Chen v R (Cth)

1. [1]

   BEECH-JONES CJ at CL: The judgment of Wilson J sets out my reasons for agreeing to dismiss the appeal.

2. [2]

   DAVIES J: I joined in the orders of the Court for the reasons given by Wilson J.

3. [3]

   WILSON J: On 19 November 2021 the Court heard and dismissed this appeal. What follows are my reasons for joining in the orders the Court made on that date.

4. [4]

   In September 2002 the appellant, Jack Chik Chen, was sentenced by Kinchington QC ADCJ sitting in the District Court in Sydney for an offence of conspiracy to import a commercial quantity of prohibited narcotic goods contrary to s 233B of the Customs Act 1901 (Cth), namely heroin, an offence which carried a maximum sentence upon conviction of life imprisonment, together with a substantial fine. The following year he sought leave to appeal against the sentence of 40 years imprisonment with a non-parole period (“NPP”) of 26 years that had been imposed upon him.

5. [5]

   On 7 November 2003 this Court, constituted by Meagher JA, Sully and Kirby JJ, granted leave to appeal, upheld the appeal and quashed the sentence imposed at first instance. The appellant was re-sentenced to imprisonment for 31 years with a NPP of 23 years. The sentence commenced on 9 April 2000. The NPP expires on 9 April 2023; the sentence expires on 8 April 2031: R v Chen (2003) 138 A Crim R 433; [2003] NSWCCA 326 (“the 2003 decision”).

6. [6]

   The decision of Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 was handed down by this Court, constituted by Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ, on 5 February 2018. In it, it was held, at [278], that “a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing” when dealing with matters governed by s 16A of the Crimes Act 1914 (Cth), as the appellant’s matter was.

7. [7]

   Earlier this year the appellant filed an application to the Supreme Court under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) in which he sought a referral of his case to this Court to be dealt with as an appeal against sentence. On 16 August 2021 Johnson J referred the matter to this Court pursuant to s 79(1)(b) of that Act for an appeal against sentence to be heard: Application by Jack Chik Chen pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1024. His Honour concluded, at [28], that “it is sufficient to observe that there appears to be a doubt or question concerning the sentencing Judge’s approach to the Applicant’s guilty plea, in that his Honour did not have regard to the utilitarian value of the Applicant’s plea of guilty.”

8. [8]

   In accordance with his Honour’s order, and pursuant to ss 79(1)(b) and 86 of the Crimes (Appeal and Review) Act, the appellant’s case came before this Court as an appeal against sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The sole (amended) ground of appeal advanced is as follows:

9. [9]

   Leave was granted at the hearing for the appellant to rely upon the amended ground.

10. [10]

    It is important to observe at the outset that, contrary to the appellant’s initial contentions in his written submissions in support of his appeal, the appeal lies against the sentence imposed by this Court in 2003 and not against that imposed by his Honour Judge Kinchington QC ADCJ. The sentence imposed in the District Court in 2002 was quashed and is no longer extant. Accordingly, it is the question of error in the imposition of the 2003 sentence that must now be examined.

The Facts of the Appellant’s Offence

1. [11]

   No issue has been taken by the appellant with the accuracy of the recitation of the facts of his offence given by Sully J in this Court in the 2003 decision. His Honour said, at 434 – 438, [9] – [29]:

The Subjective Case

1. [12]

   The appellant was born in China in 1959 and was 43 when sentenced in the District Court. He is now aged 62 years. When he was a young person, he moved with his family from China to Hong Kong and later, in 1982, to Australia. The appellant had a good education, leaving school at the age of 18 years, after which he was consistently employed. He was granted Australian citizenship in the early 1990s. He married and had two children but divorced in 1997. The appellant had a long-standing gambling problem and his wife was not able to cope with it. Despite that, the appellant’s wife and family, in Hong Kong and Australia, remained supportive of him when he appeared for sentence in 2002. At the time of the commission of the offence the appellant had no criminal history.

2. [13]

   The appellant told the author of a pre-sentence report (“PSR”) that was before the District Court that his motive for participating in the offence was “to make quick money”. It was noted in the PSR that:

3. [14]

   The appellant was not a drug user and his prospects of rehabilitation were assessed as reasonable.

