CHIEF JUSTICE BATHURST: I agree with the orders proposed by RS Hulme AJ and with his Honour's reasons.
HOEBEN CJ at CL: I agree with RS Hulme AJ.
RS HULME AJ: This Applicant for leave to appeal was on 11 November 2014 convicted of a charge that between about 5 February 2013 and 2 April 2013 he imported a marketable quantity of a border controlled drug viz methamphetamine.
On 5 February 2015 Toner DCJ sentenced the Applicant to imprisonment for 9 years including a non-parole period of 6 years, both such periods commencing on 1 April 2013.
The offence was one constituted by s 307.2(1) of the Criminal Code Act 1995 (Cth) and carries a maximum penalty of 25 years imprisonment and a fine of $850,000.
A marketable quantity includes quantities between 2 and 750 grams - see Criminal Code Regulations 2002 (Cth). A similar offence including a commercial quantity i.e. 750 grams or more carries a maximum period of imprisonment of life - s 307.1. Pursuant to s 307.3 if the quantity is less than a marketable quantity the maximum period of imprisonment prescribed is 10 years.
The offence was constituted by the Applicant bringing into Australia a suitcase containing approximately 409 grams of powder, the pure methamphetamine component of which was 309 grams. The potential wholesale value of these drugs was about $102,000 and the potential street value between about $286,000 and $306,000.
The Applicant was persuaded to participate in the importation by a Mr Yong Sik Song who imported an identical suitcase at the same time containing some 297.9 grams (pure) of methamphetamine. Toner DCJ found that Mr Song's participation was much more significant than that of the Applicant.
Mr Song pleaded guilty to the importation of the drugs contained in both his and Mr Bae's suitcases, the total combined weight being 606.9 grams (pure) of methamphetamine. Mr Song was sentenced by Blackmore DCJ on 4 April 2014 to imprisonment for a period of 7 years 9 months including a non-parole period of 5 years. Blackmore DCJ arrived at this period by applying a discount for plea and assistance of 27.5% to a period of 11 years that he said would otherwise have been appropriate. Mr Song gave evidence at Mr Bae's trial.
The grounds of appeal are that:
1. The Applicant suffers a justifiable sense of grievance when comparing the sentence imposed upon him with the sentence imposed upon his co-offender, Mr Yong Sik Song.
2. The sentence imposed was, in all the circumstances, manifestly excessive.
I may perhaps add that Mr Bae was also charged with the joint importation of the 606.9 grams but the jury acquitted him of that charge.
The Applicant gave evidence that he was induced to participate in the importation by Mr Song who told him that the suitcase contained jewellery. It may be that the Applicant was also in need of money although he denied that fact. Blackmore DCJ found that Mr Song was a courier and Toner DCJ concluded that this also was the role of Mr Bae and that his remuneration was to be similar to that promised to Mr Song, viz about $9,000.
His Honour also observed that by his plea, Mr Song had acknowledged that he had actual knowledge that what he was importing was methamphetamine whereas Mr Bae's state of mind was that of a degree of recklessness which his Honour regarded as towards the upper end of a range tending to merge with actual knowledge.
Notwithstanding the jury's rejection of the charge involving importation of the 606.9 grams jointly with Mr Song, Toner DCJ regarded parity between the two sentences as important and this notwithstanding the difference in mental elements and a conclusion that Mr Song's participation was much more significant than that of Mr Bae.
[2]
Ground 1
Despite the jury's apparent rejection of the proposition that the Applicant was a co-offender with Mr Song in respect of the importation of the 606.9 grams, it seems clear that they were co-offenders in respect of the lesser quantity of 309 grams imported by the Applicant. The principles of parity thus have application.
While the authorities indicate that quantity is not determinative of criminality it remains relevant. The quantity with which the Applicant was involved is only a little more than half that with which Mr Song was involved.
His Honour's findings that Mr Song's participation was much more significant than that of the Applicant and that the Applicant was reckless, albeit to a high degree, rather than having actual knowledge as Mr Song did both also argue for Mr Song's criminality being higher.
There are other differences between the offenders but in the scheme of things I do not regard them as significant. However the factors I have mentioned are. And they are not adequately reflected in the difference between the starting point of 11 years for Mr Song's sentence and the 9 years head sentence imposed on the Applicant.
[3]
Ground 2
Before turning to the question of whether, despite the above conclusion, this Court should interfere, it is appropriate to say something concerning this ground. It is not made out.
A group of other cases, most of which were summarised in a table before Toner DCJ demonstrates why this is so. I do not find it necessary to record here any detailed analysis of those cases. They include:-
Ho Yan Cheng v R unreported Qld Supreme Court, 27 May 2014
AB v R [2013] NSWCCA 333, 27 March 2012
Thuong Nguyen v R [2012] NSWCCA 184, 25 March 2011
Kuti v R [2012] NSWCCA 43, 1 April 2011
Hoon Tiong Seah v R [2011] NSWCCA 269, 12 March 2010
Lau v The Queen [2011] VSCA 24, 12 May 2010
Youssef v R [2011] NSWCCA 104, 12 February 2010
Tsen v The Queen [2010] WASCA 21, 18 December 2009
They illustrate that in the case of couriers involved in the importation of methamphetamine in quantities between 274 and 710 grams, head sentences (before discount) varying between 10 and 12 years have been regarded as appropriate. Two other cases reflect sentences after discount of 8 and 9 years. Reference may also usefully be made to Huynh v R [2015] NSWCCA 167.
While these cases do not persuade me that no reduction should be made to the Applicant's sentence on parity grounds, they do argue for the view that any large reduction is liable to result in a sentence that is manifestly inadequate. In that connection I would record my view that, apart from the impact of disparity, I would not reduce the sentence imposed on the Applicant.
However, the conclusion expressed above in respect of the first ground means that this Court is required to exercise the sentencing "discretion afresh taking into account the purposes of sentencing the factors that the Sentencing Act, and any other Act or rule of law, require or permit" - Kentwell v R [2014] HCA 37; (2014) 252 CLR 601 at [42]. Doing so, I am satisfied that a lesser sentence should be imposed.
Lest silence may be misconstrued, I should acknowledge that in arriving at the sentence referred to below I have been mindful of the requirements of s 16A of the Crimes Act 1914 (Cth) but do not regard it as necessary to refer to these seriatim. I also have taken into account the information contained in a number of affidavits read on the Applicant's behalf. They indicate that he is using his time in custody to good advantage. I also record my view that a non-parole period shorter than I have specified would be wholly inadequate in this case.
In the result, I would propose that the Court make the following orders:-
1. Grant leave to appeal;
2. Allow the appeal;
3. Quash the sentence imposed by Toner DCJ;
4. Sentence the Applicant to imprisonment for a period of 8 years commencing on 1 April 2013 and concluding on 31 March 2021, such period to include a non-parole period of 5 years and 4 months also commencing on 1 April 2013 but concluding on 31 July 2018.
[4]
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Decision last updated: 19 February 2016