R v Ngui & Tiong [2000] VSCA 78

5. On 17 September 1999, each applicant was sentenced to a term of 5« years' imprisonment and ordered to serve a minimum term of 4 years and 3 months before becoming eligible for parole. Each applicant had, upon apprehension, given immediate and significant assistance to Federal Police as a result of which, following a "controlled delivery" of portion of the drugs imported, a number of other persons in this country were arrested and charged. The applicants also undertook to give evidence, if necessary, upon the trial of these persons. In imposing the sentence which he did upon the applicants, the learned judge declared pursuant to s.21E of the Crimes Act 1914 (Cth.) that, had it not been for the promised future co-operation, he would have imposed head sentences of 9 years' imprisonment with non-parole periods of 6« years.

8. Each applicant has applied for leave to appeal against the sentence imposed. In each case the stated ground is that the sentence is manifestly excessive. That ground has received support from counsel for the respondent, who concedes that nine years would be manifestly too high when one takes account of the applicants' role in the importation, the past co-operation given, the plea of guilty and the adjustment required by s.16G of the Crimes Act (Cth) in a State where the sentence is not subject to remissions. Indeed, counsel submits, and I think with justification, that it would seem that his Honour has given too much weight to future co-operation and too little weight to past co-operation in circumstances where, as I shall describe hereafter, the past co-operation with authorities was immediate and significant, and where the undertaking for future co-operation, whilst of some benefit, could not be nearly as helpful to the authorities as the assistance already given. Indeed it would appear from the structure of his Honour's sentence that the 3« years discount which he has allowed for the undertaking of future assistance is probably an amalgam of allowances for past and future co-operation which, if it be so, is contrary to the scheme of the Crimes Act (Cth.)[1]. As counsel for the respondent correctly submitted, care must be taken not to fix the discount for promised future co-operation higher than warranted, because the period so fixed remains part of the sentence to be served, in whole or in part, where the person sentenced fails without reasonable cause to honour his promise[2].

11. Because, for the reasons stated, there has been error in the sentencing process, the sentencing discretion has been re-opened. This Court must therefore consider for itself whether sentences different from those imposed by his Honour should be passed. I agree with his Honour - and it has not been contended to the contrary before us - that, for sentencing purposes, no distinction is to be drawn between the two applicants. It is, however, necessary to recite, in summary form, the facts material to the exercise of the sentencing discretion.

14. The applicants were apprehended by Customs officers at the Melbourne Airport arrival centre early in the morning of 28 March 1999. They were part of a "tour group" travelling from Singapore on Qantas flight 10. Tiong had in fact been "cleared" by Customs at the time when Ngui was apprehended. Tiong, who was Ngui's travelling companion, was thereafter intercepted as he was about to board a bus waiting to take the group to a city hotel. Heroin was found in plastic bottles, purporting to contain "Amway" shampoo and lotions, which had been placed in suitcases which they carried. Further inspection revealed hidden cavities in shoes worn by the applicants. Packages of heroin were discovered in cavities in the soles and heels of the shoes worn by Ngui. All but one of the cavities in the shoes worn by Tiong were empty but he directed police to locations within an airport toilet where he had disposed of packages which he had removed from those cavities. The two applicants fully co-operated with Federal Police in a "controlled delivery" to "collectors" within Australia. The applicants were taken to the All Seasons Welcome Hotel in Little Bourke Street into which the tour group had been booked. During the course of the afternoon of 28 March 1999, Ngui placed "recorded" calls through to a "Mr. Chung", his Malaysian contact, to receive instructions. Later in the afternoon Chung rang to provide Ngui with a "telephone contact number" and what was called a "horse ticket number". Ngui then placed telephone calls to the Australian "contacts" in Sydney, and provided them with details of his arrival and location. The "contacts", who were subsequently identified as Kiem Van Nguyen and "Billy" Trinh, were observed when they came from Sydney to the applicants' hotel room on the following morning, 29 March 1999. Nguyen produced a $5 note, the number of which matched "the horse ticket number" which had been provided by Chung to Ngui. Shortly after Nguyen and Trinh had left the room with the heroin, they were apprehended whilst getting into a car driven by Nguyen's son.

17. It is not in contest that the two applicants were mere "carriers" - namely persons who were low in the heroin distribution chain and whose lack of sophistication was exploited by those at each end of the importation link. Each was apparently attracted by the promise of low rewards, a free trip and the possibility of renewed employment as an "Amway representative" in Australia. To lowly transport drivers, eking out a living in Malaysia and Singapore, these rewards no doubt were enticing even though, if they had looked beyond them, they must have realised that they were being used in unlawful activities, targetted at citizens of a foreign country. Indeed their respective records of interview suggest that, at least by the time they were taken to the airport in Singapore, they were aware of the nature of their mission, although they probably did not know with precision the quantity of narcotics which they were carrying.

