Chen v R; He v R

Court of Criminal Appeal (NSW)|2018-05-11|Before: White JA, Johnson J, Harrison J

Background to the Present Applications

The Applicants were sentenced by his Honour Judge Lakatos SC together with co-offenders, Enhua Huang and Zhi Qiang Lin. Mr Chen and Mr Lin were sentenced on 17 June 2016. Mr He and Mr Huang were sentenced on 25 August 2016.
Mr Lin was sentenced for an offence of knowingly taking part in the supply of a large commercial quantity of a prohibited drug for which the maximum penalty is life imprisonment with a standard non-parole period of 15 years. He was sentenced to a term of imprisonment of eight years comprising a non-parole period of five-and-a-half years and a balance of term of two-and-a-half years.
Mr Huang was sentenced for an offence of supplying not less than a large commercial quantity of a prohibited drug for which the maximum penalty was life imprisonment with a standard non-parole period of 15 years. He was sentenced to a term of imprisonment of 10 years comprising a non-parole period of seven years with a balance of term of three years.
On 14 December 2017, this Court (Hoeben CJ at CL, Davies and Bellew JJ) allowed an appeal against sentence by Mr Huang and resentenced him to a term of imprisonment of seven years and six months comprising a non-parole period of five years and three months with a balance of term of two years and three months: Huang v R [2017] NSWCCA 312.

Facts of the Offences

All four offenders were before the sentencing Judge at a single sentencing hearing which commenced on 29 February 2016.
The facts of the offences were not in dispute.
On 12 May 2014, Mr Huang negotiated with an undercover police officer ("UCO") and agreed to supply 15 kilograms of ephedrine at a price of $80,000.00 per kilogram. The large commercial quantity for ephedrine is five kilograms.
On 20 May 2014, Mr Huang and the UCO met at a carpark in Auburn. The UCO showed Mr Huang the money ($1.2 million in cash). Mr Huang then spoke to Mr He to arrange for the latter to attend with the drugs. A short time later, Mr He and Mr Chen arrived.
Mr He handed Mr Huang a bag containing five kilograms of ephedrine. The drugs were then handed to the UCO. There was then a discussion about the remaining drugs (10 kilograms). Mr Huang said they would arrive in a few minutes.
Meanwhile, Mr Chen spoke to Mr Lin who was either in or near a car that Mr Lin had provided, knowing it was to be used in a drug transaction. Mr Chen removed a backpack containing 10 kilograms of ephedrine from the boot of the vehicle and took it to Mr Huang and the UCO. After the UCO was shown the contents of the bag and Mr Chen was walking away, police swooped and arrested Mr Huang, Mr Chen and Mr He.
Mr Huang was arrested next to the UCO's vehicle. Mr Chen, who was quite some way across the carpark, attempted to flee but was captured and arrested. Mr Chen has been an illegal immigrant since 15 March 2011.
Mr Lin had driven away from the place where he met the Applicants and got into another vehicle. He was then arrested along with other people in the vehicle.
Mr He drove his vehicle out of the carpark. He was blocked by police and reversed violently away from the police vehicle, but was obstructed from behind by the police and arrested.
A Toyota vehicle registered to Mr He was searched and the police located, amongst other property, two foreign exchange records disclosing the exchange of Australian dollars for Chinese currency in sums of about $9,000.00 and $18,500.00, a large number of resealable plastic bags and a bill of lading pertaining to a container used to import illegally 42 kilograms of ephedrine in the name of a Chinese man, Mr Shi Teng Fei, who was said to be residing at an address in Park Road, Auburn. A number of the items were examined and were found to test positive for ephedrine.
Police attended the premises at Park Road, Auburn and discovered they comprised a sparsely furnished unit which was devoid of clothing and personal effects. The premises appeared to be used as a safe house.
Police also searched the premises at Wilmot Road, Auburn where Mr He resided and found multiple documents and two passports in his name, three mobile phones, digital scales and food saver bags including a sealed food saver bag containing 22 grams of ephedrine, the purity of which was assessed at 78.5% (the Form 1 charge with respect to Mr He).
The scales found in Mr He's premises tested positive for ephedrine and his fingerprint was located on them as well as on a box containing the bags.
Analysis of the two bags showed there was a total of 14.935 kilograms of ephedrine with a purity of 77.5% and 78.5% respectively.
Traces or presumptive evidence of ephedrine was found on a number of items as well as on Mr He's jeans and singlet and also on the jeans of Mr Chen.

