Chen v R

Court of Criminal Appeal (NSW)|2021-11-19|Before: Beech-Jones CJ, Davies J, Wilson J, Meagher JA, Sully J, Kirby J, Kirby JJ, Bathurst CJ, Beazley P, Hoeben CJ, Bellew JJ, Johnson J, Jones CJ

Judgment

BEECH-JONES CJ at CL: The judgment of Wilson J sets out my reasons for agreeing to dismiss the appeal.
DAVIES J: I joined in the orders of the Court for the reasons given by Wilson J.
WILSON J: On 19 November 2021 the Court heard and dismissed this appeal. What follows are my reasons for joining in the orders the Court made on that date.
In September 2002 the appellant, Jack Chik Chen, was sentenced by Kinchington QC ADCJ sitting in the District Court in Sydney for an offence of conspiracy to import a commercial quantity of prohibited narcotic goods contrary to s 233B of the Customs Act 1901 (Cth), namely heroin, an offence which carried a maximum sentence upon conviction of life imprisonment, together with a substantial fine. The following year he sought leave to appeal against the sentence of 40 years imprisonment with a non-parole period ("NPP") of 26 years that had been imposed upon him.

The Facts of the Appellant's Offence

No issue has been taken by the appellant with the accuracy of the recitation of the facts of his offence given by Sully J in this Court in the 2003 decision. His Honour said, at 434 - 438, [9] - [29]: "The Crown case was, and remains, that the applicant was at the material times the principal in a highly organised and ongoing conspiracy to import heroin into Australia in consignments which were concealed in parcels that contained, ostensibly, computer parts. That conspiracy came to light, on the Crown case, as a result of a long term investigation of the Joint Asian Crime Group ("JACG"), a body which the Crown outline describes as: "……….. a combined task force of Commonwealth and State officers formed with the specific objective of targeting suspected criminal activity carried out by Asian groups and individuals. Rather than acting as a response group or pursuing reactive policing following the commission of a crime, the Joint Asian Crime Group selects particular targets and investigates their activities with a view to discovering hitherto undetected criminal activity". In the period from 1998 to April 2000 the JACG was targeting the present applicant. Its method was "………… to undertake electronic interception of telephones which were able to be identified as being used either by ……. (the applicant)…….or persons with whom he was associated, and by undertaking visual surveillance of persons associated with …..(the applicant) …... rather than physically targeting …… (the applicant) …… himself". The continuing investigations, on the Crown case, "crystallised with respect to a series of four specific consignments of alleged computer parts during a five week period from late February until early April 2000". In February 2000 intercepted telephone conversations between the applicant, who was then in Hong Kong, and Phillip He, one of the persons named in the indictment, suggested that an importation of heroin into Australia was being organised. On 29 February a consignment, purportedly of computer parts, was received by I.C.F., a freight forwarding agency in Sydney. The consignment had arrived by air from Hong Kong. It was addressed to Comworld Computers at a particular Sydney address. There was no such entity as Comworld Computers. The air freight manager of I.C.F. was Simon Stanbouli, also named in the indictment. He notified Mario Bourchas, also named in the indictment, and Bourchas collected the consignment from I.C.F. On the Crown case, the consignment contained a quantity of heroin which was intended to be handed over to Phillip He or to Fouad El Hassan, both of whom are named in the indictment. The Crown case pointed to a sequence of intercepted telephone conversations passing either between the applicant in Hong Kong and Phillip He in Sydney; or between He and El Hassan in Sydney. The Crown case was, and remains, that the terms of those conversations point convincingly to their having concerned the consignment previously mentioned. The consignment was collected by Bourchas on 29 February. The requisite fees were paid by Bourchas to I.C.F. by means of a cheque drawn on a bank account that had been organised as a cover for such payments. The consignment passed into the hands of Con Polyzoidas, who is named in the indictment. He conveyed the contents in a motor vehicle, which he had purchased on the preceding day, to a pre-arranged location where he left it parked and locked. A little later, one Mark Ho, arrived at that location, and, using a key which had been left by Con Polyzoidas for him on the top of the driver's-side wheel of the parked car, unlocked the car and took delivery of the consignment. Ho drove off, with the consignment, in his own car. He was pursued by police who had been keeping him under surveillance, and was stopped and arrested. He was found to be in possession of 4.05 kilograms of impure heroin. Later analysis established that the total pure weight was approximately 2.807 kilograms. Following the arrest of Ho, Con Polyzoidas was observed by police to re-claim the car which he had left parked for Ho to find. This took place in the context of a flurry of intercepted telephone calls between the applicant, still in Hong Kong, and He; and between He and El Hassan. These interchanges showed anxiety and agitation about what had happened to Ho and the heroin that he had been sent to collect; and included one conversation between He and El Hassan concerning the removal of the vehicle in which the heroin had been left for collection by Ho. On 1 March a second consignment was lodged in Hong Kong for overnight despatch to Sydney. Intercepted telephone conversations between the applicant, still in Hong Kong, and He in Sydney suggested that this second consignment was in fact a "dummy" run, designed to test whether the system which the conspirators were employing had been compromised following Ho's arrest. On 2 March Bourchas collected the consignment. Later, and on 9 April, the police retrieved this consignment. It was found