Cherdchoochatri v R [2013] NSWCCA 118 | Case summary

The sentencing proceedings 22At the commencement of the sentencing hearing, immediately after the applicant's plea of guilty was taken, and the documents constituting the Crown case were tendered in evidence, counsel for the applicant also tendered a bundle of documents. This bundle consisted of a character reference and some medical reports of which no further mention need be made. Tendered separately was the report of the psychologist, Mr Howard. Counsel for the applicant also at that time handed up written submissions. Written submissions on behalf of the Crown had been included in the material already provided. It was after that that the applicant gave evidence. 23The applicant gave his evidence through an interpreter. There are indications in the transcript of the proceedings that the interpreter's grasp of English, and of his role as a court interpreter, was less than optimal. The evidence given by the applicant was directed to the circumstances in which he committed the offence, of which he gave an elaborate account. The first question asked of him in this respect was: "Q. How is it that you ended up bringing drugs back to Australia in your stomach?" to which he is recorded (as interpreted) as saying: "A. Because I'm kind to everyone and friendly with everyone." 24He then proceeded to give a more detailed account of how he became involved. He said that he travelled with his wife and younger daughter for a holiday in Cambodia. He said that, shortly before he was due to depart, a person he had met "a few times" in a shopping centre in Cambodia took him home for a farewell party. This person asked him to carry a package to Australia; he said that initially he refused to do so. The man then told him that on delivery of the package he would be given $1500. He said that he commented that that was a lot of money and asked whether the parcel was heavy. The man told him that it was not heavy, but was worth $15,000. He said that he replied that if the parcel was not heavy he would carry it for no reward. He said that he asked if it was illegal and was told that it was. He said that he then refused, and was "arrested" or "captured" (words used by the interpreter) by two persons who told him that he could not return to Australia empty handed, he had to take something with him. He continued to refuse. As a result, the men beat him with a bamboo stick on his back. One of the men told the other man not to harm the applicant, but threatened to do harm to members of the applicant's family who were in Cambodia, including his wife. Because of the importance of his family to him, the applicant then agreed to take the parcel. The transcript of evidence (as interpreted) is as follows: "Q. Then what happened after they made that threat? A. Are you going to accept it or not accepting it. Q. Then what happened? A. At that instant moment I will make a decision because my family is most important to me. Q. What happened next? A. And then I agree to accept the parcel." The men then forced a pipe or tube into his throat, and then the "balloons". The applicant resisted, by removing the tube. About 110 or 120 "balloons" were inserted into the applicant's body. 25At the direction of the men, the applicant gave them his telephone number. They told him not to speak to anyone, either in Cambodia or Australia, at risk of "trouble for both side[s]". After a few minutes they covered his face with a cloth and took him back to his accommodation. 26He said that he did not report these events to Cambodian authorities because of the fear of harm to his family; he was also afraid to speak to Australian authorities and was, in addition "half semi conscious" on arrival in Australia. He feared that "the balloon had burst". 27The applicant was cross-examined by prosecuting counsel. She did not challenge the applicant's evidence about the circumstances in which he came to have swallowed the drug, but established that the applicant knew that what he was doing was both dangerous and illegal. She confirmed that the applicant had been told that when the drugs were delivered he could receive a financial reward of $1500. She then put to him this question: "So you not only swallowed the drugs because of the threats, but also because you were to receive a financial benefit?" It is to be noted that she did not suggest that financial reward was the applicant's sole motivation for participation. 28In answer to some questions from the sentencing judge, the applicant said that he had been told that he would be contacted in Australia, and that "they would contact me and take me to somewhere to take it out", and that, altogether, about six people had been present when the drugs were forced into his mouth. 29He said that, after his arrest, an unknown person had on two or three occasions telephoned his wife, but when she told the person that he was in gaol, the calls ceased. 30At the outset of the hearing, both counsel provided to the sentencing judge comprehensive written submissions. It is of some significance that both sets of submissions were prepared in advance of the applicant's evidence. Those provided on behalf of the Crown included the following: "12 There is no independent evidence available to establish the exact role of the Offender in this importation, other than his actions in importing the drugs. The Crown submits that it is open to the Court to find that the Offender performed the role of courier. In performing that role, the Crown submits that the Offender did the following things: ... 