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Court of Criminal Appeal 6 June 2025

Chung v R

[2025] NSWCCA 87

Drugs

Citation: Chung v R [2025] NSWCCA 87
Court: Court of Criminal Appeal
Date: 06 June 2025
Judge(s): Stern JA, Fagan J, Ierace J

Background

The appellant pleaded guilty in the District Court to supplying a large commercial quantity of methylamphetamine, namely 998.3 grams, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Her plea was accepted on the basis of recklessness rather than actual knowledge. The offence involved delivering a bag of methylamphetamine to an undercover officer as part of a pre-arranged transaction in which a separate male collected $150,000 cash at another location.

The sentencing judge imposed a term of 6 years and 9 months' imprisonment, with a non-parole period of 5 years, after applying a mandatory 25% utilitarian discount for the early guilty plea. The appellant had no prior convictions, no drug use history, stable employment and family support, and had been assessed as presenting a low risk of reoffending.

On appeal, the appellant challenged aspects of the sentencing judge's reasoning relating to her role in the offence, procedural fairness, and whether her prospects of rehabilitation had been properly considered.

Legal Issues

  • Whether the sentencing judge erred in assessing the objective seriousness of the offence by failing to acknowledge the appellant's limited role in the supply enterprise (Ground 2(a))
  • Whether the sentencing judge introduced irrelevant and extraneous considerations by reference to hypothetical cannabis cultivation enterprises when assessing the appellant's role (Ground 2(b))
  • Whether the sentencing judge failed to take into account the appellant's good prospects of rehabilitation as a mitigating factor under s 21A(3)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Ground 3)
  • Whether the sentencing judge denied the appellant procedural fairness by potentially inferring that her legal fees were funded by superiors in exchange for her silence (Ground 5)

Decision

Ground 2(a): Objective seriousness and the appellant's role

The court found no error in the sentencing judge's assessment of objective seriousness. The findings that the appellant's role was central to the offence and that there was no direct evidence of a higher level of involvement by others were open on the evidence (at [51]). The sentencing judge was not obliged to expressly locate the offence on a scale of objective seriousness (at [52]). Leave was granted but the ground was dismissed (at [54]).

Ground 2(b): The "cultivation enterprise" passage

The court accepted the respondent's interpretation of the contested passage: the sentencing judge was illustrating how, in some drug supply cases, a hierarchy may be inferred even when low-level participants remain silent, by using cannabis cultivation as an analogy (at [53]). The sentencing judge confined his findings about the appellant's role to the evidence of what she actually did, and did not find she was a principal (at [51]). The ground was dismissed (at [54]).

Ground 3: Failure to consider rehabilitation prospects

The court upheld this ground. Although the sentencing judge recited the evidence bearing on the appellant's subjective case, his Honour's only reference to rehabilitation appeared in the context of explaining why special circumstances were not found, not as a mitigating factor in the instinctive synthesis of the sentence (at [63]-[64]). Under s 21A(3)(h) of the Sentencing Procedure Act, prospects of rehabilitation is a distinct statutory mitigating factor that must be taken into account, and the reasons must make it evident that it was considered (at [65]). Given the strength of the available evidence, including prior good character, no criminogenic factors, stable relationships and an employment offer, the absence of any acknowledgement of the appellant's good prospects of rehabilitation meant the court could not safely infer the factor had been taken into account (at [66]-[67]). The omission of a material consideration required the sentencing discretion to be exercised afresh (at [68]).

Ground 5: Procedural fairness and funding of legal fees

The court acknowledged that the sentencing judge's language in comparing the appellant's situation to hypothetical offenders whose legal fees are paid by superiors came close to drawing an adverse inference (at [57]). However, the court was satisfied that no such inference was ultimately drawn: his Honour had expressly noted there was no evidence of any higher level in the hierarchy, which logically precluded a finding that principals had funded the appellant's defence (at [2]). No denial of procedural fairness was established. The ground was dismissed (at [57]).

Resentencing

On resentencing, the court found the appellant was lower in the hierarchy, having acted at the request of a superior more removed from risk of detection (at [70]). The objective seriousness fell below the mid-range (at [70]). The court found good prospects of rehabilitation, minimal need for specific deterrence, and identified special circumstances based on the appellant's limited English fluency and the harsher prison conditions caused by the COVID-19 pandemic (at [71]-[73]). A starting sentence of 6 years was reduced by 25% to 4 years and 6 months, with a non-parole period of 3 years and 2 months (at [74]).

Orders Made

  • Appeal allowed
  • The sentence imposed on 24 November 2023 is quashed
  • The appellant is sentenced to imprisonment for 4 years and 6 months, backdated to commence on 23 February 2023 and to expire on 22 August 2027, with a non-parole period of 3 years and 2 months, to expire on 22 April 2026

Key Takeaways

  • Under s 21A(3)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW), good prospects of rehabilitation is a distinct statutory mitigating factor that sentencing courts must expressly engage with; it is not sufficient to mention it only in the context of special circumstances reasoning (at [63]-[65]).
  • A sentencing judge's failure to acknowledge a material mitigating factor, even where the evidence supporting it is summarised in the remarks, will not be cured by an inference that the factor was implicitly considered, particularly where the sentence imposed is not lenient (at [66]-[68]).
  • The Court of Criminal Appeal confirmed that prospects of rehabilitation (s 21A(3)(h)) and likelihood of reoffending (s 21A(3)(g)) are related but distinct mitigating factors, each requiring separate consideration in the instinctive synthesis (at [60]-[61]).
  • No error is established merely because a sentencing judge does not expressly locate an offence on a scale of objective seriousness, provided the findings made about the offender's role are supported by the evidence (at [51]-[52]).
  • Where a sentencing judge's remarks come close to drawing an inference adverse to the offender on a matter not supported by the evidence, the absence of any explicit adverse finding, confirmed by the logic of the reasons as a whole, may be sufficient to defeat a procedural fairness ground (at [2], [57]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(b), 3A(d), 5(1), 7(1), 21A, 21 A(2), 21(3) 21A(3)(g), 21A(3)(h), 21A(3)(e), 21A(3)(f), 25D(2)(a), 54A(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(3)(a), Sch 1

Cases
- Baker v R (2022) 302 A Crim R 60; [2022] NSWCCA 195
- Chiarlini v R [2023] NSWCCA 227
- DH v R [2022] NSWCCA 200
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Li v R [2023] NSWCCA 112
- Meoli v R [2021] NSWCCA 21
- Nguyen v R [2024] NSWCCA 178
- Zuffo v R [2017] NSWCCA 187