20. This Court has frequently remarked upon the pernicious nature of the heroin trade and of the evils which it has foisted upon our society. Those who engage in importing quantities of this drug, no matter what their level of participation, must expect condign punishment in which principles of deterrence will play a prominent part. That punishment must involve, except in the rarest of circumstances, immediate imprisonment - albeit that such incarceration will inevitably be uncomfortable to foreign nationals confined in a foreign country isolated from the society of relatives and friends. The existence and level of such discomfort will, usually, be of little concern to judges in this country who are called upon to sentence such importers[3].

23. Nevertheless, a just sentence involves a synthesis of a number of factors including the seriousness of the offence, the degree of criminality of those involved in the commission of it, and mitigating circumstances personal to the accused. The impact of these factors in the sentencing process will obviously vary from case to case. The seriousness of the offence of importing into Australia substantial traffickable quantities of heroin is obvious. It is not only reflected in the maximum penalty set by the Parliament, but in the repeated comments made by judges throughout the Commonwealth for more than two decades. The courts, however, have also recognized that heroin importation not infrequently involves the use of schemes in which profit-making principals seek to shield themselves from apprehension by employing and exploiting unsophisticated carriers who are exposed to the major risks for little reward. In this case, we were told, the Malaysian "contacts" have never been apprehended. Courts have also recognized that, if those carriers, when apprehended, are prepared to willingly provide information implicating those who have employed them, then the combination of their lesser role and their willing co-operation should be reflected in the sentences imposed[4].

26. It is with these factors in mind that I approach the sentencing disposition which should be made in the case of these applicants. Mr. Tehan, who appeared for each of them, placed emphasis upon their immediate and significant co-operation with authorities, described by the prosecutor on the plea as of "high significance"; upon their early pleas of guilty; upon their vulnerability and low status in the distribution chain; upon the fact that they were first offenders; and upon their promise of future co-operation, linked as it is with the prospect that their sentences will have to be served in protective custody. On the other hand, Mr. Stuart, who appeared for the respondent, pointed to the fact that each applicant had imported into the country a substantial quantity of heroin, high in the range defined by Parliament as "traffickable". He also pointed to the circumstance that, notwithstanding his status in the hierarchy, each applicant was aware that he was carrying into the country prohibited narcotics and had chosen to run the risk of detection in order to obtain his reward. Mr. Stuart also submitted that, whilst the applicants' pleas of guilty and their "first offender status" were matters which the Court should take into account in the exercise of the sentencing discretion, they were not factors which the Court should over-emphasize in circumstances where the applicants had been caught "red-handed" with the drugs in their possession and where, as "bare" couriers, they had in all probability been chosen because of their lack of prior convictions[5].

29. During the course of the hearing, and in support of their respective stances on the question of penalty, each counsel referred the Court to authorities suggesting the emergence of a sentencing trend or pattern for the type of offences committed by the applicants; namely the importation as a courier of significant or substantial traffickable quantities of heroin. In particular reference was made to the recent decision in R. v. Wong & Anor.[6] in which a five member bench of the Court of Criminal Appeal in New South Wales had expressed "judicial guidelines" relating to the sentencing of importers of heroin and cocaine. It is apparent that the Court in that case was concerned to harmonize, in New South Wales, sentencing practices in respect of these types of offences, as to which divisions of opinion had developed during the preceding decade[7]. In this Court, in the case of R. v. Thomas[8], Callaway, J.A. referred to these divisions of opinion without needing to reconcile them for the purposes of disposing of that appeal.

32. In Wong's case the Court was concerned with Crown appeals against sentences imposed upon two persons for the importation of significant commercial quantities of heroin. The respondents to the appeals were not persons who could be described as "mere" or "bare" couriers, but were persons who had played a more significant role in the importation and distribution chain. Each had pleaded not guilty at his trial and had been sentenced following conviction. Thus, the circumstances governing the sentences imposed were very different from the circumstances which exist in this case and, indeed, were significantly different from the circumstances which existed in the cases of Ferrer-Esis, Lawson, and Bernier. Nevertheless, the Court, in Wong, regarded it as appropriate "to promulgate a comprehensive quantitative guideline for an offence for which a relevant guideline has long existed"[9]. The "comprehensive, quantitative guideline" was expressed to have been determined "primarily on the basis of existing sentencing patterns and is intended to apply to couriers and persons low in the hierarchy of the importing organisation"[10]. With regard to what was described as "a high range traffickable quantity" of heroin or cocaine, a range of penalties from 7 years' to 10 years' imprisonment as a head sentence was promulgated as appropriate[11].