4. [15]

   The appellant’s plea of guilty one month into the Crown case at trial was noted and, whilst the sentencing judge accepted that the plea was some evidence of remorse and contrition, he did not regard it as “of the highest order”. Although the appellant told the author of the PSR that he accepted responsibility for his offending, he disputed the Crown’s description of him as “a principal organiser”, asserting that he was no more than “a middle man”. The sentencing court concluded that the appellant was “the head of the organisation / operation / syndicate which imported the heroin into Australia”, an operation which was a “continual” one over some six weeks, with future plans for further drugs to be illegally imported.

The First Appeal to the Court of Criminal Appeal

1. [16]

   The appellant advanced four grounds of appeal in the 2003 proceedings. They were that the sentence was manifestly excessive; that there was disparity between the sentence imposed on him and that imposed on a co-offender, Phillip He; that there were errors in facts found by the District Court; and that excessive weight was given to intended future importations.

2. [17]

   This Court concluded that there had been an obvious error of fact by the sentencing judge. In the District Court Kinchington QC ADCJ noted wrongly that the total amount of heroin involved was between 16.9 and 17.2 kilograms of pure heroin; the correct amount was 12.6 kilograms. Otherwise, this Court held that there was no error in the sentencing court’s conclusions that the appellant was a principal organiser who would have, but for his arrest, continued to import additional quantities of heroin into Australia, with another importation planned at the time of his arrest. Sully J observed, at 442, [50] that the appellant was the “lynch-pin of the whole conspiracy” whom it was reasonable to conclude would have profited from the importation to an extent commensurate with his significance as the “lynch-pin”. Sully J, with whom Meagher JA and Kirby J agreed, concluded at 442, [51] that:

3. [18]

   Although the parity argument, bearing in mind He’s lesser role, was not persuasive, this Court concluded that the sentence was excessive because of the error as to the weight of the drug, coupled with an error in the approach taken at first instance to the mitigation of a sentence that could have been one of life imprisonment. Sully J continued, at [68] – [71]:

The Submissions of the Parties on the Present Appeal

1. [19]

   Although accepting that the appeal was against the sentence imposed by the Court of Criminal Appeal, the appellant argued that the judgment of his Honour Judge Kinchington remained of relevance because of the adoption by this Court in 2003 of the factual findings made at first instance. Further, the appellant argued that the assessment of 10% by way of a reduction on sentence reflecting the plea of guilty “may also have played some role in the final disposition of the matter given Sully J’s adoption of the same figure”. The appellant contended that, in resentencing, this Court could not have had regard to the utilitarian value of the plea because the sentence was determined by considering the extent to which the plea facilitated the course of justice. It is submitted that the plea was regarded as a reflection of the appellant’s recognition of the strength of the Crown case, being a subjective consideration, rather than with reference to its utility, an objective consideration.

2. [20]

   The Crown contended that there was no error in the resentencing exercise by this Court in the 2003 decision. It was submitted that, insofar as it is relevant, the discount on sentence of 10% afforded to the appellant in the District Court comprehended the timing of the entry of the plea, a feature of direct relevance to utilitarian value. The error was in incorporating into the discount a component that reflected the appellant’s prospects of rehabilitation.

3. [21]

   The Crown pointed to the remarks of Sully J, in resentencing the appellant in 2003, to the recognition to be afforded to the appellant for the plea of guilty. His Honour allowed “10% for the plea of guilty”, consistent with the discount given at first instance, a discount that his Honour described as generous. A separate discount of “about 20%” was allowed for “the s 16G factor”, a reference to s 16G of the Crimes Act 1914 (Cth), now repealed [1] . It is submitted that, although the 2003 decision did not use the phrase “utilitarian value” with respect to the plea of guilty, the timing of the very late plea was discussed, with Sully J specifically allowing “10% for the plea of guilty”. The quantum of the discount is consistent with that suggested for a late plea in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 (“Thomson and Houlton”) to recognise only the utilitarian value, and not matters such as contrition, at [160(iii)].

4. [22]

   It was argued that a discount on sentence of 10% “for the plea of guilty” where that plea was entered just before the Crown was to close its case at trial was objectively a generous one, the generosity of the discount itself supporting a conclusion that the discount was not inappropriately reduced by factors irrelevant to the utilitarian value of the plea.

The Question of Xiao Error

1. [23]

   The question for this Court is whether the appellant has established that there was error in the 2003 decision in the way in which the discount “for the plea” was determined. That question is not answered simply by pointing to the absence of the phrase “utilitarian value” in the resentencing decision; a rather more sophisticated and nuanced approach is required: see Weber v R [2020] NSWCCA 103 at [15].