to be intact and to contain no heroin. On 26 March a third consignment addressed to Comworld Computers was received. Its declared weight was 26 kilograms. The JACG was unaware, at the time, of this consignment; first becoming aware of it at about the end of March or the beginning of April after an intercept warrant had been obtained for a telephone service newly activated by the applicant after the arrest of Ho, and used thereafter by the applicant in place of a previous service which the police had been lawfully monitoring. Intercepted telephone conversations between the applicant and He, both then in Sydney, on 2 and 3 April, and between the applicant and one of his Chinese contacts in Hong Kong on 3 April, indicated the expected arrival on 8 April of a further consignment. In fact, that consignment arrived in Sydney on 9 April. It was handled, pursuant to the procedures previously outlined, by Stanbouli at I.C.F., and by Bourchas. Intercepted telephone conversations showed the applicant negotiating with the Chinese suppliers, and then liaising with He; and showed a flurry of contacts between and among He, El Hassan, Christos Argyris, a friend and associate of Polyzoidas and also named in the indictment, and Bourchas. The contacts were directed to arranging for Bourchas to collect the consignment from I.C.F.; to take it to his home and unpack the heroin contained in it; and to place that heroin in a motor vehicle for subsequent collection by somebody playing the part that had been played previously by Ho. The JACG investigators, having learned of these arrangements, intercepted the consignment, removed the heroin contained in it, and substituted another non-narcotic substance for most of the heroin. The consignment, when intercepted and examined, was found to contain 32 blocks of heroin weighing 14.768 kilograms. Later analysis showed a total pure weight of 9.81 kilograms. The reconstituted consignment was duly collected and processed by Bourchas; and was then left for, and collected by, one Robert Li. Li was watched by JACG operatives as he collected, and departed with, the controlled delivery. He was very soon thereafter arrested. His arrest, when it became known to the applicant and to He, touched off a number of telephone conversations between He and the applicant; and between the applicant and one of the Chinese suppliers. Shortly after the making of these calls the applicant was arrested. Part of the Crown outline concerns some intercepted telephone conversations made on 9 April from the applicant in Sydney to two Chinese suppliers who are identified as "cousin" and "Liang". The Crown outline describes these two suppliers as follows: "Cousin Cousin's precise identity was not ascertained by police but intercepted telephone calls with him, together with telephone discussions with the Man Liang, indicate that Cousin was directly responsible for the initiating supply from mainland China. Liang Zhi Xiong Liang was identified on a substantial number of telephone calls in discussion with Jack Chen as being closely connected with the original supply from mainland China and with the receipt of payment for the consignments and organisation of their transmission from Hong Kong. Hong Kong police surveillance revealed Liang having travelled in company with Chen from Hong Kong to Cambodia on 28 February and having returned together with Chen to Hong Kong on 29 February 2000 where both men were kept under police surveillance as they travelled from Hong Kong Airport." The particular conversations are summarised as follows in the Crown outline: "At 5.10 pm on 9 April (WAV 187) Chen telephoned Hong Kong and spoke with Liang. He enquired as to the "total number sent over here …. I mean what your total number is, for today, today, arriving on today". Chen was advised by Liang that the total was "21" and in that and a number of subsequent calls Chen enquired as to the precise number of "pieces" which were included in the consignment. Following telephone calls between Chen and Liang and Chen and "Cousin" in mainland China, it was eventually confirmed that there were twenty four 500 gram packages and eight packages of 350 grams. In conversation with Lian (WAV192; 17.23, 9 April 2000) Chen indicated the ongoing nature of the conspiracy: "Next time … next time you'll need to ask. In the future when the fucking package is different, in different style and you should have advised me the first thing." Chen further told Liang: "But when this happens, advise me the first time and I'll tell the other side in advance so that when they open it up they will know straight away that it is right and take it. If it is not right they will not take it. Do you understand?" Chen then telephoned Cousin in mainland China (WAV193, 17.24, 9 April 2000) and confirmed the size and weight of the packages which had been received and complained: "… the style is different from those before so people dare not take it …. Next time when there is anything different, please ring and advise me the first thing. OK?" In a subsequent call to Cousin (WAV 194) Chen told him: "Next time when it happens again, report to me the first thing." He also told Cousin: "Besides, you need to prepare for 28. Do you know? The date of 28th … Get prepared straight away." Chen also phoned Liang back (WAV 195) and asked whether he had told his cousin about the date of the 28th. Telephone contact between Phillip He and El-Hassan (WAV 237) confirmed that He was going to be provided with "22" (blocks). He advised El-Hassan: "I said next time he should tell you what's happening … Now listen because over there, the country, this is heroin alright. A couple of days. So this guy has got to do a collecter. Different things you know what I mean." The Crown case was, and remains, that the applicant was, during 2000 and prior to his arrest on 9 April 2000, the principal in an on-going conspiracy to import heroin into Australia. The Crown points to the foregoing conversations, all of which occurred prior to the applicant's becoming aware of Li's arrest, as establishing beyond reasonable doubt the then existence of such an open-ended conspiracy."

