R v CHEA, Chhengly

Commonwealth Crimes Act LEGISLATION CITED: Commonwealth Criminal Code Criminal Appeal Act Customs Act

R v Budiman (1998) 102 A Crim R 411 R v Karacic (2001) 121 A Crim R 7 R v Klein (2001) 121 A Crim R 90 R v Laurentiu (1992) 63 A Crim R 402 R v Rivadavia (2004) 61 NSWLR 63 CASES CITED : R v SC [2008] NSWCCA 29 R v Studenikin (2004) 60 NSWLR 1 R v Wong; R v Leung (1999) 48 NSWLR 340 R v Wall [2002] NSWCCA 42 The Queen v Olbrich (1999) 199 CLR 270 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584

R v CHEA, Chhengly R v BS R v LEOUNG, Kunthea PARTIES: R v SREY, Sam R v CHOUN, Sothear R v OUM, Sophia R v YIN, Sinary

FILE NUMBER(S): CCA 2007/5459; 2007/5460; 2007/5462; 2007/5461; 2007/5449; 2007/5328; 2007/5463

NJ Adams (Crown) KM Traill (for Chea) A Francis (for BS) COUNSEL: A Francis (for Leoung) CT Loukas (for Srey) HLA Cox (for Choun) A Francis (for Oum) A Francis (for Yin)

SOLICITORS: Director of Public Prosecutions (Crown) S O'Connor - Legal Aid Commission (Respondents)

LOWER COURT FILE NUMBER(S): 07/11/0147; 07/11/0153

IN THE COURT OF CRIMINAL APPEAL 2007/5449, 5462, 5461, 5463, 5460, 5459, 5328

TOBIAS JA JAMES J HOEBEN J

MONDAY 21 APRIL 2008 R v CHEA & Ors Judgment 1 TOBIAS JA: I agree with James J. 2 JAMES J: On 26 March 2008 the Court heard an appeal by the Crown against sentences imposed on seven respondents to the appeal, namely Chhengly Chea, Sothear Choun, Kunthea Loeung, Souphea Oum, a respondent identified simply as BS, Sam Srey and Sinary Yin, for the offence of importing a marketable quantity of a border controlled drug (heroin), an offence under s 307.2(1) of the Commonwealth Criminal Code. The Court also heard appeals by Souphea Oum and Sinary Yin against the sentences imposed on them. 3 At the conclusion of the hearing on 26 March 2008 the Court, without then giving reasons, made orders that the Crown appeal should be dismissed as against all seven respondents and that the appeals by Oum and Yin should be allowed and said that members of the court would give their reasons later for making these orders. These are my reasons for joining in the orders made by the Court.

Facts of the offences 4 As was stated by the Crown in its amended written submissions on the appeal, "apart from variation in the pure weight of the heroin imported by each respondent the primary facts…of the offences are, for practical purposes, identical". 5 All of the seven respondents were Cambodian nationals, who came to Australia on the same flight as members of the same group, purportedly as tourists. All of the respondents and at least some other members of the group had swallowed pellets containing heroin, which were wrapped in a balloon-like substance. 6 The group first flew from Phnom Penh in Cambodia to Bangkok in Thailand. On the flight from Phnom Penh to Bangkok two members of the group became ill and they were admitted to hospital in Bangkok. They have since been charged in Thailand with importing drugs into Thailand. 7 The remaining members of the group flew from Bangkok to Sydney. On the flight from Bangkok to Sydney the respondent Chea lost consciousness. After the flight arrived in Sydney Chea was taken to hospital, emergency surgery was performed and a large number of pellets containing heroin were recovered from his body. 8 Each of the other respondents was detained at Sydney airport and later arrested. A number of pellets containing heroin were found in the luggage of the respondent Loeung and she subsequently passed a large number of pellets. Each of the other respondents was subjected to a CT scan which revealed foreign objects inside the respondent's body. Each of these respondents subsequently passed a number of pellets containing heroin. 9 The quantities of pure heroin imported by the individual respondents were as follows:- Respondent Quantity Chea 146.8 grams Choun 149.9 grams Loeung 169.7 grams Oum 228.8 grams BS 239.2 grams Srey 27.1 grams Yin 222.9 grams

10 The much lower quantity imported by the respondent Srey was due to his inability to swallow more than a comparatively small number of pellets.