13 The Crown submits that the foregoing demonstrates that the Offender played an essential role in the importation of the border controlled drug. ... · Financial gain 21 The offence was committed for financial gain. On 19 March 2011 the Offender participated in a record of interview with the AFP. At this time he told the AFP that he was to be paid $15,000 (sic) for swallowing the tablets." (italics added) The assertion that the applicant had participated in a recorded interview with AFP was contrary to what was contained in the agreed statement of facts put before the sentencing judge, which makes it plain that on 19 March 2011 the applicant gave limited information to NSW Police, and, although willing to participate in a formal interview, was unfit to do so. The disclosures (to NSW Police, not AFP) that are in the statement of facts attributed to the applicant are that he was to be paid an amount (unstated) of money for swallowing the "balloons" and bringing them into Australia, that he had been travelling with his wife and young daughter, and that he had passed 19 objects while in the custody of NSW Police. The reference to a reward of $15,000 is inconsistent with the transcript, which records the applicant as saying that he was promised $1500. 31There was, in the Crown's written submissions, no reference to any evidence, or question, of duress. 32The written submissions filed on behalf of the applicant in the sentencing proceedings contained a section headed "Duress". They addressed authorities concerning the relevance of duress falling short of a defence to criminal liability as a mitigating factor on penalty. They were confined to the relevant legal principles: they made no mention of any factual basis upon which the judge would be asked to make a finding of duress. 33The oral submissions made on behalf of the Crown were extremely brief. Counsel pointed out that the crime was a very serious one, and called for a sentence that incorporated a measure of deterrence. She described the quantity of drugs as "significant". She said: "It would be my submission, as Mr Cherdchoochatri said in evidence, that he knew what he was doing was illegal and that the offence was committed for a financial gain." She made no mention of the applicant's evidence concerning the threats and physical coercion. She did not suggest that that evidence ought not be accepted. 34In her oral submissions, counsel for the applicant again referred to the issue of duress. Those submissions included a brief review of the applicant's evidence and: "So it seems, and it's unchallenged by the Crown, that he was offered this reward before he realised what was involved. While he was to receive a financial gain I'd say that this case stands apart from all the cases I've handed up and that the Crown have handed up, in that that wasn't the motivating factor. He was motivated by the duress even though he was to receive the financial gain. He's given unchallenged evidence about being held down by two men, evidence of being threatened and his family being threatened. His wife is a Khmer Australian but he's given evidence that she had family in Cambodia. So I'd ask your Honour to consider that in relation to duress, motivation or reward, this case stands apart from other cases." These submissions were put on the assumption that the applicant's evidence of the circumstances in which he came to ingest the drugs would be accepted. Given the absence of any cross-examination challenging the applicant's evidence, that assumption was not misplaced. Neither Crown counsel nor the judge made any response or comment with respect to the submission.

The grounds of appeal 37Initially, only one ground of appeal was filed. It was in the following terms: "The applicant was denied procedural fairness in that the sentencing judge failed to warn him, or those acting for him, that he did not accept the uncontested evidence of duress." On the hearing of the appeal, leave was granted to the applicant to rely on an additional ground, in the following terms: "Ground 2: His Honour erred in failing to find that the applicant had acted under duress when he committed the offence for which he stood for sentence." 38The Crown did not dispute that evidence that may amount to evidence of duress (falling short of duress that would or could amount to a defence against criminal liability) may be taken into account for the purposes of sentencing: see Tiknius v R [2011] NSWCCA 215 at [30]-[54]. In my opinion, the evidence given by the applicant fell into that category. It was capable, if accepted, of impacting significantly on the assessment of the applicant's moral culpability. 39The submission advanced on behalf of the applicant on the appeal was encapsulated in written submissions in the following terms: "28 The issue of duress was clearly raised by the applicant. The evidence he gave was not inherently implausible. In the absence of challenge by the Crown, the sentencing judge was not entitled to reject or fail to act on it, or at least was not entitled to do so without proper notice to the applicant that he intended to take that course." (italics added) 40On behalf of the Crown, on the appeal, two primary submissions were made. The first was to dispute the premise which underlies the original ground of appeal, that is that the Crown did not challenge the applicant's evidence. It was submitted that the Crown did challenge the applicant's evidence; to this end, reliance was placed on the following question asked of the applicant in cross-examination: "Q. So you not only swallowed the drugs because of the threats but also because you were to receive a financial benefit?", and submissions to the sentencing judge to similar effect - that financial gain was the applicant's motive. 41This submission is unpersuasive. Neither the question nor the submissions amounted to a challenge to the applicant's evidence of his treatment in Cambodia. Indeed, the question concerning the applicant's motivation carried in it a plainly implied acceptance that the applicant had been threatened as he described, and that the threats had been a motivating factor in his engagement in the offence, together with the prospect of financial reward. No demur was made to the description of the applicant's evidence of threats by counsel for the applicant, in submissions, as "unchallenged". 