The Subjective Case

The appellant was born in China in 1959 and was 43 when sentenced in the District Court. He is now aged 62 years. When he was a young person, he moved with his family from China to Hong Kong and later, in 1982, to Australia. The appellant had a good education, leaving school at the age of 18 years, after which he was consistently employed. He was granted Australian citizenship in the early 1990s. He married and had two children but divorced in 1997. The appellant had a long-standing gambling problem and his wife was not able to cope with it. Despite that, the appellant's wife and family, in Hong Kong and Australia, remained supportive of him when he appeared for sentence in 2002. At the time of the commission of the offence the appellant had no criminal history.
The appellant told the author of a pre-sentence report ("PSR") that was before the District Court that his motive for participating in the offence was "to make quick money". It was noted in the PSR that: "[…] the main factor relevant to Mr Chen's offending behaviour appears to be greed and this is no doubt related to the offender's gambling problem".
The appellant was not a drug user and his prospects of rehabilitation were assessed as reasonable.
The appellant's plea of guilty one month into the Crown case at trial was noted and, whilst the sentencing judge accepted that the plea was some evidence of remorse and contrition, he did not regard it as "of the highest order". Although the appellant told the author of the PSR that he accepted responsibility for his offending, he disputed the Crown's description of him as "a principal organiser", asserting that he was no more than "a middle man". The sentencing court concluded that the appellant was "the head of the organisation / operation / syndicate which imported the heroin into Australia", an operation which was a "continual" one over some six weeks, with future plans for further drugs to be illegally imported.

