Chong v R

Court of Criminal Appeal (NSW)|2020-06-29|Before: Macfarlan JA, Fagan J, Cavanagh J

Judgment

THE COURT: The applicant seeks leave to appeal against sentences imposed upon him in the District Court at Sydney by his Honour Judge Mahoney SC. The drug-related offences for which he was sentenced were committed in October and November 2015. The applicant was arrested on 1 December 2015 and remanded in custody from that date. He was committed from the Local Court on 16 March 2017 and his trial, jointly with co-offenders, was listed to commence in the District Court on 23 April 2018. On that day he entered pleas of guilty to an amended indictment. Sentence proceedings in respect of the applicant and three of his co-offenders, who also pleaded guilty, were conducted on 19 October and 23 November 2018.
Sentences in respect of the applicant were pronounced on 1 March 2019, as follows: 1. Supply prohibited drug (methyl amphetamine) greater than the large commercial quantity (not less than 30kg), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) - 15 years commencing on the date of arrest, with a non-parole period of 10 years. The statutory maximum penalty is life imprisonment and a standard non-parole period 15 years applies. 2. Participate in a criminal group by directing its activities, knowing that the participation contributed to criminal activity, namely, the supply of a large commercial quantity of a prohibited drug (methyl amphetamine, not less than 30kg), contrary to s 93T(4A) of the Crimes Act 1900 (NSW) - a fixed term of five years, wholly concurrent with the sentence for count (1). The statutory maximum penalty is 15 years imprisonment.
A conviction was also recorded against the applicant for a minor backup offence. That matter has no significance in the present application and need not be referred to any further. The grounds for which the applicant seeks leave to appeal are as follows: 1 The sentencing judge erred in taking into account: (a) that the applicant's offences were aggravated by having been committed without regard to public safety; and (b) that the financial gain to the applicant and to other syndicate members as a result of the offences was "potentially significant". 2 The sentencing judge erred in failing to make a finding as to the applicant's remorse. 3 The sentencing judge erred in failing to take into account: (a) the applicant's lack of previous convictions and good character; and (b) the applicant's prospects of rehabilitation and likelihood of reoffending. 4 The sentences imposed a manifestly excessive.

Agreed facts of the offences

The applicant was sentenced on the basis of agreed facts. He is a Malaysian national. He was recruited in Malaysia by other offenders who were engaged in the importation of methyl amphetamine into Australia and in the distribution of that drug within this country. The distribution scheme involved concealing methyl amphetamine in the tyre of the spare wheel of a motor vehicle located in Perth, Western Australia, and arranging for that vehicle to be driven to Sydney. It was planned that this exercise would be carried out repeatedly, to move 10kg of methamphetamine at a time.
Following his recruitment in Malaysia the applicant was flown to Hong Kong for training in the proposed technique of concealment of drugs within motor vehicle tyres. Another participant in the scheme, who was based in Perth, also travelled to Hong Kong to undertake this training together with the applicant. The two of them subsequently returned to Malaysia and flew from there to Sydney and on to Perth, arriving on 15 November 2015. The applicant remained in Perth for a few days to acquire tools that would be necessary for implementation of the concealment method. He also acquired supplies for the repair of any punctures that might be sustained, in order to keep each vehicle roadworthy in circumstances where the spare would be unusable. The applicant had limited English but was apparently more fluent than the Perth-based co-offender. The applicant's presence in Western Australia was therefore important to the preparations. Upon completion of them the applicant flew back to Sydney, arriving on 21 November 2015.
In Sydney, upon directions from co-offenders in Kuala Lumpur, the applicant sought out premises suitable for receiving vehicles as they arrived from the west, where the packaged drugs would be removed from the spare tyres. The first two vehicles arrived before the applicant had secured a lease of such premises. As each vehicle approached Sydney the applicant was notified by his controller in Kuala Lumpur and he was instructed to direct the vehicles to interim premises that had been leased by others involved in the enterprise. The applicant carried out these instructions and in late November 2015 a consignment of drugs was removed from each of the first two vehicles that arrived from Perth.
The agreed facts do not disclose what became of the third vehicle to depart from Perth. After the applicant had selected, leased and taken possession of new premises, on the afternoon of 30 November 2015 he was informed by the driver of the fourth vehicle that it was stranded at Murchison East in Victoria with a blown out tyre, which the driver was unable to repair. The vehicle had been damaged in collision with a kangaroo. The applicant drove to Victoria, swapped the spare tyre, which contained a consignment of methamphetamine, from the courier vehicle to his own vehicle and directed the driver to proceed to Sydney with the drugs. The applicant took care of the damaged vehicle. His arrest on 1 December 2015 occurred before he could get back to Sydney and unload of the consignment of 10kg of methyl amphetamine that had been rescued from the stricken vehicle.
One or more of the applicant's co-offenders, superior to him within the enterprise, had agreed that he would be paid $2,000 per consignment unloaded in Sydney, as well as a daily allowance of $30 and all fixed living expenses such as rental bonds, rent, power and water. The learned sentencing judge considered the objective seriousness of the applicant's offending in count 1 to be "above the mid-range for an offence pursuant to s 25(2) of the Drug Misuse and Trafficking Act". He said that the offending in count 2 fell "within the mid-range for an offence pursuant to s 93T(4A) of the Crimes Act".
With respect to aggravating factors his Honour said: [It] is an aggravating factor that the offences were committed without regard to public safety. Whilst it may be inherent in this class of offence that there is a level of planning and financial gain, those characteristics were clearly in play here and financial gain, both to the offender and other syndicate members was potentially significant.

