AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
District Court 17 March 2022

R v Chew

[2022] NSWDC 325

DrugsFraud & dishonesty
CRIME CONTROLLED DRUG SUPPLY PROHIBITED DRUG DEAL WITH PROCEEDS OF CRIME SENTENCING RELEVANT FACTORS ON SENTENCE STATE AND FEDERAL OFFENCES

Citation: R v Chew [2022] NSWDC 325
Court: District Court of New South Wales
Date: 17 March 2022
Judge(s): Haesler SC DCJ

Background

In January 2021, border control authorities intercepted a parcel arriving from Malaysia that contained 186.27 grams of pure heroin. Police removed the heroin, reconstructed the parcel, and had an undercover operative deliver it to a residential address in Burwood. The offender came to the door, identified himself unprompted, and took delivery of the parcel. He was arrested shortly afterwards.

On arrest, the offender initially denied involvement but quickly made admissions. He told police he had previously received similar parcels, opened them, weighed their contents, and passed the packages to others via a red toolbox left for collection. A search of his premises located that same toolbox, containing 123 grams of methylamphetamine from a prior delivery. Police also found a bankcard in another name, tracing 39 deposits totalling $223,650 to various bank accounts, with the offender receiving $500 per exchange.

The offender, a Malaysian national with limited English, pleaded guilty in the Local Court. Two matters were committed to the District Court for sentence: an attempt to possess a marketable quantity of an unlawfully imported border-controlled drug (the heroin parcel, a Commonwealth offence), and supply of a prohibited drug (the methylamphetamine found in the toolbox, a State offence). A proceeds of crime dealing charge (over $100,000) was taken into account on a schedule under the Commonwealth sentencing framework.

  • What weight should be given to the offender's role, knowledge, and degree of involvement in the drug distribution network when assessing objective seriousness?
  • How should the court approach sentencing for concurrent State and Commonwealth offences, including the risk of double-counting in aggravation?
  • What reduction in sentence was warranted for guilty pleas entered at an early stage?
  • How should the schedule matter (dealing with proceeds of crime) be taken into account without double-counting?
  • What subjective factors, including the offender's personal circumstances, foreign nationality, limited English, and the conditions of custody during COVID-19, bore on the appropriate sentence?

Decision

Haesler SC DCJ accepted that by the time the intercepted parcel arrived, the offender was either recklessly indifferent to, wilfully blind to, or actually aware that the parcels contained illicit drugs. The court noted that the payments received were inconsistent with any innocent explanation and that the offender himself conceded this in evidence. Although his role involved no sophistication, the court observed that low-level couriers and receivers are essential to drug distribution networks, citing the principle from R v Shi that such networks would collapse without them.

The court treated the offender as being of otherwise good character, having no criminal history in Australia and none in Malaysia placed before the court. His status as a foreign national, limited English, the conditions of custody during COVID-19 (which made his time in custody harder), and his position as the person chosen by others to bear the risk while principals collected the substantial profits were all taken as mitigating factors. His financial motivation and the scale of the money-laundering conduct, however, warranted some increase in the sentence for the Commonwealth offence, particularly for specific deterrence and retribution.

The proceeds of crime schedule matter was taken into account to increase the Commonwealth sentence, but the court was careful not to double-count by using the same facts both to establish the schedule matter and to aggravate the principal offence separately. A 25% reduction was applied to both sentences to reflect the utilitarian value of the guilty pleas, consistent with the requirements of the Crimes (Sentencing Procedure) Act 1999 for the State matter and the analogous approach for the Commonwealth matter.

Sentences were partially accumulated to reflect the distinct criminality of each offence while ensuring the total did not become unjustly crushing. The State sentence was structured as a fixed term, with no separate parole period, because any parole component would in practice be subsumed within the longer Commonwealth sentence.

Orders Made

  • State offence (supply prohibited drug): Fixed term of one year and six months imprisonment, commencing 4 February 2021.
  • Commonwealth offence (attempt to possess marketable quantity of unlawfully imported border-controlled drug): Three years and four months imprisonment, commencing 3 November 2021. Non-parole period of one year and nine months, commencing 4 November 2021 and expiring 3 August 2023 (subject to s 19AL, Crimes Act 1914 (Cth)), at which date the offender is to be released to parole. The balance of term of one year and seven months commences 4 August 2023 and expires 3 March 2025.
  • Total effective sentence: Four years and one month; minimum period in custody two years and six months; parole period one year and seven months.
  • Forfeiture: An Apple iPhone 11 Pro Max forfeited to the Commonwealth under s 18(1) of the Confiscation of Proceeds of Crime Act 1989 (NSW).
  • A copy of the expert report (exhibit 1) to be forwarded with the warrant to Corrective Services.

Key Takeaways

  • Low-level participants in drug importation and distribution networks attract meaningful custodial sentences even where their individual role involves no sophistication, because the court applied the principle that such networks depend on those who accept the frontline risk on behalf of more senior operatives.
  • A schedule matter under s 16BA of the Crimes Act 1914 (Cth) increases the sentence for the principal Commonwealth offence but does not itself attract a separate sentence; courts must take care to avoid double-counting the same facts in aggravation when dealing with the schedule matter and sentencing for the principal offence.
  • Where State and Commonwealth offences arise from related but distinct criminal conduct, partial accumulation of sentences is appropriate, with the structure designed to preserve the benefit of guilty plea discounts and avoid a total sentence that is disproportionately crushing.
  • Subjective factors, including foreign nationality, limited English, absence of prior criminal history, and the additional hardship of custody conditions during COVID-19, were each capable of bearing on the length of the non-parole period and the overall assessment of the sentence.
  • Under s 25D of the Crimes (Sentencing Procedure) Act 1999, a 25% reduction for the utilitarian value of a guilty plea is mandatory for the State offence; a comparable reduction applies to Commonwealth offences, and partial accumulation must be structured so as not to erode that discount.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.1(1), 307.6(1), 30(7).6(1)
- Crimes Act 1914 (Cth), ss 16BA, 19AL
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18(1)

Cases
- R v Nguyen [2010] NSWCCA 238; (2010) A Crim R 106
- R v Shi [2004] NSWCCA 135
- The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550