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Local Court 30 January 2023

R v CHOI

[2023] NSWLC 1

DrugsPublic order & justice offences
PAROLE BREACH OF PAROLE REVOCATION OF PAROLE WHETHER INAPPROPRIATE TO SET NON PAROLE PERIOD

Citation: R v CHOI [2023] NSWLC 1
Court: Local Court of NSW
Date: 30 January 2023
Judge(s): Shields LCM

Background

The respondent was convicted in the NSW District Court in 2005 of being knowingly concerned in the importation of 34.4 kilograms of pure MDMA, and received a twenty-year sentence with a thirteen-year non-parole period. He was released to parole in April 2017 after an initial refusal of parole in 2016.

In September 2019, NSW Police executed a search warrant at the respondent's approved accommodation and found he was absent. He failed to appear in court on drug charges laid against him and failed to report for his parole appointment. A delegate of the Commonwealth Attorney-General revoked his parole on 17 September 2019. The respondent remained at large for approximately two and a half years until police located him in April 2022, at which point he identified himself under a false name and faced further serious drug supply charges.

The Commonwealth Director of Public Prosecutions applied under section 19AW of the Crimes Act 1914 (Cth) for a remand warrant and sought a determination on whether it was appropriate to fix a new non-parole period for the balance of the respondent's original federal sentence.

Legal Issues

  • Whether it was appropriate to set a new non-parole period under section 19AW of the Crimes Act 1914 (Cth) following revocation of parole.
  • What factors could lawfully be taken into account in exercising the section 19AW discretion.
  • Whether untried criminal charges alleged to have been committed while the respondent was on parole could be considered in determining whether to set a non-parole period.
  • Whether the respondent's period of parole compliance before his disappearance was a relevant factor in favour of setting a new non-parole period.

Decision

Issue 1: Nature of the section 19AW discretion

Section 19AW confers an unconfined discretion to set a new non-parole period, and the factors available for consideration are equally unconfined (at [31]). The determination is an act of sentencing in respect of the index offence, exercising the judicial power of the Commonwealth, and is clearly distinct from the administrative act of granting parole (at [32]). The court emphasised that the parole-specific considerations in sections 19AKA and 19ALA do not, in that administrative context, govern a section 19AW sentencing determination (at [32]).

Issue 2: The established breaches of parole

The respondent breached multiple parole conditions (failing to reside at approved accommodation, failing to report, and failing to notify of changes of address) for approximately 945 days between September 2019 and April 2022, a period significantly longer than his 863 days of compliance (at [35]). He offered no evidence in explanation or mitigation, and bare unsworn assertions in his solicitor's letter were given no weight (at [36]). The breaches were prolonged, multiple, and occurred in combination with one another in the context of a serious index offence (at [39]). The court found those established breaches were, on their own, of a sufficiently serious nature to make it inappropriate to fix a new non-parole period under section 19AW(3)(a) (at [39]).

Issue 3: Untried charges and their relevance

The 2019 and 2022 drug charges remained untried at the time of the hearing. The court held that section 19AW(3)(a) directs consideration only of breaches that led to revocation, and a finding of reasonable grounds to suspect a breach is not a finding of an actual breach (at [45]). Because section 19AW contains no equivalent to the executive power in section 19AU(1) to act on reasonable suspicion, those untried charges could not be weighed in the sentencing determination, and the presumption of innocence further precluded adverse findings based on unresolved allegations (at [46]-[47]).

Issue 4: Period of compliance and prospects of rehabilitation

The submission that the respondent's 863-day compliant period demonstrated a capacity to comply with supervision was rejected. The period of non-compliance substantially exceeded the period of compliance, and assessed capacity to comply with parole conditions is, in any event, of marginal relevance to a section 19AW determination, which is more properly a sentencing exercise (at [37]-[38]). The respondent's long-term, unexplained breaches produced a pessimistic assessment of his rehabilitation prospects (at [57]). Both specific and general deterrence were found to be relevant (at [55]). Taking all matters together, the court found it inappropriate to fix a new non-parole period.

Orders Made

  • Remand warrant issued under section 19AW of the Crimes Act 1914 (Cth)
  • Determined inappropriate to fix a new non-parole period

Key Takeaways

  • A determination under section 19AW of the Crimes Act 1914 (Cth) is a sentencing act in respect of the index offence, not an administrative parole decision, and the two functions must not be conflated (at [32]).
  • Under section 19AW(3)(a), only actual proved breaches of parole conditions that led to revocation are directed for consideration; a finding of reasonable grounds to suspect a breach falls short of an actual breach and does not qualify (at [45]-[46]).
  • Untried criminal charges alleged to have arisen during the parole period cannot be given adverse weight in a section 19AW determination, because the presumption of innocence applies until a tribunal of fact returns a verdict (at [47]).
  • Prolonged, multiple, and unexplained breaches of parole conditions, occurring over a period substantially exceeding the compliant period and against the backdrop of a serious index offence, can alone provide a sufficient basis to find it inappropriate to fix a new non-parole period (at [39]).
  • Unsworn and unsupported assertions in a solicitor's letter, offered as explanation or mitigation for breaches of parole, carry no evidentiary weight in a section 19AW application; matters of that kind require a level of proof beyond bare assertion (at [36]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 ( Cth), s s 16A(2) , 19AQ, 19AR, 19AU, 19AV, 19AW, 19AX
- Customs Act 1901 ( Cth)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Ahmad v Attorney-General (Cth) [2022] FCA 1270
- Cant v Commonwealth Director of Public Prosecutions [2014] QSC 62
- Dobie v Commonwealth of Australia (2013) 216 FCR 300; [2013] FCA 1224
- Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
- R v Cant [2014] QCA 334