Subjective considerations

The applicant was 34 years old at the time of commission of the offences and 37 when he was sentenced. The applicant did not give evidence. His subjective circumstances were placed before the learned sentencing judge primarily by way of a "psychosocial report" from Ms D Castles, who has qualifications in adult mental health and welfare. In his Remarks on Sentence the learned sentencing judge paraphrased this report and a letter from Pastor Ring of the Prison Chaplaincy Service. His Honour also referred to a handwritten letter addressed the court and signed by the applicant. It is implicit in the Remarks that his Honour accepted the representations in these documents. They established the following subjective matters.
The applicant came from a poor rural family. He had completed secondary school and taken up low skilled factory work in Kuala Lumpur. The applicant was obliged by custom to remit most of his wages to his parents and grandmother, in consequence of which he remained poor in early adulthood. Financial constraints precluded him from marrying and establishing his own family. The applicant had turned to gambling several years before these offences were committed. In about 2012 he had commenced to use methyl amphetamine. His gambling resulted in the accumulation of substantial debt, equivalent to 3 years wages. He accepted recruitment into the enterprise of transporting methyl amphetamine within Australia as a means of breaking out of debt and poverty.
The applicant described his future prospects to Ms Castles in the following terms, which the learned sentencing judge apparently accepted: Upon his return to Malaysia [the applicant] will have to rebuild his life from scratch. He has no idea about how to reconnect with his family. They are not in a position to support him currently and it appears they may have rejected him for his crime and dishonouring the family.
Ms Castles described the applicant's circumstances in custody as follows: Whilst [the applicant] is significantly socially isolated within the prison system due to the language barrier he reports he has one friend who has introduced to him a Malay Cantonese Christian church group who visit him once every 1 to 2 months. [The applicant] said this is his first introduction to the Bible and he finds this, and their visits, to be a source of comfort. He also attends the weekly church service. [The applicant] report since being in custody he is drug-free, including tobacco.
The letter to the court from Pastor Ring confirmed the applicant's regular attendance at Chapel and at associated meetings. The pastor's letter includes the following: He has been open and honest re-discussing his criminal offences, accepting responsibility for his criminal behaviour, involving drug-related charges, and the serious consequences resulting from same. […] [The applicant] has shown genuine remorse for his criminal behaviour and resultant incarceration. I believe that [he] is genuinely repentant and that he desires to live a Christian life on the outside, as he now lives, was currently incarcerated […]. [The applicant] is employed as a sweeper in 9 wing, a position of trust, and he helped me doing various jobs in the Chapel. He is a willing worker, who was held in high regard by Custodial Staff. He has the potential to become a valued and "law-abiding" citizen when he is released.
In the applicant's own letter he expressed remorse for his crimes and noted that his father had died in Malaysia during the period of his own remand in custody in New South Wales.
The learned trial judge allowed a 10% discount for the applicant's late plea of guilty. Notwithstanding his Honour's apparent acceptance of the subjective considerations brought out by the report of Ms Castles and the letters from Pastor Ring and the applicant himself, his Honour considered that "specific deterrence is also important here".

