[2008] HCA 15
Bae v R [2020] NSWCCA 35
Bond v R [2020] NSWCCA 277
Conte v R (2018) 86 MVR 239
[2018] NSWCCA 209
Dao v R [2011] NSWCCA 183
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
[2017] HCA 41
Hili v The Queen (2010) 242 CLR 520
[2005] HCA 25
Mulato v R [2006] NSWCCA 282
Munda v State of Western Australia (2013) 249 CLR 600
Source
Original judgment source is linked above.
Catchwords
[2008] HCA 15
Bae v R [2020] NSWCCA 35
Bond v R [2020] NSWCCA 277
Conte v R (2018) 86 MVR 239[2018] NSWCCA 209
Dao v R [2011] NSWCCA 183
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1[2017] HCA 41
Hili v The Queen (2010) 242 CLR 520[2005] HCA 25
Mulato v R [2006] NSWCCA 282
Munda v State of Western Australia (2013) 249 CLR 600[2013] HCA 38
Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221
Pham v RTang v R [2012] VSCA 101
R v Baker [2000] NSWCCA 85
R v BartleR v Roberti (2003) 181 FLR 1[2003] NSWCCA 329
R v ChanR v Pham (2010) 205 A Crim R 106[2010] NSWCCA 238
R v Pham, Tran and Dangex parte Director of Public Prosecutions (Cth) [2017] QCA 46
R v To (2007) 172 A Crim R 121[2007] NSWCCA 200
R v Vakatalesau [2019] NSWDC 505
R v Yuan (2015) 252 A Crim R 422[2015] NSWCCA 198
Rae v R [2011] NSWCCA 211
The Queen v Olbrich (1999) 199 CLR 270[1999] HCA 54
The Queen v Pham (2015) 256 CLR 550
[2015] HCA 39
Xiao v R (2018) 96 NSWLR 1
Mr N Roucek (Respondent)
Judgment (15 paragraphs)
[1]
R v Lembke [2020] NSWCCA 293
R v Moore [2005] NSWCCA 212
R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
R v Pham, Tran and Dang; ex parte Director of Public Prosecutions (Cth) [2017] QCA 46
R v To (2007) 172 A Crim R 121; [2007] NSWCCA 200
R v Vakatalesau [2019] NSWDC 505
R v Yuan (2015) 252 A Crim R 422; [2015] NSWCCA 198
Rae v R [2011] NSWCCA 211
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Texts Cited: ---
Category: Principal judgment
Parties: Donald Chan and Chun Man Kwan (Applicants)
Regina (Respondent)
Representation: Counsel:
Ms NS Carroll (Applicant Chan)
Mr R Rajalingam (Applicant Kwan)
Mr DG Staehli SC; Mr N Roucek (Respondent)
[2]
Solicitors:
Criminal Defence Group (Applicant Chan)
Sydney Criminal Defence and Traffic Lawyers (Applicant Kwan)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2017/60423 (Chan)
2017/60396(Kwan)
Publication restriction: ---
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: ---
Citation: R v Chan; R v Kwan [2019] NSWDC 507
Date of Decision: 10 May 2019
Before: His Honour Judge King SC
File Number(s): 2017/60423 (Chan)
2017/60396(Kwan)
[3]
Judgment
BRERETON JA: I agree with Johnson J.
JOHNSON J: The Applicants, Donald Chan ("Chan") and Chun Man Kwan ("Kwan"), each seek leave to appeal with respect to sentences passed at the Sydney District Court on 10 May 2019 for offences of attempting to possess a substance, being an unlawfully imported border controlled drug, methamphetamine, in a commercial quantity contrary to ss.307.5(1) and 11.1(1) Criminal Code (Cth).
On 26 October 2018, following a trial by jury, Chan and Kwan were each found guilty of this offence which was punishable by a maximum penalty of life imprisonment and/or a fine of $1,350,000.00 (7,500 penalty units).
[4]
The Sentences
On 10 May 2019, his Honour Judge King SC sentenced each of Chan and Kwan to terms of imprisonment for 23 years with a non-parole period of 15 years commencing on 24 February 2017 and expiring on 23 February 2032, and a balance of term of eight years commencing on 24 February 2032 and expiring on 23 February 2040.
A co-offender, Isireli Vakatalesau ("Vakatalesau"), pleaded guilty to the same charge at the commencement of the trial. He was sentenced as well by his Honour Judge King SC on 10 May 2019 to a term of imprisonment for 18 years with a non-parole period of 12 years commencing on 24 February 2017 and expiring on 23 February 2029, and a balance of term of six years commencing on 24 February 2029 and expiring on 23 February 2035.
[5]
Grounds of Appeal
By Notice of Application for Leave to Appeal filed on 27 April 2020, Kwan relies upon the following grounds of appeal:
Ground 1 - The sentencing Judge erred in assessing the objective criminality of the Applicant's offending.
Ground 2 - The sentencing Judge failed to properly apply the principle of parity.
Ground 3 - The sentence is manifestly excessive.
By Notice of Application for Leave to Appeal filed on 1 July 2020, Chan relies upon the following grounds of appeal:
Ground 1 - The Applicant Chan has been left with a justifiable sense of grievance where:
(a) the Court had determined an equality of involvement by all three offenders, yet had not reflected this in the sentences imposed, and
(b) the co-offender Vakatalesau's role should have been determined as greater than that of the Applicants Chan and Kwan.
Ground 2 - The sentence was manifestly excessive.
[6]
The Sentencing Proceedings
The sentencing proceedings for Chan and Kwan (following the guilty verdicts on 26 October 2018) and Vakatalesau (after his guilty plea) proceeded together on 26 April 2019.
There were differences in the factual material available to the sentencing Judge in the Crown's bundle tendered in the case of Chan and Kwan and that tendered in a separate bundle in the case of Vakatalesau.
In the cases of Chan and Kwan, the Crown tendered an Agreed Facts document (tendered at their trial under s.191 Evidence Act 1995) together with a summary of police surveillance evidence (which had also been tendered at the trial), a police statement concerning the value of the drugs seized in the Peoples Republic of China (if sold in Australia) and sentencing assessment reports concerning each of Chan and Kwan.
With respect to Vakatalesau, a Statement of Facts was tendered which included references to his record of interview conducted on the day of his arrest. That interview was also tendered, together with his criminal history, a sentencing assessment report, and the same police statement about the value of the drugs as tendered in the Chan and Kwan proceedings. It was made plain that neither the Statement of Facts nor Vakatalesau's record of interview was to be treated as evidence against Chan and Kwan.
Subjective material tendered on behalf of Kwan included a report of Anita Duffy, psychologist, dated 10 April 2019 and a number of references and other material.
Subjective material tendered on behalf of Chan included a report of Sam Borenstein, psychologist, dated 19 April 2019 and several references and other material.
Subjective material tendered on behalf of Vakatalesau included a psychological report of Ms Duffy dated 29 January 2019 and other material.
Written submissions on sentence were provided on behalf of the Crown, Kwan and Vakatalesau.
No oral evidence was given at the sentencing hearing with counsel for the Crown and each of the three offenders addressing the court on sentence.
At the conclusion of the sentencing hearing on 26 April 2019, his Honour Judge King SC remanded Kwan, Chan and Vakatalesau for sentence on 10 May 2019.
Given the different factual material which was before the Court on sentence, his Honour sentenced Chan and Kwan in the same sentencing remarks (R v Chan; R v Kwan [2019] NSWDC 507) and Vakatalesau in separate sentencing remarks delivered the same day (R v Vakatalesau [2019] NSWDC 505).
[7]
Facts of Offences
A convenient and accurate summary of the facts of the offences is contained in the Crown written submissions in this Court, from which the following account is drawn:
"5. The charge related to the involvement in February 2017 of the Applicants and Vakatalesau in Sydney in accessing and removing 69 packets of inert substance from beneath the floor of a shipping container ('the second container) which was shipped from the People's Republic of China to Australia. The drugs which were the subject of the charges, being methamphetamine in an impure substance with a gross weight of 101.69 kilograms, had originally been detected in China in 69 foil packets under the floor of the second container just prior to its intended shipment to Australia. After detection, the packets were removed by Chinese law enforcement in the form of members of the Shenzen Anti-Smuggling Bureau (ASB). The cargo of the container (above the floor) otherwise consisted of black steel frames. The Applicant Chan ('Chan') and Vakatalesau had also been involved in January at Kennards at Wentworthville in the unloading of another container ('the first container') imported from China which also contained steel frames but no drugs, which was alleged by the prosecution to have been a 'trial run'.
6. Drug analysis undertaken later in Australia using samples of the seizure brought from China revealed that the pure quantity of methamphetamine removed from the second container was 81.4 kilograms. The commercial quantity of methamphetamine under the Criminal Code Regulations 2002 (Cth) is 750g. Accordingly, the pure amount of the drug which would have otherwise been hidden in the container and imported into Australia prior to the attempt by the Applicants to possess it, was over 108 times the commercial quantity specified in those regulations
7. Liaison between Chinese and Australian authorities led to the second container being shipped to Australia as if the drugs had not been detected. After the container arrived in Australia on 15 February 2017, Australian Federal Police officers placed 69 bags of inert substance, intended to replicate the appearance, volume and weight of the original packages located in China by the ASB, under the floor of the shipping container and permitted the container to be delivered.
8. At the Revesby industrial unit where the container was delivered on 21 February 2017, it was received by the co-offender Vakatalesau. He and a friend (Alageto, who was not charged) had been driven to that location by Chan, who then drove away and returned later with Kwan ('Kwan'). Later the same day, after the steel frames had been removed by Alageto and Vakatalesau, he and the Applicants removed the floorboards of the container and extracted the 69 packets of substitute material. The process of unloading and removing the contents of the container, including the packets, was the subject of physical surveillance and was captured on a concealed camera inside the container. The packets were later placed in luggage and then in the hire car driven by Chan and all four men drove off in that vehicle.
9. Police followed the vehicle to where Vakatalesau and Alageto (but not the luggage containing the packets) were dropped off at a nearby train station but then lost contact with the vehicle (and thus with the luggage containing the substitute material) and the Applicants. At trial, Chan and Kwan gave evidence that they had dropped the packets to an unknown man at a street at Marrickville later the same night. The Applicants and Vakatalesau were eventually arrested three days later. Two weeks later, about 20 kilograms of the substitute material and some luggage was found at the residence of the aunt of Vakatalesau, after she had contacted police, where he had apparently brought those things on the evening of 22 February 2017 and asked to leave them at her premises.