The criminal proceedings 11 As already indicated, each of the respondents was charged with importing a marketable quantity of a border controlled drug being heroin. The marketable quantity for heroin under the Commonwealth Criminal Code is 2 grams, the commercial quantity being 1.5 kilograms. The maximum penalty for importing a marketable quantity of a border controlled drug is imprisonment for 25 years or a fine of 5000 penalty units or both. 12 Each of the respondents pleaded guilty in the Local Court and was committed for sentence to the District Court. On 26 November 2007 his Honour Judge Williams of the District Court sentenced Choun, Oum, Srey and Yin. On 2 November 2007 his Honour sentenced Chea, Loeung and BS.

Subjective features of the respondents 13 In its amended written submissions the Crown accepted that the following subjective matters were common to all of the respondents:- 1. The respondents were from harsh and impoverished backgrounds 2. The respondents were simple people with little or no education 3. The respondents had grown up as children during the Pol Pot regime and they and their families had suffered under that regime. They also suffered the substantial economic consequences of the regime's aftermath. 14 Apart from pleading guilty, each of the respondents, apart from Choun, had provided assistance to the authorities and received a discount in sentencing of 20 per cent for this assistance. 15 In his remarks on sentence the sentencing judge described the subjective features of each respondent at some length. Brief particulars of subjective features specific to individual respondents are as follows.

Chea - male, 30 years old at the time of sentencing, married with one child. Chea suffered some degree of hypoxic brain injury as a result of some of the balloons bursting inside his digestive tract during the flight to Sydney but it would seem that the sentencing judge made little allowance for this fact.

Choun - male, 38 years old at the time of sentencing, married with three children. Before committing the offence he had been a small farmer in a remote part of Cambodia. He had been offered $40,000, if he brought 300 grams of heroin into Australia. His motive for committing the offence had been his desire to obtain a better life for his family. Testing by a psychologist indicated that Choun was within the bottom one per cent of the population in intelligence, although this result might have been affected by cultural factors.

Loeung - female, 25 years old at the time of being sentenced, married with one child, a daughter, who was about 2½ years old at the time of sentencing. Loeung travelled to Australia with her child. After her arrest the child had been fostered with an Australian family. It was likely that English would become the child's principal language and Loeung and her child were likely to have communication, as well as bonding and emotional, problems.

Oum - female, 35 years old at the time of sentencing, married with three children aged between 15 and 10 years, who were being looked after in Cambodia by her husband. Oum had had a particularly deprived background, both her parents having been executed during the Pol Pot regime. Oum spoke no English and was found on testing to be in the bottom one per cent of the population for intelligence, although this result could have been affected by cultural factors.

Srey - male, 35 years old at the time of sentencing and single. Srey was unlike the other respondents, in that he had not really come from a deprived background. He had been employed as a clerical assistant within the police department in Phnom Penh. The quantity of heroin imported by Srey was, of course, much less than the quantity of heroin imported by all the other respondents.

BS - female, 37 years old at the time of sentencing, married with three children. BS had brought her youngest child, then 20 months old, with her when she travelled to Australia. After BS's arrest her child had been placed in foster care. Both BS and her child had been diagnosed as HIV positive. They had probably been infected by BS' husband. The sentencing judge explicitly found that there were "exceptional circumstances" in BS's case, consisting of the separation of BS from her child and the HIV positive status of both BS and her child.

Yin - female, 37 years old at the time of sentencing, married with two children. Yin's two children had not been living with her when she flew to Australia and at the time of sentencing were living with Yin's mother in Cambodia. Testing found Yin to be in the bottom two per cent of the population for intelligence, although this result also could have been affected by cultural factors.

Remarks on sentence 16 In his remarks on sentence the sentencing judge summarised the facts of the offences and the subjective features of the respondents. In his remarks of 26 October 2007 the sentencing judge said a number of things which were clearly intended to apply to all of the respondents. His Honour said:- "The starting point for sentences where there has been a plea of guilty after the repeal of s 16G and having regard to the Judicial Commission statistics seems to be a head sentence of about seven years imprisonment with the non-parole period being around two-thirds of the head sentence."

His Honour then said:- "In determining the sentence relevant to each offender, I have taken into account the pure weight of heroin imported by each, the plea of guilty, the assistance provided where applicable, and the personal circumstances of each offender and their dependents."