Ground 1 - aggravating factors

Ground 1 is directed to the passage of the Remarks on Sentence extracted at [9] above. The applicant complains that neither party made any submission about the offences having been committed with a lack of regard to public safety, with the result that there was a denial of procedural fairness upon his Honour making a finding on the subject and taking it into account. Further it is submitted that lack of regard for public safety is an inherent feature of offences involving distribution of large quantities of prohibited drugs: Mansour v R [2011] NSWCCA 28 at [49] (Price J, James and Hall JJ agreeing).
The applicant further complains that his Honour's reference to "potentially significant" financial gain "both to the offender and other syndicate members" was ambiguous. If it was intended to be a finding that the financial gain was "more than might be expected in the lowest level of offending of this type of offence" (see Prculowski v R [2010] NSWCCA 274 at [43]; Farkas v R [2014] NSWCCA 141 at [62]; Wat v R [2017] NSWCCA 62 at [44]), then again that had not been raised by the Crown and the applicant had not been heard on it.
It may be that his Honour did not assess the offences as any more objectively serious by reason of characterising these two matters - disregard for public safety and financial gain - as "aggravating factors", than he would have done if he had simply noted the matters as inherent features of the offending particularised in the agreed statement of facts. However the two factors are prescribed considerations in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), at pars (i) and (o). Usually when any of the statutory factors are referred to in sentencing remarks it is for the purpose of recognising a respect in which the particular offence before the Court is of a more serious character than the bare elements of the charge, alone, would dictate.
Uncertainty about the significance attached by the learned judge to these factors lends weight to the applicant's complaint that his Honour did not hear the parties with respect to them. If the parties had made submissions on the two factors his Honour may have received assistance towards expressing with precision whether these matters made any contribution to his finding that the objective gravity of the offences fell "above the mid-range" and "within the mid-range", respectively. In Tadrosse v R (2005) 65 NSWLR 740; [2005] NSWCCA 145 at [19] Howie J emphasised the prudence of a sentencing judge raising with the parties during sentence proceedings the question of whether any of the factors listed in s 21A(2) apply to the case at hand.
The Court is of the view that the applicant has demonstrated error under this ground. Leave should be granted. Ground 1 is made good, although the outcome of the appeal must depend upon the Court's view of whether any lesser sentences than those imposed by his Honour are warranted in law. The error that the Court identifies under this ground has two aspects, neither of them being precisely as expressed in the ground itself. First, his Honour failed to accord the applicant an opportunity to be heard with respect to matters that were taken into account. Secondly, his Honour did not provide reasons in sufficient detail to explain the basis upon which and the manner in which the two impugned factors were relied upon in reaching the sentencing decision.
The principles regarding provision of sufficient reasons were stated in Thomas v R (Commonwealth) [2006] NSWCCA 313 at [16] by Barr J (Sully and Adams JJ agreeing), as follows: Sentencing judges are under an obligation to give reasons for their decisions. Remarks on sentence are no different in this respect from other judgments. This is a manifestation of the fundamental principle of the common law that justice must not only be done but must manifestly be seen to be done: R v Thompson; R v Houlton (2000) 49 NSWLR 383 per Spigelman CJ at [42]. It is desirable that sentencing judges summarise precisely and carefully the facts giving rise to the offences and set out their findings in relation to all matters taken into account in mitigation or aggravation of sentence as well as the reasoning which leads to the sentence imposed: R v Hoadley (Court of Criminal Appeal, 14 September 1990 unreported per Wood J). Sentencing judges ought, however briefly, to state the findings of fact upon which they are persuaded to proceed and expose a coherent process of reasoning which will sufficiently equip this Court to intervene in an appropriate case: see R v Duffy [1999] NSWCCA 321 per Sully J at [11]; see also generally Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247.
In upholding of ground 1 is not necessary for the Court to determine whether his Honour in fact overestimated the objective seriousness of the offences by reference to the applicant's disregard of public safety or his pursuit of financial gain, or both. But if the learned judge was to act on those matters at all, the applicant was entitled to be heard with respect to them. He was entitled to have a clear statement in the remarks as to whether his Honour considered that the level of disregard for public safety or the extent of financial gain was greater than would in any case be incidental to a supply of this extremely damaging drug in a large commercial quantity - that being the only basis upon which the gravity of the offence could be regarded as aggravated beyond what was inherent in the charge as particularised.

