximately 42 kilograms of methamphetamine at the Parramatta unit he shared with a co-offender, with additional quantities located at the Fairfield premises he had helped establish. The total quantity attributed to the offender for sentencing purposes was approximately 49.559 kilograms of pure methamphetamine, more than 99 times the large commercial quantity threshold under the Drug Misuse and Trafficking Act 1985.

The offender eventually pleaded guilty on 26 April 2018, after the matter had been listed for trial. He later sought to withdraw his plea, but that traversal application was refused by Flannery SC DCJ on 23 April 2021. The matter then proceeded to sentencing before Mahony SC DCJ, with six co-offenders having already been sentenced separately.

Legal Issues

  • What was the offender's role in the drug supply hierarchy and what was the objective seriousness of each offence?
  • What utilitarian discount applied to the guilty plea, given the subsequent failed application to withdraw it?
  • Whether the delay between arrest and sentencing, largely attributable to the traversal application, warranted leniency?
  • Whether the offender's personal circumstances, including limited English, low education, absence of family in Australia, depression and anxiety, constituted exceptional hardship and special circumstances justifying a varied parole ratio?
  • How the parity principle applied, having regard to the sentences imposed on six co-offenders?

Decision

Objective seriousness and role (Count 1): The court found that the offender's role was one of organising others' participation in the drug supply operation and was clearly towards the top of the Australian hierarchy, even though ultimate control remained with syndicate members in Malaysia (at [89]). The court accepted that the offender arrived in Australia specifically to commit these offences, briefed the civilian participant, arranged and funded premises, organised the importation of Mah-jong paper used in the extraction process, provided false identification, and directed co-offender Seong's drug handling activities (at [85]-[89]). The court was not satisfied the offender had knowledge of the 60 kilograms stored at Burwood, but was satisfied he knew about the large quantities at the Parramatta premises (at [89]). The objective seriousness was found to be well above the mid-range for an offence under section 25(2) of the Drug Misuse and Trafficking Act (at [89]).

Objective seriousness (Count 2): The court assessed the offending of knowingly directing a criminal group's activities as within the mid-range for an offence under section 93T(4A) of the Crimes Act 1900 (at [90]). However, as all relevant conduct was already captured by the Count 1 assessment, Count 2 played no significant additional role in sentencing, and the penalty was ordered to be served concurrently (at [90]).

Plea discount: The court allowed a 10 percent utilitarian discount (at [94]). The failed traversal application, which required eleven adjournment applications and four court days, reduced the utilitarian value of the plea below what it would otherwise have been. The offender's statement to the psychologist that he "did not know about the drugs" and was "not guilty" did not establish remorse as a mitigating factor (at [94]).

Delay and leniency: The court declined to treat the delay as a mitigating factor. The offender had made no progress toward rehabilitation during the relevant period, the delay was substantially of his own making through repeated adjournments, and this was not a "stale crime" attracting flexibility of approach (at [96]).

Hardship, special circumstances, and subjective matters: The court found that the offender's complete lack of English and the absence of any family in Australia constituted exceptional circumstances warranting a finding of hardship in custody and special circumstances under section 44(2) of the Crime (Sentencing Procedure) Act 1999, justifying a variation to the standard head sentence to non-parole period ratio (at [99]). The court treated the psychological report with caution because it relied substantially on the offender's self-reporting, and noted the offender had not been fully frank with the psychologist about his language abilities or custodial infractions (at [98]). Prior good character was accorded limited weight given the scale of the operation and the significant planning involved (at [97]).

Parity: Applying the parity principle, the court sentenced the offender more heavily than co-offender Chong, who had received a 15-year head sentence with a 10-year non-parole period, reflecting the offender's greater quantity of drugs and higher position in the hierarchy (at [100]-[104]).

Orders Made

  • Count 1 (supply of large commercial quantity of methylamphetamine): head sentence of 14 years and 5 months imprisonment, with a non-parole period of 9 years and 5 months, commencing 1 December 2015 and terminating 30 April 2025; balance of term to terminate 30 April 2030.
  • Count 2 (directing activities of a criminal group): fixed term of 5 years imprisonment, commencing 1 December 2015, to be served wholly concurrently with Count 1.
  • Cash of approximately $1,240 found at the Parramatta premises on 1 December 2015 forfeited to the State under section 18(1) of the Confiscation of Proceeds of Crime Act 1989, with leave granted for immediate disposal.

Key Takeaways

  • A failed application to withdraw a guilty plea is a relevant consideration in assessing the utilitarian value of that plea. The District Court found that eleven adjournments and four hearing days on the traversal application reduced the discount to 10 percent, as against a higher discount that might otherwise have applied (at [93]-[94]).
  • Where a sentencing delay is substantially caused by the offender's own procedural conduct, and no progress toward rehabilitation has been made in the interim, the delay will not automatically attract leniency (at [96]).
  • Under section 44(2) of the Crime (Sentencing Procedure) Act 1999, an inability to speak English combined with the complete absence of family support in Australia can constitute special circumstances justifying a departure from the standard non-parole period ratio, provided those factors are found to create exceptional hardship in custody (at [99]).
  • Prior good character is generally accorded reduced weight in serious drug supply cases, particularly where the offending involved deliberate planning and the prospect of substantial financial gain (at [97]).
  • The parity principle requires sentencing courts to account for differences in role, quantity, and subjective circumstances across co-offenders. Here, the offender's position near the top of the Australian hierarchy and the larger drug quantity attributed to him resulted in a longer sentence than that imposed on a co-offender who handled a smaller quantity (at [100]-[104]).

Legislation and Cases Referenced

Legislation
- Crime (Sentencing Procedure) Act 1999
- Crimes Act 1900
- Drug Misuse & Trafficking Act 1985

Cases
- Blanco v R [1999] NSWCCA 121
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Lai v R [2021] NSWCCA 217
- Mill v The Queen (1988) 166 CLR 59
- Ozan v R [2021] NSWCCA 231
- Parente v R [2017] NSWCCA 284
- R v Daley [2003] NSWCCA 109
- R v Hathaway [2005] NSWCCA 368
- R v Macdonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34
- R v Shi [2004] NSWCCA 135
- R v Shortland [2018] NSWCCA 34
- R v Todd [1982] 2 NSWLR 517