42The second matter put by the Crown was that the judge did not reject the evidence of duress, but rather was not satisfied that the threats were the motivation for the offence. It was pointed out, correctly, that in this respect the applicant bore an onus of proof. It is correct that there was no explicit rejection of the applicant's evidence about what had happened to him in Cambodia. It is also true that, at least by clear implication, the judge rejected the applicant's evidence that it was the coercion and violence that had motivated him to agree to the importation. 43The Crown argued that the judge was not bound to make the finding urged on behalf of the applicant. For this proposition, the Crown relied upon the decision of this Court in Lindsay v R [2012] NSWCCA 124. Lindsay is not authority for that proposition. In that case, which has some similarities to the present, as well as some significant differences, the offender also sought to rely on duress as a mitigating factor. He gave some detailed evidence about a drug debt and intimidation. That evidence was the subject of challenge in cross-examination (see [11]). The offender also read affidavits deposed by family members in England, who were not available for cross-examination. The Crown made submissions concerning the weight that could be attributed to the affidavit evidence, given its inability to cross-examine. In those circumstances, the offender in Lindsay was in no doubt that the judge would be invited to, and might, reject his evidence. He therefore had the opportunity to put any argument available to him in response. Moreover, the substance of the sentencing judge's reasons for declining to mitigate the penalty by reason of the evidence of duress was not that she entirely rejected the evidence, but that she considered it insufficient to explain, in a way that mitigated his culpability, the seriousness of the crime. 44The first part of the proposition put here on behalf of the applicant is that, in the absence of challenge by the Crown to the applicant's evidence of what motivated him, the judge was not entitled to reject it. In the third paragraph of the extract above from the sentencing Remarks is an acceptance that the applicant experienced "a level of anxiety or fear" that his family would be put at risk - but the acceptance was expressed to be acceptance that they would be put at risk if he were to disclose to authorities in either country that he was conveying the heroin, and did not address the applicant's evidence that his family would be put at risk if he declined to comply with the demands of the men. There is no acceptance that the applicant experienced fear or anxiety for the safety of his family, or that that acted on his mind, in his decision to ingest the drug. There is clear rejection of that proposition. 45That Lindsay does not stand as authority for the proposition put (that the judge was not bound to make the finding urged by the applicant) does not carry the necessary consequence that the proposition is incorrect. It is necessary to examine whether it is. 46The applicant's evidence was plainly directed to establishing that the reason for his participation in the offence was the duress to which he claimed to have been subjected. He explicitly and unequivocally said that he made the decision to participate because of the threats to his family. It is true that his Honour did not expressly reject this. But in focusing only on financial gain, and in disregarding the applicant's evidence concerning his motivation, his Honour plainly, if implicitly, rejected that evidence. 47The present issue is whether, in the absence of notice given by the Crown to the applicant that his evidence was in contest, the judge was entitled to take that course. 48Counsel for the applicant relied upon two paragraphs from the decision of this Court in O'Neil-Shaw v R [2010] NSWCCA 42 (per Basten JA). Those paragraphs are in the following terms: "26 Statements of general principle must be understood in their context. Nothing in the statement set out above from Chow [see below] should be understood as inconsistent with the obligation of the sentencing judge to impose the appropriate sentence, based on the evidence properly before the court. As explained by Howie J in Palu [see below], the factual basis should be identified with particularity and disputed facts resolved by the accusatorial process upon the evidence before the court. Where the evidence was not challenged or disputed by the prosecution, and was not inherently implausible, his Honour was not entitled to reject it or fail to act on it, or at least was not entitled to do so without proper notice to the applicant that he intended to take that course. 27 It is a basic rule of procedural fairness that a party who does not accept the evidence of a witness should put the alternative view in cross-examination, both so that the witness may respond and so that the court has the benefit of assessing the response ... Where there has been no cross-examination of witnesses to contest their evidence 'judges should in general abstain from making adverse findings about parties and witnesses': MWJ v The Queen [2005] HCA 74; 80 ALJR 329 at [39] (Gummow, Kirby and Callinan JJ)." (bold added; one internal reference omitted) 49The "statements of general principle" to which Basten JA referred appear in paras [23] and [24], preceding the paragraphs relied on on behalf of the applicant. The first is drawn from Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, in which Kirby P set out principles governing the functions of prosecutors and judges involved in sentencing proceedings. The fifth principle is in the following terms: "The foregoing rules do not oblige a sentencing judge passively, and unquestioningly, to accept facts as the basis for sentencing which are presented by the prosecution and/or the accused. The judge's sentencing discretion is to be exercised in the public interest. Even where the prosecution and the accused are agreed, they cannot fetter the judge's performance of the judicial function by their plea bargaining: see Malvaso v The Queen ... [[1989] HCA 58; 168 CLR 227]" 50The second "statement of general principle" was drawn from the decision of this Court in R v Palu [2002] NSWCCA 381; 134 A Crim R 174, and is in the following terms: "21 It behoves the parties, especially after a 'plea bargain', to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court: Chow ... at 604-608 ..." 