Ground 2 - failure to make a finding regarding remorse

The letters from Pastor Ring and from the applicant constituted clear evidence of remorse that was not contradicted by any other material and which the judge did not expressly discount. The mitigating factor of genuine remorse was clearly advanced on behalf of the applicant through the tender of this material. If his Honour accepted that the applicant was remorseful he was obliged to take that into account: s 21A(3(i) of the Crimes (Sentencing Procedure) Act.
The mere fact that the learned judge referred to the evidence of remorse does not demonstrate that he accepted it and gave credit for it. Equally, the fact that his Honour did not make an express finding on remorse does not inexorably lead to a conclusion that he did not take it into account. However the failure to state a finding one way or the other was a deficiency in the provision of reasons. Leave should be granted in respect of ground 2. Again, whether the appeal should be upheld on the basis of this ground being sustained will depend upon the Court's view of an appropriate sentence, upon its own synthesis of the objective and subjective considerations.
The failure to provide sufficient reasons with respect to the applicant's remorse, by stating a finding expressly, is not a trivial or negligible matter. Having conveyed his contrition and sense of shame in strong terms, both directly and through Pastor Ring, and being entitled as a matter of law to have this taken into account in his favour if the evidence was accepted, in fairness and justice the applicant was entitled to know from the learned judge's remarks whether his remorse was regarded as sincere and, if so, that he was given credit for it.

Ground 3(a) - failure to take into account clear record, good character

The Crown tendered in the sentence proceedings a report showing that no criminal convictions were recorded against the applicant in New South Wales. His Honour was required to take that into account: s 21A(3)(e). However, given that the applicant had only spent 16 days in Australia prior to his arrest and had come to this country for the sole purpose of committing very serious offences, it was a consideration that could not have had any material bearing upon the sentencing exercise. There was no evidence of whether any criminal convictions were recorded against the applicant in Malaysia or any other place. The absence of evidence on that subject was not affirmative proof of for the purposes of s 21A(3)(e). The absence of any express finding with regard to the applicant not having prior convictions does not constitute appellable error.
The absence of evidence of convictions in Malaysia did not, as the applicant now suggests, affirmatively prove prior good character. It was a neutral circumstance with respect to his antecedents. The remarks on sentence acknowledge the applicant's evidence of his entrenched gambling activity over several years prior to his arrest and his use of methyl amphetamine for about three years. Even when those aspects of the applicant's background were offset by evidence that he had been in more or less continuous employment and had supported his parents and grandmother financially, this did not amount to a positive case of prior good character that could contribute positively to mitigation of penalty in reliance on s 21A(3)(f) of the Crimes (Sentencing Procedure) Act.
The learned sentencing judge did not suggest that the applicant was disentitled from lenience on account of his background. His Honour committed no error in making no express finding about the state of the applicant's record or his character. The applicant's counsel, understandably, did not seek from the learned judge any findings on these matters or submit that they could accrue to the applicant's benefit on sentence. These were neutral matters in the sentencing exercise. Although leave to appeal is to be granted, ground 3(a) is rejected.