10. All three applicants participated in records of interview post-arrest. Chan and Kwan denied knowledge of the drugs. Vakatalesau admitted in his interview that his expectation was that drugs would be inside the container. He attributed his involvement in the first and second container to having been recruited by Chan."
[8]
Sentencing Remarks Concerning Chan and Kwan
Given the grounds of appeal, it is appropriate to set out parts of his Honour's sentencing remarks with respect to Chan, Kwan and Vakatalesau.
After reciting the facts of the offences, his Honour referred to the weight and nature of the border controlled drug in this case (R v Chan; R v Kwan at [34]-[36]):
"34 The attempted importation into Australia of a gross weight of 101.69 kilograms - 81.4 kilograms pure - of methamphetamine is a very serious instance of an offence of this nature. The legislation does not distinguish between drugs other than by type and weight. The commercial quantity of methamphetamine is 750 or more grams. A marketable quantity is 2 grams.
35 Accordingly, the pure amount of the drug intended to be imported was over 108 times the commercial quantity threshold. While the legislation only distinguishes between border controlled drugs according to type and weight, it has becoming increasingly evident that methamphetamine is a very serious problem in the Australian community, at least in New South Wales, with which I am familiar.
36 It has penetrated all levels of society - that is all socio-economic classes - and it can be found throughout the community in towns, cities, villages, and in recent years, it is evident that it has a significant role to play in relation to the abuse of prohibited drugs in the community, and the inevitable consequences. In particular, in relation to methamphetamine, it is recognised that it may cause brain damage, it may induce psychosis, and it is frequently involved in the commission of offences other than drug offences, that is, offences of violence where the perpetrator is affected at the time by the use of methamphetamine, or offences where the offence is committed for the purpose of obtaining either methamphetamine, or the funds to purchase it. It has become such a significant scourge on the community that an enquiry has commenced very recently in New South Wales in regards to it. Nonetheless, as I have said, the legislation only distinguishes between it and other drugs on the basis of quantity."
His Honour then addressed the role of Chan and Kwan in the offences (R v Chan; R v Kwan at [37]-[39]):
"37 The Court in sentencing is required to have regard to the role played by an offender, and the particular activities undertaken by the individual in performing that role. In R v Olbrich [2000] 117 A Crim R 326 at [279], it was said that care must be taken to ensure that any shorthand description of the offender's role does not obscure the assessment of what they actually did. In this matter, it is evident from the timing of the travel to New South Wales by each of the offenders that they came from Hong Kong for the purpose of taking delivery of the container, extracting the border controlled drug and removing it for later distribution.
38 The Crown has submitted in relation to each of them that they can be reasonably described as 'trusted significant participants in the attempt to obtain possession of what would have been - but for the substitution - the drugs seized in China.' The full nature and extent of the circumstances that led up to the attempted possession of the drugs by each of the offenders is unknown. If there were persons more significantly involved in the attempted importation, it is reasonable to conclude that each of the offenders was aware of those persons and able to provide information which may have established person's higher in the hierarchy.
39 However, no such information has been provided and there is, in fact, no evidence before the Court of anyone more senior in the hierarchy than the offenders. I accept that the Crown's description of a 'trusted significant participant' is an appropriate description. Each of the offenders gave evidence at trial. In each case, the evidence was of an exculpatory nature and clearly not believed by the jury."
[9]
Sentencing Remarks Concerning Vakatalesau
Early in the sentencing remarks with respect to Vakatalesau, his Honour explained why he had sentenced Chan and Kwan separately earlier in the day (R v Vakatalesau at [5]):
"I have dealt with the co-offenders separately because there are some distinctions between the agreed facts as expressed, and also some material contained in the material supplied to the Court in relation to Mr Vakatalesau that was not relevant and indeed, at least in one case, prejudicial to one of the co-offenders. For those reasons, I have dealt with them separately."
His Honour then made detailed findings of fact drawn from the Agreed Statement of Facts tendered with respect to Vakatalesau. After making those findings, his Honour referred to the quantity, purity and estimated wholesale and street value of the methamphetamine (R v Vakatalesau at [51]-[53]):
"51 Following the drug samples being transferred to Australia, they were tested for purity on 14 June 2018 and 2 July 2018. The samples were found to have an average of 80.1% purity resulting in the pure quantity of methamphetamine being approximately 81.4 kilograms. Calculations were also performed in relation to the purity of samples obtained by Chinese investigators on 20 and 21 January 2017. It was calculated that, based on the gross weight of the crystalline substance, being 101.696 kilograms with an average purity of 76.82 kilograms, the total pure weight of methamphetamine was 78.12 kilograms.
52 In 2017, in New South Wales, the estimated bulk value of 101.696 kilograms gross of methamphetamine sold in bulk or on a wholesale basis was between $8,080,000 and $14,140,000.
53 In 2017, in New South Wales, the estimated street value of 101.696 kilograms methamphetamine was estimated as being between $50,848,000 and $152,544,000."
His Honour noted a number of admissions made by Vakatalesau in his record of interview and referred to what he had said concerning his knowledge of Chan and Kwan (R v Vakatalesau at [57]-[59]):
"57 He claimed not to know the names of either Mr Chan or Mr Kwan, or any address in relation to Mr Chan, and to have only dealt with Mr Chan by telephone or by meeting him in public places. He did, towards the end of the interview, when photographs were produced to him of Chan and Kwan, identify the persons in the photographs as being 'Boss' (Chan) and 'Bro' (Kwan).
58 It would be unusual for the high degree of trust that was placed in the offender to have been placed in relation to such a significant importation of a prohibited drug in the absence of some greater knowledge of him by those he was assisting. However, there is no evidence of any other contact.
59 As to the friend from Fiji who was said to have introduced him to Chan, he provided only the name 'Bill' and said he was unable to provide a surname or any other detail that might have identified that person."
[10]
Principles to be Applied when Determining Parity Grounds of Appeal
Before moving to consider the parity grounds raised on behalf of Chan and Kwan, it is appropriate to set out principles to be applied in assessing grounds which assert the existence of a legitimate sense of grievance because of a sentence passed for a related offender.
In accordance with proper practice, each of the three offenders was sentenced by the same sentencing Judge. In Adams v R [2018] NSWCCA 139, with the concurrence of Simpson AJA and Adamson J, I said at [81]:
"Here, the same sentencing Judge proceeded to sentence the Applicant and his co-offenders and in doing so made assessments of the relevant objective and subjective factors for the purpose of passing the sentences. Courts have emphasised the desirability of related offenders being dealt with by the same Judge and preferably at the same time: Lowe v The Queen at 617, 622; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 320; Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4 at 501 [110]."
The importance of this practice has been emphasised recently by this Court: R v Lembke [2020] NSWCCA 293 at [55].
In Lam v R [2014] NSWCCA 50, Davies J (R A Hulme and Adamson JJ agreeing) said at [42]:
"It has been said in many cases that this Court will be cautious before determining that one co-offender has a justifiable sense of grievance because of different sentencing outcomes where the same judge has sentenced each and has had regard to the differing criminality and the different subjective circumstances of each: R v Swan [2006] NSWCCA 47 at [71] per Barr and Howie JJ. The various authorities are gathered in Loader v R; Dunn v R [2013] NSWCCA 215 at [91]-[96]."
It has also been emphasised that there may be different evidence to be considered in sentencing different offenders, even though they are related offenders, so that the substratum of facts upon which sentence is to be passed concerning both objective and subjective considerations may shed light on differences in sentencing outcomes: Rae v R [2011] NSWCCA 211 at [54].
The principles to be applied in considering the parity ground were addressed in Adams v R at [78]-[80]:
"78 The general principles to be applied when considering a ground of appeal which asserts a justifiable sense of grievance by reason of disparity were summarised by Beech-Jones J (Payne JA and Fagan J agreeing) in Wan v R [2017] NSWCCA 261 at [39]:
'39. The reference in this ground of appeal to a 'justifiable sense of grievance' invokes the discussion of the parity principle in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 610 (per Gibbs CJ), at 613 (per Mason J) and at 623 (per Dawson J, 'Lowe'). The parity principle holds that there should not be a 'marked disparity' between the sentences imposed on co-offenders such as to give rise to 'a justifiable sense of grievance' in one of them (Lowe at 610 per Gibbs CJ, with whom Wilson J agreed at 616 and at 612 to 613 per Mason J and at 623 per Dawson J). The parity principle has its foundation in the obligation of the Courts to afford 'equal justice' (Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ, 'Green').'
79 The Court is not concerned with whether the Applicant actually feels a sense of grievance (a subjective test) but rather whether any disparity (or lack of difference) between sentences engenders a justifiable sense of grievance and an appearance of injustice to 'that impassive representative of the community, the objective bystander': Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 613 (Mason J); Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at 474-475 [31] (French CJ, Crennan and Kiefel JJ).
80 In Lloyd v R [2017] NSWCCA 303, RA Hulme J (Payne JA and Garling J agreeing) said at [87]-[89]:
'87. It has been said that equal justice requires that like should be treated alike. However, if there are relevant differences, due allowance should be made for them: Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26 (Dawson and Gaudron JJ).
88. The reason why an appellate court interferes in cases where there is an inappropriate degree of disparity between sentences is because it considers such disparity to give rise to a justifiable sense of grievance or the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606 at 610; [1984] HCA 46 (Gibbs CJ).
89. A court will refuse to intervene where the degree of disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at 474-475 [31]; [2011] HCA 49 (French CJ, Crennan and Kiefel JJ)'."
[11]
Chan Ground 1 - Parity Ground by Reference to the Sentence Imposed on Vakatalesau
Submissions for Chan
Ms Carroll, counsel for Chan, in support of Ground 1(a), pointed to his Honour's reference to parity in R v Chan; R v Kwan at [119] (see [37] above) and submitted that the sentencing Judge had not given any indication in that judgment of where he had assessed Vakatalesau in the hierarchy of offenders as compared to Chan and Kwan. Counsel noted his Honour's findings with respect to parity in R v Vakatalesau (at [81] and [133]) where his Honour indicated that there was no substantial distinction between the seriousness of the roles played by each of the three offenders.
Ms Carroll noted that a 10% discount was extended to Vakatalesau so that the starting point before sentence in his case was a head sentence of 20 years' imprisonment. It was submitted that the 10% discount should be interpreted as covering not just the utilitarian discount for Vakatalesau's plea of guilty, but also other features which his Honour took into account in his favour.
Counsel for Chan submitted that, despite his Honour's conclusion that the three offenders were effectively indistinguishable as to their involvement in the offence, there remained a significant difference between the starting point head sentence of 20 years' imprisonment for Vakatalesau and a head sentence of 23 years' imprisonment imposed on Chan. It was submitted that the subjective features which his Honour said served to differentiate Vakatalesau from Chan and Kwan did not operate to explain reasonably the difference between these periods.
