Regina v Nelson Tak Fat Wong and Jackie Kai Chu Leung [2002] NSWCCA 169 | Case summary

REGINA (COMMONWEALTH) v NELSON TAK FAT WONG REGINA (COMMONWEALTH) v JACKIE KAI CHU LEUNG Judgment 1 WOOD CJ at CL; I have read the judgment of Sully J. I agree with the orders proposed, and with the reasons of His Honour. 2 SULLY J: Before the Court are two Crown appeals brought by the Commonwealth Director of Public Prosecutions in connection with sentences of imprisonment passed upon one Nelson Tak Fat Wong, ("Wong"); and upon one Jackie Kai Chu Leung, ("Leung"). 3 The appeals stand to be considered in the aftermath of a decision of the High Court of Australia: Wong & Leung v The Queen (2001) 185 ALR 233. That decision upheld, by majority, appeals brought by Wong and Leung against a decision of this Court, (Spigelman CJ, Mason P, Simpson, Sperling and Barr JJ). The formal orders of the High Court remitted the matters of Wong and Leung to this Court "for further hearing and determination conformably with the reasons of" the High Court. 4 The decision from which Wong and Leung appealed to the High Court was a decision which not only dealt with their two individual cases, but also established a guideline judgment respecting breaches of section 233B of the Customs Act 1901 (C'th). The majority judgments in the High Court held that such guideline judgments could not lawfully be set in connection with Commonwealth offences. 5 The majority judgments also disapproved of what was described as a "two-tier", or "two-stage" approach to sentencing. In a joint judgment of Gaudron, Gummow and Hayne JJ the following principles were explained and approved: "[74]………………………… (T)he reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be "increment(s)" to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a "two-stage approach" to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted. [75] It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say "may be" quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an "instinctive synthesis". This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features. [76] In R v Thomson , Spigelman CJ reviewed the state of the authorities in Australia that deal with the "two stage" approach of arriving at a sentence, in which an "objective" sentence" is first determined and then "adjusted" by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. In this court, McHugh and Hayne JJ, in dissenting opinions in AB v R expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the court takes, for example, the offender's place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences. To take another example, to "discount" a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in R v Gallagher when he said that: It must often be the case than an offender's conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of interrelated considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical. So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform. [77] The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment." 6 These are the principles which must now be applied by this Court in adjudicating the remitted Crown appeals. 7 The relevant facts can be stated conveniently in the form of the following excerpt taken from the written submissions of the Crown: " Facts of Offences 12. On 30 October 1997 a quantity of 13.462 kilograms (9.356 kilograms pure) of heroin arrived in Australia at Adelaide Airport secreted in a shipment of marble pedestals sent from Thailand. The heroin was packed in the hollow columns of five marble pedestals packed in separate crates. Australian Federal Police ("AFP") located the heroin after its presence had been detected by a sniffer dog. AFP removed the heroin and replaced it with an inert substance. Listening devices were placed in two crates and one pedestal. 13. On 5 November 1997 Yu Shing Cheng attended Adelaide airport and arranged for the crates to be delivered to his flat in Adelaide. Later, Yu Shing Yeng and Bach An Chan unpacked the crates and removed the pedestals. Bach An Chan then took the pedestals to another flat in Adelaide. A Toyota Landcruiser was rented by Gang Cheng and the pedestals were loaded on board. Gang Cheng and another man then drove the Landcruiser to Sydney. Bach An Chan flew to Sydney to meet up with Gang Cheng. 14. On the evening of 7 November 1997 the Landcruiser was left in a street in Stanmore. Law was observed entering the vehicle which he then drove to his parents' house at Cherrybrook. The pedestals were placed in a garage at those premises. AFP maintained surveillance of the premises during the remainder of that night and the following day. On the afternoon of 8 November 1997, Law and the Respondents Wong and Leung commenced breaking up the pedestals using an axe and hammer. During this process a cardboard screen was placed across the garage window. 15. Law and the Respondents discovered that the material inside the pedestals was not heroin. A number of mobile telephone calls were made from the garage during the breaking process. The voice of Leung was identified as speaking on the telephone. He referred to "five kilo one, five big ones". He was reporting to whoever was at the other end of the telephone and said, "Now we are opening paper boxes" and "after we arrange everything we will do it for you". He also said: "It's really disastrous, yesterday loss $290,000, today having to cough up money again". After he found out that the pedestals did not contain heroin Leung said : "people will die if found out people will be killed that will be true". 16. From the taped recordings of what was said in the garage, it was apparent (and accepted by the sentencing judge Davidson DCJ) that Wong (as well as Leung) had advance knowledge of what was likely to be found in the pedestals. Wong answered a call on the mobile telephone in the garage. Wong described the pedestal to the caller as having been packed insufficiently and stated that he may have to make it up. He asked the caller how much he wanted. 17. At 7.00 p.m. on 8 November 1997, AFP entered the premises at Cherrybrook and arrested the Respondents and Law. The substitute material was recovered from a concealed area within the roof space of the garage." 8 All six of the persons named in the foregoing summary were charged with having been knowingly concerned in the importation into Australia of a quantity of heroin being not less than the commercial quantity prescribed by law in respect of heroin. That prescribed commercial quantity is 1.5 kilograms. Being knowingly concerned as so charged contravenes section 233B of the Customs Act 1901 (C'th), and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for life "or such period as the court thinks appropriate". 9 The person Law, and both Wong and Leung were dealt with in New South Wales. The remaining three named persons were dealt with in South Australia. In New South Wales the relevant indictments were presented in the District Court. In South Australia the relevant indictments were presented in the Supreme Court. 10 The results at first instance were: Name Plea Judge Sentence Date Sentence Non-Parole Period Law Guilty Blanch J 5.8.1998 10 years 6 years comm.. 8.11.1997 Wong Not guilty Davidson DCJ 18.12.1998 12 years 7 years comm.. 8.11.1997 Leung Not guilty Davidson DCJ 18.12.1998 12 years 7 years comm.. 8.11.1997 Yu Shing Cheng Guilty Debelle J 3.12.1998 14 years 7-1/2 years comm.. 8.11.1997 Bach An Chan Guilty Debelle J 3.12.1998 16 years 11 years comm.. 8.11.1997 Gang Cheng Guilty Debelle J 3.12.1998 13-1/2 years 7-1/2 years comm.. 8.11.1997