2. [24]

   A reduction in sentence to recognise the benefits to the criminal justice system of a plea of guilty through the resources thereby saved was not an unknown concept in 2002 and 2003. The decision in Thomson and Houlton had been handed down in 2000, a decision which referred to and acknowledged the long tradition of reducing the sentence that would otherwise be imposed where there had been a plea of guilty; see for example Winchester v R (1992) 58 A Crim R 345. It was the quantification of the discount to be afforded, rather than the fact of it, that was the subject of the guideline judgment. Spigelman CJ specifically stated, at [162], that:

3. [25]

   Quantifying a specific discount on sentence to reflect the savings to the criminal justice system brought about by a plea of guilty was a measure intended to improve the transparency of the sentencing process; it was not intended to change or detract from the process of “instinctive synthesis”, a process that Sully J observed was appropriate when re-sentencing the appellant. That a quantified discount for a plea and the process of instinctive syntheses are not mutually exclusive was made plain by the former Chief Justice in Thomson and Houlton, where his Honour said:

4. [26]

   See also [127] of the judgment, to the same effect and, although after the 2003 decision, Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [74] per McHugh J.

5. [27]

   It is tolerably clear that, in re-sentencing the appellant in 2003, Sully J applied the principle laid down in Thomson and Houlton by recognising the savings to the community consequent upon the plea of guilty in allowing a discount on sentence, quantified at 10%, an interpretation that Senior Counsel for the appellant conceded, in oral submission, was open. That the discount was not wrongly diminished by factors irrelevant to the utilitarian value, such as remorse, can be seen from his Honour’s observation at [69(1)], where he said:

6. [28]

   I take Sully J to mean that, coming only after a full month of evidence in the Crown case, and just before the Crown closed that case, the appellant’s plea said little or nothing about contrition or remorse in light of both the timing of its entry and the false basis upon which the appellant had advanced his defence during the trial. His Honour pointed to the late plea rather as recognition of the strength of the case against the appellant. Thus, I am not persuaded that this Court determined the amount of the discount to be afforded on an erroneous basis, by taking into account features both objective and subjective. Rather, the quantified discount “for the plea” was intended to comprehend the savings to the community of a plea at a late stage. Given the very late stage at which the plea was entered I share the view expressed by Sully J that a discount of 10% was a generous one. Arguably, a plea entered after four weeks of court time had been expended, with yet more in preparation, represented a negligible saving to the criminal justice system, deserving of little or no reduction in sentence. As Spigelman CJ said in Thomson and Houlton at [133]:

7. [29]

   Whilst the appellant argued before this Court in 2003 that the Crown case was only fully disclosed to him by the Crown at trial, and he could not have entered a plea any earlier than he did, that argument was firmly rejected in the 2003 decision, wherein it was held, at [70], that:

8. [30]

   Notably, Sully J observed that, had late disclosure of the Crown case in fact had an impact upon the timing of the plea of guilty, that feature “would have operated in the applicant’s favour by further reducing the sentence imposed” (at [69(5)]). This too supports the conclusion that the discount awarded reflected the savings to the court system that flowed from the plea of guilty. It is also consistent with the principles that later fell from this Court in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 as to the significance of the timing of the entry of the plea of guilty to the calculation of the discount granted to reflect its utilitarian value.

9. [31]

   This Court did not, in the 2003 decision, use the phrase “utilitarian value” in conjunction with the assessment of the discount on sentence awarded to the appellant to recognise his plea of guilty. The discount was, however, specifically quantified “for the plea”, a practice encouraged in Thomson and Houlton as a means of separately taking into account the utilitarian value of a guilty plea to the criminal justice system. The amount awarded exactly corresponds to the quantum suggested in the guideline judgment as appropriate for a late plea, albeit that, for such a late plea the discount was, as Sully J observed, generous. It is likely or at least possible that the figure was nevertheless preserved from a sense of fairness to the appellant, rather than from a conviction that it was truly merited. These features all lead me to conclude that the 2003 decision both recognised and generously rewarded the utilitarian value of the appellant’s late guilty plea, notwithstanding the absence of the phrase in the judgment.

10. [32]

    I was not persuaded that error was made out.