35. For my own part, I have reservations about the use which can or should be made in the sentencing process of judicially expressed guidelines, based on existing "sentencing patterns" which are themselves the product of the accumulated wisdom of sentencing judges exercising individual discretions in respect of individual cases over a number of years. It must, of course, be acknowledged that consistency in sentences imposed for like offences upon like offenders is an objective to which the system of criminal justice aspires. Such consistency, as the courts have frequently stated, is particularly important where the offences are created by Commonwealth statutes and sentences for such offences are being imposed by courts throughout Australia[12]. To the extent that judicially expressed guidelines can assist the production of such consistency, then they may be of use. However, the search for sentencing consistency should not be permitted to usurp the discretion of the sentencing judge. As Spigelman, C.J. pointed out in Wong at [32]:

"[A] sentencing guideline is indicative only. A guideline may be departed from and it is not binding in any formal sense nor does it constitute a rule of law ..."

Experience in other areas of the law has shown that judicially expressed guidelines can have a tendency, with the passage of time, to fetter judicial discretion by assuming the status of rules of universal application which they were never intended to have[13]. It would, in my opinion, be unfortunate if such a trend were to emerge in the sentencing process where the exercise of the judge's discretion, within established principles, to fix a just sentence according to the individual circumstances of the case before him or her is fundamental to our system of criminal justice[14].

40. Accordingly, as I see it, the utility of the relevant guidelines expressed in Wong's case will be as a "sounding board" or "a check" against the exercise of the sentencing judge's discretion. In truth they cannot be anything more because they do not assume to take into account many factors which, in the individual case, will bear upon the level of the appropriate sentence to be imposed. Indeed, in the instant appeal, counsel for the respective parties were unable to agree whether the expressed guidelines assumed a lack of prior convictions and/or a plea of guilty. But whether such factors are assumed or not, it is clear that the "guidelines" take no account of the factor of "co-operation" which, in offences of the kind with which we are dealing, has always been regarded by the courts as worthy of a significant sentencing discount where the assistance is given by a person low in the hierarchy and is of sufficient importance to enable the authorities to whom the information is given to "bring to book" others who are higher in the chain of command[15]. Even in those cases where courts have set or used "sentencing tariffs or guidelines" for these types of offences, it is acknowledged that the provision of such valuable assistance may well result in an ultimate head sentence below the range established[16]. In so far as the authorities suggest that it is the level and quality of the co-operation and assistance given by a "bare courier", rather than his plea of guilty or lack of prior convictions, which will predominantly influence the level of the sentence imposed, then I agree with them. Such couriers are almost entirely chosen from the ranks of those who have no prior convictions because, if it were otherwise, the chances of apprehension would be increased. Furthermore, if the courier is intercepted in the possession of drugs, it is almost inevitable that he will plead guilty. Thus, for the purposes of sentencing, it will be the level and quality of the co-operation which is given by the courier which will largely govern his prospects rather than his antecedents and the nature of his plea. This is not to say that a plea of guilty by a courier of prohibited imports, and his status as a first offender, will, in the absence of co-operation, carry no weight in the sentencing process.

43. For the purposes of disposing of these appeals, there is no need, as I see it, to resolve the differences of view between counsel as to the proper interpretation of the guidelines set by the court in Wong. All that needs to be known is that each applicant was, as is conceded, a "bare courier", low in the level of the heroin distribution chain, who immediately gave information of significant quality to the authorities so as to enable them to apprehend others in the chain superior to the applicants. Furthermore, each applicant, upon the hearing of the plea, gave a sworn undertaking that he would continue to assist the authorities by giving evidence - if necessary - upon the trial of the others who had been apprehended following the "controlled delivery". As I have previously stated, the imposition of a just sentence for the offences committed by the applicants, principally requires these factors to be balanced against the seriousness of those offences. Having synthesised the relevant factors, it is my opinion that the appropriate penalty to be imposed in the case of each applicant is one of five years' imprisonment with a non-parole period of three years and four months. I would specify that, had it not been for the promise of future co-operation, I would have imposed a term of six years' imprisonment with a non-parole period of four years. In my view, such punishment adequately reflects and weights the level and quality of co-operation both past and future. Such penalties can also be seen to be consistent with levels of punishment imposed in similar circumstances by trial judges, as reflected in the schedules annexed to the orders made in Wong.

46. If the other members of the Court agree with the sentences which I propose, it is accepted by the parties that, in accordance with the rule referred to in R. v. Jennings[17], those sentences should commence on the date upon which the applicants were sentenced by the sentencing judge, namely 17 September 1999, and that a declaration as to the time already served pursuant to the sentences should be made pursuant to the provisions of s.16E of the Crimes Act (Cth.) and s.18(1) of the Sentencing Act 1991 (Vic.).