In support of Ground 1(b), counsel for Chan submitted that Vakatalesau was in fact more senior and had a greater involvement in the attempt to possess the methamphetamine than Chan or Kwan. Reference was made to features of Vakatalesau's conduct in support of this submission.
It was submitted that there was ample evidence before the Court of persons more senior to Chan and Kwan in the importation and that this included Vakatalesau. It was submitted that the facts before the Court demonstrated that Vakatalesau was integrally involved in the organisation of both containers into Australia as consignee, and that the roles of Chan and Kwan were more isolated to the unpacking process and as couriers of the packages.
Upon the basis that the sentencing Judge indicated he was to sentence the offenders "for what they did", counsel for Chan submitted that Vakatalesau should have received a higher sentence before discount.
[12]
Kwan Grounds 1 and 2 - Alleged Error in Assessment of Kwan's Objective Criminality and a Parity Ground
The parties directed submissions to these grounds jointly and it is appropriate to address them in a similar way in this judgment.
Submissions for Kwan
Mr Rajalingam, counsel for Kwan, argued the parity ground by reference to the sentence imposed on Chan and not the sentence imposed on Vakatalesau.
Mr Rajalingam submitted that it was not reasonably open to the sentencing Judge to consider that Kwan was in a position of authority. Criticism was made of his Honour's approach to findings of objective criminality with respect to Chan and Kwan. It was submitted that there was a significant difference in the identifiable criminality of Kwan as compared to Chan and that the identical sentences imposed upon them breached the parity principle.
Counsel for Kwan submitted that his Honour should have treated as unknown whether Kwan committed the physical acts of his involvements as a mere unpacker or someone with a degree of managerial responsibility beyond that which the evidence disclosed. It was submitted that, after listing the acts of Chan, his Honour made a finding in that regard, but that he did not adopt a similar approach after listing the acts of Kwan.
Counsel for Kwan submitted that the sentence imposed on Kwan gave rise to a justifiable sense of grievance by comparison with the identical sentence passed for Chan given the latter's extended and active involvement in the preparatory stages of the offence.
Submissions for the Crown
The Crown submitted that Kwan's Ground 1 was based upon a misunderstanding of the principles in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 and that his Honour had made findings concerning Kwan which were available on the evidence and with no finding disclosing error. The sentence to be passed on Kwan depended not only on what he had done, but on who he was in the context of the offence: The Queen v Olbrich at [21].
Notwithstanding the fact that what Kwan did involved fewer physical acts than Chan, the Crown submitted that the sentencing Judge was entitled to conclude that their purposes and objects were the same and that the two men were to be treated in the same way.
With respect to the parity argument in Ground 2, the Crown noted that Kwan's submissions were confined to a comparison with the sentence imposed on Chan and not Vakatalesau. It was submitted that Kwan had not demonstrated an objective foundation for a legitimate grievance arising from the identical sentence imposed upon both himself and Chan.
Decision
[13]
Chan Ground 2 and Kwan Ground 3 - Claim that the Sentence was Manifestly Excessive in Each Case
Submissions for Chan and Kwan
Similar submissions were advanced by counsel for each of Chan and Kwan in support of the claim of manifest excess. Reference was made to sentencing statistics and other sentencing decisions in support of an argument that the sentence imposed upon each of them was manifestly excessive.
Ms Carroll referred to a number of sentencing decisions and contended that, despite the quantity of methamphetamine involved in this offence, an appropriate assessment of the objective gravity of Chan's offence and his subjective circumstances would lead the Court to conclude that the sentence imposed was manifestly excessive and that the Court should intervene and resentence him.
Mr Rajalingam referred to a number of sentencing decisions, which were said to bear similarities to Kwan's case, in support of an argument that the sentence was manifestly excessive.
Counsel for Chan submitted that the head sentence of 23 years' imprisonment lay well outside of the upper end of the range of sentences for attempted possession of a commercial quantity of a border controlled drug. It was submitted that the sentencing statistics show that over 80% of cases in that category received a head sentence between six and 18 years. It was submitted that only three cases were recorded as exceeding head sentences of 20 years in Judicial Commission of NSW statistics and that these comprised the cases of Chan and Kwan and the sentences imposed in Kuo, Huang and Shih v R [2018] NSWCCA 270, to which further reference will be made shortly.
Counsel for each of Chan and Kwan referred to other sentencing decisions in support of a submission that the sentence imposed upon each of their clients was manifestly excessive.
Once again, even allowing for the quantity of methamphetamine and findings made concerning Kwan's actions and role in the offence, it was submitted that the sentence was unreasonable or plainly unjust. Counsel for Kwan submitted that a sentence comprising a head sentence of about 18 years' imprisonment with a non-parole period of 12 years would be an appropriate disposition in all the circumstances of the case.
Submissions for the Crown
The Crown submitted that the sentences imposed upon Chan and Kwan may be regarded as stern, but that it had not been demonstrated that either sentence was manifestly excessive.
[14]
Conclusion
Neither Chan nor Kwan has made good any ground of appeal.
I propose the following orders:
1. grant the Applicant Chan leave to appeal against sentence;
2. dismiss Chan's appeal against sentence;
3. grant the Applicant Kwan leave to appeal against sentence;
4. dismiss Kwan's appeal against sentence.
DAVIES J: I agree with Johnson J.
[15]
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: 14 December 2020
As noted in this summary, Chan and Kwan each gave evidence at the trial. As the sentencing Judge observed, it was clear that the jury rejected the exculpatory accounts of Chan and Kwan, as did the sentencing Judge. His Honour had the advantage as well of having observed the complete trial of Chan and Kwan which assisted in the process of fact finding on sentence.
The sentencing Judge stated that Chan and Kwan would be sentenced "on the basis of what they did, rather than any description of their role" (R v Chan; R v Kwan at [41]).
The following findings were made concerning the role of Chan (R v Chan; R v Kwan at [42]):
"42 In relation to Mr Chan:
* In relation to the first container on 16 January 2017, the offender Chan checked into the Ibis Hotel at Wentworthville, located in the near vicinity of the Kennards Self Storage facility at Wentworthville.
* On 18 January 2017, Chan and Vakatalesau attended the Kennards Self Storage facility in Wentworthville to hire a storage unit. Chan completed the paperwork for the hire of the storage unit and provided his Australian passport as proof of identification. Chan paid for the storage unit and a lock with cash.
* On 19 January 2017, the 'first container' arrived at the Kennards Self Storage facility in Wentworthville. On that day, Chan and Vakatalesau unpacked the angle iron metal frames from the container and moved them into a storage unit.
* On 22 February 2017, Chan returned to the Kennards Storage facility in Wentworthville and paid $700 cash for an additional month's rent of the storage unit.
* Chan hired three rental cars which were used during the offending period. Chan rented a Mitsubishi Outlander through Europcar in his own name and listed his parent's address at Coghlan Street in Doonside. Chan then hired a Toyota Camry through Hertz in his own name, and listed the address as Unit 3/19-21 Marsden Street, Parramatta. Earlier, Chan had also hired a Hyundai from Sydney Airport. The offender hired all three cars in his own name and paid for each.
* Chan brought an electric drill, spanners and a crow bar to the storage facilities which were later used by him and the co-offenders to pull up the floorboards of the shipping container.
* Chan bought a suitcase or suitcases from his parent's premises to the container at the Revesby address on 21 February 2017.
* On 21 February 2017, Chan arrived at the Revesby premises soon after the container had been unloaded from the delivery vehicle and dropped off Vakatalesau and Alageto. Chan then left and returned with Kwan at about 1.18pm. Chan then entered the container with Vakatalesau.
* Chan and Kwan then left and drove around nearby suburbs. I accept that this was so that they would not be present while the container was prepared for the lifting of its floor and the removal of the bags. It is also possible that it might be appropriately be interpreted as activity that could be regarded as counter surveillance. However, I note that is speculation.
* Between 5.45pm and about 6pm, Chan, Kwan and Vakatalesau lifted the floorboard panels in the container and extracted the 69 packages containing the inert substance, which were placed into three luggage bags and then placed into the boot of the Mitsubishi.
* While removing the packages containing inert substance from the container, Chan used disposable gloves. Chan told Kwan during the removal of the package, there were gloves in the car.
* Having driven Vakatalesau and Alageto to Bankstown Train Station, Chan and Kwan were left with the packages in the boot of the car.
* Approximately 20 kilos of the substitute - some still packed in the silver packages - were recovered from Mr Vakatalesau's aunt's premises. There is no evidence as to how what was taken from the premises in the Mitsubishi was further dealt with or how some 20 kilos of it ended up with Ms Matewasa."
Having listed aspects of Chan's involvement in the offence, his Honour made the following findings (R v Chan; R v Kwan at [43]):
"43 Mr Chan's involvement with both the first and second containers show him to be a participant in all important aspects of the delivery and removal of the substituted material from the container and its retention and removal for delivery to others. His actions in bringing tools and suitcases to the container show premeditation and planning. His actions show that he was intimately involved in the organisation and the attempted possession, rather than merely being an unpacker or courier. I find beyond reasonable doubt that he had a high level of responsibility in the operation and that his conduct was planned, organised and central to the offending."
His Honour then made the following findings concerning Kwan (R v Chan; R v Kwan at [44]-[47]):
"44 In respect of the offender Kwan, I also find beyond reasonable doubt that he played the role of a trusted intermediary. As I have previously indicated, I find that he travelled to Australia for the purpose of dealing with the unpacking of the substitute drugs from the container, and their removal for purpose of distribution. Matters relevant to what he did are as follows:
* Kwan was issued with a Hong Kong passport on 23 January 2017.
* On 14 February 2017, while in Hong Kong, Kwan booked and paid for one room at the Travelodge in Blacktown for five nights.
* Kwan arrived in Australia from Hong Kong on 17 February 2017, the same day that the final payment was received by Maxfill Australia from G-Harmsperity Co, which enabled the container to be released for delivery.
* Kwan attended at the Revesby premises and used disposable gloves while dealing with the packages in the container in order to avoid leaving fingerprints or DNA.
* Kwan assisted in lifting up the floorboards of the shipping container and extracting the silver packets.
* Kwan initially retrieved the bags from the bottom of the container using disposable gloves, and placed them in the suitcases.
* The video recording from inside the container demonstrates that, after the packages had been placed into the three bags, Chan - appearing to be at the direction of Kwan - removed from two of the luggage cases, all or most of the silver packets before returning the silver packets to the cases. This was referred to by all parties in the trial as a 'rearrangement' of the packages.