The First Appeal to the Court of Criminal Appeal

The appellant advanced four grounds of appeal in the 2003 proceedings. They were that the sentence was manifestly excessive; that there was disparity between the sentence imposed on him and that imposed on a co-offender, Phillip He; that there were errors in facts found by the District Court; and that excessive weight was given to intended future importations.
This Court concluded that there had been an obvious error of fact by the sentencing judge. In the District Court Kinchington QC ADCJ noted wrongly that the total amount of heroin involved was between 16.9 and 17.2 kilograms of pure heroin; the correct amount was 12.6 kilograms. Otherwise, this Court held that there was no error in the sentencing court's conclusions that the appellant was a principal organiser who would have, but for his arrest, continued to import additional quantities of heroin into Australia, with another importation planned at the time of his arrest. Sully J observed, at 442, [50] that the appellant was the "lynch-pin of the whole conspiracy" whom it was reasonable to conclude would have profited from the importation to an extent commensurate with his significance as the "lynch-pin". Sully J, with whom Meagher JA and Kirby J agreed, concluded at 442, [51] that: "He was, on any realistic reckoning, a major player in a major heroin importing enterprise. As such, his objective criminality demanded an end result that was, and that was seen clearly to be, towards, and well towards, the top of the statutory range of imprisonment."
Although the parity argument, bearing in mind He's lesser role, was not persuasive, this Court concluded that the sentence was excessive because of the error as to the weight of the drug, coupled with an error in the approach taken at first instance to the mitigation of a sentence that could have been one of life imprisonment. Sully J continued, at [68] - [71]: "In calculating the way in which this Court should now intervene, I would adopt the "instinctive synthesis" approach as discussed in the joint judgment of Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584: see in particular paragraphs 75, 76 and 77; adding the consideration, recognised by Gleeson CJ in paragraph 12 of his Honour's judgment in the same matter, that "Judges are generally capable of entertaining two or more ideas at the one time". . I would allow 10 per cent for the plea and about 20 per cent for the section 16G factor. I would set, accordingly, a head sentence of 31 years. I would set a non-parole period of 23 years. I observe as to the foregoing calculations: [1] I would not disturb the 10 per cent discount allowed by the learned sentencing Judge; but I consider that the applicant is thereby treated generously when it is remembered that for a month or so he defended himself upon a basis that he knew to be false; and that he only changed his plea when he had to face up to the fact that that particular game was up. [2] A discount of 20 per cent for the section 16G factor is less than the normal range of 30-33 per cent. There is, however, nothing lapidary about that range. If that range would produce an end result that would not be "of a severity appropriate to the circumstances of the offence" then it is proper, in the spirit and the letter alike of section 17A, to make a fair adjustment. [3] For the same reason, I would set the non-parole period at, in practical terms, 75 per cent of the head sentence rather than at a point in the range 60-66 per cent. [4] The foregoing calculations seem to me to meet fairly any justified grievance that the applicant might otherwise have felt on account of the sentences passed upon He. [5] An additional ground, not previously canvassed herein, was taken by the applicant and was put as follows in the applicant's written submissions: "It is submitted that a procedural unfairness occurred by the failure to supply relevant and cogent evidence to the Applicant and those advising him at the committal stage. That defect was remedied at trial immediately prior to the re-arraignment and plea of guilty. Having regard to what happened at trial upon disclosure, it seems highly probable that if disclosure had been made at the committal, the Applicant would have pleaded guilty to the substantive charge he then faced and that plea would have been accepted. He would then have been sentenced with Phillip He in circumstances which would have allowed parity considerations to be given immediate and full effect. In those circumstances, the principles in Cameron v The Queen (2002) 76 ALJR 382 of "facilitating the administration of justice" would have operated in the Applicant's favour by further reducing the sentence imposed." In my opinion, the thrust of this argument, as spelled out in the third sentence of the written submission, is wholly unsupported by any, let alone any credible evidence, from the applicant or otherwise. I would not uphold it. I propose the following orders: [1] That leave to appeal against sentence be granted; [2] That the appeal against sentence be allowed and that the sentence passed in the District Court be quashed; [3] That the applicant be sentenced to imprisonment for 31 years, to commence on 9 April 2000 and to expire on 8 April 2031; with a non-parole period of 23 years to expire on 8 April 2023".