51. I agree with the learned President. There is only one point on which I wish to add something on my own account.

54. The applicants submitted that the guideline in R. v. Wong[18] did not assume a plea of guilty. The respondent submitted that it did and referred to what was said in R. v. Bernier[19]. As at present advised, I think the guideline makes no assumption one way or the other. Rather it leaves such matters to be taken into account according to the individual circumstances of the case.[20] The guideline does take s.16G of the Crimes Act 1914 into account and it assumes a case where a significant discount for assistance to the authorities is not warranted[21], but at [140] Spigelman, C.J. expressly said that the considerations, both objective and subjective (other than the quantity of drugs involved), which usually arise for determination in this context are intended to be encompassed.

57. In Wong's Case itself the respondents had pleaded not guilty[22], but that was not the reason the guideline was inapplicable. It was inapplicable because they were major participants in the distribution chain.[23] Moreover, although most of the cases mentioned in the schedules were pleas of guilty, some of them were not. In Schedule 1 there were two pleas of not guilty in the low range traffickable quantity, three in the mid-range traffickable quantity, four in the high-range traffickable quantity and one in the low-range commercial quantity. In Schedule 2 there were two pleas of not guilty in the low-range trafficable quantity, four in the mid-range traffickable quantity and pleas of not guilty in all the low-range commercial quantity cases. In Schedule 3 there were pleas of not guilty in three of the cases relating to significant commercial quantities and eight of those relating to major importations. In Schedule 4 there were pleas of not guilty in nine of the cases relating to significant commercial quantities and one of the cases relating to major importations.[24] Of all the cases in the schedules 84 were pleas of guilty and 43 were pleas of not guilty, but that overstates the significance of the former. The proportion of pleas of guilty is less when one omits, as one should, cases affected by a substantial discount for assistance.[25]

60. The sentences Winneke, P. proposes are consistent with that interpretation of the guideline. The major factor calling for leniency in the present case was the assistance afforded to the authorities, without which three other offenders would not have been apprehended.

65. I agree that the applications should be granted for the reasons stated by Winneke, P. and that the applicants should be re-sentenced as Winneke, P. proposes.

[1] cf. R. v. McGee & Tanninen Court of Criminal Appeal (Vic), unreported, 25 November 1994 at 1-2; R. v. Tan (1995) 78 A.Crim.R. 300 at 303.

[2] s.21E(2) of the Crimes Act (Cth.).

[3] R. v. Su & Ors [1997] 1 V.R.1 at 75, citing with approval R. v. Ferrer-Esis (1991) 55 A.Crim.R. 231 at 239 per Hunt, J.

[4] R. v. Perrier (No.2) [1991] VicRp 38; [1991] 1 V.R. 717; R. v. Carey [1998] 4 V.R. 13 at 16; R. v. Wai Tung Chu, unreported N.S.W. C.C.A., 16 October 1998.

[5] cf. R. v. Ferrer Esis (1991) 55 A.Crim.R. 231 at 238.

[6] [1999] N.S.W. C.C.A. 420.

[7] cf. R. v. Ferrer-Esis, supra at 237; R. v. Lawson & Ors. (1997) A.Crim.R. 463 at 467; R. v. Bernier (1998) 102 A.Crim.R. 44; R. v. Wai Tung Chu; R. v. Spiteri [1999] N.S.W. C.C.A..3; R. v. Yu [1999] N.S.W. C.C.A. 6; R. v. Jiminez [1999] N.S.W. C.C.A. 7.

[8] [1999] VSCA 204.

[12] cf. R. v. Krasnov & Anor. (1995) 82 A.Crim.R. 92 at 95.

[13] cf. Norbis v. Norbis [1986] HCA 17; (1985) 161 C.L.R. 513 at 533 per Wilson and Dawson, JJ., 538 per Brennan, J.; Masel v. Transport Industries Insurance Co. Ltd. [1995] VicRp 59; [1995] 2 V.R. 328 at 334-5.

[14] Lowndes v. R. [1999] HCA 29; (1999) 195 C.L.R. 665 at 671-2.

[16] See Wong at [141], R. v. Lawson & Ors. at 477.

[17] [1998] VSCA 69; [1999] 1 V.R. 352 at 371.

[18] [1999] NSWCCA 420 at [142].

[19] (1998) 102 A.Crim.R. 44 at 47-48.

[20] That may, of course, result in a sentence above or below the range in the guideline: see [141].

[21] See [83-84] and the symbol [A] in the schedules, which signifies a discount for assistance.

[24] I am indebted to counsel for the respondent for providing this information.