45 Having viewed the video footage itself, as part of the trial, I have no doubt that what was actually occurring was a counting of the packages to ensure that all 69 packages had been recovered from under the floorboards so as to establish that it was not necessary to lift any floor panels which had not been already lifted. In my view, that indicates that it was well known that there would be 69 packages secreted under the floor panels.
46 I accept that the offender Kwan played a significant role in relation to the intended retrieval from the container of the drugs believed by them to be present. The proximity of his arrival in Australia from Hong Kong prior to the delivery of the container allows a conclusion that the purpose of his trip was for his direct involvement with the final steps of the importation, that is, the recovery from the container of the anticipated drugs and their removal and retention for delivery to others.
47 I also conclude that as the co-offenders Chan and Vakatalesau were already in Sydney and available to deal with containers contents, that Mr Kwan's presence was a matter of some significance to the success of the unpacking, retention and disposal of the container's contents. I infer that his presence was because whatever he brought to the operation was of considerable importance to its success."
His Honour then made a number of findings concerning Chan's subjective circumstances: R v Chan; R v Kwan at [48]-[73]. Chan was born in Australia and is an Australia citizen. He was 40 years old at the time of sentence. He was married, but is now divorced and there is a daughter of the marriage aged 12 years (in 2019). Material was tendered at the sentencing hearing concerning health difficulties affecting Chan's father. His Honour summarised the sentence assessment report, the psychological report of Mr Borenstein dated 19 April 2019 and references tendered in Chan's case on sentence. Chan had no prior criminal history.
His Honour concluded the examination of Chan's subjective matters as follows (R v Chan; R v Kwan at [71]-[73]):
"71 I accept that the offender has been well regarded by his friends, employers and work associates over the years, and that they have expressed their genuine opinions in the various references that have been supplied. I accept that the offender is an intelligent man who has managed to achieve a number of qualifications over time. It is, of course, extremely disappointing that he has applied his intelligence to the commission of a very serious offence.
72 There is no evidence in any of the material provided to me, other than that the offender continues to deny the commission of the offence, and there is, accordingly, no evidence of remorse or contrition.
73 There can, in the circumstances of this matter, be no discount relevant to the concepts of 'facilitating the course of justice' or the 'utility of a plea of guilty' in their absence."
The sentencing Judge then considered Kwan's subjective matters (R v Chan; R v Kwan at [74]-[103]). Kwan was born in Hong Kong in 1975 and was 44 years old at the time of sentence. He had no prior criminal history.
His Honour referred to the psychological report of Ms Duffy dated 10 April 2019 with respect to Kwan. The report recounted Kwan's personal history of being married, then divorced, with a daughter born in 2008. His Honour referred, as well, to the sentence assessment report concerning Kwan and a number of references tendered on his behalf. The sentencing Judge noted "in the circumstances of his clearly false evidence at trial the need to be circumspect in relation to anything said by Mr Kwan" (R v Chan; R v Kwan at [88]).
After summarising the references tendered on behalf of Kwan, the sentencing Judge concluded (R v Chan; R v Kwan at [101]-[103]):
"101 I have not referred to any of the detail of most of those references, for the reason that they were all references from family and or friends who have known the offender for various periods, who all regard him well and, in most cases express shock to have heard of his offending. Of significance is that there is no evidence of any expression of remorse or contrition, except for the reference of Shui Lan Mak, his aunt. In her reference, in relation to her contact with him during a telephone call or calls, she states
'On this occasion, he has committed a very serious mistake and he has conveyed his remorse.'
102 I do not accept that in the circumstances as being any acceptable evidence of remorse or contrition.
103 I accept that those who have provided references in respect of the offender have genuinely expressed their opinions of his being of good character and well regarded by them. That those who have known him over the years hold him in good regard and as a person of good character is not, in my view, of significant assistance in relation to a matter of this seriousness, where one of the factors that must have been relevant to his coming to Australia to carry out the offence was that he would have no difficulty in obtaining a relevant visa to enter Australia for the purpose of the commission of the offence. I do, however, take into account all of the matters that I've referred to."
His Honour then returned to aspects concerning the objective seriousness of the offences (R v Chan; R v Kwan at [104]-[110]):
"104 As I have previously referred to, it is clear that the offender's participation was the subject of premeditation and planning, which is relevant to weighing up the seriousness of the offence, as referred to in R v Morabito [1992] 62 A Crim R 82 at 86. In R v Olbrich [2000] 117 A Crim R 326, it was said where an offender seeks to be sentenced on the basis of being a person low in the hierarchy of a drug enterprise, the offender must establish that fact as a mitigating fact on the balance of probabilities.
105 I have already referred to my finding as to each of the offenders' roles and the acts committed by each of them as being the basis on which I will sentence them. I have also previously noted that there is, in fact, before the Court, no evidence of any person being higher in any hierarchy involved in this matter, although, I note that it is common for activities in relation to importations to be divided amongst a number of different persons. As I have previously indicated, neither of the offenders gave evidence on sentence. Each continues to deny their involvement and there is no evidence of any person higher in the hierarchy.
106 Their role, in my view, was neither menial nor necessarily limited and was, in my view, crucial to the success of the criminal enterprise. Even though it cannot be established what role they may have had in relation to the distribution of the anticipated cargo, it is clear in the circumstances, having removed the 101 kilos of substitute, that it was the offenders who would subsequently make it available to others, presumably in bulk.
107 In my view, their role was crucial to the success of the criminal enterprise. Illicit drug organisations are only able to prosper because people are ready, willing and able to undertake these types of roles and it is a well-established sentencing principle that persons who participate in the illicit drug trade at any level should expect and receive heavy penalties. R v Budiman [1998] 102 A Crim R 411 citing with approval the observations of Wells CJ in Le Cerf (1975) 13 SASR 237 at 239.
108 As I have said, although the full nature and extent of the enterprise is not known to the Court, this is not a case where either of the offenders had a menial role and where I have concluded that each was highly significant to the success of the retrieval of the packages, securing them and retaining and removing them for distribution. I have previously referred to the fact that the pure amount of the drug was some 108 times the threshold for a commercial quantity of 750 grams pure.
109 The quantity of drug is not the be all and end all of establishing an appropriate sentence, but it is a very relevant factor to take into account. Wong v The Queen, Leung v The Queen [2001] 207 CLR 584, I note that 101 kilograms at a purity of 75.16%, as analysed, is accepted as having had a value on a wholesale or bulk sale of approximately $8,080,000 to $14,140,000. The estimated street value was estimated as being between $50,848,000 and $152,544,000, each of those estimates being based on the black market prices in 2017, and with purity of 75.16% being taken into account.
110 The maximum penalty of life imprisonment serves as a relevant yardstick to be taken into account."
His Honour then found that "this was an objectively serious breach of the relevant section", stating (R v Chan; R v Kwan at [111]-[112]):
"111 I accept that in the light of what I've referred to as the acts of the individual offenders and the quantity of drug involved, that this was an objectively serious breach of the relevant section. There is before the Court no evidence of any financial motive in relation to either of Mr Chan or Mr Kwan, although there are some references by Mr Chan in his record of interview and in his evidence about being provided with certain funds to pay for storage and or for unloading the first container. I, of course, in the circumstances do not accept those as being honest accounts of his expectation as to what he might receive. There is no evidence before the Court as to how any proceeds from any distribution of the anticipated methamphetamine were to be distributed.
112 However, I infer that each of the co-offenders, was at the very least expecting a significant financial reward or benefit for their participation in what they must have realised was a very significant offence, and that the anticipated imported substance in the quantity they took possession of, would have had a very high value, even when sold in bulk."
His Honour made the following findings concerning the risk of reoffending, specific deterrence and general deterrence (R v Chan; R v Kwan at [114]-[115]):
"114 In relation to each of the offenders, I accept in view of their past crime free history that they are at a low risk of reoffending. That, in my view, diminishes to some extent the need for sentence to reflect specific deterrence, however general deterrence remains a very important factor in determining sentence in relation to an offence of this nature, and in the absence of a significant sentence the interest of general deterrence will not be served. R v Pang [1999] 105 A Crim R 474 at 476. Any potential financial rewards to be gained from activities such as this must be neutralised by the risk of severe punishment, R v Cheung Yai Man & Ors NSWSC (22 March 1991, unreported per Sully J), and as cited with approval in a number of subsequent cases, including R v Stanbouli [2003] NSWCCA 355 at 114.
115 As I have previously referred to, a lack of prior criminal convictions is not unusual in matters of this kind. It has been said that the usual leniency extended to first offenders will not ordinarily benefit offenders who participate in the illegal importation and trade of illicit drugs, R v Nguyen, R v Pham [2010] 205 A Crim R 106."
His Honour had regard to Kwan's limited English skills and that he would continue to have limited access to his family whilst in custody in Australia, but noted "that those are circumstances that ought to have been taken into consideration by Mr Kwan before he came to Australia to commit this serious offence" (R v Chan; R v Kwan at [116]).
His Honour had regard to parity bearing in mind the sentence to be imposed on Vakatalesau later that day (R v Chan; R v Kwan at [119]):
"While there are some differences in the acts performed, I am unable to discern any significant difference in relation to the role of each of the offenders, or their subjective circumstances. Accordingly, I intend to impose the same sentence in relation to each of the offenders, and I will not express them separately, but simply once. I note that I am, of course, fully cognisant for the purpose of the sentence that I intend to impose later today on the co-offender, Vakatalesau, and I have taken into account - not without difficulty - the question of achieving parity between the offenders, including the co-offender, Vakatalesau." (emphasis added)
The following finding was made with respect to the prospects of rehabilitation of Chan and Kwan (R v Chan; R v Kwan at [120]-[121]):
"120 … In respect of rehabilitation and in respect of each of the offenders, while I have found there is a low risk of reoffending, it is extremely difficult to form any opinion as to the prospect of rehabilitation in circumstances where each has been convicted after a defended trial in the face of an overwhelming Crown case, and there has been no acknowledgement by either of having committed the offence, or any expression of remorse or contrition, as previously referred to.
121 In those circumstances, I am unable to forecast the prospect of rehabilitation. But I note that I intend to impose a serious sentence which will give them a very significant period of time to reflect on what they have done."
His Honour then proceeded to pass sentence with respect to Chan and Kwan.
His Honour noted that the shipment contained 81.4 kilograms pure of methamphetamine which was more than 108 times the threshold for the commercial quantity. Whilst noting that the legislation makes no distinction between different border controlled drugs other than by way of quantity, his Honour noted the devastating effects of methamphetamine use in New South Wales (R v Vakatalesau at [61]-[62]).
