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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: NSW Court of Criminal Appeal
Date: 6 June 2025
Judges: Stern JA, Fagan J, Ierace J

Background

The applicant pleaded guilty 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). The offence was committed in June 2022 when the applicant was 27 years old. She had no prior convictions and was assessed as having a low risk of reoffending.

On 24 November 2023, a District Court judge sentenced the applicant to 6 years and 9 months imprisonment with a non-parole period of 5 years. That sentence already incorporated a mandatory 25 per cent discount for the utilitarian value of her early guilty plea, entered while the matter was still in the Local Court.

The applicant sought leave to appeal on five grounds, ultimately pressing three: that the sentencing judge misassessed the objective seriousness of her conduct, that assumptions were made about her involvement with criminal organisations, that she was denied procedural fairness, and that the sentencing judge failed to take into account her good prospects of rehabilitation.

  • Whether the sentencing judge failed to assess the objective seriousness of the applicant's conduct in the context of the full range of conduct captured by s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW)
  • Whether the sentencing judge improperly took into account assumptions about the workings of criminal organisations unrelated to the offence
  • Whether the applicant was denied procedural fairness by not being given an opportunity to respond to adverse implications arising from the sentencing judge's reference to criminal organisations involved in cannabis cultivation
  • Whether the sentencing judge failed to take into account, or failed to explain the taking into account of, the applicant's good prospects of rehabilitation under s 21A(3)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

Grounds 2(a) and 2(b): Objective seriousness and criminal organisations. The Court of Criminal Appeal dismissed both limbs of ground 2. On ground 2(a), it was open to the sentencing judge on the evidence to find that there was no direct or indirect evidence of any higher level of involvement in the enterprise of others, and his Honour had properly assessed the applicant's role. On ground 2(b), the sentencing judge's reference to offenders involved in cannabis cultivation enterprises was made by way of contrast. His Honour expressly distinguished the applicant's circumstances, which involved no organisational hierarchy, from those offenders whose circumstances often did.

Ground 5: Procedural fairness. The Court rejected the argument that the sentencing judge's remarks about low-level offenders in cannabis cultivation enterprises having their legal fees paid by superiors in exchange for silence gave rise to an available inference that his Honour contemplated that scenario applied to the applicant. Stern JA observed that, while the sentencing judge noted "some similarity" between the applicant's case and the hypothetical offenders he described, no adverse inference was ultimately drawn. The sentencing judge's own finding that there was no evidence of any higher-level hierarchy logically precluded any such inference, and therefore no denial of procedural fairness arose.

Ground 3: Prospects of rehabilitation. This ground succeeded. Although the sentencing judge acknowledged a number of factors relevant to the applicant's subjective case, the Court found it could not safely be inferred that his Honour actually took the applicant's good prospects of rehabilitation into account in the process of instinctive synthesis (that is, the overall balancing exercise a sentencing judge undertakes when arriving at a sentence). The failure to do so, or to explain how it had been taken into account, constituted error.

Resentencing. On resentencing, the Court identified a starting point of 6 years imprisonment, reduced by 25 per cent for the early guilty plea to 4 years and 6 months. The Court found special circumstances warranting a modest adjustment to the standard ratio between the non-parole period and the balance of the sentence, in light of the additional burden of imprisonment on a person not fully fluent in English and who had endured tougher conditions due to the COVID-19 pandemic. Mitigating factors taken into account included the absence of prior convictions, good pre-offending character, good prospects of rehabilitation, low risk of reoffending, and evidence of genuine remorse.

Orders Made

  • Appeal allowed
  • The sentence imposed on 24 November 2023 is quashed
  • The applicant is sentenced to a term of imprisonment of 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, expiring on 22 April 2026

Key Takeaways

  • A sentencing judge's reference to a different class of offenders by way of contrast does not, without more, constitute taking into account assumptions about criminal organisations unrelated to the offence being sentenced.
  • Where a sentencing judge acknowledges subjective factors in remarks on sentence but does not expressly address a statutory mitigating factor such as good prospects of rehabilitation, it may not be safely inferred that the factor was taken into account in the instinctive synthesis. That omission can constitute error warranting intervention on appeal.
  • The Court of Criminal Appeal confirmed the approach in Baker v R [2022] NSWCCA 195 and Li v R [2023] NSWCCA 112 in requiring that good prospects of rehabilitation, as a recognised mitigating factor under s 21A(3)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW), be demonstrably taken into account or explained in sentencing reasons.
  • In upholding the procedural fairness ground as unarguable, the Court emphasised that adverse inferences must be actually drawn by the sentencing judge before a denial of procedural fairness can be established. An ambiguous passage in remarks on sentence will not suffice if the balance of those remarks reveals no adverse finding was made.
  • Special circumstances justifying adjustment of the non-parole period ratio were found to exist where an applicant faced additional burdens in custody arising from limited English fluency and the effects of COVID-19 conditions of imprisonment.

Legislation and Cases Referenced

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

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