A little later in his remarks on sentence the sentencing judge said:- "The major reason why the sentences differ is because of the amount of drug imported by the individual, as well as the reduction for the assistance offered. The other factors have generally only had a relatively marginal effect on the outcome." 17 In his remarks on sentence of 2 November 2007 the sentencing judge stated what would have been the sentences, if no assistance had been provided by the respondents.

The table in the Crown's written submissions 18 I will now reproduce a table in the Crown's written submissions which sets out for each respondent, in a convenient form, the pure weight of heroin imported, the head sentence set, the non-parole period set, the percentage ratio of the non-parole period to the head sentence and what would have been the head sentence but for the assistance provided. Respondent Pure weight of heroin in grams Head sentence Non-parole period Non-parole period to head sentence Assistance provided to authorities Head sentence 'but for' assistance pursuant to s 21E(1)(a) CHEA 146.8 4 years 5 months 2 years 11 months 66% Yes 5 years 6 months CHOUN 149.9 5 years 6 months 3 years 6 months 64% No 5 months 6 months LOEUNG 169.7 4 years 5 months 2 years 9 months 62% Yes 5 years 6 months OUM 228.8 5 years 6 months 3 years 55% Yes 6 years 6 months B.S. 239.2 5 years 3 months 2 years 9 months 52% Yes 6 years 6 months SREY 27.1 3 years 2 months 2 years 2 months 68% Yes 4 years YIN 222.9 5 years 6 months 3 years 55% Yes 6 years 6 months

The appeals by Oum and Yin 19 Before commencing my discussion of the Crown appeal and my reasons for dismissing the Crown appeal, it is convenient, in the light of the table in the Crown's written submissions which I have just reproduced, to give my reasons for joining in the order that the appeals against sentence by Oum and Yin be allowed. 20 The appeal by each of Oum and Yin was limited to an appeal against the head sentence. In the table the head sentence "but for" assistance is 6 years 6 months for each of Oum and Yin and the head sentence actually set is 5 years 6 months. However, if the sentencing judge allowed a discount of 20 per cent for assistance, as his Honour said he did, the head sentence, after the discount for assistance, should have been (rounding-off to the nearest month) 5 years 3 months and not 5 years 6 months. For this reason, the Court allowed the appeals against sentence by Oum and Yin to the extent of quashing the head sentence of 5 years 6 months and substituting a head sentence of 5 years 3 months. There is no change to the non-parole period in each sentence. 21 A consequence of reducing the head sentence, while retaining the same non-parole period, is that the ratio of the non-parole period to the head sentence increases slightly to a figure closer to 60 per cent.