Extension of Time Required by Mr Chen

By Notice of Application for an Extension of Time to Appeal filed 20 March 2018, Mr Chen seeks an extension of time to bring the present application for leave to appeal against sentence. The delay in bringing the application is explained by reference to the decisions of this Court in Huang v R and Lin v R.
The Crown does not oppose an extension of time in this case and it is appropriate that time be extended to permit the present application for leave to appeal to be brought.

Grounds of Appeal Upheld by this Court Concerning the Co-Offenders

Before moving to consider the grounds of appeal in these applications, it is appropriate to note the grounds upheld by this Court in the appeals of the co-offenders which led to their resentencing.
In Huang v R, the Court (Davies J, Hoeben CJ at CL and Bellew J agreeing) upheld a ground of appeal which asserted that the sentencing Judge had erred in finding the offence was aggravated pursuant to s.21A(2)(o) Crimes (Sentencing Procedure) Act 1999 in that it was committed for financial gain. Having considered the relevant authorities on this issue, which require a sentencing court to consider in a case of drug supply whether any financial gain obtained was significant before the aggravating factor in s.21A(2)(o) is engaged, Davies J said at [60]-[61]: "60 On the paucity of evidence available, I do not consider that it can be concluded that any financial reward to be received by the applicant was 'significant' nor that it was more than was likely to be inherent in the offence which involved the supply of a large commercial quantity (cf. the amounts in Wat at [47]). 61 It is clear that his Honour regarded the financial reward as an aggravating factor given the three separate references to it ([45], [58] and [59] above). There was no evidence to justify a finding that the financial reward was more than was inherent in the offence itself."
It was the upholding of this ground which led the Court in Huang v R, on resentencing, to impose the sentence referred to above.
Mr He's first ground of appeal is expressed in similar terms to the ground upheld in Huang v R.
In Lin v R, a similar ground of appeal was upheld by the Court. Basten JA and Hamill J delivered separate judgments with Bellew J agreeing with each of them. Having referred to authorities with respect to the "financial gain" ground, Hamill J said at [44]-[45]: "44 Ground 3 in Mr Huang's appeal asserted a similar (but not identical) error to that advanced by the applicant in relation to the treatment of financial gain as an aggravating feature. In Mr Huang's case the ground was advanced by reference to the lack of evidence of precisely what Mr Huang was to receive as a result of his involvement. Davies J (with whom Hoeben CJ at CL and Bellew J agreed) upheld this ground noting at [61]: 'There was no evidence to justify a finding that the financial reward was more than was inherent in the offence itself.' 45 I am satisfied that his Honour fell into a somewhat similar, but not identical, error in sentencing the applicant. His Honour was prepared to act on the only evidence available, that is, that the applicant was promised $2,000 for his involvement. In the context of a transaction involving a payment of $1.2 million (to Mr Huang) it is difficult to accept that the applicant's receipt of $2,000 constituted the kind of financial gain that would further aggravate the offence. It may be that his Honour merely identified the aggravating feature under s 21A(2) and then included that feature when he spoke more generally about the objective seriousness of the offence. However, reading the two passages in context and in the context of the whole of the judgment, it appears that there was 'double counting' of this factor. The approach to financial gain was different to the approach to planning. The former was specifically referred to as an 'aggravating … circumstance in the Crimes (Sentencing Procedure) Act'."
As a result of the resentencing of the co-offender in Huang v R, reliance was placed upon a parity ground in Lin v R. Basten JA noted the relationship between the sentences at [4]: "In the earlier judgment the sentencing judge sentenced Lin and Chen to imprisonment for 8 and 7 years respectively, with non-parole periods of 5 years 6 months and 5 years respectively. In the later judgment he imposed sentences of 9 years on Mr He (with a 6 year 3 month non-parole period) and 10 years on Mr Huang (with a 7 year non-parole period). He made extensive references to the circumstances of Lin and Chen in sentencing Huang and He. It must be accepted that there was a careful correlation between the respective sentences, designed to reflect their relative levels of culpability and, to an extent, a limited degree of disparity in their personal circumstances. The overall sentences were 7 years, 8 years, 9 years and 10 years; the non-parole periods increased by 6 months, 9 months and 9 months respectively, from the baseline of 60 months imposed on Mr Chen."
