Application by Jack Chik Chen pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW)

1. [1]

   JOHNSON J: The Applicant, Jack Chik Chen, makes application under Part 7 Crimes (Appeal and Review) Act 2001 (NSW) (“CAR Act”) seeking referral of his case to the Court of Criminal Appeal to be dealt with as an appeal against sentence.

Background to Application

1. [2]

   On 27 September 2002, the Applicant was sentenced by Acting Judge Kinchington QC at the Sydney District Court for an offence (committed between 1 January 2000 and 9 April 2000) of conspiracy to import a commercial quantity of heroin contrary to s.233B Customs Act 1901 (Cth). The maximum penalty for that offence is imprisonment for life.

2. [3]

   The Applicant was sentenced in the District Court to imprisonment for a term of 40 years with a non-parole period of 26 years commencing on 9 April 2000 and expiring on 8 April 2026, with a balance of term of 14 years commencing on 9 April 2026 and expiring on 8 April 2040.

3. [4]

   The Applicant sought leave to appeal against sentence. On 7 November 2003, the Court of Criminal Appeal (Sully J, Meagher JA and Kirby J agreeing) allowed the appeal against sentence and resentenced the Applicant to imprisonment for a term of 31 years with a non-parole period of 23 years commencing on 9 April 2000 and expiring on 8 April 2023, with a balance of term of eight years commencing on 9 April 2023 and expiring on 8 April 2031: R v Chen (2003) 138 A Crim R 433; [2003] NSWCCA 326.

The Present Application

1. [5]

   The Applicant seeks referral of the whole of his case to the Court of Criminal Appeal under s.79(1)(b) CAR Act upon the basis that the sentencing Judge did not have regard to the utilitarian value of his guilty plea in accordance with the principles stated subsequently by the Court of Criminal Appeal in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4.

2. [6]

   In making this application, the Applicant seeks to follow the pathway adopted in Application by Kang Min Bae pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 1413 and Application by Matias Eduardo Cicero Olivares pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 96 (“Application of Olivares”), which saw referrals to the Court of Criminal Appeal, which upheld the appeal and resentenced the applicant in each case: Bae v R [2020] NSWCCA 35; Olivares v R [2021] NSWCCA 126.

3. [7]

   The Commonwealth Director of Public Prosecutions did not seek to make any submissions with respect to the present application. It remains a matter for the Court to determine whether an order for referral should be made.

4. [8]

   In Application of Olivares (at [10]-[13]), I described the procedure under ss.78 and 79(1) CAR Act as follows:

Approach to the Applicant’s Guilty Plea in the District Court and the Court of Criminal Appeal

1. [9]

   On 5 June 2002, the Applicant pleaded not guilty to the charge of conspiracy to import a commercial quantity of heroin. A jury was empanelled and the trial of the Applicant proceeded before Acting Judge Kinchington QC and a jury.

2. [10]

   The trial proceeded for some four weeks and, at a time when the Crown case had almost concluded, the Applicant indicated on 3 July 2002 that he wished to change his plea. He was formally rearraigned and entered a plea of guilty to the charge contained in the indictment.

3. [11]

   Proceedings on sentence took place on 12 August 2002 and the Applicant was sentenced on 27 September 2002.

4. [12]

   It will be clear, from the length of the sentence passed, that the Applicant was sentenced for a very serious offence. The Applicant was the principal in a highly organised and ongoing conspiracy to import heroin into Australia in consignments which were concealed in parcels that contained, ostensibly, computer parts: R v Chen at [9].

5. [13]

   In his sentencing remarks, Acting Judge Kinchington QC expressed satisfaction beyond reasonable doubt that the Applicant was the principal behind the conspiracy (page 4, sentencing remarks).

