The role of each applicant.
71 In sentencing a federal offender, the Court is obliged by Pt 1B of the Crimes Act 1914 (Cth) (and specifically s 16A), to take account of a number of matters. They include "the nature and circumstances of the offence" (s 16A(2)(a)). Here, it was common ground that the offences were very serious. General deterrence was of great importance. Each offender acknowledged complicity in the importation into Australia of drugs with a gross weight of 15.01 kg, amounting to 10.01 kg of pure methamphetamine. Under s 314.4 of the Criminal Code Act 1995 (Cth), a marketable quantity of methamphetamine is 2 grams. A commercial quantity is 0.75 kg. The shipment was therefore 13.35 times a commercial quantity. The maximum penalty for the offence was life imprisonment or a significant fine, or both.
72 The importation was the work of professionals. The arrival of those involved was staggered over a number of months. J arrived on 27 May 2007, Mr Chan on 20 July 2007. Each procured several phones in false names. Each took instructions from Canada. The instructions included that the suitcases "had been put together by professionals, such that it would take at least two or three days to put them back together". When taking delivery, they were told that the suitcases should be inspected. If there was any sign that they had been broken, they should walk away. The syndicate was plainly prepared to abandon the operation, notwithstanding the value of the drugs. Two cars were to be used. They were to arrive at the point where the drugs were to be received in one car and leave in another.
73 The High Court in The Queen v Olbrich [1999] HCA 54; 199 CLR 270 recognised that a Court dealing with such offences was likely to have less than full knowledge of the circumstances of importation. Gleeson CJ, Gaudron, Hayne and Callinan JJ said this: (at 278)
"16. ... Very often prosecuting authorities (and a sentencing judge) will have only the most limited and imperfect information about how it was that the accused person came to commit an offence for which he or she stands for sentence. Especially is that so where the accused has pleaded guilty and where the offence which the offender admits is one which had its genesis outside this country. Very often then it will not be possible to say, with any certainty, what exactly was done or intended by a person apprehended in the act of importing narcotics into Australia."
74 Elsewhere, their Honours said this: (at 277)
"13. We do not accept that the identification of the precise nature of the accused's involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process."
75 Commenting on the practice in some cases of categorising the role of the offender, their Honours added: (at 278)
"14. ... Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate."
76 Later, their Honours said this: (at 279)
"19. ... If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. In that context, a distinction between 'couriers' and 'principals' may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did."
77 It is useful to begin by examining what her Honour said about each offender. A number of issues arise. First, was her Honour's description of what each offender had done, and her characterisation of his role (where that was made) a view available on the evidence? Secondly, if so, was the sentence imposed upon that offender within the available range for a person so described?
78 In sentencing the applicants Chan and Lo, her Honour identified the following matters common to both: (ROS 4)
"This offence is extremely serious. The importation was carefully planned and steps were taken to conceal the identities of the principals, who distanced themselves from direct involvement as is evident from the telephone intercepts. The pure weight of the drug imported was approximately thirteen times higher than the minimum weight for the commercial quantity, which is 0.75 kilograms. Ten kilograms of pure methamphetamine is a substantial commercial quantity, the weight of the drug being one of the many factors relevant to the sentence to be imposed. The offenders' motivation to become involved must have been purely financial gain as neither is a drug user."
79 Her Honour then dealt with their respective roles, beginning with Mr Chan. She said this: (ROS 4/5)
"The offender Chan played a greater role than Lo. I do not accept that Chan's role could be equated to that of a courier. His role was of a middle man, if it is necessary to ascribe a label to it. He took instructions from a person in Canada who was clearly senior to him in the hierarchy. He occupied a trusted position as is evidenced by the fact that he was here to oversee the operation. I note that Mr Chan stayed away from the premises at Bankstown until the consignment was delivered and checked by (J)."
80 Her Honour then made the following comment concerning the offender Lo: (ROS 5)
"As to the offender Lo, it is common ground that his involvement was limited to the day of his arrest that being 23 August 2007 as outlined previously. His role, in my view, is lower than that of a courier."
81 Her Honour's general comments apply equally to Mr Nguyen, although he was an occasional drug user. In respect of his role, her Honour said this: (ROS 5)
"The part that this offender played in this large-scale importation was as a driver for (J) on 17 August 2007, and as a lookout on 23 August 2007. He also gave instructions to (J) on that day, when he told him to cut the plastic wrappings around the bags, as I have previously outlined."
82 Counsel for Mr Chan submitted that it was not open to her Honour to find that the applicant Chan was a "middle man", overseeing the operation. Rather, he was a "courier/transporter". Mr Chan, it was acknowledged, occupied a position of trust and had come to Australia a month before (20.7.07), knowing that the importation of drugs would shortly take place. However, it was submitted that the person overseeing the operation was J. He arranged for the drugs to be retrieved from Customs and delivered to Mr Chan. It was then Mr Chan's task to transport the drugs to the purchaser. On the evidence, his role did not commence until the day of his arrest (23.8.07). Once at the premises, he plainly took instructions from the principal in Canada, whom he referred to as "boss". It was clear from the conversation that he was receiving information for the first time as to the amount of the drugs (5 kilograms in each case) and the manner of concealment. He was not a manager. He made no managerial decisions.