The Submissions of the Parties on the Present Appeal

Although accepting that the appeal was against the sentence imposed by the Court of Criminal Appeal, the appellant argued that the judgment of his Honour Judge Kinchington remained of relevance because of the adoption by this Court in 2003 of the factual findings made at first instance. Further, the appellant argued that the assessment of 10% by way of a reduction on sentence reflecting the plea of guilty "may also have played some role in the final disposition of the matter given Sully J's adoption of the same figure". The appellant contended that, in resentencing, this Court could not have had regard to the utilitarian value of the plea because the sentence was determined by considering the extent to which the plea facilitated the course of justice. It is submitted that the plea was regarded as a reflection of the appellant's recognition of the strength of the Crown case, being a subjective consideration, rather than with reference to its utility, an objective consideration.
The Crown contended that there was no error in the resentencing exercise by this Court in the 2003 decision. It was submitted that, insofar as it is relevant, the discount on sentence of 10% afforded to the appellant in the District Court comprehended the timing of the entry of the plea, a feature of direct relevance to utilitarian value. The error was in incorporating into the discount a component that reflected the appellant's prospects of rehabilitation.
The Crown pointed to the remarks of Sully J, in resentencing the appellant in 2003, to the recognition to be afforded to the appellant for the plea of guilty. His Honour allowed "10% for the plea of guilty", consistent with the discount given at first instance, a discount that his Honour described as generous. A separate discount of "about 20%" was allowed for "the s 16G factor", a reference to s 16G of the Crimes Act 1914 (Cth), now repealed [1] . It is submitted that, although the 2003 decision did not use the phrase "utilitarian value" with respect to the plea of guilty, the timing of the very late plea was discussed, with Sully J specifically allowing "10% for the plea of guilty". The quantum of the discount is consistent with that suggested for a late plea in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 ("Thomson and Houlton") to recognise only the utilitarian value, and not matters such as contrition, at [160(iii)].
It was argued that a discount on sentence of 10% "for the plea of guilty" where that plea was entered just before the Crown was to close its case at trial was objectively a generous one, the generosity of the discount itself supporting a conclusion that the discount was not inappropriately reduced by factors irrelevant to the utilitarian value of the plea.