The sentencing Judge referred to admissions made by Vakatalesau in his interview where he admitted that he had been asked to sell drugs and that he had been provided by Chan with two mobile phones for the purpose of the importation and had been cautioned by Chan, at one stage, to turn the phones off because the police would track him via the phone (R v Vakatalesau at [63]-[64]).
His Honour found that Vakatalesau was aware that methamphetamine was to be imported (R v Vakatalesau at [65]-[66]):
"65 Significantly, he was asked questions (at approximately question 596) about a conversation before the first container in January and his answer was, 'Um, he was telling me um there will be ah some ah - ah 'ice coming'.' So there can be no doubt that this offender knew that the importation was to be of methamphetamine being imported into Australia via a shipping container as he has admitted to that knowledge.
66 There was no evidence or admission as to knowing of any particular quantity, but it might be reasonably presumed that as he understood that it was being smuggled into Australia in a container, and that the method or process of importation was to be tested by the earlier container, it was likely to be a significant or substantial quantity."
The sentencing Judge then made detailed findings concerning the role of Vakatalesau (R v Vakatalesau at [69]-[70]):
"69 In relation to the first container:
* the offender's pseudonym 'Peter' was listed as the consignee on the bill of lading. The contact number provided, that is the mobile number ending 253, was subscribed in the name of the offender's aunt, Ms Matewasa.
* On 18 January 2017, the offender and Chan attended the Kennard Self Storage facility in Wentworthville to hire a unit.
* On 19 January 2017, the first container arrived at the Kennards Wentworthville facility and on that day the offender and Chan unpacked the metal frames from the container and moved them into a storage unit.
70 In relation to the second container:
* the offender used a false name, email address and phone number to facilitate the receipt of the container in Sydney.
* The offender also contacted Maxfill, the freight company, on 13 February 2017 to change the delivery address of the container to Unit 38/65 Marigold Street, Revesby.
* The offender recruited his friend, Alageto, to assist with moving the steel frames out of the second container on 21 February 2017, as his arm was injured and in a sling, and in order for the substituted bags under the floor to be accessed.
* Later that day, the offender assisted the co-offenders, Kwan and Chan, to lift the container floor so that the substituted bags could be accessed and placed in luggage and then into the vehicle driven by Chan for removal from the Revesby address.
* On or about 22 February 2017, the offender had possession of three pieces of luggage containing approximately 20 kilograms of the drug substitute, As to how the offender came to be in possession of them, there is no evidence before the Court."
After reciting further matters, the sentencing Judge observed that it was "clear that he cannot be regarded as some simple unpacker" (R v Vakatalesau at [74]).
His Honour made the following further findings concerning the role of Vakatalesau in the commission of the offence (R v Vakatalesau at [76]-[81]):
"76 I find that he played an important role in the mechanics of the receipt in Sydney of both the test container and the second container, using a false name and a contact number registered to his aunt.
77 I find the actions of the offender were pre-meditated and planned.
78 He recruited his friend, Alageto, to assist him with the unpacking and later paid him $500.
79 I note that there is no evidence before me or in the trial that Mr Alageto was aware of the contents of the container and indeed the video footage shown at trial demonstrated that while the floor was being lifted, the substitute removed and placed into the luggage bags, Mr Alageto was in fact never in the container and did not return to the container until such time as he was tasked to take the three bags and put them in the rear of the motor vehicle.
80 The offender was clearly involved in the logistical and organisational aspects of the receipt of the containers, and not merely an unpacker or courier. He had a trusted role and was involved at the crucial time of lifting the floor boards and obtaining the 69 bags of substitute.
81 I am of the view that there is no substantial distinction between the seriousness of the role played by this offender and the seriousness of the roles played by the co-offenders, Mr Kwan and Mr Chan, although no doubt there are distinctions in respect of the acts performed by each." (emphasis added)
With respect to the respective roles of Vakatalesau, Chan and Kwan, his Honour said (R v Vakatalesau at [83]-[84]):
"83 Superior courts have repeatedly stated that illicit drug organisations are only able to prosper because people are ready, willing and able to undertake these types of roles. It is a well-established sentencing principle that persons who participate in the illicit drug trade at any level should expect and receive heavy penalties. R v Budiman [1998] 102 A Crim R 411, citing with approval the observations of Wells CJ in Le Cerf [1975] 13 SASR 237 at 239. The Crown in written submissions said as follows:
'This is however a case in which the full extent of the enterprise is not known to the Court. There are some aspects of the evidence which suggests the offender falls slightly below Chan and Kwan in the structure of the group involved in the possession of the substituted bags.'
84 I accept, despite what I have said earlier, that there is some possible distinction between this offender and the co-offenders, although in my view that is largely answered by the fact of the 20 kilograms located at his aunt's."
With respect to the benefit which Vakatalesau was to obtain from his involvement in the offence, his Honour said (R v Vakatalesau at [87]-[89]):
"87 The offender, in his record of interview, referred to being promised certain sums of money, being $15,000 in respect of the first container and a further $15,000 in respect of the second container, giving a total of $30,000. He also referred to only receiving in effect approximately $3,000, of which he gave $500 to Alageto for his assistance.
88 The offender, in his record of interview, accepted that he had a financial motive for participating because of his then current financial circumstances.
89 It is of course impossible for the Crown to establish whether his assertions as to his expected benefit were truthful, and I note, as previously referred to, he was prepared to make false statements about his friend, Mr Alageto, as to who he was, and I have no doubt that to some degree the offender sought to diminish his responsibility."
His Honour noted Vakatalesau's criminal history and domestic violence related offences committed in New South Wales in 2016 which his Honour did not regard as having any significant relevance in relation to sentencing for this offence (R v Vakatalesau at [91]).
His Honour noted that Vakatalesau had written a letter to the Court which, in the absence of cross-examination, must be treated with some circumspection where the offender stated that he took responsibility and understood the seriousness of the offence or expressed remorse and contrition. His Honour noted that Vakatalesau's plea of guilty was entered only upon the first day of the scheduled trial. His Honour noted in Ms Duffy's report Vakatalesau's expression of remorse and concluded (R v Vakatalesau at [96]):
"… I am prepared to accept, despite the belated plea, that there is genuine evidence of remorse and contrition."
Reference was made to other materials before the Court concerning Vakatalesau's undertaking courses in custody which bore on the question of prospects of rehabilitation.
His Honour noted the significant age difference between Vakatalesau, Chan and Kwan, stating at [103]:
"The offender is now 24 years of age. He was, however, at the time of the offending, 22 years of age. There is a significant difference in my view between the age of this offender and the co-offenders. It has long been recognised that males retain a certain degree of immaturity and make poor decisions at least into their early twenties."
The sentencing Judge then recounted Vakatalesau's personal history in Fiji including the existence of learning and literacy problems in his early education and the use of harsh physical discipline during his childhood. He had come to Australia at the age of 18 years to play football and later found work as a steel fixer. He entered into a relationship with a young woman in 2014 and there were two sons born in 2016 and 2017. His partner remains supportive and had visited and kept in contact with him whilst he had been in custody.
The sentencing Judge recounted evidence concerning Vakatalesau's intelligence assessment, his risk of reoffending and prospects of rehabilitation (R v Vakatalesau at [120]-[122]):
"120 His intelligence was assessed. He had a verbal score in the below average range and a non-verbal score in the sound average range. He was assessed by Ms Duffy in terms of re-offending as being in the low to moderate range. He was assessed by a Mr Gordon, the Community Corrections Officer, as being in the medium to low risk of re-offending according to the Level of Service Inventory - Revised.
121 I accept in the circumstances of the matters that I have previously referred to, in particular his relatively insignificant prior criminal history and his age, those assessments. He is said to suffer from mild levels of depression and anxiety and normal stress, although currently being above the norm but related to his current circumstances of being in custody. There is in my view nothing unusual about a prisoner, awaiting sentence for a significant offence, feeling depressed and anxious.
122 I accept in relation to this offender that there is a reasonable prospect of rehabilitation."
His Honour allowed a discount for the utilitarian value of Vakatalesau's plea of guilty (R v Vakatalesau at [123]-[124]):
"123 I accept that despite the belated nature of the plea on the first day of trial that he is entitled to a discount for the utility of the plea, and also as the plea facilitated the course of justice. Such a discount, however, in the circumstances of the belated plea, cannot be substantial.
124 It is perhaps tragic in relation to this offender that having initially made significant admissions in relation to his own conduct, even if in my assessment not completely frank, that he failed to enter a plea of guilty at the earliest stage and indeed further failed to offer real assistance to the prosecution. Such assistance may have resulted in the co-offenders not defending at trial, but whether he would have been required to give evidence in a trial or not, the offer of assistance combined with an early plea and the facilitation of justice would have resulted in a substantial discount on sentence, which is unfortunately not now available to him. I will however discount the sentence to be provided, taking into account all of the matters I have referred to, but also the utility of the plea, the facilitation of the course of justice and also the fact that at the time of the offending he was 22 years of age, that is, significantly younger than his co-offenders."
His Honour did not quantify the discount for the plea of guilty in the sentencing remarks, but noted by way of addendum that there was a "discount in the order of 10%" allowed. The parties proceeded in this Court upon the basis that his Honour had allowed a 10% discount for Vakatalesau's plea of guilty, noting submissions which had been made at the sentencing hearing concerning the appropriate discount to be allowed to him in this case, with arguments extending from 5% to 15% in this regard.
His Honour had regard to specific and general deterrence in the following way (R v Vakatalesau at [130]-[131]):
"130 Of significance in relation to offences of this nature are both specific and general deterrence.
131 In view of the offender's lack of previous offending and my finding as to the low to medium risk of re-offending and the reasonable prospect of rehabilitation, I am of the view that the need for specific deterrence is significantly reduced. However, general deterrence must always remain a significant factor for the Court to take it into account in relation to offences of this nature, which, where successful, have serious adverse impacts on the community in the ways that I have previously referred to."
In part of his Honour's sentencing remarks which came under scrutiny in this Court because of the parity grounds, his Honour said (R v Vakatalesau at [132]-[134]):
"132 I must also take into account the sentences that I have imposed earlier this morning in relation to the co-offenders, Mr Kwan and Mr Chan, noting that I imposed in each case a sentence of 23 years imprisonment with a non-parole period of 15 years. There is a relevant issue of parity in relation to this offender and his co-offenders.