83 The Crown responded that such submissions had been made to the sentencing Judge and rejected. It was open to her Honour, according to the Crown, to regard Mr Chan as the operation's man on the ground, arriving in Australia in advance, to oversee the operation.
84 In my view, there was no error. First, the coincidence of Mr Chan's arrival and the intelligence received from Canada, that an importation was imminent, is a fragment of information that, with other evidence, provides insight into Mr Chan's role. It was acknowledged that Mr Chan arrived in Australia aware that the importation was about to take place. Secondly, Mr Chan, like J, procured a number of phones. One is known to have been procured in a false name. It is reasonable to suppose the other was as well. Only one was lawfully intercepted soon after his arrival. Thirdly, Mr Chan ultimately telephoned J on 23 August 2007, a matter of hours before the suitcases were delivered to the Bankstown address. It is clear from the call that Mr Chan already knew of the arrangements for their delivery. It is reasonable to infer, as counsel acknowledged, that he had been in communication with J or Canada, or someone associated with the importation, before 23 August 2007. Fourthly, Mr Chan was, to a significant degree, insulated from risk. As her Honour observed, he stayed away from the Bankstown premises until the suitcase had been delivered and inspected. He only came to the premises after he had been given repeated assurances by J that everything was "alright". Those who had to deal with customs agents and Customs were exposed to far greater risks, as J recognised in his conversation with Canada when he asked: (supra [20])
"19 ... Is it too risky or what? They can fucken say all they want, we're the ones who go in there and we'll cop it."
85 Fifthly, it was plain and acknowledged by counsel for Mr Chan, that he held a position of trust. He was not a foot soldier. He was brought in at the end, once the group believed it had successfully landed the drugs. He was to manage the next important stage, that is, the delivery of the drugs to the purchaser, in return for substantial money. The agreed facts, it will be remembered, included the following which, for convenience, I repeat: (agreed facts p 10)
"During the course of the investigation it was revealed Chan has access to a large sum of money, suspected of being about $300,000 both as profits of the sale of previous shipments of methamphetamines and to pay for various stages of the importation of the commercial quantity of border controlled drugs.'
86 Mr Chan did not give evidence. He did not provide an explanation for his access to large sums of money.
87 Finally, Mr Chan recruited Mr Lo (and Lau) to assist in the task, once the suitcases had been delivered.
88 It was open, in my view, to her Honour to regard Mr Chan as a middle man whose task was to oversee the operation.
89 Turning to the applicant Lo, the position is more complicated. Mr Lo gave evidence. His evidence, however, was not entirely satisfactory. It was given through an interpreter. He was asked by his counsel when he first learned that there were prohibited drugs in the suitcases (T 9). In a long answer, he said that Mr Chan had been checking the suitcases and closed them as he approached. Intuitively, he at once "came to know that ... something was illegal". He said he had behaved "negligently and recklessly" in the matter. He should have gone away "once I noticed there was something ... " (T 10).
90 The Crown then cross examined. The cross examination included the following: (T 11)
"Q. When did you become aware that there were drugs inside the suitcase?
A. INTERPRETER: At that stage I was only thinking that there should be something illegal in the suitcase and it was until the time when I was in the police station that police told me that there was drugs.
Q. You understand that you've entered a plea of guilty to attempting to possess not less than a commercial quantity of methamphetamine?
A. INTERPRETER: Yes.
Q. Do you accept that by entering that plea you are acknowledging that at the time you participated with Frankie to move the suitcases you knew that there were drugs - or expected to be drugs inside the suitcase?
A. INTERPRETER: Just want to say that prior to that I never knew that there was drugs then I would not have done so."
91 Counsel for Mr Lo then sought a brief adjournment. Her Honour left the bench and counsel had the opportunity of speaking to Mr Lo. When the matter resumed, in answer to his own counsel, he said this, referring to Mr Chan by his nickname "Frankie": (T 12)
"Q. Mr Lo you gave some evidence that when you were at the house with Frankie that you saw the bag, the suitcase and that you believed that it contained something illegal. Do you remember giving that evidence?
A. INTEPRETER: Yes correct.
Q. By that you meant drugs?
A. INTERPRETER: That can be said so but it could be other things because I had not confirmed it.
Q. I appreciate you hadn't confirmed the physical contents of the bag but you suspected at that time that you picked it up and carried it out to a waiting taxi that it contained drugs?
A. INTERPRETER: Yes correct."
92 The Crown did not further cross examine on this issue. Therefore, little is known about Mr Lo's precise role.
93 In the course of submissions the Crown conceded, somewhat charitably, that Mr Lo's role was confined to the day of his arrest, 23 August 2007. That concession ignored the coincidence of Mr Lo's arrival (with Mr Lau) at about the same time as Mr Chan (21.7.07 cf Chan 20.7.07) and his association with Mr Chan. However, that was the basis upon which her Honour sentenced and characterised Mr Lo as "lower than a courier". On this appeal there has been no challenge to that finding. The dispute in his case is confined to the sentence which was then imposed upon the basis of that finding.