The Question of Xiao Error

The question for this Court is whether the appellant has established that there was error in the 2003 decision in the way in which the discount "for the plea" was determined. That question is not answered simply by pointing to the absence of the phrase "utilitarian value" in the resentencing decision; a rather more sophisticated and nuanced approach is required: see Weber v R [2020] NSWCCA 103 at [15].
A reduction in sentence to recognise the benefits to the criminal justice system of a plea of guilty through the resources thereby saved was not an unknown concept in 2002 and 2003. The decision in Thomson and Houlton had been handed down in 2000, a decision which referred to and acknowledged the long tradition of reducing the sentence that would otherwise be imposed where there had been a plea of guilty; see for example Winchester v R (1992) 58 A Crim R 345. It was the quantification of the discount to be afforded, rather than the fact of it, that was the subject of the guideline judgment. Spigelman CJ specifically stated, at [162], that: "The discount range propounded for a guilty plea based on utilitarian considerations is not intended to result in any change in the level of sentences generally. Nothing in these reasons should be construed as indicating an opinion that trial judges have not in fact been giving appropriate consideration and weight to pleas in such a way as to distort the general level of sentences. The purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea."
Quantifying a specific discount on sentence to reflect the savings to the criminal justice system brought about by a plea of guilty was a measure intended to improve the transparency of the sentencing process; it was not intended to change or detract from the process of "instinctive synthesis", a process that Sully J observed was appropriate when re-sentencing the appellant. That a quantified discount for a plea and the process of instinctive syntheses are not mutually exclusive was made plain by the former Chief Justice in Thomson and Houlton, where his Honour said: "The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole."
See also [127] of the judgment, to the same effect and, although after the 2003 decision, Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [74] per McHugh J.
It is tolerably clear that, in re-sentencing the appellant in 2003, Sully J applied the principle laid down in Thomson and Houlton by recognising the savings to the community consequent upon the plea of guilty in allowing a discount on sentence, quantified at 10%, an interpretation that Senior Counsel for the appellant conceded, in oral submission, was open. That the discount was not wrongly diminished by factors irrelevant to the utilitarian value, such as remorse, can be seen from his Honour's observation at [69(1)], where he said: "I would not disturb the 10 per cent discount allowed by the learned sentencing Judge; but I consider that the applicant is thereby treated generously when it is remembered that for a month or so he defended himself upon a basis that he knew to be false; and that he only changed his plea when he had to face up to the fact that that particular game was up."
I take Sully J to mean that, coming only after a full month of evidence in the Crown case, and just before the Crown closed that case, the appellant's plea said little or nothing about contrition or remorse in light of both the timing of its entry and the false basis upon which the appellant had advanced his defence during the trial. His Honour pointed to the late plea rather as recognition of the strength of the case against the appellant. Thus, I am not persuaded that this Court determined the amount of the discount to be afforded on an erroneous basis, by taking into account features both objective and subjective. Rather, the quantified discount "for the plea" was intended to comprehend the savings to the community of a plea at a late stage. Given the very late stage at which the plea was entered I share the view expressed by Sully J that a discount of 10% was a generous one. Arguably, a plea entered after four weeks of court time had been expended, with yet more in preparation, represented a negligible saving to the criminal justice system, deserving of little or no reduction in sentence. As Spigelman CJ said in Thomson and Houlton at [133]: "From the utilitarian perspective alone, an early plea offers distinctive and substantially greater benefits over a plea that occurs at the commencement, let alone during, a trial. By the time of the trial considerable expenditure has been incurred by the prosecution and the defence in preparing the case, witnesses and victims are in attendance, a substantial proportion of the cost of the legal aid system has already been incurred and a jury panel has been required for attendance. Furthermore, although backup trials, either criminal or civil, may be available to employ the court's time made available without notice, that may not always be the case. The frequency with which guilty pleas are made on the day of the trial is a matter which considerably disrupts the efficiency with which courts in New South Wales can plan the use of their resources. The listing of reserve trials can never be precisely accurate. This results on some occasions in adjournments, and consequently waste of resources by the parties, and on other occasions in waste of judicial and court time."
Whilst the appellant argued before this Court in 2003 that the Crown case was only fully disclosed to him by the Crown at trial, and he could not have entered a plea any earlier than he did, that argument was firmly rejected in the 2003 decision, wherein it was held, at [70], that: "[…] this argument […] is wholly unsupported by any, let alone any credible evidence, from the applicant or otherwise. I would not uphold it."
Notably, Sully J observed that, had late disclosure of the Crown case in fact had an impact upon the timing of the plea of guilty, that feature "would have operated in the applicant's favour by further reducing the sentence imposed" (at [69(5)]). This too supports the conclusion that the discount awarded reflected the savings to the court system that flowed from the plea of guilty. It is also consistent with the principles that later fell from this Court in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 as to the significance of the timing of the entry of the plea of guilty to the calculation of the discount granted to reflect its utilitarian value.
This Court did not, in the 2003 decision, use the phrase "utilitarian value" in conjunction with the assessment of the discount on sentence awarded to the appellant to recognise his plea of guilty. The discount was, however, specifically quantified "for the plea", a practice encouraged in Thomson and Houlton as a means of separately taking into account the utilitarian value of a guilty plea to the criminal justice system. The amount awarded exactly corresponds to the quantum suggested in the guideline judgment as appropriate for a late plea, albeit that, for such a late plea the discount was, as Sully J observed, generous. It is likely or at least possible that the figure was nevertheless preserved from a sense of fairness to the appellant, rather than from a conviction that it was truly merited. These features all lead me to conclude that the 2003 decision both recognised and generously rewarded the utilitarian value of the appellant's late guilty plea, notwithstanding the absence of the phrase in the judgment.
I was not persuaded that error was made out.

Endnote

Section 16G, which was repealed from 31 December 2002, provided for a court sentencing a federal offender in a State or Territory where no remissions system was in operation to reduce the sentence to allow for that fact. In 2002 (and 2003) NSW was such a State. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2021

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (7 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (12)