133 The Crown has submitted that, in effect, the offence committed by this offender, in the circumstances, is just as objectively serious as that committed by his co-offenders. There is merit in that submission. Although the acts were different, it was in my view a very important role played by the offender. However, I am of the view that some distinction can be made because of the matters that I have already referred to. That is, the discount for the belated plea, remorse and contrition, the reasonable prospect of rehabilitation, the low to medium risk of re-offending and his age at the time of offending of 22.
134 Having taken all of those matters into account, I have determined the sentence." (emphasis added)
After passing sentence, his Honour said to Vakatalesau (R v Vakatalesau at [141]):
"I regret having to deprive your children and your partner of the support that you might have been able to provide them if at liberty in the community. Unfortunately, offending of this nature is extremely serious, and the role you played was a significant and important one in relation to the commission of the offence, and as I have said, you failed to do anything in your own interest after having made admissions by way of not entering a plea of guilty until the first day of trial and not offering to assist the prosecution."
This Court has emphasised that a parity ground seeks to challenge a discretionary assessment by a sentencing Judge in the imposition of sentence upon related offenders. In Adams v R, the Court said at [83]-[87]:
"83 The Applicant seeks to challenge a discretionary assessment by the sentencing Judge in this case. In Lloyd v R, RA Hulme J said at [95]-[97]:
'95 It is possible that the difference between the sentences imposed upon the co-offenders might have been greater. However, it must be kept clearly in mind that this was a discretionary assessment by a judge who had the facts and circumstances of the offences and each offender in mind in the one sentencing exercise.
96 It is a basic principle of appellate review of sentencing that 'there is no single correct sentence' and 'judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies': Markarian v The Queen (2005) 228 CLR 357 at 371 [27]; [2005] HCA 25 (Gleeson CJ, Gummow, Hayne and Callinan JJ). That observation may be translated to a review of the degree to which a sentencing judge has differentiated the sentences imposed upon co-offenders sentenced in the one sentencing exercise.
97 In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion? In my view, the answer must be affirmative.
84 The approach of RA Hulme J in Lloyd v R is along similar lines to that applied in Victoria. In a number of decisions in that State, it has been said that the concept of (an objectively) justifiable sense of grievance is a way of expressing the conclusion that a sentencing differential (or lack of differential) was not reasonably open to the sentencing Judge given the relevant similarities and differences between the offending and the offenders: Director of Public Prosecutions (Cth) v KMD (2015) 254 A Crim R 244; [2015] VSCA 255 at 269 [109] (Maxwell P, Weinberg and Beach JJA ); Tran v R [2017] VSCA 346 at [5], [22]-[23] (Osborn, Whelan and Ashley JJA).
85 The observations of Ashley JA (Osborn JA agreeing) in Tran v R are also pertinent and echo the approach of RA Hulme J in Lloyd v R. Ashley JA said at [24]:
'… sentencing involves a synthesis of the entire circumstances of the offending and the offender. Where more than one offender is being sentenced, just as where a single offender is to be sentenced, sentencing is not a mechanical exercise in which circumstances are to be weighed with a pretence of arithmetical certainty. Indeed, where more than one offender is being sentenced, and despite parity considerations requiring a judge to compare the circumstances of the offending and the offenders, disparate circumstances may lend themselves even less to such an exercise. An attempt to demonstrate that the sentence imposed on one of the offenders was not reasonably open, by resort to a minute examination of the individual circumstances of the offending and the offenders, runs counter to the concept of instinctive synthesis.'
86 These considerations have relevance to the present application for leave to appeal against sentence.
87 In determining whether the Applicant has an objectively justifiable sense of grievance so as to make good his ground of appeal, it is appropriate to consider whether he has demonstrated that it was not reasonably open to the sentencing Judge to form the view that he should be sentenced to the same term of imprisonment as his co-offenders."
As R A Hulme J observed in Lloyd v R [2017] NSWCCA 303 at [97] and as reaffirmed recently in Bond v R [2020] NSWCCA 277 at [51], the question to be answered when determining a parity ground is - was the differentiation made by the sentencing Judge one that was reasonably open in the exercise of discretion?
With these principles in mind, it is appropriate to move to consider the grounds of appeal.
It was submitted that Chan is left with a justifiable sense of grievance arising from the difference between his sentence and that passed on Vakatalesau.
Submissions for the Crown
The Crown submitted that the difference between the sentences imposed upon Vakatalesau and Chan was explained by different findings made by the sentencing Judge and different factual material before the Court at the sentencing hearing concerning those separate offenders.
It was submitted that his Honour had regard to Vakatalesau's plea of guilty for which a 10% discount was extended, together with his youth and immaturity, his remorse and contrition, reasonable prospects of rehabilitation and his low-to-medium risk of reoffending.
By way of contrast, Chan had gone to trial and been convicted, was not remorseful, was 40 years of age at the time of the offence and with no favourable assessment of his prospects of rehabilitation being made.
The Crown submitted that the complaint in Ground 1 related to the weight that his Honour attributed to the factors mentioned when sentencing Vakatalesau and that questions of weight lay within the exercise of discretion of the first-instance Judge with this Court approaching with caution a challenge to such a finding: R v Baker [2000] NSWCCA 85 at [11].
The Crown submitted that Chan had not demonstrated a legitimate sense of grievance arising from the different sentence imposed upon Vakatalesau and that no error had been demonstrated by Chan in the factual findings made by his Honour when sentencing Vakatalesau.
Decision
There are two components to Ground 1 advanced on behalf of Chan.
With respect to Ground 1(b), it is sufficient to observe that his Honour had regard to the evidence at the sentencing hearing of Vakatalesau and that arising from the trial and sentencing hearing of Chan in reaching the findings of fact and assessments made as to the relative roles of those persons for the purpose of sentence.
Chan has not demonstrated that the findings made by the sentencing Judge with respect to Vakatalesau were not reasonably open. There were particular features arising from the conduct of each of the three offenders and what was known (and not known) to the sentencing Judge concerning their roles in the offence.
The sentencing Judge emphasised the limited information emanating from Chan and Kwan concerning their roles in the offence with their exculpatory accounts given to the jury being rejected and put to one side. Vakatalesau, on the other hand, provided considerable information to police which was before the sentencing court in his case and which painted a fuller picture of his involvement in the offence as opposed to that available at the Chan and Kwan sentencing hearing.
The Court should keep in mind statements made by the Victorian Court of Appeal in Pham v R; Tang v R [2012] VSCA 101 concerning the approach of a sentencing court where there is a paucity of evidence as to the offender's position within a criminal organisation. Redlich JA said at [5]-[6]:
"5 It will often be difficult to categorise the role of the offender within the criminal enterprise or to determine his role relative to others. The focus must then be upon the degree of criminality of the acts performed and their importance in accomplishing the organisation's criminal purpose. When dealing with a number of offenders whose positions within the enterprise are difficult to identify or are closely aligned, the need will arise to identify the features of each offender's conduct that justify the imposition of the sentences, whether they are the same or different, which have been imposed on each co-offender.
6 Here the offenders who were part of a criminal enterprise were less than forthcoming with investigators and with the court about how they came to be involved. They sought to disguise their precise conduct and position within the organisation. They gave accounts to investigators and to the sentencing court which were implausible or demonstrably false or were inconsistent with other explanations proffered for how they became involved and the roles they performed. Hence the full nature and extent of the enterprise and their conduct was unknown to the court. It was in that context that the sentencing judge was called on to assess each offender's role and their degree of culpability. In those circumstances the applicants could have no basis for grievance with the limited findings of the sentencing judge as to their respective positions and roles within the criminal enterprise."
In Pham v R; Tang v R, Harper JA expressed similar sentiments at [28]-[29].
The sentencing Judge in the present case had acquired a deep understanding of the offences having presided at the trial of Chan and Kwan and then at the sentencing hearing with respect to all three offenders.
His Honour explained the difference in the sentencing outcomes for Vakatalesau, Chan and Kwan when sentencing Vakatalesau (see [60] above). His Honour had observed when sentencing Chan and Kwan that he had taken into account the sentence which he proposed to pass on Vakatalesau later that day in seeking to achieve parity between the three offenders, a process his Honour described as being "not without difficulty": R v Chan; R v Kwan at [119] (see [37] above).
The challenge for Chan is to demonstrate that it was not reasonably open to the sentencing Judge to impose the sentence on Chan given the sentence imposed for Vakatalesau. This involves a challenge to the exercise of sentencing discretion with a wide range of factors being taken into account in that regard: Adams v R at [83]-[87] (see [68] above).
As noted during the hearing in this Court (T20, 9 October 2020), the submission made by counsel for Chan (referred to at [72] above) does not accord with principle nor a fair reading of his Honour's sentencing remarks. The 10% discount should be treated as a discount only for the utilitarian value of Vakatalesau's plea of guilty: Bae v R [2020] NSWCCA 35 at [49]-[57]; Kaurasi v R (Cth) [2020] NSWCCA 253 at [39]-[40].
There was a significant age differential between the 22-year old Vakatalesau and Chan (40 years old) and Kwan (42 years old). In R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238, with the concurrence of Macfarlan JA and R A Hulme J, I noted general propositions emerging from the authorities where sentence was to be passed for an offence of attempting to possess a quantity of unlawfully imported border controlled drug contrary to s.307 Criminal Code (Cth). Amongst the propositions (stated at 72 in that judgment) (see [122] below)), reference was made to circumstances where (in that case) the offenders were not young (being 42 and 32 years old respectively) so that youth could not be claimed as a factor bearing upon their transgressions. Here, Vakatalesau was a young man with a level of immaturity with additional evidence indicating below average intelligence. As the sentencing Judge observed (see [54] and [56] above), this was an important differentiating factor between him and the other two offenders.
There was an absence of remorse on the part of Chan and Kwan. To the contrary, a favourable finding was made with respect to that of Vakatalesau concerning his contrition and remorse.
The subjective factors which his Honour found were favourable to Vakatalesau were clearly different to Chan and Kwan, and were not to be discounted in quantified terms for the purpose of sentence: Bae v R at [57]. However, the sentencing Judge was required to take those matters into account under s.16A(2) Crimes Act 1914 (Cth) in sentencing Vakatalesau and these were significant factors which operated in his favour on sentence in addition to the quantified discount of 10% for the utilitarian value of his guilty plea.
In my view, it was open to the sentencing Judge to differentiate between the three offenders in the way in which he did by reference to different and significant features which operated in favour of Vakatalesau on sentence and which were absent with respect to Chan and Kwan. Chan has not demonstrated that it was not open to the sentencing Judge to reach this conclusion.
I would reject Chan's first ground of appeal.
