Chan v R

An immediate problem preceding the grounds

1. Unfortunately, a fundamental error occurred with regard to the application of discounts upon sentence. In particular, the sentencing judge purported to apply a discount to the aggregate head sentence. Clearly enough, a starting point of 12 years was adopted, and it was ultimately reduced to 7 years. That was an error: see JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297, and many subsequent decisions of this Court.
2. Regrettably, although there was a lively discussion during the POS between his Honour and both counsel then appearing about the extent of any such discounts, there may have been a crossed wire between Bench and Bar table about the sentences (aggregate or indicative) to which the discount would be applied.
3. Reference was explicitly made to the application of the discounts to the aggregate head sentence in the following extract from the ROS: "Doing my best with it and looking at an indicative sentence of nine years [sic] for the aggregate drug dealing and five years for the pistol, and applying totality, I would think that but for the discounts that she should have, an aggregate sentence of 12 years would be appropriate. In unalloyed principle, as discussed in the course of submissions, she would certainly have the 25% discount for the early plea and a substantial discount for the argument that was raised. In the course of argument I thought this should be a full 50%, but it does need to be tempered by the pronunciation of a sentence which is not too low, all things considered; and, all things considered, I think that it would be proper to cut that 50% discount back a bit and to reduce it from 12 years down to seven years. (ROS 12.22 - 13.6)
4. In short, rather than applying discounts to the aggregate head sentence, it was incumbent upon the sentencing judge to adopt starting points with regard to the three indicative sentences; apply any relevant discounts to them; arrive at ultimate indicative sentences; consider questions of totality and thereby, in a general way, notional cumulation and concurrence; and thereafter set a single aggregate sentence that was not directly discounted.

Grounds

1. The error did not explicitly form a ground of appeal before this Court, which were as follows: Ground 1: The sentence imposed [sic] for the offence of possess an unregistered prohibited firearm, namely a Sundance Industries pistol, on 28 March 2017, contrary to section 36(1) of the Firearms Act, was manifestly excessive. Accordingly, as a result, the aggregate sentence imposed on the applicant was manifestly excessive. Ground 2: The discount allowed to the applicant of approximately 17% for her assistance was manifestly inadequate. The appropriate discount that should have been allowed to the applicant for her assistance was 25%. Accordingly, as a result, the aggregate sentence that was imposed on the applicant was manifestly excessive.
2. It can be seen that underpinning ground 1 is a seeming acceptance that one cannot appeal against an indicative sentence, because such a sentence is not imposed upon an offender. That acceptance was made explicit in oral submissions. Even so, the argument was that one can infer that a notionally manifestly excessive indicative head sentence can "infect" the ultimate aggregate head sentence with error.
3. Ground 2 asserts that a discount provided in the ROS was manifestly inadequate. But underpinning ground 2 is the real complaint that, although in the POS the sentencing judge seemingly expressed agreement that the total discount should be 50%, after reflection in Chambers, in the ROS his Honour only allowed a discount of 41.67%. The real proposition as I understood it is that that was a denial of procedural fairness, and constituted an error of law.
4. In other words, properly understood, ground 2 is a complaint about process, not a complaint about outcome with regard to the quantum of the discount.

