R v Chung

SULLY J: I have had the benefit of seeing in draft the judgment of Hidden J. I agree with his Honour that the appeal should be dismissed. I agree with the reasons given by his Honour in support of the making of that order.

I wish, however, to add some brief observations of my own concerning the appropriateness, in a case of the present kind, of the imposition of the statutory maximum penalty of imprisonment for life.

Hidden J draws attention to the obviously daunting implications of a sentence of life imprisonment. His Honour refers to portion of the judgment of Hunt J (as he then was) in Petroff (unreported, 12 November 1991). I do not disagree with anything said by Hidden J in these portions of his Honour’s judgment. I would wish, however, to supplement what his Honour has said by drawing attention to the following extract from the judgment of Allen J in Baker (unreported, CCA (NSW), 20 September 1995): “Section 19A of the Crimes Act 1900 empowers this court to sentence a person convicted of murder to penal servitude for life. That is what such a sentence, if imposed, means. It means for life. It means that never can there be any hope of release. It means never, no matter how many decades go by, will the prison door be opened and the prisoner be allowed out again. It matters not whether he is sixty, seventy, or survives to eighty. He is there for life. Such a sentence cannot lightly be imposed in any civilised society. There are, of course, circumstances in which in a civilised society such a sentence may be called for. Such cases will be quite exceptional. But clearly they exist. The law so provides. It would be foolish in the extreme to attempt to give a list of the types of cases which would warrant the court taking this, the most extreme measure available to the law. Three, however, stand out in respect of murder. The first is the case of the professional killer, the person who cold-bloodedly assassinates others for gain. That is one category. Another is the case where the killer is so fundamentally psychotic that it could never be safe to release him back into the community. I may say that the evidence that that is so would, so far as I am concerned, need to be quite strong. The third is the case of an offender who embarks on such a course of criminality that nothing short of the knowledge that the most extreme punishment the law can give awaits him would deter him from continuing that course.”

It is, of course, the case that Allen J was dealing with a life sentence imposed as punishment for the crime of murder rather than with a life sentence imposed for the worst kind of drug-related criminal conduct. I believe, however, that the substance of what his Honour had to say in the former context is equally applicable, mutatis mutandis ¸ to the latter context. In my opinion the third of the exceptional categories to which Allen J refers, that is to say the category of “an offender who embarks on such a course of criminality that nothing short of the knowledge that the most extreme punishment the law can give awaits him would deter him from continuing that course” , fits precisely the sort of offender with whom the Court is called upon to deal in the present particular case. In that connection, I wish to reaffirm for my own part the following propositions which I stated in the course of passing sentence in Cheung Wai Man & ors. (unreported, 22 March 1991): “1. The importation of heroin into this country in any amount and at any time constitutes a deliberate threat to the well-being of the Australian community. The same is to be said of any form of trafficking in heroin within this country. 2. The importation or the attempted importation of, and the trafficking or attempted trafficking in, a quantity of heroin of the amount here in question is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted. 3. In the face of such challenges each of the institutional supports of our society has a role to play. That of the Courts is to punish and deter according to law. Obviously, the Courts alone cannot meet adequately, let alone defeat, the challenge of which I have been speaking. What the Courts can do is to punish drug-related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the Courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who, ………………….. engage in drug-related crime when they are themselves not drug-dependent.” IN THE COURT OF CRIMINAL APPEAL 60215/98 SULLY J IRELAND J HIDDEN J Friday 22 October ,1999 REGINA -v- Wing Piew CHUNG

IRELAND J: I agree with the order proposed by Hidden J for the reasons given by his Honour.

I am also in agreement with the additional comments made by Sully J. IN THE COURT OF CRIMINAL APPEAL 60215/98 SULLY J IRELAND J HIDDEN J Friday, 22 October 1999 Regina v Wing Piew Chung Reasons for judgment

HIDDEN J : This is an application for leave to appeal against what the Court understands to be the first sentence of imprisonment for life to have been passed under the Drug Misuse and Trafficking Act 1985. The applicant, Wing Piew Chung, was found guilty of a charge of supplying not less than the large commercial quantity of heroin after a trial before Kirkham DCJ and a jury. By s33(3)(a) of the Act, imprisonment for life is the maximum sentence prescribed for that offence. By s33A(1), that sentence is for the term of the prisoner’s natural life.

He was also sentenced to twelve months imprisonment upon a charge of possession of a falsified passport, to which he had pleaded guilty. In addition, his Honour took into account a charge of goods in custody relating to an amount of about $24,000 in cash in his possession at the time of his arrest. These matters are of no present consequence. The facts

The charge of supplying heroin spanned the period June to November 1993. It was founded upon evidence of the applicant’s having actually supplied, or having had in his possession for supply, heroin totalling about 73kg. Allowing a margin for error in that assessment, his Honour sentenced him on the basis that the quantity was 63kg. The large commercial quantity is 1kg.

The principal evidence against the applicant was that of an accomplice, Chin Chew Huang, whose role was very much subordinate to his. After a Crown appeal, Huang had been sentenced by this Court to imprisonment for nine years, comprising a minimum term of six years and an additional term of three years: Huang (1994) 78 ACrim R 111. In his case, regard was had not only to his role but also to extensive assistance which he had afforded and would continue to afford to the authorities which, among other things, led to the prosecution of the applicant. It was not suggested before us that the sentence passed upon Huang should have had any bearing on the appropriate sentence for the applicant.

For the purpose of sentence Kirkham DCJ accepted Huang as a witness of truth, noting that the jury must also have done so. His Honour summarised the salient features of Huang’s evidence at some length in his comprehensive remarks on sentence. It is unnecessary to repeat that material. It is sufficient to sketch in broad outline the applicant’s involvement in the distribution of heroin in Sydney.

His Honour concluded that the applicant’s place “in the hierarchy of drug distribution” was “very much at the upper end of the scale”. He occupied a position of seniority in a network which was engaged in the sale of heroin at what might be termed the wholesale level. Heroin was received from overseas, sometimes brought here by members of the crew of international aircraft. It was stored at various locations in Sydney and sold at others. The distribution was on a large scale and was well organised. A system of coding was in place for communication with purchasers. On one occasion, when Huang’s driver’s licence had expired the applicant was able to arrange the production of a false licence for him.

The enterprise in Sydney was associated with an international criminal organisation known as Ah Kong, which had its headquarters in Thailand. It appears that the applicant was prepared to further his ends by the use of violence, if necessary. At an early stage of their association in Australia, the applicant ensured Huang’s co-operation by threatening to kill or harm members of his family. On another occasion, he sought to protect his income from the sale of heroin by telling another dealer that he would kill him if he reduced his prices. Later in 1993 the applicant left Australia, but he continued to give Huang directions and advice about the enterprise by telephone from Singapore.

There was evidence before his Honour about the average purity and price of heroin sold on the street in 1993. His Honour concluded that the heroin the subject of the charge, which was of a high grade of purity, had a potential street value of roughly $150 million. From time to time, the applicant or his associates transported very large amounts of money out of Australia in a clandestine manner.

His Honour was conscious of the fact that the single charge of which the applicant was found guilty represented a pattern of criminality of a high order. As he put it: The allegations against the prisoner were very detailed, broad ranging and extremely serious. They traversed a course of conduct which may be described as crimes against the members of the community of the most reprehensible and rapacious kind. Subjective case

His Honour observed that little was known of the applicant. He did not give evidence in the sentence proceedings. Nor had he in the trial. There was some background material in the history he provided to a psychologist, whose report was in evidence.

The applicant was thirty-nine years old at the time of the offence and is now forty-five. He has no criminal record. He was born in Singapore and appears to have had a disturbed upbringing. His parents divorced while he was still an infant, and his relationship with them and his siblings was severed at that point. He was brought up by an uncle and aunt, whom he came to consider to be his family. His uncle was an alcoholic, given to outbursts of anger, and he and his aunt were the victims of physical and mental abuse.

He did not complete high school, leaving at the age of fourteen. Thereafter, he was employed in a variety of occupations. He undertook an apprenticeship as a carpenter but was unable to complete it because, as he claimed, he was unfairly imprisoned for an act which he did not commit. He told the psychologist that he spent seven years in prison, but he did not explain what it was he was alleged to have done.

It appears from the report that he has a partner and children living overseas. The report says nothing about them, apart from recording his expressed concern for them. Significantly, it is not suggested that he himself has ever used heroin or, indeed, any other drug.

A prison report describes him as a “quiet, efficient and reliable worker”. The sentence

His Honour considered that, viewed objectively, the offence fell “into the worst case category”. He expressed himself “constrained to impose the maximum penalty,” and it is apparent that nothing in the applicant’s subjective case dissuaded him from that course. Before passing sentence, his Honour had this to say: The consequences of heroin addiction in the community are well known. The human death toll with addicted persons, many of them young, dying from the effects of overdose or contamination of heroin is too often seen in the community. Few families can say with any confidence that they, their friends or relatives have not, at one stage or another, been touched by the tragic consequences of heroin use. Daily in these courts persons being sentenced for offences of dishonesty such as breaking, entering and stealing from the homes of the members of the community, armed robbery, bag snatching and other such serious offences claim as their motivation their need to obtain money to satisfy their heroin habit. For many, this habit requires many hundreds of dollars per day and in some cases much more to purchase heroin in the maintenance of their habits. In this way the scourge of heroin addiction converts previously law abiding citizens, the majority of whom seem to be under the age of 30, into people vulnerable to the spread of aids and other communicable diseases and who are prepared, themselves, to rob, steal and cheat to obtain funds to buy heroin. It is from the fruits of these crimes that money used to buy heroin finds its way into the pockets of large scale heroin dealers, like the prisoner. It seems to be the case that whilst ever large profits are available to be made, people like the prisoner will be prepared to take the risks of detection, prosecution and imprisonment.

Before us, no exception was taken to any of those remarks. Nor could it have been. The application

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.

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.

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.

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.

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: (a) the offence involved: (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.

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.

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.

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.

I would grant leave to appeal but would dismiss the appeal.