The sentencing Judge made findings by reference to the acts of Kwan and Chan with conclusions being reached, to the extent permitted by the evidence, concerning their roles in what was a very substantial criminal enterprise.
I am not persuaded that any factual error has been demonstrated in his Honour's approach to assessment of the objective gravity of Kwan's offence. Some features of Kwan and Chan were different and some were similar. Both men went to trial and were convicted by the jury in circumstances where their exculpatory accounts were clearly rejected. Both offenders played a significant role in the commission of the offence in different respects.
In considering the claim of error in Kwan's first ground of appeal, it is necessary to read fairly the entirety of his Honour's sentencing remarks. It is necessary to keep in mind that the characterisation of the degree of objective seriousness of an offence is classically within the role of a sentencing Judge in performing the task of finding facts and drawing inferences from those facts so that this Court is very slow to determine such matters for itself or to set aside the judgment made at first instance in the exercise of a broad discretion: Mulato v R [2006] NSWCCA 282 at [37]. The question is whether the particular characterisation of objective seriousness of an offence is open to the sentencing Judge. The findings of fact made concerning Kwan were open to the sentencing Judge in this case.
Kwan has not made good this first ground of appeal.
Kwan's second ground of appeal claims a legitimate sense of grievance because his sentence was not lower than that imposed upon Chan. The sentencing Judge had regard to the objective circumstances of the offences committed by each man and their subjective circumstances, before reaching the conclusion that an identical sentence should be passed upon each of them.
Kwan has not demonstrated that this finding was not reasonably open to the sentencing Judge. I would reject the second ground of appeal.
The Court was invited to have regard to relevant sentencing principles for offences of this type as summarised in R v Nguyen; R v Pham at [70]-[72] (see [122] below). The Crown referred to the sentencing decisions upon which Chan and Kwan sought to rely and submitted that, upon examination, the decisions did not assist them in demonstrating that the present sentences were manifestly excessive.
The Crown responded to submissions addressing features of the cases in support of a submission that examination of these sentencing decisions did not support Chan and Kwan in their claim of manifest excess.
Decision
In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) summarised the principles to be applied on a sentence appeal where there is a claim of manifest excess at [443]:
"443 When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v R (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v R (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [59].
• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
• It is not to the point that this Court might have exercised the sentencing discretion differently.
• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
• It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
In approaching these grounds of appeal, it is helpful to keep in mind the general sentencing principles summarised in R v Nguyen; R v Pham at [70]-[72]:
"70 The importation and possession offences now contained in the Criminal Code Act 1995 (Cth) provide for a structured sentencing regime by reference to the quantity of drug imported. Section 307 adopts 'a quantity-based penalty regime' by fixing commercial and marketable quantities of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties: Adams v The Queen [2008] HCA 15; 234 CLR 143 at 146 [2].
71 Before turning to the individual sentences imposed in this case, it is appropriate to refer to principles applicable to sentencing for drug importation offences. I include in this offences of attempting to possess a quantity of an unlawfully imported border controlled drug contrary to s.307 Criminal Code Act 1995 (Cth).
72 The following general propositions emerge from the authorities:
(a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee at [27];
(b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]; R v Lee at [25];
(c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the 'mastermind' does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26];
(d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen; Leung v The Queen at 607-608 [64]; R v Lee at [23]-[24];
(e) the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar v The Queen (No. 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46];
(f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32];
(g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v the Queen; Leung v The Queen at 607-608 [64];
(h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552-553 [114];
(i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6];
(j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49];
(k) where offenders are not young (Mr Nguyen was 42 years' old and Ms Pham was 32 years' old), the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 474 [98];
(l) where an offender (such as Ms Pham) is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing Judge should have regard to the offender's involvement in the overall transaction for the purpose of determining the offender's degree of involvement in a drug-smuggling enterprise: El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208 at 217 [33]-[37];
(m) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs: R v Ferrer-Esis (1991) 55 A Crim R 231 at 230;
(n) the range of sentences referred to in the decision of the Court of Criminal Appeal in R v Wong and Leung remain useful to sentencing for offences of this type; although they have no validity as guidelines, their utility results from the fact that they are based on the patterns of actual sentences, although allowance must be made for the repeal of s.16G Crimes Act 1914 (Cth): R v Taru [2002] NSWCCA 391 at [12]; R v Bezan at 438 [34]-[36]; R v Mas Rivadavia [2004] NSWCCA 284; 61 NSWLR 63 at 67-68 [65]-[66]; R v SC at [27]; R v Chea [2008] NSWCCA 78 at [40];
(o) insofar as each Respondent asked the sentencing Judge to take into account on sentence offences under s.16BA Crimes Act 1914 (Cth), it is necessary for a sentencing court to comply with the general principles applicable to the State regime for taking offences into account in accordance with Attorney General's Application Under Section 37 Crimes (Sentencing Procedure) Act 1991 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146: R v Poynder [2007] NSWCCA 157; 171 A Crim R 544 at 550 [28]; Assafari v R [2007] NSWCCA 159 at [9]."
The principal arguments advanced in support of the manifest excess grounds related to sentencing decisions in other unrelated cases. It is necessary to keep in mind the approach to sentencing decisions when assessing a claim of manifest excess.
In The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [50], Bell and Gageler JJ said that "comparable cases decided by intermediate courts of appeal provide the most useful guidance to a sentencing judge" and that those "reasons reveal the mix of factors that were taken into account and will usually involve consideration of the appropriateness of the sentence imposed at first instance".
Whilst there is no single correct sentence or range of correct sentences, sentencing Judges must have regard to what has been done in other cases with consistency in the application of relevant legal principles so as to achieve reasonable consistency in treating like cases alike to be achieved through intermediate appeal court decisions: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]-[50], [53]-[56].
In Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41, Gageler and Gordon JJ said at [83] (footnotes omitted):
"Sentences are not binding precedents, but are merely 'historical statements of what has happened in the past'. As was said in Hili v The Queen, '[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits' (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court."
With those principles in mind, I will consider the cases relied upon by the parties in this case.
Some Cases Raised by the Applicants
In R v Hong and Lee [2012] NSWDC 267 (Cogswell SC DCJ), the offenders pleaded guilty to a single count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, heroin. The starting point head sentence was one of 20 years, reduced to 15 years once a 25% discount had been applied for the offenders' pleas of guilty. The quantity of border controlled drug ("nearly 25 kilograms of pure heroin") was less than one-third of the level involved in the present case. The pleas of guilty at an early stage in R v Hong and Lee allowed a finding to be made of genuine remorse, a finding which is not open to Chan and Kwan. It should be noted that this decision was the subject of a recent appeal to this Court (Hong v R [2020] NSWCCA 225) in which the Crown conceded error in accordance with the principles in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4. Owing substantially to positive progress during the significant portion of the original sentence which had been served, Hong's sentence was reduced to one of 14 years' imprisonment with a non-parole period of nine years on appeal. These decisions do not assist the Applicants.
Counsel for Chan relied upon Dao v R [2011] NSWCCA 183, although counsel for Kwan did not press his reliance upon that decision. In Dao v R, the offender pleaded guilty at the first available opportunity to attempting to possess a commercial quantity of an unlawfully imported border controlled drug, 22.3 kilograms of pure methamphetamine. The offender was sentenced to imprisonment for 10 years with a non-parole period of six years. The starting point prior to the application of a discount was therefore in the order of 12 years and six months. The quantity involved in Dao v R was less than one-third of the quantity involved in the present case so that the decision provides no assistance to Chan in this Court.
Counsel for Chan relied upon Lau v R [2014] NSWCCA 179. In that case, the Applicant was found guilty of an offence of attempting to possess 102 kilograms of pure heroin contrary to ss.307.5(1) and 11.1(1) Criminal Code (Cth). The offender was sentenced to imprisonment for a term of 11 years with a non-parole period of seven years. The sentencing Judge accepted that the offender had "something of an intellectual disability so that general deterrence was not of quite the same importance as it would otherwise be" (at [118]). The sentencing Judge found that although the offender's role "was a crucial role it was a role at a low level in the enterprise" (at 115). The Court held that the sentence imposed upon a co-accused ("Mrs Ma") was manifestly inadequate (at [124]). Where the Crown had not brought an appeal against Mrs Ma's sentence, the Court upheld the offender's parity ground and reduced his sentence to one of imprisonment for a period of nine years with a non-parole period of six years. The circumstances in Lau v R are significantly different to those in the present case and I do not consider that this decision assists the present Applicants.
In R v To (2007) 172 A Crim R 121; [2007] NSWCCA 200, the offender was found guilty after trial of aiding and abetting the importation of a commercial quantity of methylamphetamine. The quantity involved was 34.8 kilograms of pure methylamphetamine, well under half the quantity involved in the present case. The sentencing Judge found that the offender had a managerial role in the importation and should be sentenced as a principal who stood to benefit as such from the importation. At first instance, the offender was sentenced to imprisonment for 17 years with a non-parole period of 10 years and six months. On a Crown appeal, the offender was sentenced to imprisonment for 25 years with a non-parole period of 15 years. I do not consider that this decision assists the present Applicants in particular given the difference in quantity of the drug and the role of the offender.
In R v Moore [2005] NSWCCA 212, the offender pleaded guilty to possession of 92.442 kilograms of pure MDMA contrary to s.233B(1)(a)(vi) Customs Act 1901 (Cth). His role was to take delivery of drugs imported from the Netherlands, communicating with his co-offenders concerning the importation and performing other steps in Australia including taking delivery of the MDMA which he took to his premises. After application of a 25% discount for his plea of guilty and assistance, the offender was sentenced to imprisonment for 20 years with a non-parole period of 15 years. His appeal against severity of sentence was dismissed. The starting point sentence, before application of the 25% discount, involved a head sentence of 26 years and eight months. This decision does not assist the present Applicants in their claim of manifest excess.
The Decision in Kuo v R; Huang v R; Shih v R
In Kuo v R; Huang v R; Shih v R, each of the offenders pleaded guilty to attempting to commit an offence contrary to s.307.5 Criminal Code (Cth), namely to possess 142 kilograms of pure methylamphetamine with a wholesale value of $46,138,000.00 and a street value of $147,420,080.00. Kuo and Huang were involved in unpacking the drugs and were found by the sentencing Judge to have played an essential role in the drug importation syndicate (at [69]).
At first instance, Kuo and Huang were each sentenced to imprisonment for 22 years with a non-parole period of 14 years and six months with Shih being sentenced to imprisonment for 27 years with a non-parole period of 18 years. Kuo and Huang were found to be "well aware of the number of packages" they were to possess and to have known that "they were to execute and illicit drug importation of a very significant size" (at [72]). Kuo was aged 21 years at the time of the offence (at [61]).