Solution to anterior problem

1. Although as I have said the anterior problem did not found a ground of appeal, at the hearing of the application before this Court, the attention of both counsel was invited to the problem, and they had an opportunity to make submissions about it. On the other hand, no application to amend the grounds, in order to encompass more directly this fundamental problem, was ever made by the applicant.
2. In my opinion, the anterior error makes assessment of ground 1 difficult, if not impossible, and of ground 2 fruitless. That is because, with regard to ground 1, whether the indicative sentence provided for the firearm offence had been the subject of a discount or not is, with respect, unclear to me. It seems that it was not, but one cannot be entirely sure. And whether it was or not, the adoption of the erroneous approach with regard to the subject of the discounts makes analysis of an argument founded on the relationship between that indicative sentence and the ultimate aggregate sentence an arid one.
3. In similar vein, with regard to ground 2, the complaint about denial of procedural fairness with regard to the application of the discount to the aggregate sentence is based on a fundamental misstep: no discount should have been applied to the aggregate sentence in the first place.
4. On reflection, I have come to the view that to try to analyse the merits of either ground is a task not to be undertaken, for the following reasons.
5. In the case of ground 1, one cannot know whether the starting point of the indicative sentence that is its focus, and from which an assertion of manifest excess in the aggregate sentence is derived, was in truth intended to be imprisonment for 5 years (which would seem at first blush unexceptionable) or whether its undiscounted starting point was approaching 10 years (which would seem at first blush at least stern, in light of the maximum penalty of imprisonment for 14 years, and the fact that the applicant did not possess any criminal antecedents).
6. In other words, lack of clarity about whether the indicative head sentence for the firearm offence is discounted or not discounted makes confident analysis of ground 1 effectively impossible. And the fact that, on a straightforward reading of the sentencing diagram, no notional cumulation at all occurred between the three indicative sentences in coming to the aggregate sentence casts a further shadow of confusion over the whole matter.
7. In similar vein, ground 2 is predicated on a denial of procedural fairness within a process that should never have been embarked upon in any event. I respectfully think that it would be an inappropriate use of judicial resources for this Court to embark upon an analysis of whether that kind of legal error is demonstrated within an overarching process that was, with respect, itself legally erroneous.
8. I therefore respectfully think that the best approach to ensuring that the incarceration of the applicant is free from legal error is to regard it as having been established with regard to both grounds: the first on the basis that it is impossible to determine the intent and import of the indicative sentence provided for the firearm offence (and indeed for the two substantive drug offences); and the second on the basis that, whether procedural fairness was denied or not, a fundamental error was committed with regard to discounts on sentence, whatever their quantum should have been. Each of those bases for upholding the grounds possesses an identical substructure: the application of discounts to the aggregate head sentence, and the concomitant failure to apply, at least with clarity, discounts to the indicative sentences.
9. If I am wrong in my approach to ground 2, and the question of procedural fairness does need to be determined on the merits, I would simply say contingently that I am inclined to accept that it was inapposite for the sentencing judge seemingly to accept a submission about a greater total discount than was subsequently imposed, after a period of reflection in Chambers, without at the least seeking further brief written submissions from both parties about the matter: see generally Brennan v R [2018] NSWCCA 22, Weir v R [2011] NSWCCA 123 and Christou v R [2020] NSWCCA 193.
10. For those reasons, I propose to turn immediately to the question of re-sentence, to recount all of the relevant facts in that context, and to take into account the submissions of the parties with regard to the two formal grounds within that process.

Objective features

1. The following sketch of the offending is derived from the agreed statement of facts that was before the sentencing judge, and from the ROS. It recounts some offences that were committed by others, but not the applicant, in order to provide a complete overview.
2. The applicant and her husband and co-offender, Mr Caprese (a further pseudonym), were living in an apartment together in the inner suburbs of Sydney. On 17 January 2017, the police installed surveillance devices in a motor vehicle used by the co-offender.
3. Between 16 February and 2 March 2017, the co-offender took part in a number of transactions involving the drug methylamphetamine (informally known as "ice"), including both purchase and supply, featuring an undercover operative.
4. On 3 March 2017, an undercover operative communicated with the co-offender about purchasing 10 ounces (approximately 280 g) of that drug. The applicant and the co-offender, using coded language on an encrypted mobile device, agreed to purchase 1kg of the drug from an up-line supplier.
5. They drove together to a McDonald's carpark in the western suburbs of Sydney. The applicant counted an indeterminate amount of money to purchase the drugs and handed it to the co-offender. The co-offender exchanged that cash with the up-line supplier for 1,050g of methylamphetamine (sequence 2 of the applicant). That quantity of over a kilogram of ice was admittedly possessed with intent to supply.
6. Later that month, on 28 March 2017, the applicant with the co-offender drove from their home to meet another co-offender, Mr Stoddart (a further pseudonym). He provided the applicant with 1,997g of methylamphetamine in exchange for an indeterminate but undoubtedly substantial sum of cash (sequence 1 of the applicant). Again, that drug was possessed with intent to supply.
7. Upon arriving back at their apartment, the applicant and her husband were arrested in their vehicle. The mobile phone of the co-offender was seized from his pocket, and the police located the quantity of methylamphetamine of which I have spoken and a sum of $6,400 cash in a handbag in the front passenger footwell where the applicant had been seated. Inside the handbag were two large, clear resealable bags, one containing 998.4g of methylamphetamine with a purity of 68% and the other containing 998.6g of the same drug with a higher purity of 72.5%. The offences arising from these quantities of prohibited drugs formed the basis for sequence 1 of the applicant, the provenance of which I have already described.
8. A search of their home located plastic bags containing smaller quantities of the drug, namely of 117g and 21.6g (possession with intent to supply, Form 1 of the applicant, attached to her sequence 2).
9. The police also located a Sundance Industries pistol and an ammunition magazine containing seven rounds in a yellow Versace box underneath a bed in the apartment. Possession of that pistol, which was unregistered, constitutes sequence 4 of the applicant. The pistol was not properly secured in an approved firearm safe, nor did the applicant have a licence or authorisation to possess the ammunition that was located with the pistol (the two charges on the Form 1 attached to the substantive firearm offence).
10. The applicant participated in a recorded interview with the police in which she admitted possession and ownership of the firearm, but claimed that it was given to her by a friend, who was deceased by the time of the interview. She also made some admissions with respect to the supply of the drugs, but denied that the co-offender had any involvement in the matter.