94 Her Honour, in her sentencing remarks, did not comment upon Mr Lo's evidence or make any particular findings beyond those identified. Mr Lo had plainly endeavoured to distance himself from the task Mr Chan was required to perform, namely obtaining the drugs from within the suitcases. Mr Lo owned a shoulder bag in which the tools used to break open the bags were ultimately found in the taxi. The agreed facts, which he admitted, included a statement that he, Chan and Lau, had in their possession the "shoulder bag containing the electric saw, grinder and disks" (agreed facts [47]), in addition to the suitcases. It would be very strange for Mr Chan to take Messrs Lo and Lau to Bankstown at such a crucial stage of an illegal operation which had brought him from Canada to Australia, unless Mr Lo were there to assist in obtaining the drugs from the suitcases and to safely transport them to the purchaser. However, that was not a matter explored either in cross examination or on sentence.
95 Turning, then, to Mr Nguyen, again there was no challenge to the findings made by her Honour. It was plain that Mr Nguyen had been the driver for J. He had become involved at an earlier stage. He was party to the attempts made to have the suitcases with the drugs released by Customs. On the day the drugs were delivered, he acted as the cockatoo, driving for hours around the area to ensure that nothing was amiss. He conveyed that intelligence to those waiting for the arrival of the suitcases. He also, as her Honour observed, made a suggestion concerning the removal of plastic from the suitcases to make it easier to transport them.
96 It was not disputed that Mr Nguyen, in terms of his criminality, was between Mr Lo and Mr Chan. Counsel for Mr Nguyen, however, complained that his participation "was extremely limited" and "on par, if only marginally above, that of Lo".
97 Counsel for the Crown, in response, reminded the Court of the submissions made by Mr Nguyen's counsel during the sentencing hearing. That submission was in these terms: (T 5, 4.9.09)
"(COUNSEL): Needless to say, of course, your Honour, we would be arguing that there is a considerable distance between Mr Nguyen and the two persons further up the hierarchy, that's Chan and (J). He's obviously well above Lo who comes in on the day and who one can only say his displayed a very poor sense of timing."
98 Counsel for Mr Nguyen, in this Court, raised a number of additional issues, although they were not, as the Crown pointed out, grounds of appeal. Three matters were identified. First, it was said that her Honour had not given "sufficient weight" to a particular aspect of the applicant's subjective case. Medical certificates relating to Mr Nguyen's parents were tendered. Both parents needed help in their daily lives. Mr Nguyen's mother was blind. However, as set out above (supra [52]), her Honour noted that Mr Nguyen was not the primary carer of his parents before he went into custody. There was no suggestion that their hardship was exceptional by reason of his imprisonment.
99 The second matter concerned Mr Nguyen's vulnerability to recruitment in the criminal enterprise by reason of his gambling. However, gambling, generally, does not warrant leniency (Le v R [2006] NSWCCA 136, per Latham J at [32]). In Assi v Regina [2006] NSWCCA 257, Howie J said this: (at [27])
"[27] ... Although his gambling habit may explain his fall into such serious criminal conduct and give some hope of rehabilitation in the future, it has been held to be a rare case where an offender can seek mitigation of penalty based upon an addiction to gambling, even where it is pathological: R v Molesworth [1999] NSWCCA 43. ... "
100 So there is a rule (where addiction does not operate to mitigate the offence) and there are rare exceptions. Wood CJ at CL provided insight into the exceptions in R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346, when he said this in the context of drug addiction:
"[273] In my view the relevant principles are as follows:
(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;
(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:
(i) the impulsivity of the offence and the extent of any planning for it: cf R v Bouchard (1996) 84 A Crim R 499 at 501-502 and R v Nolan (Victorian Supreme Court, Court of Appeal, 2 December 1998, unreported);
(ii) the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;
(iii) the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act; ... "
101 Here, Mr Nguyen's actions in support of the joint enterprise were not impulsive. Nor do the other circumstances identified by Wood CJ at CL apply (cf Ourdi v R [2009] NSWCCA 46; (2009) 193 A Crim R 381 at [34] ff).
102 The final matter concerned the discount allowed for Mr Nguyen having pleaded guilty. The plea was entered on the day the trial was scheduled to begin. It had been foreshadowed some days before. Her Honour allowed a ten percent discount, which was entirely appropriate. Foreshadowing the plea a couple of days in advance, enabling the cancellation of witnesses, did not entitle the applicant to a discount greater than ten percent.
103 So there is no substance in the additional complaints made on behalf of Mr Nguyen. Returning to the submission that Mr Nguyen was "on a par or marginally above" the applicant Lo, I reject that submission. Mr Nguyen was involved longer than Mr Lo. He did more to further the enterprise than Mr Lo. It was open to her Honour to characterise his role and his culpability in relation to his co-accused as higher than Mr Lo.
104 So, accepting her Honour's findings, were the sentences imposed upon the applicants excessive?