Basten JA noted the history of Mr Huang's appeal and then said at [7]-[8]: "7 Ground 5, however, complained of disparity between the sentence imposed on the applicant (and by implication Mr Chen) and those found to be more culpable, namely Mr Huang and Mr He. The submissions acknowledged that each of Huang and He received higher sentences, but submitted that the disparity was inadequate to reflect the differences in their respective levels of culpability. Prior to the reduction of Mr Huang's sentence, I would have also dismissed this ground of appeal. There was no ground of manifest excess raised by Mr Lin. However, because Mr Huang's sentence has now been substantially reduced by this Court, without reference to the careful structuring of the sentences as between the co-offenders, it seems difficult to resist the conclusion that the Court must intervene to reduce Mr Lin's sentence, he having expressly challenged the inadequate disparity between his sentence and that imposed by the sentencing judge on Mr Huang. 8 Mr Huang's head sentence and non-parole period have each been reduced by 25%. To reduce the applicant's sentence proportionately would require that he serve a 6 year sentence with a non-parole period of 4 years 1 month. Assuming that the sentencing judge achieved a reasonable proportionality between the respective sentences, it would follow that both Mr He and Mr Chen are now serving sentences which could not be supported. Nevertheless, they have no appeals before this Court and Mr Lin does, including a ground to which this Court must respond. These circumstances suggest an element of caprice in the administration of justice, but it is a consequence of individual offenders taking different forensic decisions. Accordingly, although the mechanism by which the result has been achieved is unfortunate, in my view the following orders must be made: … "
With respect to the parity ground, Hamill J said at [48]-[51]: "48 Because I would uphold ground 3 [the 'financial gain' ground], it may not strictly be necessary to resolve ground 5 [the parity ground] because, in exercising the sentencing discretion afresh, the Court must apply the principles of equal justice by considering the sentences imposed on the co-offenders, including the sentence imposed on Mr Huang following his successful appeal. 49 I would only say that the reasons for the differences in the sentences imposed on the applicant (8 years with a non-parole period of 5½ years) and Mr Chen (7 years with a non-parole period of 5 years) are not readily apparent or persuasive. There was some evidence that the applicant directed Mr Chen to carry the package from the car to the transaction. However, both young men were operating at a very low level and Mr Chen was involved in both the first (5kgs) supply (albeit that he was not charged with that offence and his involvement was minimal and peripheral) and also the subsequent (10kgs) transaction. The applicant was only involved in the latter transaction. His Honour accepted that Mr Chen was a courier and not the owner of the drugs or a principal in the transaction. Those latter two observations apply equally to the applicant. The act of lending the car for the purpose of transporting the drugs to the second (10kg) transaction was no more critical to the enterprise than Mr Chen's act in accompanying Mr He to the vicinity of the first (5kg supply) meeting and then delivering the drugs himself in the second (10kg) transaction. However, it is unnecessary to resolve this ground and appropriate to pay some deference to the discretionary judgment of the judge who sentenced all four offenders. 50 In relation to the sentences imposed at first instance on the more senior offenders, there was nothing remarkable about the extent of the difference between those sentences and the sentence imposed on the applicant. Judge Lakatos sentenced Mr Huang to 10 years with a non-parole period of 7½ years. Mr He was sentenced to 9 years with a non-parole period of 6 years and 3 months. There was an appropriate proportion between those sentences and that imposed on the applicant. 51 However, now that Mr Huang's sentence has been reduced to 7½ years with a non-parole period of 5 years and 3 months (a shorter sentence than that imposed on the applicant), the proportions between the sentences imposed by the sentencing judge has been disturbed. Given their respective roles and positions in the hierarchy, the applicant is entitled to have a justified sense of grievance. As I have said, these matters must be considered in exercising the sentencing discretion afresh."