The Crown appeal 22 The only ground of appeal in the Crown appeal against sentence was that the sentences imposed by the sentencing judge were manifestly inadequate. It was not submitted that the sentencing judge had made any specific error. For example, it was not submitted that the discount allowed by the sentencing judge for assistance was excessive. 23 It was accepted by the Crown that, apart from the quantities imported, the objective facts of the offences of the respondents were virtually identical and that the respondents had many subjective features in common, albeit that there were some points of distinction. It was accepted by the Crown that, in these circumstances, it had been open to the sentencing judge to adopt a fairly global approach to the sentencing of the respondents. 24 It was conceded by the Crown that all of the respondents had been properly classified as having been "couriers". However, it was submitted that his Honour's description of the respondents in some parts of his remarks on sentence as having been "mere couriers", while not an error in itself, might have contributed to his Honour imposing what were submitted to have been manifestly inadequate sentences. 25 It was submitted that the quantity of heroin imported by all of the respondents was many times the marketable quantity of 2 grams and that, in any event, couriers should not receive lenient sentences, because the function they perform is essential to the trade in narcotic drugs. Counsel cited R v Laurentiu (1992) 63 A Crim R 402; R v Budiman (1998) 102 A Crim R 411 and R v Klein (2001) 121 A Crim R 90. 26 It was accepted by the Crown that there was little need for specific deterrence in the present case but it was submitted that it was important that the sentences should give effect to the sentencing purpose of general deterrence. The Crown drew attention to the size of the rewards which several of the respondents said they had been offered for importing heroin into Australia. 27 In one place in his remarks on sentence of 26 October 2007 the sentencing judge said "that it is probably debatable that general deterrence or specific deterrence ought play a significant role in the sentencing of these offenders". It was submitted that this remark and his Honour's characterisation of the respondents as being "mere" couriers might have led to his Honour placing too much weight on the respondents' subjective features and imposing sentences which were inadequate. 28 The Crown referred to the guidelines in the decision of the Court of Criminal Appeal in R v Wong; R v Leung (1999) 48 NSWLR 340 and submitted that, despite the decision of the High Court in Wong v The Queen; Leung v The Queen (2001) 207 CLR 584, the guidelines continue to have utility and should, following the repeal of s 16G of the Commonwealth Crimes Act, be increased. The Crown referred to the recent decision of this Court in R v SC [2008] NSWCCA 29. 29 The Crown also referred to the sentences in some other cases which, it was submitted, were broadly comparable to the present case. 30 A submission was made by the Crown that, while the sentencing judge had expressly found "exceptional circumstances" in the case of BS and this finding could have justified the setting of a non-parole period of less than 60 per cent of the head sentence, the non-parole periods of the sentences imposed on Oum and Yin should have been proportionally higher in relation to the head sentences. 31 The principles governing the determination of Crown appeals by this Court were stated by Wood CJ at CL in par 70 of his Honour's judgment in R v Wall [2002] NSWCCA 42. His Honour said, omitting citation of authority:- "The principles which apply in relation to the determination of a Crown appeal against sentence (are): (a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v R (1936) 55 CLR 499, applies to Crown appeals against sentence: … with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: … rather, it may interfere only where error either latent or patent is shown; …

(b) Appeals by the Crown should generally be rare; … , and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere …

(c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons":.. but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: … (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: …

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: … , and will generally be towards the lower end of the available range of sentence: … " 32 In the present case no specific error is alleged and the only ground of appeal is that the sentences were manifestly inadequate. 33 It was accepted by the Crown, and it is clearly correct, that all of the respondents should be classified as having been couriers. I do not consider that there is any significance in the fact that the sentencing judge sometimes described the respondents as "mere" couriers. 34 I take into account what was said by this Court in Laurentieu and other cases but it remains the position that the role played by an offender in a drug importation or supply ("what the offender did") is a very important factor in the sentencing of the offender (The Queen v Olbrich (1999) 199 CLR 270 at 279-280 pars 19-23). A courier would generally receive a lesser sentence than someone at a higher level in the drug organisation or hierarchy. 35 I would not attribute any significance to his Honour's remark made in the course of lengthy remarks on sentence that it was probably debatable whether general deterrence ought play a significant role in the sentencing of the respondents. I am satisfied from a perusal of the whole of the two sets of remarks on sentence that his Honour accepted that the sentences to be imposed by him would have to be informed by the need for general deterrence, whatever doubts his Honour might have had about whether the news of the sentences imposed by his Honour would reach those parts of Cambodia from which the respondents had come. 36 I will now turn to the submissions made by the Crown based on the decision of this Court in Wong and the repeal of s 16G of the Commonwealth Crimes Act. 37 In Wong the Court of Criminal Appeal promulgated guidelines for sentences for offences under s 233B of the Customs Act (since repealed) which included importing into Australia prohibited drugs. The guidelines stated in Wong were to apply to couriers and persons low in the hierarchy of the importing organisation and included the following guidelines:- Quantity Sentence Low level trafficable quantity (2 grams - 200 grams) 5-7 years Mid level trafficable quantity (200 grams - 1 kilogram) 6-9 years