6. [14]

   With respect to the Applicant’s guilty plea, his Honour stated (page 6, sentencing remarks):

7. [15]

   The sentencing Judge said with respect to the Applicant’s guilty plea (pages 7-8, sentencing remarks):

8. [16]

   Towards the end of the sentencing remarks, his Honour provided a further explanation as to how the sentence had been calculated (pages 13-14, sentencing remarks):

9. [17]

   On appeal, the Court of Criminal Appeal found that the sentencing Judge had erred in calculations with respect to the weight of the heroin, by finding a total weight of between 16.9 and 17.2 kilograms of heroin as opposed to a total of 12.6 kilograms pure heroin: R v Chen at [35]-[37].

10. [18]

    In addition, the Court of Criminal Appeal found error in his Honour’s reference to “a potentially ‘life sentence’” (see [16] above). Sully J said in this respect (at [61]-[66]):

11. [19]

    The Court of Criminal Appeal then proceeded to resentence the Applicant for the purpose of s.6(3) Criminal Appeal Act 1912 (NSW). Sully J allowed 10% for the Applicant’s plea of guilty in explaining the new sentence to be imposed upon the Applicant (at [68]-[70]) (emphasis added):

12. [20]

    As noted earlier, the sentence passed by the Court of Criminal Appeal comprised a head sentence of imprisonment for 31 years with a non-parole period of 23 years.

Submissions on Application

1. [21]

   Mr Anderson, counsel for the Applicant, submitted that, in light of the decision in Xiao v R and the cases that have followed it, the sentencing Judge had erred by:

2. [22]

   It was noted that none of the grounds of appeal related to the basis upon which the sentencing Judge had made an assessment of the discount for the Applicant’s guilty plea, and the Court of Criminal Appeal did not deal with that as an issue. Having found error, it was submitted that the Court of Criminal Appeal had resentenced the Applicant in a manner which retained the 10% discount for the guilty plea (see [19] above).

3. [23]

   Given the approach adopted by the sentencing Judge, which was not consistent with the principles in Xiao v R, it was submitted that error had occurred and this aspect had not been addressed on appeal by the Court of Criminal Appeal.

4. [24]

   In these circumstances, it was submitted that the error remained an aspect of the sentence and had not been either addressed or remedied. It was submitted that the matter should be referred under s.79(1)(b) CAR Act to the Court of Criminal Appeal to be dealt with as an appeal against sentence.

5. [25]

   As noted earlier, the Commonwealth Director of Public Prosecutions did not seek to make any submissions with respect to the application.

Decision

1. [26]

   A number of decisions of the Court of Criminal Appeal have addressed the question of Xiao v R error. In Bae v R, the Court said at [53]-[57]:

2. [27]

   It is appropriate to note, as well, an amendment to s.16A(2)(g) Crimes Act 1914 (Cth) made in 2020. In Small v R [2020] NSWCCA 216, the Court said at [71]-[73]:

3. [28]

   For the purpose of determining the present application, 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. Of course, this approach was entirely understandable, given the state of the law in 2002 (when the Applicant was sentenced) and in 2003 (when he was resentenced on appeal).

4. [29]

   The doubt or question appears to arise in the two respects posed for the Applicant in support of the present application (see [21] above).

5. [30]

   In these circumstances, it appears that there is a doubt or question as to the sentence passed upon the Applicant. It will be a matter for the Court of Criminal Appeal to determine, in all the circumstances of the case, whether error has been demonstrated so that the Court should move to resentence the Applicant under s.6(3) Criminal Appeal Act 1912 (NSW). No doubt the Court of Criminal Appeal will have regard to the observations of Sully J, including the fact that the plea of guilty was entered four weeks into the trial and shortly before the close of the Crown case (see [19] above). Unlike Application of Olivares, both the sentencing Judge and the Court of Criminal Appeal in the present case did extend a quantified discount to the Applicant for his guilty plea. A question may arise as to whether error has occurred in this case and what course should be taken on appeal: Lu v R; Huang v R [2021] NSWCCA 68 at [38]. All of that, however, is a matter for the Court of Criminal Appeal.

6. [31]

   For these reasons, I am satisfied that the whole of the Applicant’s case should be referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence.

7. [32]

   Accordingly, I direct that: