AYIK v Regina

Judgment 1HOEBEN CJ at CL: Offences and sentence The applicant pleaded guilty to an offence that on 31 July 2010 he did knowingly take part in the supply of a large commercial quantity of a prohibited substance, namely 28.75 kilograms of heroin contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) for which the maximum penalty is imprisonment for life. The offence is subject to a standard non-parole period of 15 years. 2A "large commercial quantity" in respect of heroin is 1 kilogram. The amount involved in this instance was therefore greater than 28 times the large commercial quantity. The Agreed Facts describe the amount as "one of the highest if not the highest non-border seizure of heroin ever recorded in New South Wales". The wholesale value of such a quantity was in the order of $7.2 - 8 million with a street value of up to $33 million. 3An offence of goods in custody (in relation to the possession of confidential police intelligence documents) was taken into account on a Form 1 on sentence. 4The applicant was sentenced by her Honour Judge Flannery SC on 11 May 2012. Her Honour sentenced the applicant to imprisonment for 9 years, with a non-parole period of 5 ½ years commencing 3 August 2010 and expiring 2 February 2016, and a balance of term of 3 ½ years expiring 2 August 2019. 5The applicant seeks leave to appeal against sentence on the following ground: Her Honour erred in her application of the principles of parity having regard to the sentences (and structure of those sentences) imposed on C". Factual background 6During the course of an Australian Crime Commission investigation into a prohibited drug distribution network in NSW, a number of telecommunications emanating from Lee Zhang were intercepted. On 28 and 29 July 2010 Zhang was in communication with the applicant. On 30 July 2010 Zhang was in regular contact with C, the applicant's co-offender. 7The applicant's role in the offence was that he stored the 28.272 kgs of heroin at his premises over a three day period (28 - 30 July 2010). On the afternoon of 31 July 2010, Zhang (who was clearly higher in the hierarchy) contacted the applicant to see if he was at home. The co-offender C then came to the applicant's home that afternoon to collect the heroin (at the direction of Zhang). When C arrived, the applicant drove his car out of his driveway and reversed C's vehicle into the rear yard of his home. The applicant then placed the heroin in a suitcase and returned to help C put it in the boot of C's car. C then drove away. Shortly afterwards, C was stopped by police and the 28.272 kgs of heroin was located. 8C was charged with the same offence as the applicant in relation to that heroin, namely, knowingly taking part in the supply of a large commercial quantity of prohibited drug (28.272 kgs heroin). C was dealt with on the basis that at the direction of Zhang, he had collected the 28.272 kgs of heroin from the applicant's house where it was being warehoused. When he was stopped by the police, C was in the process of transporting it to his own home (where it was proposed to be stored for three days). When sentencing C, her Honour found that he was acting under duress at the time of the offending, i.e., he participated because he truly feared for his and his wife's safety as he believed Zhang had connections with motorcycle gangs, government officials, customs and the police. A Form 1, which contained one count of knowingly deal with the proceeds of crime, was attached to this offence. It related to $10,000 found at the home of C upon his arrest. It was money which he had been paid by Zhang for his role in delivering heroin. 9C had an additional offence (not in common with the applicant) which was dealt with at the same time. It arose from an incident the day before the above offence (i.e., on 30 July 2010) when, acting upon instructions by Zhang, C had delivered eight blocks (each 350 grams) of heroin to a purchaser. Her Honour found that C was also acting under duress when this offence was committed (referred to as Count 1 in the applicant's submissions). 10C gave assistance to the authorities that was found to be "truly exceptional". He was allowed a combined discount of 50 percent for the assistance and plea of guilty. Her Honour also found as a consequence of his protected status, that his custody had been and would be somewhat more onerous than it would be in the normal prison population. 11C had no criminal record and was 23 years old at the time of the offences (D.O.B. 1986). Her Honour found that he had good prospects of rehabilitation, was unlikely to re-offend, and was remorseful. She concluded that he had not fully analysed his position at the time of the offences by reason of how his involvement unfolded, his relatively young age and his cultural dislocation. Her Honour stated that she was not required to increase the sentence in relation to the principal offence by "any great extent" in order to reflect the criminality of the charge on the Form 1. She made a finding of special circumstances on the basis that C would need an extended period on parole to readjust to life upon his release. 12C was the first in time to be sentenced by her Honour. In relation to the additional charge that C alone faced (supply large commercial quantity of drug - 2.8 kg heroin on 30 July 2010) her Honour imposed a total sentence of 4 ½ years with a non-parole period of 3 years commencing 31 July 2010. In relation to the charge that C had in common with the applicant, he was sentenced to 6 years with a non-parole period of 3 ½ years commencing on 31 January 2011. There was partial accumulation of 6 months and as a result, the overall effective sentence imposed upon C was 6 ½ years with a non-parole period of 4 years. 13The effective starting point for C in relation to the charge that he had in common with the applicant was 12 years (before the 50 percent discount). Sentence proceedings 14Having reviewed the facts, her Honour noted that the plea of guilty had been entered at the earliest opportunity and accordingly, the applicant was entitled to a discount of 25 percent. 15In relation to the matter on the Form 1, the applicant's residential address was searched and twelve pages of a New South Wales Police Intelligence Information Package relating to two persons of interest was found and seized. The applicant's fingerprints were found on one of the pages. 16By reference to R v MacDonnell [2002] 128 A Crim R 44 at 33 her Honour noted that when determining the objective seriousness of offences involving drugs, the offender's role and level of criminality were more important than the quantity of the drugs which was not the sole or even principal determinant. In this case, she found the applicant's role to be "a relatively limited one". Nevertheless, the quantity of drugs involved was an important and relevant consideration. 17Her Honour found that none of the aggravating factors listed in s21A of the Crimes (Sentencing Procedure) Act 1999 had application. 18In relation to the applicant's subjective case, he was born in 1977 and was 34. He had no criminal record. He was the youngest of three brothers and two sisters and had lost his father when he was aged 12. This had particularly affected him, since he had lost an important role model at a developmental stage in his life. After an argument with one of his siblings he left home at 16 and completed his schooling in Queensland. 19Upon his return to Sydney he worked as a machine operator and forklift driver. In 1999 he married in Turkey. Following the marriage, they returned to Australia and they have a son aged twelve and a daughter aged eight. In 2001 the applicant suffered a workplace injury to his back. He was unable to continue working and received compensation of $35,000. In 2004 he bought a tip-truck for soil deliveries, but that business did not work out. 20In 2005 he sustained a further injury to his back and has been in pain since that time. He worked as a cleaner and a truck driver before following his wife overseas in 2009. He returned to Australia in 2010 but was unable to obtain satisfactory work and was running out of money. He was performing temporary work for an employment agency until his arrest in August 2010. 21The applicant commenced using cannabis at the age of 12 after his father's death. After his marriage in 1999, he ceased using cannabis for a while but resumed its use after his work injury in 2001. He began using ice in 2004 and quickly became addicted to it. His actions became increasingly erratic and in January 2005 he was hospitalised following a psychotic episode. He subsequently abstained from drug use until his return from Turkey in 2010 when he commenced smoking cannabis, using heroin and drinking alcohol for pain relief. 22Since being in custody, he completed the Getting Smart course. He told Ms Robilliard, a psychologist, that he "got a lot out of it", especially the pros and cons of drug taking. He also completed three units of Certificate 1 in Information Technology and the prison education officer reported that he was "an enthusiastic learner". Her Honour concluded that the applicant had good prospects of not re-offending, although he would need a lengthy period on parole to ensure that he did not return to drug use and so that he could successfully re-adjust to life upon his release. Her Honour found special circumstances. 23Her Honour took into account the question of parity with Mr C. On this issue, she said: "I sentenced Mr C in relation to count 1 on the basis that acting on instructions provided by Zhang, he delivered 2.8 kgs of heroin to a purchaser and in relation to count 2, on the basis that he transported 28.272 kgs of heroin from where it was being warehoused to the offender's home where it was proposed that it be stored for 3 days but that he did so under duress. Mr C assisted the authorities and for this and for his plea I reduced his sentence by 50 percent. My starting point before reducing the sentence by 50 percent was one of 12 years. Mr Boulten who submitted that I would conclude that the criminality of the two men is on a par or close to on par, bearing in mind that (1) Mr C faced two charges and so his was a course of conduct whereas this offender faces only one charge and (2) the matter on the Form 1 here is much less serious than the matter I took into account when sentencing Mr C in respect of count 2. The Crown did not disagree. I accept that my starting point in relation to Mr C is the appropriate one here, although I have found that Mr C acted under duress which was significant, his offending was not just a one off and although I did not extend his sentence by much to reflect the matter on the Form 1 for the reasons I gave, the entry on it was more significant than the entry on the Form 1 here." (ROS 8.9 - 9.8) The appeal 24The applicant accepted that the effect of Lowe v R [1984] HCA 46; 154 CLR 606 was that the principle of sentencing parity required a comparison of the offending behaviour, the offender's background, age, criminal history and general character. 25By reference to those considerations, the applicant submitted that his role and that of C were different. He submitted that he had stored the drugs at his premises for three days, whereas C, on instructions from Zhang, purchased a bag into which to place the drugs and drove from the applicant's premises to collect the drugs. C had agreed to store the drugs at his place for three days after collection. C had engaged in a continuing course of conduct whereas the applicant was involved in a single offence. The Form 1 matter involving C was a more serious matter than that taken into account in relation to the applicant. In those circumstances, the applicant submitted, her Honour should not have used the same "starting point" of 12 years when formulating his sentence. 26The main focus of the applicant's submissions, however, related to Postiglione v R [1997] HCA 26; 189 CLR 295 at 301 - 303 where Dawson and Gaudron JJ said: "Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.... ... The approach adopted by the Court of Criminal Appeal in this case treats or has the effect of treating the total period to be served in custody and, more particularly, the actual period to be served in consequence of the offences committed as irrelevant to the proportion which the sentences imposed on Postiglione and Savvas should bear to each other. In the circumstances of this case, the real punishment for both Savvas and Postiglione is the extra period which they must spend in prison. Due proportion cannot be determined without taking it into account. However, that is not to say that it is the only matter to be taken into account." 27The applicant submitted that the facts of this case were very similar to those in Bell v R [2008] NSWCCA 206 where it was held at [37] that "the application of the principle of totality does not render considerations of parity redundant". The applicant submitted that a sentencing judge is required to have regard to the totality of the sentence imposed on a co-offender when applying the principles of parity. This was the approach of Price J (with whom McClellan CJ at CL and Barr J agreed) at [40]. The applicant submitted that the application of principles of parity also required her Honour to have regard to the structure of the sentences imposed on C. By reference to a diagrammatic representation of the sentences imposed on C for counts 1 and 2, the applicant submitted that except for one year (30.7.13 - 30.7.14) all of C's non-parole period with respect to count 2, was concurrent with the first offence. 28The applicant submitted that it was this distortion in proportionality, as well as the differences already referred to, which provided a basis for his justifiable sense of grievance with respect to the sentences imposed on C when compared with that which he received. Consideration 29As a start point, it should be noted that the "proportion" point now being taken on behalf of the applicant was not taken by very experienced senior counsel, who appeared on behalf of the applicant, before the sentencing judge. No submission was made then that the application of the principle of parity in the applicant's case required regard to be had to the structure of the sentences imposed on C, or that there was a need for her Honour to focus on the time that C would actually spend in custody attributable to the offence which they had in common. 30Applying the principle of parity in the conventional way, it is important to note that the applicant and C were sentenced by the same judge who gave detailed reasons for the different sentences which she imposed. Her Honour referred to their different criminality and differing subjective features. In those circumstances, an appellate court should be cautious before determining that an applicant has a justifiable sense of grievance because of a different outcome (Ng v R [2011] NSWCCA 227 at [78]; Williams v R [2013] NSWCCA 15 at [25] - [26]). 31Even if one accepts (which is by no means clear) that the applicant was a step lower in culpability than C, the differences between them were not such as to invalidate her Honour's start point of 12 years. Those matters (i.e. the additional charge which C faced, so that his conduct could not be dealt with as isolated and that the Form 1 offence was less serious) were more than offset by the finding that C was acting under duress in relation to both offences for which he was sentenced. Accordingly, the choice by her Honour of 12 years as the same start point for both the applicant and C, was clearly open to her. Most particularly, the criminality of the applicant was different to that of C in the light of the finding that C was acting under significant duress (Papadopoulos v R, Topcu v R [2007] NSWCCA 274). 32Approached in the conventional way therefore and comparing the sentence imposed on the applicant with that imposed on C in respect of the same offence, there is no proper basis for a finding that her Honour did not observe the principle of parity when sentencing the applicant and C. 33In relation to the structure of the sentences imposed on C, her Honour did no more than consider the principle of totality in accordance with Pearce v R [1998] HCA 57; 194 CLR 610. Her Honour fixed the appropriate sentence in relation to each offence and then considered issues of concurrency and accumulation. The requirement was for her Honour to structure the sentences so as to ensure that the overall sentence was appropriate for the total criminality. There was no obligation on her Honour to structure the sentences so as to also have regard to some concept of proportionality based on the actual time C would spend in custody, attributable to the offence which he had in common with the applicant. 34No support for such a proposition can be derived from Postiglione v R where the facts were quite different. Unlike Postiglione, this was not a case where both the applicant and C were serving prior lengthy gaol terms at the time of sentencing. In Postiglione Dawson and Gaudron JJ observed in the circumstances of that case, that the real punishment for each offender was the extra period they had to spend in custody. They recognised that due proportion could not be determined without taking that into account. They did, however, qualify this by saying "that is not to say that it is the only matter taken into account" (at 303). The circumstances in that case were very different to the present where C was being sentenced for two related offences and both the applicant and C were serving their first custodial terms. 35The same observation is true in relation to Bell v R. As Price J made clear at [40], there was a clear difference in the criminality of the two offenders which had not been properly reflected in the sentences imposed. That is not the case here. 36In the "proportionality" submission, what the applicant has done is to focus upon the additional time in custody which C would spend as a result of the sentence imposed for the offence which they have in common. Another and more logical way of approaching the structure of the sentences imposed on C is that in accordance with the principle of totality, her Honour determined that only six months of the sentence imposed for the first and lesser count should be served by C, with the remainder of the sentence for that first count being subsumed by the sentence imposed for the second, more serious, count. In other words, her Honour concluded that a level of partial accumulation of six months was sufficient to reflect the additional criminality of the less serious offence in the first count. 37It is also of significance that the applicant's "proportionality" submission in relation to the structuring of the sentences imposed on C ignores that there is a subsequent period of parole of 2 years, solely attributable to the offence in the second count. In Henderson v R [2012] NSWCCA 65 the Court observed: "32 ... The accumulation of a sentence, whether partially or wholly, upon another sentence does not mean that it is any less than what it is. The analysis engaged in by the Crown ignores the rationale for the principle of totality: see, for example, Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63. This was a matter that the judge was required to consider after first determining the sentences for the individual offences: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [45]. 33 The Crown's analysis also ignores the fact that there is a subsequent period of 18 months during which the applicant will be on parole. As Simpson J observed in R v Moore [2012] NSWCCA 3 at [38], "a period of parole is in itself a sentence". 38I am not persuaded that there is any marked and unjustified disparity between the sentence imposed on the applicant and that imposed upon C. The ground of appeal has not been made out. 39I would grant leave to appeal but dismiss the appeal. 40HALL J: I agree with the orders proposed by Hoeben CJ at CL. 41DAVIES J: I agree with Hoeben CJ at CL.