Ground 3(b) - failure to take into account prospects of rehabilitation

By tendering the evidence referred to at [12]-[14] above, the applicant sought to establish that he has good prospects of rehabilitation and to invoke that consideration in mitigation of penalty, in accordance with s 21A(3)(h) of the Crimes (Sentencing Procedure) Act. Although no submission was expressly made to the learned judge about this by counsel who represented the applicant in the sentence proceedings, the learned judge ought to have expressed a finding upon his assessment of the applicant's rehabilitation prospects. That is a basic consideration in any sentencing exercise and it was sufficiently raised before the judge by the tender of evidence, notwithstanding the absence of specific submissions on the topic.
As with the question of the applicant's remorse, the applicant was entitled to have a finding on the subject of rehabilitation prospects and an indication in the remarks as to whether this was taken into account. There was thus a failure to provide sufficient reasons in this respect, sufficient to substantiate ground 3(b).

No lesser sentence is warranted in law

As specific errors in the learned judge's exercise of the sentencing discretion have been identified, the Court must consider whether on the whole of the material relative to penalty, including the Court's own findings as to remorse and prospects of rehabilitation, any lesser sentence than that imposed by his Honour was warranted in law, for either of the offences: Kentwell v The Queen [2014] HCA 37. In the joint judgment in that case it was said that in a case such as the present where a specific error of failing to take into account a relevant consideration, or the like, has occurred, this Court should proceed as follows (citations omitted): [42] […] The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Crimes (Sentencing Procedure) Act will, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. […] [43] After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. […]
The Court is satisfied that the applicant has demonstrated genuine remorse and that this should be taken into account in his favour. The Court must take a guarded view of the applicant's prospects of rehabilitation in view of the long period over which he has engaged in gambling and in abuse of methyl amphetamine, apparently as an escape from poor economic circumstances in Malaysia. There is no material upon which the Court can confidently predict the social and economic circumstances the applicant may find himself in, or the degree of rehabilitative support that he may receive, upon his return to his own country.
With these additional conclusions, the Court proceeds on the basis that it is satisfied the applicant's subjective circumstances are those found by his Honour, as summarised in these reasons. There has been tendered on the applicant's behalf a letter of 15 June 2020, written from prison. This reiterates the applicant's feelings of remorse and his determination to "rectify my past wrongdoing once I regain freedom". The letter refers to the applicant's sadness at the loss of his father and the effect of that loss upon his mother, during the period of the applicant's incarceration. He states that his former girlfriend has married another man while he has been in prison in Australia and he refers to feelings of shame at his circumstances.
Accepting that the level of financial gain that the applicant sought to generate through these offences was no more than what would be expected ordinarily from the supply of multi-kilogram quantities of methyl amphetamine and that there was no greater disregard of public safety than is inherent in any distribution of this drug on a large commercial scale, the Court agrees with learned sentencing judge's assessment that the s 25(2) count was "above the mid-range" and that the s 93T(4A) count was "within the mid-range".
The 30kg of methamphetamine that was involved in the three deliveries from Western Australia that the applicant helped to orchestrate was 60 times the threshold for a large commercial quantity, being 500g. The applicant's role was significant, in that he set up and equipped his co-offender in Perth for the task of packing the drugs into spare tyres and he coordinated the reception of the deliveries to Sydney, including by securing leased premises suitable for the continuance of the system. The importance of the applicant's role as Sydney coordinator of the trans-continental drug movements was demonstrated when the fourth vehicle was disabled at Murchison East. He was the person with local oversight of the operation who, in those urgent circumstances, responded to deal with the emergency and to keep the fourth consignment of 10kg moving to its destination in Sydney.
It is true that, on the agreed facts, the applicant acted at the direction of superiors in Malaysia. But their scheme could not have been realised without a person on the ground in Australia fulfilling the role that the applicant undertook. The part he played was very significant and it was performed with respect to a very large quantity of the drug. Taking the objective seriousness of the offending together with all of the applicant's subjective circumstances, giving full credit for his remorse and endeavours to improve himself in prison and prospects of rehabilitation to the extent that they have been shown, it is the Court's view that it would not be warranted to fix, for the two offences respectively, any lesser sentences than those imposed by the learned judge. Accordingly, although certain of the appeal grounds are made good, the appeal must be dismissed.

Orders

The orders of the Court will be: 1. Leave to appeal granted. 2. Appeal dismissed.

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: 18 September 2020

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