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[1999] NSWCCA 330
Court of Criminal Appeal (NSW)
1999-10-22
Sully J, Ireland J, Hidden J, Neil J, Hunt J
Original judgment source is linked above.
The application 23 The substantial argument before us was that the sentence of life imprisonment is manifestly excessive. Counsel for the applicant acknowledged that the offence fell into the most serious category of its kind, but argued that this did not necessarily mean that a life sentence was called for. It was his submission that a very long determinate sentence was the appropriate course. 24 The sentence of life imprisonment under the Drug Misuse and Trafficking Act has the same effect as penal servitude for life under s19A of the Crimes Act 1900, the maximum sentence for the crime of murder. That sentence has been considered by this Court on a number of occasions, including the recent decision of R v Rose [1999] NSWCCA 327, when I was a member of the Court. I made some observations about it then, and I consider it appropriate to repeat and expand upon those observations now. 25 No-one would deny the gravity of the life sentence in New South Wales. The prisoner is condemned to die in gaol, without any prospect of release on parole: s25A(6) of the Sentencing Act, 1989. The possibility of the exercise of the Royal prerogative of mercy is so remote as to be discounted. In R v Garforth (CCA unreported 23 May 1994) at p11, this Court recognised "the terrible significance" of the sentence. Their Honours quoted the passage of the judgment of Hunt J (as he then was) in R v Petroff (unreported 12 November 1991) at pp1-2: The indeterminate nature of a life sentence has long been the subject of criticism by penologists and others concerned with the prison system and the punishment of offenders generally. Such a sentence deprives a prisoner of any fixed goal to aim for, it robs him of any incentive and it is personally destructive of his morale. The life sentence imposes intolerable burdens upon most prisoners because of their incarceration for an indeterminate period, and the result of that imposition has been an increased difficulty in their management by the prison authorities.
It should be borne in mind that his Honour was there speaking of the life sentence before the enactment of s19A, when the prisoner had a reasonable prospect of release on licence. 26 It is true that a crime falling within the worst category may attract the maximum sentence prescribed even though it is possible to envisage a worse case: Veen v The Queen [No 2] (1987-88) 164 CLR 465 at 478. However, imprisonment for life in this State is different from other maximum sentences. They still embrace the prospect of release in the future, however distant. The life sentence does not. It should be reserved for crimes of the utmost heinousness, where considerations of retribution, general deterrence or protection of society are such as entirely to displace any claim by the prisoner for compassion and the community's interest in the rehabilitation of offenders. 27 The present case is unaffected by s431B of the Crimes Act, as the offence was committed before that section came into force. Of course, the purpose of the section is to require the imposition of the life sentence in certain extreme cases. Nevertheless, I consider that it provides some guide to the limited circumstances in which that sentence might be appropriate in any case. For present purposes, it is sufficient to set out subs(2): (2) A court is to impose a sentence of imprisonment for life on a person who is convicted of an offence under section 25 (2) or (2A) of the Drug Misuse and Trafficking Act 1985 to which section 33 (subsection (2) excepted) of that Act applies involving heroin or cocaine if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence and the court is also satisfied that:
(i) a high degree of planning and organisation, and
(ii) the use of other people acting at the direction of the person convicted of the offence in the commission of the offence, and
(b) the person was solely or principally responsible for planning, organising and financing the offence, and
(c) the heroin or cocaine was of a high degree of purity, and
(d) the person committed the offence solely for financial reward. 28 Clearly, any court would impose a sentence of imprisonment for life only after a most careful examination of all the circumstances of the case. In many very serious cases of drug trafficking the appropriate sentence would be a very long term of years, with a minimum term such as to ensure that a significant proportion of the prisoner's life was spent in custody. While retaining the prospect of eventual release, such a sentence would be very severe and would normally meet the community's legitimate demand for retribution and deterrence. 29 The question remains whether Kirkham DCJ has been shown to have fallen into error in imposing the life sentence in the present case. This Court would scrutinise any life sentence but, at the end of the day, whether the Court should intervene depends upon the application of the familiar principles governing appellate review of a judicial discretion. Applying those principles, I cannot say that it was not open to his Honour to conclude that the applicant's culpability was such as to call for the imposition of the maximum sentence. 30 As it happens, the applicant's criminality would appear to meet all the requirements of s431B(2) of the Crimes Act. He was a ruthless profiteer from the widespread distribution of high grade heroin, occupying a position towards the pinnacle of a well organised criminal network. It is true that he has no recorded convictions and experienced a disturbed upbringing. However, little is known of his adult life apart from what emerged in the evidence of Huang, who had known him for some years before 1993. From his Honour's summary of it in the remarks on sentence, it is sufficient to say that that evidence does not appear to have been to his credit. Accordingly, this is a case of heinous crime, in which the community interest in retribution and deterrence wholly outweighs any claim which the applicant might have for leniency arising from his background. 31 I would grant leave to appeal but would dismiss the appeal.
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R
Chung
New South Wales Court of Criminal Appeal CITATION : R v Chung [1999] NSWCCA 330 FILE NUMBER(S) : CCA 60215/98 HEARING DATE(S) : 13/10/1999 JUDGMENT DATE : 22 October 1999
COUNSEL : T R Bailey (applicant) R Ellis (respondent) SOLICITORS : Neil J O'Connor & Associates (applicant) Director of Public Prosecutions (respondent) CATCHWORDS : CRIMINAL LAW - sentence - supply of large commercial quantity of heroin - applicant highly placed in drug supply network - life sentence - ss33(3)(a), 33A(1) Drug Misuse and Trafficking Act 1985 Drug Misuse and Trafficking Act 1985 ACTS CITED : Crimes Act 1900 Sentencing Act 1989 Huang (1994) 78 ACrim R 111 R v Rose [1999] NSWCCA 327 CASES CITED: R v Garforth (CCA unreported 23 May 1994) R v Petroff (Hunt J unreported 12 November 1991) Veen v The Queen [No2] (1987-88) 164 CLR 465 DECISION : Leave to appeal granted. Appeal dismissed.