The Present Grounds of Appeal

It is against this background that I move to the grounds of appeal in the present applications.
In light of the decisions of this Court with respect to Mr Huang and Mr Lin, the Crown conceded that the parity ground is made out in each case and that a lesser sentence is warranted in the circumstances.
In my view, the Crown concession with respect to the parity ground in each application was properly made.
It is open to the Applicants to advance parity grounds in this Court by reference to sentences imposed subsequently upon co-offenders: Jones v The Queen (1993) 67 ALJR 376 at 377. As a result of the sentences imposed by this Court with respect to Mr Huang and Mr Lin, each of the Applicants is left with a justifiable sense of grievance arising from the disparity in the sentences imposed upon those co-offenders: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at 474-475 [31].
It is the case that each of the four co-offenders was sentenced in accordance with usual and appropriate practice by the same Judge: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 617, 622; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 320. However, the relationship between the various sentences imposed upon the co-offenders at first instance has been altered as a result of the sentences imposed by this Court on appeal with respect to two of them. The careful correlation between the respective sentences, designed to reflect their relative levels of culpability, has been altered: Lin v R at [4] (Basten JA). The proportions between the sentences imposed by the sentencing judge has been disturbed: Lin v R at [51] (Hamill J).
The disparity between the sentences imposed upon the present Applicants and those co-offenders who have been resentenced by this Court is such that there is an objectively justifiable sense of grievance concerning the sentences imposed on each of them compared to those passed with respect to the co-offenders: Lin v R at [8] (Basten JA).
Although it is not strictly necessary to determine the first ground of appeal advanced by Mr He, I am satisfied that that ground should be upheld as well applying similar reasoning to that adopted by this Court in Huang v R and Lin v R. Although it was a passing reference only, his Honour adopted the same approach to the "financial gain" issue with respect to Mr He as had been taken concerning Mr Huang and Mr Lin when considering aggravating and mitigating factors arising under s.21A Crimes (Sentencing Procedure) Act 1999.
Having made these findings with respect to the grounds of appeal, it is appropriate now to move to resentencing each Applicant in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Resentencing Mr Chen

Mr Chen's offence involved 10 kilograms of ephedrine, the same quantity as Mr Lin, but less than the quantity of 15 kilograms for which Mr He and Mr Huang were sentenced.
Mr Chen's role was that of a courier. He was taken to the scene by Mr He and, at the direction of others, he carried a backpack from Mr Lin's car to the UCO's vehicle where he placed it as directed by Mr Huang. The sentencing Judge found that Mr Chen's involvement was at the lowest end of participation so far as the known co-offenders were concerned. His Honour said (AB20): "[Mr Chen's] role in the criminal offence appears to be merely … to be present and carry a large quantity of drugs from one vehicle to another. In that sense he appears to be at the lowest end of participation so far as the known co offenders are concerned, even by comparison with Mr Lin, who I have noted supplied his girlfriend's car and otherwise assisted. So far as the four offenders with whom I am dealing, it is quite clear that Mr Chen had the least role. In my opinion given the role of this offender he is in a lower position of the hierarchy than Mr Lin and by reason of that fact warrants a slightly lesser sentence."
Mr Chen was 22 years old at the time of the offence. He is a Chinese national who came to Australia in 2008 on a student visa which was cancelled in 2011, leading to him being an unlawful non-citizen since 15 March 2011. His Honour noted that Mr Chen will be deported when he is released from prison.
The sentencing Judge noted that Mr Chen had never used illicit drugs, but had a gambling problem and had borrowed significantly for poker machine and casino activities. Mr Chen sought to attribute his involvement in the offence to his gambling debts, but this was not accepted by the sentencing Judge given the nature of the evidence.
Mr Chen has no prior convictions and was accepted by the sentencing Judge as being of prior good character and as being remorseful. His Honour was unable to make a finding with respect to Mr Chen's prospects of reoffending or rehabilitation. A finding of special circumstances was made by reference to his need for rehabilitation.
In all the circumstances and, in particular, the sentence imposed upon Mr Lin by this Court, I am satisfied that a lesser sentence should be imposed upon Mr Chen.
The Crown submitted that no lesser sentence than that imposed on Mr Lin by this Court should be fixed with respect to Mr Chen. In this respect, the Crown relied upon the observations of Hamill J in Lin v R at [49] (set out at [38] above), where his Honour questioned the distinction drawn between Mr Lin and Mr Chen by the sentencing Judge.
I am satisfied that the findings of the sentencing Judge should be implemented on resentencing so that the sentence to be passed on Mr Chen should be less than that imposed on Mr Lin by this Court. I do not consider that the observations of Hamill J, when fairly read, operate to deprive Mr Chen of the benefit of the finding made in his favour by the sentencing Judge.
In the event that this finding was made, counsel agreed with respect to the sentencing outcome following the earlier decisions of this Court, applying a 25% reduction to the sentence. The appropriate sentence for Mr Chen should comprise imprisonment for a period of five years and three months commencing on 20 May 2014 with a non-parole period of three years and nine months.
The effect of these orders will be that the non-parole period expired on 19 February 2018 so that Mr Chen is eligible for release on parole. However, the Court understands that Mr Chen remains an unlawful non-citizen so that, upon his release from custody, he will be liable to remain in immigration detention pending his deportation from Australia.