Objective seriousness

1. With respect to the objective seriousness of the drug offences, the sentencing judge noted the gravity of the offences, and spoke of general deterrence and community denunciation looming large. On the other hand, his Honour found that "in terms of quantities, level of sophistication and planning it would not have risen to the comparative level of seriousness of a mid-range offence" (ROS 8.2).
2. It was found that the applicant and the co-offender were "principals as wholesale dealers" (ROS 7.3) with respect to the supply of methylamphetamine, and that the applicant's "level of involvement was much the same as her husband's" (ROS 10.1); in fact, they were found to be "co-venturers" (ROS 10.5).
3. The sentencing judge also noted that the applicant and her co-offender were "ambitious people dealing on a substantial basis and trying to maximise profits in a rational if illegal way" (ROS 7.25).
4. Turning to the firearm offence, his Honour found it to be a "very serious matter" (12.10), and that, aside from using a firearm in a shooting club or for legitimate security purposes, the only real reason for the possession of a pistol "is with a view to seriously injuring or killing someone" (ROS 12.5). The proposition that the pistol was given to the applicant by a deceased friend along with some ammunition was readily rejected (ROS 10.11).
5. His Honour also spoke of the obvious danger of a pistol with suitable ammunition being left unsecured in private premises in the middle of Sydney.

Subjective features

1. The subjective circumstances of the applicant as recounted in the ROS and accepted on balance were as follows.
2. She was aged 41 at the time the offences were committed, 43 at the time of sentence, and is aged 44 presently.
3. Some years previously, the applicant had been a small scale businesswoman living in China, in which nation she had been born and spent a significant proportion of the life. At that time, she was married with a daughter. She experienced the sudden loss of her husband. That led to her being urgently in need of retrieving borrowed money from a friend of theirs who lived in Australia.
4. The applicant left her daughter in the care of her parents and travelled to Australia in 2012 in search of her friend. Locating that person was difficult. She eventually found her friend, who gave her a small amount of the substantial debt but later disappeared, after having falsely promised to pay the remaining debt.
5. Whilst in Australia, the applicant formed a relationship with another man and became pregnant with another child. However, near the time of birth, that man deserted her after an argument and afterwards cut off all contact. Her son was born in late 2014.
6. The sentencing judge recounted that her precarious financial situation, coupled with the loss of an intimate relationship, led the applicant into state of depression, with some suicidal ideation.
7. It was in that state that the applicant began using methylamphetamine. That quickly developed into a serious drug addiction, and the applicant became deeply immersed in the criminal milieu.
8. Having found herself within a world of drug dealers and criminals, she met another man. He was in the habit of inflicting physical violence on her, often when she did not obtain drugs for him. She attempted to get help from the police, but was dissatisfied with the result. No doubt as a result of her abuse of ice, and the circles in which she was moving, her infant son was taken away from her by the Department of Community Services, which further exacerbated her depression.
9. She later commenced a relationship with another unsatisfactory man, the co-accused, whom she married on 17 March 2017, shortly prior to their arrest.
10. The absence of any criminal record at all on her part was acknowledged by the sentencing judge.
11. The sentencing judge noted that the applicant's "story is a sad one, and serious though her crimes are, it would be inhumane not to temper the punishment to some level by reason of the suffering that led her down the criminal road that she travelled" (ROS 12.18).
12. On sentence, the applicant received a full discount of 25% for her early guilty plea, and, in the event, a discount of approximately 17% for assistance. As I have said, that was, with respect, erroneously expressed as being a reduction in the aggregate head sentence, from a starting point of 12 years to a final position of 7 years.
13. There was also a finding of special circumstances on the basis that it was the applicant's first time in custody, the difficulty of separation from her young son, her limited English, and her general level of mental distress. That reduced the aggregate non-parole period from 5 years 3 months to 4 years 6 months.