51It is worth also noting a brief passage from the judgment of Johnson J in O'Neil-Shaw. His Honour said: "50 Where affidavits are read without objection in civil proceedings, with deponents not being required for cross-examination, the rule is that such evidence should be accepted unless there is a credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence ..." (citations omitted) It may be that his Honour regarded that principle as also applicable in criminal proceedings. If that is so, I would venture to suggest that the principle is stated too broadly. Criminal proceedings, including (and possibly especially) sentencing proceedings, are more than interpartes litigation. A sentencing judge must have regard not only to the often competing positions of the Crown and the person the subject of the proceedings, but also to the public interest in criminal justice. That interest extends to the imposition of a sentence correctly within the appropriate range. That, in turn, extends to a proper and critical examination of all material put before the sentencing judge. A judge is not bound "passively and unquestioningly" to accept an account, apparently mitigatory, of an offender's motivation for becoming involved in an offence. 52The various passages cited above expose two principles that are not necessarily easy to reconcile. On the one hand, as was noted in Chow, a sentencing judge is not obliged to accept "passively and unquestioningly" evidence presented by either party. On the other hand, as was pointed out by Basten JA and Johnson J in O'Neil-Shaw, the normal processes in the adversarial system require that the opposing party identify any challenge to factual material placed before the court. If no such challenge is identified, it is not unreasonable to assume that the evidence is not disputed. Where that is the case, it might also reasonably be expected that the sentencing judge would accept the evidence, at least in the absence of some signal that that might not be the case. Such a signal would give the party an opportunity to attempt to marshall additional evidence or argument. Basten JA explicitly recognised this in the last part of para [26] in O'Neil-Shaw. 53However, that analysis omits one further consideration. Ethical constraints exist to preclude cross-examination on factual matters where the cross-examiner is not in possession of instructions on those factual matters that contradict the evidence given, or call it in question. That is a point of distinction between this case and O'Neil-Shaw. In O'Neil-Shaw, the subject matter of evidence said to have been unfairly not considered concerned a long history of asserted abusive conduct on the part of the victim of the offence. Given that the offence was one of extreme physical violence, which the offender claimed was mitigated by the victim's past conduct, the evidence was potentially of significance. Witnesses had committed their accounts of the victim's conduct to written form, many of them affidavits. Because of an approach taken by the parties with a view to shortening the proceedings, witnesses were not called for cross-examination. The competing accounts of the victim's conduct were not therefore, in the traditional or conventional way, explored. But they were capable of being explored, and the applicant (who claimed to have been disadvantaged by the rejection of the evidence) had ample notice of the nature of the evidence, and therefore ample opportunity to marshall his response. This Court nevertheless regarded the issue of sufficient importance to remit the matter to the District Court for rehearing. 54In the present case, it is difficult to envisage what instructions Crown counsel might have had in order to challenge the applicant's account. There is no reason to think that the applicant had, in his (apparently brief) conversation with police in the hospital, mentioned the matters put forward as duress. Despite what appeared in paragraph 21 of the Crown's written submissions on sentence, the agreed fact was that the applicant did not (although willing to do so) participate in a recorded interview. There is no mention of those matters in the report of Mr Howard, the psychologist. (Equally, there is nothing in the report that indicates that the circumstances of the offending were discussed.) So far as is known, the first mention of those matters was when he gave his evidence in the sentence proceedings. In those circumstances, the Crown could hardly be expected to have been in a position to put any cross-examination based on asserted facts contrary to what the applicant had asserted. 55In those circumstances "the absence of challenge by the Crown" is of limited consequence. 56Of course, cross-examination is not limited to factual challenges. The Crown may have explored what the applicant said, by seeking to probe further, and, possibly, expose inconsistencies or elicit a further explanation that was "inherently implausible". That is a difficult path to tread in the absence of any notice that the evidence was to be given. It was open to the Crown, in cross-examination, to question the applicant about the absence of mention of the threats and violence in any of the documentation, including Mr Howard's report. What is not known is what responses such questioning may have elicited. 