In circumstances where Xiao v R error was conceded with respect to the offenders' pleas of guilty, each of Kuo and Huang was resentenced to imprisonment for 19 years with a non-parole period of 12 years. The offender Shih was resentenced to imprisonment for 22 years with a non-parole period of 14 years. In each case, the benefit of the plea of guilty was assessed to be "about 10-15%" (at [90]).
It may be seen that the quantity of methamphetamine in this case is substantially higher than the quantity in the present case. However, each offender pleaded guilty at an early stage and received a significant discount on sentence as a result.
In my view, the decision in Kuo v R; Huang v R; Shih v R constitutes the high water mark of the argument advanced by Chan and Kwan. A substantially larger quantity of drug was involved in that case. However, each offender pleaded guilty and there were other features (such as Kuo's age) which are absent in the case of the present Applicants. It is important to bear in mind that a claim of manifest excess is not to be assessed by comparison with a single sentencing decision.
I will return to this decision when expressing a conclusion by reference to all the other sentencing cases upon which reliance was placed.
Some Other Sentencing Decisions
In Pham v R; Tang v R, the offender Tang pleaded guilty to three counts of importing a border controlled drug under s.307.1(1) Criminal Code (Cth) and the offender Pham was found guilty on three counts of attempting to possess a commercial quantity of a border controlled drug under s.307.5 of the Code. The quantities of drug involved were 71.564 kilograms of cocaine, 9.757 kilograms of ecstasy and 29.285 kilograms of methylamphetamine. Each offender was involved in organisational aspects of the importation and physically unpacking the container when they were arrested. Tang, who pleaded guilty, had been involved in the enterprise for a longer period of time. Pham pleaded not guilty and was convicted at trial. Each offender was sentenced to imprisonment for 19 years with a non-parole period of 14 years.
In the course of dismissing an appeal against the severity of the sentences, Redlich JA held that the sentences imposed "were towards the bottom of the range of sentences open to the sentencing judge" (at [7]). I do not consider that the sentencing outcomes in this case provide any assistance to the present Applicants.
In R v Le [2010] NSWDC 101 (Berman SC DCJ), the offender was found guilty after trial of an offence under s.307.5(1) Criminal Code (Cth) involving importation of 10 kilograms of pure methamphetamine. The offender had travelled to Australia for the purpose of taking delivery of the drugs. He was sentenced to imprisonment for 18 years with a non-parole period of 12 years.
In circumstances where the case of the present Applicants involves more than eight times the quantity of drug to that involved in R v Le, I do not consider that this decision provides any assistance to the Applicants.
In R v Pham, Tran and Dang; ex parte Director of Public Prosecutions (Cth) [2017] QCA 46, the offenders Pham and Tran were found guilty after trial of attempting to possess 33.667 kilograms of pure heroin. Pham and Tran were involved in unpacking a container once it had been subject to a controlled delivery from Vietnam to Australia. Pham was sentenced to imprisonment for 12 years with a non-parole period of seven years whilst Tran was sentenced to imprisonment for 10 years with a non-parole period of six years. Each offender was found to be "a low level participant" (at [20]-[22]) and each offender was held to have made significant admissions during the course of the trial (at [20]-[21]). The sentencing Judge was unable to conclude from the evidence whether Tran was initially aware of what was involved, but concluded that at some point he became aware of the presence of drugs (at [21]).
Noting the significant difference in the quantity of the drug and what I consider to be significant differences as well in the acts of the present Applicants as opposed to the more limited acts of the offenders in that case, I do not consider that this decision provides any real assistance to the Applicants.
In R v Yuan (2015) 252 A Crim R 422; [2015] NSWCCA 198, the offender was found guilty after trial of importing approximately 55 kilograms of pure methamphetamine. The sentencing Judge characterised the offender's role as that of a "supervisor or executor in the enterprise", well above that of a mere courier or recipient, but not operating at a high level. The offender was sentenced to imprisonment for 10 years with a non-parole period of six years. On a successful Crown appeal, the offender was sentenced to imprisonment for 15 years with a non-parole period of 10 years.
It is the case that the offender in R v Yuan was heavily involved in aspects of the importation of the drug into Australia, but the quantity of drug was significantly less than that in the case of the present Applicants.
In Director of Public Prosecutions (Cth) v Peng [2014] VSCA 128, the offender pleaded guilty to importing 23.154 kilograms of pure amphetamine. The offence involved importation of three crates with the offender being involved in its delivery to him in Australia and its subsequent dissemination. The offender pleaded guilty prior to committal and was found to have expressed remorse. At first instance, he was sentenced to imprisonment for 11 years with a non-parole period of seven years and six months. Following a successful Crown appeal, the sentence was increased to a term of imprisonment for 13 years with a non-parole period of 10 years, calculated after application of a discount to a starting point of 17 years and four months.
Given the very significant difference in the quantity of drug in this case to that involved in the case of Chan and Kwan, this decision provides no real assistance to the Applicants.
Features Identified in Director of Public Prosecutions (Cth) v De La Rosa
The Crown observed correctly that the circumstances of Chan and Kwan share a number of the common features identified by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 ("De La Rosa") at [209] as representing "the most serious cases" with head sentences ranging from 25 years to life.
As McClellan CJ at CL observed, cases in the first group identified by his Honour include a high or very high commercial quantity of drugs "frequently numbering in the tens if not hundreds of kilograms" and the "street value of the drugs is frequently (and unsurprisingly) in the hundreds of millions of dollars" (at [209]). As noted earlier, the estimated street value in the Applicants' case was between $50,848,000.00 and $152,544,000.00.
Further, the cases in the second group nominated by McClellan CJ at CL in De La Rosa (at [210]-[211]) show a range of head sentences from 18 years to 24 years and six months for cases which, the Crown submitted, bore similar characteristics to the findings made in the case of the present Applicants.
In his written submissions, counsel for Kwan referred to the judgment of McClellan CJ at CL in De La Rosa and pointed to the decision in R v Bartle; R v Roberti (2003) 181 FLR 1; [2003] NSWCCA 329 where the offenders received similar sentences to those imposed on Kwan and Chan after conducting a trial, but the quantity of drug in that case was much higher, being 383 kilograms of pure cocaine.
The Crown noted that the decision in R v Bartle; R v Roberti concerned seven co-offenders involved in varying degrees with the importation of cocaine. Two of the offenders in R v Bartle; R v Roberti received sentences of life imprisonment with a non-parole period of 25 years. The remaining offenders, who were assessed as having a lesser role, received sentences of imprisonment for 24 years with a non-parole period of 16 years. This decision does not assist the present Applicants.
Has Manifest Excess Been Demonstrated?
I have considered the particular submissions made by counsel for each of Chan and Kwan in support of this ground of appeal. Mr Rajalingam accepted as being accurate the sentencing Judge's description of the importance of Kwan's role as being "significant" and "highly significant". He submitted, however, that the sentencing Judge had fallen into error by concentration upon the label to be attached to Kwan rather than an examination of what Kwan actually did in committing the offence. I am not persuaded that his Honour fell into this error. His Honour made express and detailed findings concerning what each of Chan and Kwan did in committing the offences, with labels or descriptors being used as shorthand terms as part of a summary in a manner which was orthodox and not revealing error.
In considering the comparable cases, counsel for Kwan relied in particular upon an examination of the sentences imposed upon Kuo and Huang in Kuo v R; Huang v R; Shih v R and the sentence in R v Yuan. He submitted that the circumstances of the offences of Kuo and Huang involved a much larger quantity of pure drug and the circumstances of Yuan's offence involved an offender who was more heavily engaged in organisational aspects of the offence. He submitted that the sentences imposed in cases such as Peng, Dao and Pham, Tran and Dang where the offenders' involvement was not as prolonged, support the claim of manifest excess in Kwan's case.
I have considered the submissions made by reference to other sentencing decisions and the factual circumstances of the present cases of Chan and Kwan. In my view, it has not been established that the sentence imposed upon each of Chan and Kwan goes beyond what might be considered a stern sentence (which was available in the exercise of discretion of the sentencing Judge) so as to become a sentence which is manifestly excessive (which was not so available): Conte v R (2018) 86 MVR 239; [2018] NSWCCA 209 at [6] (Payne JA and Button J).
I am not persuaded that examination of these sentencing cases supports Chan and Kwan in their claim that the sentences imposed upon each of them were manifestly excessive. As would be expected, there are significant differences in the circumstances of other cases when compared to the present matters. Even then, there are few cases where the pure quantity of methamphetamine is in the order of that involved in the present cases. Chan and Kwan were far from being minor participants in these offences. The sentencing Judge characterised accurately their involvement in the commission of an objectively very serious offence.
Although the scheme under the Criminal Code (Cth) determines the commercial quantity of a border controlled drug without distinguishing between different types of drugs, it was relevant on sentence for his Honour to have regard to the particular vices of methamphetamine, a drug with especially detrimental consequences demonstrated daily in the criminal courts in this State (see [22] above). What was said in Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15 at [2]-[3], concerning the nature of a quantity-based offence regime, does not stand in the way of a sentencing Judge having regard to the highly damaging properties of a particular drug (such as methamphetamine) in passing sentence for an offence under the Criminal Code (Cth).
Having considered the various sentencing decisions to which reference was made, it has not been demonstrated that the sentences imposed upon Chan and Kwan lay outside the exercise of reasonable sentencing discretion in this case. The sentencing of Chan and Kwan involved appropriate application of relevant legal principles, with differences in sentencing outcomes when compared with Vakatalesau being accounted for sufficiently by the factual differences in the findings made concerning the subjective circumstances of the three offenders.
Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a purely mathematical exercise.
Sentencing is a discretionary exercise and involves a process of instinctive synthesis leading to the formulation of a value judgment as to the appropriate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J). In Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38, French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ said at [59] (footnotes omitted):
"In Markarian, Gleeson CJ, Gummow, Hayne and Callinan JJ adopted the explanation of the sentencing discretion given by Gaudron, Gummow and Hayne JJ in Wong v The Queen that the description of the balance struck by a sentence as an 'instinctive synthesis' is not used 'to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features'."
The sentences imposed upon Chan and Kwan are substantial and may be described accurately as stern. However, more than that needs to be demonstrated before the Court upholds a ground asserting manifest excess. Neither Chan nor Kwan has demonstrated that the sentence imposed upon him was unreasonable or plainly unjust. I would reject the ground of appeal advanced by each of them that the sentence was manifestly excessive.