Evidence contingent upon re-sentence

1. The following evidence was placed before this Court in support of two interlocutory orders that, as can be seen below, I propose be made in the interests of protecting the applicant and her family. Even so, the evidence was not disputed and not the subject of an application for cross-examination. In the circumstances, I think it appropriate that it be taken into account on re-sentence.
2. In an affidavit sworn on 25 June 2020, the applicant spoke of fearing for her life as well as for her family in Sydney, particularly her young child, because she has agreed to give evidence against others. She also spoke of receiving threatening letters whilst in custody, and of physical violence being inflicted upon her by other inmates, which she had reported to the gaol authorities.

Other offenders

1. For the purposes of re-sentence, I set out briefly the offending committed by, and sentences imposed upon, the co-offender, the husband of the applicant, and also Mr Stoddart. I provide sentencing diagrams with regard to each of them as well, on which the sentences imposed or provided for offences shared with the applicant are identified. As can be seen, each of them committed many offences that were not shared with the applicant, with the result that detailed comparison of the ultimate total sentences imposed upon them and the applicant is not required.
2. The co-offender, Mr Caprese, pleaded guilty to the two offences that he shared with the applicant of knowingly take part in the supply of a large commercial quantity of ice, with two actual drug supply offences attached on a Form 1 to the offence that formed sequence 1 for the applicant (pertaining to the 1,997g). He also pleaded guilty to three other instances of the same offence involving 500 grams, 1,000 grams, and 760 grams of that drug. He was sentenced to an aggregate term of imprisonment for 9 years with a non-parole period of 5 years 4 months. The indicative sentences for the two shared offences were 8 years (1,997 g, applicant sequence 1) and 7 years (1,050 g, applicant sequence 2).
3. The sentencing judge, again Acting Judge Madgwick, found that the co-offender was a young man, 23 years of age at the time of the offending, who also had an addiction to illicit substances, but was a "high functioning addict" (his ROS 8.12). He received a total discount of 15% for his early guilty pleas, and there was a finding of special circumstances on the basis that it was his first time in custody and that he had substantial prospects for rehabilitation.
4. Turning now to the other participant in the drug offending, Mr Stoddart, he pleaded guilty to the single shared drug supply offence involving 1,997 grams of ice (applicant sequence 1), with an offence to do with proceeds of crime involving $10,050 cash dealt with on a Form 1. He also pleaded guilty to three other drug supply offences involving 500 grams, 1,000 grams, and 176 grams of the same drug. In fact, of course, his role in the shared offence was the actual supply of the almost 2kg of ice to the applicant and her husband. He was sentenced by her Honour Judge Culver to an aggregate term of imprisonment of 10 years 10 months, with a non-parole period of 6 years 6 months.
5. As for his subjective case, he was 33 years of age at the time of sentence, had committed the offences whilst on bail, and had a criminal history featuring violence. Having said that, special circumstances were also found, on the basis that he was more vulnerable in custody due to his early exposure to drug use, his limited English, and the fact that it was his first time in custody. As for the utilitarian discount for his guilty pleas, he received a discount of 10% upon the starting point of his indicative sentences.
6. I have reflected on the sentences imposed upon the co-offender and Mr Stoddart for the offences that they shared with the applicant in coming to the starting points for the indicative sentences that I propose below.