57It was also open to the Crown in submissions to signify that it did not "passively and unquestioningly" accept the evidence, and did not accept that the judge should do so. The Crown may have drawn attention to the apparent absence of any mention by the applicant prior to his evidence of the events he then recounted. This is where it seems to me that the applicant is on stronger ground. The Crown not having taken that course, it was not unreasonable for the applicant's counsel to proceed on the basis that his evidence was accepted. I have mentioned above "the first part of the proposition put on behalf of the applicant". The second part is that, if he were contemplating rejecting the applicant's evidence, then, in the circumstances as they existed, fairness dictated that the judge himself give the applicant notice of that consideration. Such a course is expressly mentioned by Basten JA in the last sentence at [26] in the passage cited above from O'Neil-Shaw. 58It being apparent that the applicant relied to a significant extent on that evidence, and there having been no opposition by the Crown, fairness dictated that the applicant's counsel be notified that the judge was sceptical about the account given by the applicant. It was not accurate to say, as his Honour did (in the first paragraph extracted above), that the Crown had submitted that little weight should be given to the applicant's evidence. No such submission was made, either in writing or orally. Alerting counsel to the possibility of rejection of the applicant's case on motivation would, at least, have enabled counsel to make further submissions with a view to urging his Honour to accept what the applicant had said. It may even have been possible to call additional evidence in support, for example, from the applicant's wife, or from Mr Howard. In this respect it is pertinent to note (although it is often overlooked) that the Evidence Act 1995 applies in sentencing proceedings only if a direction is given to that effect. There is a degree of flexibility in sentencing proceedings in the manner in which evidence may be given. 59The applicant is correct in saying that the Crown did not challenge the evidence. And he is correct to base the grounds of appeal upon the implied rejection of the evidence. I am of the opinion that Ground 1 is made out. 60The question then arises as to the consequence of upholding that complaint. It leaves open, without a valid finding of fact, an important issue in the applicant's case in his motivation in participating in the offence. If his account of motivation is accepted, that may significantly diminish his moral culpability. If the Crown contention - that he was motivated purely by financial reward - is accepted, there is an equal but opposite impact on the assessment of moral culpability. On behalf of the applicant, it was contended that since it was not open to the sentencing judge to reject the applicant's evidence this Court ought, in effect, substitute its own finding that the applicant was motivated by the threats. That, no doubt, is why the second ground of appeal was added. 61Although it might be correct that the Crown did not expressly challenge the applicant's evidence of threat, that is explicable for the reasons I have outlined - the Crown had no inkling that the applicant would give evidence to that effect. And there were valid reasons for scepticism about the applicant's evidence - that is, that he had never (so far as is known) raised it before he gave instructions to his legal representatives in preparation for sentencing. It may well have been expected that he would, at least, have told the psychologist, but there is no indication in his report that the applicant did so. 62In the appeal, the Crown maintained the argument that the applicant's account of the circumstances in which he came to commit the offence ought to be rejected, because of the absence of any evidence that he had mentioned those circumstances to anybody prior to his giving the evidence. Particular mention was made of the absence of any mention of those matters in Mr Howard's report. The psychologist's report was prepared following an interview, conducted through an interpreter, of more than one and a half hours. It covered a variety of topics, under the headings "Presentation", "Family Background", "Education and Employment", "Social Relationships", "Health" (physical, mental and substance abuse) and "Clinical Opinion and Recommendations". Notably absent was any section concerning the circumstances of the offence, or the circumstances in which the applicant came to be involved in the offence. It cannot, however, be safely inferred that the applicant made no mention of those matters. 63In my opinion, this is an issue of considerable importance. The offence with which the applicant was charged is a very serious one, as is evident from the maximum penalty prescribed (imprisonment for 25 years), and the sentence actually imposed (imprisonment for 6 years). Should the applicant's account of events in Cambodia be accepted, that is capable of having a bearing upon the appropriate sentence. In my opinion, that account has not been the subject of adequate consideration. 64Regrettable though it is, I have concluded that the matter ought to be remitted for further hearing in the District Court. I see no reason why it should not come before the same judge. 65I propose the following orders: (i) Leave to appeal granted; (ii) Appeal allowed, sentence imposed in the District Court set aside; (iii) Proceedings remitted to the District Court for further hearing and determination. 66LATHAM J: I agree with Simpson J.

Cherdchoochatri v R

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