Resentencing Mr He

Mr He's offence involved 15 kilograms of ephedrine as well as the Form 1 offence of possession of a quantity of ephedrine which is to be taken into account on sentence in his case.
The sentencing Judge found the criminality of Mr He was less than that of Mr Huang. His Honour concluded that Mr He occupied a secondary role to the leader and organiser (Mr Huang) so that he stood at the second tier of the known hierarchy involved in this joint criminal enterprise.
Mr He was 23 years of age at the time of the offence. He is a Chinese national who came to Australia in 2007 at the age of 17 years on a student visa. He met his girlfriend, also from China, and a son was born of the relationship in 2009 with them marrying in 2011. A second son was born to them that year. In 2011, he was granted permanent residency in Australia and he worked on and off thereafter as a labourer.
Mr He has no prior criminal history and a finding of prior good character was made in his favour. The sentencing Judge reached no firm conclusion on issues of remorse and his prospects of reoffending and rehabilitation.
The sentencing Judge noted that Mr He began using the drug "Ice" several months before the offence and claimed to have a gambling addiction spending $500.00 to $1,000.00 per week on card games and poker machines. His motivation in becoming involved in the offence was said to be to clear his gambling and drug debts with him owing some $20,000.00.
The sentencing Judge found special circumstances in his case arising from his need for rehabilitation and issues concerning gambling.
In all the circumstances, including parity considerations, I am satisfied that a lesser sentence is warranted in his case.
Applying the 25% reduction which has operated for the co-offenders, Senior Counsel for Mr He and the Crown agreed that this approach should see imposition of a sentence of imprisonment for six years and nine months commencing on 20 May 2014 with a non-parole period of four years and eight months.

Conclusions and Orders

I propose the following orders with respect to Mr Chen: 1. extend time for the filing of a Notice of Intention to Seek Leave to Appeal to 20 March 2018; 2. grant leave to appeal against sentence; 3. quash the sentence imposed in the Sydney District Court on 17 June 2016 for the offence of knowingly taking part in the supply of a large commercial quantity of a prohibited drug and, in its place, sentence Mr Chen to imprisonment for a term of five years and three months, comprising a non-parole period of three years and nine months commencing on 20 May 2014 and expiring on 19 February 2018 with a balance of term of one year and six months commencing on 20 February 2018 and expiring on 19 August 2019; 4. note that Mr Chen is eligible for release to parole although it appears that, upon release from custody (and subject to decisions by the State Parole Authority and the Commonwealth Department of Home Affairs), he will be held in immigration detention pending his deportation from Australia.
With respect to Mr He, I propose the following orders: 1. grant leave to appeal against sentence; 2. quash the sentence imposed at the Sydney District Court on 25 August 2016 for the offence of supplying not less than the large commercial quantity of a prohibited drug and, in lieu thereof, taking into account the offence of possession of a prohibited drug on the Form 1, sentence Mr He to a term of imprisonment for six years and nine months comprising a non-parole period of four years and eight months commencing on 20 May 2014 and expiring on 19 January 2019 with a balance of term of two years and one month commencing on 20 January 2019 and expiring on 19 February 2021; 3. note that Mr He will be eligible for release on parole on 20 January 2019.
HARRISON J: I agree with Johnson J.

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Grounds of Appeal

By Notice of Application for Leave to Appeal filed on 20 March 2018, Mr Chen relied upon the following grounds of appeal: 1. Ground 1 - that following the decisions of Huang v R [2017] NSWCCA 312 and Lin v R [2018] NSWCCA 13 there is a disparity in the sentence of Mr Chen to his co-offenders; 2. Ground 2 - that in all the circumstances, the sentence is manifestly excessive.
By Notice of Application for Leave to Appeal filed on 22 March 2018, Mr He relied upon the following grounds of appeal: 1. Ground 1 - the sentencing Judge erred in finding the offence was aggravated pursuant to s.21A(2)(o) Crimes (Sentencing Procedure) Act 1999 in that it was committed for financial gain. 2. Ground 2 - parity. 3. Ground 3 - the sentence imposed is manifestly excessive.

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