[3] that the personal circumstances of both Wong and Leung have changed since 1999; and have so changed in ways that would make it unfair for this Court now to increase their respective sentences. 14 Before dealing in any particular way with the foregoing submissions, it is appropriate for this Court to form a view as to the objective criminality of the offending conduct of Wong and Leung. It is not necessary to do more than to quote from the judgments of Davidson DCJ, and of Spigelman CJ on appeal. 15 Davidson DCJ expressed this view: "Accordingly, whilst Mr. Wong and Mr. Leung are also, as I have said, to be dealt with as being in the middle range of persons involved in the process of importation of prohibited drugs, their participation, that is to say the participation of Mr. Wong and Mr. Leung, was of a more serious kind than that of Mr. Law in that it brought them closer to the ultimate evil which these substances are productive of; that is to say, their ingestion by members of this community and the resulting harm which ensues." [Remarks on Sentence: page 11] 16 The Chief Justice said: "This was a very large importation. The extent of human misery which would have been inflicted on our community if the shipment had been delivered, is immense." [48 NSWLR 340 at para 175] 17 And later: "Wong and Leung were major participants in a very large importation." [48 NSWLR 340 at para 181] 18 I agree with the entirety of the foregoing assessments. 19 It is not necessary to canvass in detail the subjective matters that Davidon DCJ took into account. They fall into a pattern with which this Court is all too familiar: comparative youth, each being in his mid-20's; limited education; not much of a domestic or vocational background; limited English language skills; and no apparent perception of there being anything wrong in principle about heroin trafficking. Mr. Wong had criminal antecedents; Mr. Leung did not. Davidson DCJ treated both men as equally culpable; an approach specifically approved in this Court in 1999. I would approve it now. 20 In 1999 this Court dealt with the sentences passed by Davidson DCJ as being latently, rather than patently, erroneous. In my opinion, this Court should now reach afresh that same conclusion. "(M)ajor participants in a very large importation" of heroin cannot be heard to say that they did not understand the gravity of their offence. When, as appears to have been the case with the present offenders, their motivation was greed, then their overall culpability is still more grave. An effective head sentence of 12 years, and an effective non-parole period of 6 years, do not satisfy, in my opinion, what the law requires for the just punishment and deterrence, in the particular circumstances of the present cases, of the scourge of heroin trafficking. In the present two cases I would have thought, if dealing with the cases at first instance, that a head sentence in the order of 16 years at least, and a non-parole period in the order of 11 years at least, were called for after the adjustment required by section 16G of the Crimes Act 1914 (C'th). 21 In my opinion, and with all proper respect to Davidson DCJ, his Honour's sentences were manifestly inadequate. Subject to discretionary considerations, there is, in my opinion, a clear case for the intervention of this Court. 22 It is, of course, the case that this Court, were it to proceed in fact to re-sentence, could not properly impose sentences of the order suggested in the immediately preceding paragraph. In such event, the sentences imposed in 1999 would be, in my opinion, prima facie justifiable. Would re-sentencing in those terms be no more than mere tinkering? That question cannot be answered by applying some all-embracing formula. The answer is bound up in that concept of intuitive synthesis to which the joint judgment, as earlier herein quoted, in Wong and Leung gives approval. In my own opinion, an increase of 2 years, itself allowing for double jeopardy, is not something properly characterised as mere tinkering. 23 Is there need to allow, in the present cases, for triple rather than double jeopardy? In my opinion there is. Wong and Leung were entitled to pursue an appeal to the High Court. The success of that appeal means necessarily that they now stand for sentence, through no fault of their own, on a third occasion which itself occurs some 3 years and 9 months after they first stood for sentence. Those circumstances require now some appropriate consideration. 24 Have the personal circumstances of the two offenders changed during that period of 3 years and 9 months to such a degree as would make it unjust for this Court now to re-sentence? 25 It would be fair to acknowledge that in each case there have been changes in personal circumstances. The evidence is more precise in the case of Wong than that of Leung; but it would be, in my opinion, fair to say that both offenders appear to have been good prisoners who have made reasonable progress while in custody. 26 If, triple jeopardy and changed personal circumstances apart, it would have been reasonable to re-sentence by a 2 year increase in both the head sentence and the non-parole period fixed by Davidson DCJ, then the question arises of the impact upon that contingent re-sentencing of those two further factors. 27 It is necessary, once again, to emphasise that there is no simple, mechanical formula by reference to which such a question can be answered. 28 For my own part, I would not reduce the putative head sentence of 14 years. The Courts have spoken long and firmly about the need to impose severe deterrent sentences in cases of the present kind. This Court should, in my opinion, apply with real and plain resolve those many warnings. 29 It is in connection with a revised non-parole period that I would see some proper room for flexibility. Instead of increasing the non-parole period from 7 to 9 years, I would increase it from 7 to 8 years. 30 I would favour, therefore, the following orders:

Regina v Nelson Tak Fat Wong and Jackie Kai Chu Leung

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