Determination of re-sentence

1. Reflecting broadly upon re-sentence, on the one hand the applicant committed two very serious drug offences that carry a maximum penalty of life imprisonment and a significant standard non-parole period. She was a wholesaler within the business of distributing a prohibited drug that, perhaps above all others, does the most damage to this country and its citizens, not least its most vulnerable citizens. And the two sequences encompassed in total almost exactly 3 kg of crystal methylamphetamine, worth (on the basis of the electronically intercepted discussions between the applicant and the co-offender) on a wholesale basis something in the order of $300,000. Nor, according to the unimpugned findings of the sentencing judge, was she the mere factotum of her husband; quite the contrary.
2. Furthermore, she possessed a weapon that had the potential to inflict death and severe psychological harm. Like the sentencing judge, I reject without difficulty her version of how she came to possess it, along with the ammunition. I readily infer that she had it in order to protect the unlawful business. Even so, the possession of the pistol could have had unintended catastrophic consequences. And it was possessed in such a way that she could have been quite readily divested of it, especially bearing in mind the circles in which she was moving.
3. On the other hand, the applicant is a person who had undergone a series of significant misfortunes that eventually led her into a world of crime. Before her own life was grossly distorted by ice, the applicant was a person of good character. I agree with the sentencing judge about the sadness of this matter.
4. As the sentencing judge also said, in my opinion it is factually wrong to think of people who commit drug offences as either users (who are to be thought of as victims) or dealers (who are to be thought of as victimisers). The applicant is an example of the phenomenon: she became a wholesaler of a pernicious drug precisely because of her own out-of-control addiction to the exact same substance.
5. One of the manifestations of her good character is her readiness to assist the authorities, even though she is understandably fearful about doing so, and has already suffered, physically and psychologically.
6. Being incarcerated in this country obviously has been and will be especially difficult for her, for many reasons. To the extent that she has been able, it seems that she has made good progress in prison.
7. In my opinion, the starting point of the indicative head sentence for each of the drug offences, sequence 1 and sequence 2, taking into account the Form 1 on the latter sequence, should be 12 years. I would apply a 50% discount to each of those, comprised of a discount of 25% for an early plea of guilty, 0% for past assistance, and 25% for future assistance: see s 23 of the CSPA. In saying that, I have reflected upon a confidential exhibit that was tendered in the POS.
8. That would reduce the indicative head sentence for each drug offence to imprisonment for 6 years. In light of the standard non-parole period for those two offences, and the obligation pursuant to s 54B(4) of the CSPA, I provide an indicative non-parole period for each of them of 4 years.
9. For the firearm offence, along with the two charges on the Form 1, I would adopt a starting point of 5 years. I would apply the same discount to that starting point of 50%, arriving at an indicative sentence of 2 years 6 months.
10. Reflecting on totality and necessarily impressionistic aspects of concurrence and cumulation as between the three indicative sentences of 6 years, 6 years, and 3 years, I would impose an aggregate head sentence of imprisonment for 8 years. I would also find special circumstances, for the reasons given by the sentencing judge, and impose an aggregate non-parole period of 5 years, to commence on the identical date of 28 March 2017.
11. Because the aggregate sentence that I would impose is greater than the sentence imposed at first instance in both of its components, I am affirmatively satisfied that no lesser sentence is warranted in law. For that reason, although I am satisfied that the sentence imposed upon the applicant is affected by error, I would dismiss the appeal.

Proposed orders

1. I propose the following orders: 1. Pseudonyms to be adopted in judgment. 2. Judgment is not to be published on NSW Caselaw before 1 December 2021, and not without consultation with both parties. 3. Leave to appeal granted. 4. Appeal dismissed.
2. N ADAMS J: I agree with Button J. The sentencing judge erred in applying the discount to the aggregate sentence rather than the indicative sentences as required by s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW): Ibbotson (a pseudonym) v R [2020] NSWCCA 92. Although this error was not relied upon as a ground of appeal, it was an error that underpinned the two grounds of appeal such that it was not possible to consider them without acknowledging it. Error having been established, it was necessary to re-sentence the applicant afresh. I too have done so and arrived at an aggregate sentence slightly higher than that imposed by the sentencing judge. I do not consider it necessary to identify that sentence: RO v R [2019] NSWCCA 183 at [123]. Accordingly, I would grant leave to appeal but dismiss the appeal. ------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2024