38 The guidelines promulgated in Wong made no assumption one way or the other about whether there was a plea of guilty R v Karacic (2001) 121 A Crim R 7 at 16 (50) per Spigelman CJ. 39 In Wong v The Queen the High Court, on an appeal from the decision of the Court of Criminal Appeal, held that the guidelines promulgated by the Court of Criminal Appeal went beyond the jurisdiction conferred on the Court of Criminal Appeal by the Criminal Appeal Act and hence had no validity as guidelines. 40 Notwithstanding the decision of the High Court in Wong, it has been held by this Court that the range of sentences suggested by the Court of Criminal Appeal in Wong have continuing utility, because they were based on the patterns of actual sentences for offences under s 233B of the Customs Act. R v Rivadavia (2004) 61 NSWLR 63 at 67-68 (65). 41 At the time of the decision of the Court of Criminal Appeal in Wong s 16G of the Commonwealth Crimes Act was in force. Section 16G provided that, if a sentence for a Federal offence was to be served in a State (like New South Wales) where sentences were not subject to remissions, that fact had to be taken into account in the sentencing of the offender. While s 16G was in force, it was common practice to reduce sentences by about a third to take into account the absence of remissions in New South Wales. 42 Section 16G was repealed with effect from 16 January 2003. It is clear that the repeal of s 16G would be likely to have the effect of increasing sentences for Federal offenders, because sentencing judges were no longer required, or authorised, to take into account a factor, the effect of which could only have been to reduce what sentencing judges otherwise considered to be appropriate sentences. However, although different views were sometimes expressed, it is now clearly established, as stated by Price J with the concurrence of the other members of the court in SC at [34], "the adjustment for the repeal of s 16G should not be made automatically by the use of a mathematical formula or a fixed percentage". See also R v Studenikin (2004) 60 NSWLR 1; R v Rivadavia. In SC this Court declined to accept a submission by the Crown that the effect of the repeal of s 16G was that the range of sentences for importing a low level trafficable quantity of a drug should be increased from 5-7 years to 7-10 years. 43 Accordingly, the ranges of sentences indicated by the Court of Criminal Appeal in Wong have no status as guidelines, although they do have continuing utility as indicating the general pattern of sentences before Wong; the ranges of sentences in Wong make no assumption as to whether there has been a plea of guilty, so that if there has been a plea of guilty an allowance can be made for the plea of guilty; and the ranges of sentences in Wong are not to be increased by any fixed percentage because of the repeal of s 16G of the Commonwealth Crimes Act. 44 In SC Price J said in par 35 of his judgment:- "Statistics published by the Judicial Commission of New South Wales were put before the Judge. They show that between January 2003 and March 2006 sixty one sentences were imposed for importing the trafficable quantity of cocaine. The minimum head sentence was eighteen months and the maximum ten years. The minimum non-parole period or fixed term was twelve months and the maximum term seven years. All of the sentences in the published statistics were imposed after s 16G was repealed. Sixty four per cent of the sentences had a head sentence of between seven and nine years. A head sentence of ten years was imposed in only two per cent of cases. Eighty two per cent of the head sentences were, however, between six and nine years. These figures suggest that an appropriate range of sentences involving low level trafficable quantities of cocaine and heroin after the repeal of s 16G is a head sentence of between six and nine years imprisonment." 45 It is not clear to me how his Honour derived the last sentence in the paragraph. Earlier in the paragraph his Honour was considering the sentences for importing a "trafficable quantity" of cocaine. Under the Customs Act the trafficable quantity for cocaine was between 2 grams and 2 kilograms and had to be distinguished from the "low level trafficable quantity" identified in Wong of between 2 grams and 200 grams. 46 In the present case I do not consider that it was beyond his Honour's sentencing discretion to adopt a "starting point" of about 7 years for all the respondents. I infer that his Honour then made adjustments to arrive at the sentences he would have imposed but for the assistance provided, by giving some extra weight to the pleas of guilty and the subjective features of the respondents and by reducing the sentence when the quantity imported was less than 200 grams, so as to arrive at "a sentence but for assistance" of 6 years 6 months for the offenders who had imported more than 200 grams of heroin and "a sentence but for assistance" of 5 years 6 months for offenders who had imported less than 200 grams of heroin, apart from Srey who had imported a much smaller quantity of heroin than the other respondents. His Honour then applied the discount for assistance, which, it was conceded, his Honour could properly do. In my opinion, it has not been shown that the sentences imposed by his Honour were "definitely outside the appropriate range". 47 I do not consider that the small sample of sentences in other cases urged by the Crown as being comparable cases prevented his Honour from adopting this reasoning. 48 The submission by the Crown that the non-parole periods of the sentences imposed on Oum and Yin were disproportionate to the head sentences was largely undermined by the success of the appeals by those respondents. 49 In my opinion, the only ground of appeal, that the sentences imposed on the respondents were manifestly inadequate, should be rejected and the Crown appeal should be dismissed as against all respondents. 50 HOEBEN J: I agree with James J. **********

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