Choy v R

Court of Criminal Appeal (NSW)|2022-07-22|Before: Beech-Jones CJ, Price J, Lonergan J, Jones CJ

JUDGMENT

BEECH-JONES CJ at CL: I have read the reasons of Lonergan J. Save for one matter I agree with her Honour's reasons. However, in light of the conceded error that flows from this Court's decision in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 it is not necessary to consider further the Crown's concession that error is made out simply because of the discrepancy between the ratio of the non-parole period to the head sentence for the sentence imposed on this applicant and that imposed on the co-offender, Mr Heng. I agree with the orders proposed by her Honour.

Facts of the offending

On 14 May 2013, a consignment of 258 packages of "furniture" left Shenzhen in China aboard a freighter vessel and arrived at Port Botany on 25 May 2013.
Throughout May 2013, Wan sought and obtained premises for a clandestine drug laboratory. In early June, he signed a new lease for premises in Stoney Creek Road, Beverly Hills (the "Beverly Hills premises"), being the location of the laboratory.
Between 24 April 2013 and 24 May 2013, the applicant and Heng had numerous discussions about leasing a warehouse at Unwins Bridge Road, St Peters ("St Peters warehouse").
Between 1 January 2013 and 3 June 2013, the applicant had conversations with a removalist whilst receiving instructions from Heng to arrange the transportation of the consignment to the St Peters warehouse. The consignment was unloaded on 3 June 2013, while the applicant was present. Shortly thereafter, Heng arrived.
On 4 June 2013, the applicant collected Wan from the Beverly Hills premises and went to the St Peters warehouse at about 1:00pm. For about three hours the applicant, with Wan, moved boxes around the warehouse and finally unloaded 21 boxes into the applicant's vehicle. Thereafter they drove to the Beverly Hills premises.
On 5 June 2013, the applicant drove to the Beverly Hills premises and collected Wan and drove to St Peters. They were moving boxes for about an hour. The applicant moved boxes with Wan again on 6 and 7 June 2013. On 5 June 2013, co-offender Kwok arrived in Australia from Hong Kong.
In the early afternoon of 8 June 2013, the applicant met a Caucasian male and took possession of a blue pump and a cardboard box. In telephone conversations the applicant and Heng and Wan discussed what was needed to set up a large clandestine methylamphetamine laboratory.
Wan and Kwok returned to the Beverly Hills premises after shopping at Hurstville, carrying shopping bags which included cardboard boxes and plastic tubs. Throughout 10 and 11 June 2013, sounds consistent with the movement of items and the use of the premises to make drugs were heard and recorded within the Beverly Hills premises.
On 11 June 2013, further conversations were heard and recorded between Wan and Kwok indicating that they were continuing "the cooking process". There was an agreement between them to call the person identified as "boss number 1" or "big boss". The cooking process continued through 12 June 2013. From time to time Wan and Kwok left the Beverly Hills premises and attended hardware and appliance stores and a supermarket to purchase sundry items, all in aid of the preparation of methamphetamine.
On 14 June 2013, surveillance captured activity consistent with Wan and Kwok continuing the cooking process. On the evening of that day, Kwok received a call from the person identified as "boss number 1" or the "big boss" and advised that drugs would be available on Monday. There were conversations about drugs being of a different style and quality. The cooking process continued on 15, 16 and 17 June 2013.
Between April and May 2013, a number of telephone conversations between Heng and a further identified person were intercepted on falsely subscribed telephone services. After the arrival of the consignment in June 2013, that person and Heng continued to communicate concerning the distribution of drugs, resulting in that person arriving in Sydney and being picked up by Heng.
At 5:30pm on 17 June 2013, Wan and Kwok were arrested in a taxi in Beverly Hills in possession of two bags which contained, in one bag, 13 plastic clip seal bags each containing approximately one kilogram of white crystal substance and, in the other bag, three plastic clip seal bags each containing one kilogram of a similar substance.
A forensic examination of the Beverly Hills premises showed that the premises were being used for drug manufacturing processes. Police seized a large quantity of white crystalline substance found in three rooms, concealed within laminated furniture panels.
The total calculated pure weight of methamphetamine imported was 73.80 kgs. 61.1547kgs of pure methamphetamine was found at the Beverly Hills premises, of varying degrees of purity. 12.6492kgs of pure methamphetamine was found in the 16 clip seal bags in the taxi, with a purity assessed as between 77.4% and 80.3%.
The sentencing judge found that each offender had previously been involved in a similar drug enterprise together in Australia during January and early February 2013. This was proved beyond reasonable doubt on the basis of numerous recorded conversations (including with the applicant), as well as records of Wan's and Kwok's international movements. Accordingly, the sentencing judge found the offences were not isolated but were part of a sophisticated system of trafficking in prohibited drugs in which each offender was involved. The applicant was thus not entitled to leniency that would otherwise apply on the basis of no serious prior breaches of the law. (He had two prior convictions in any event, for maliciously inflict grievous bodily harm and armed robbery with offensive weapon for which he served prison sentences.)
The sentencing judge accepted the Crown's submission that despite playing a subordinate role to Heng (like Wan to Kwok), the applicant's role was nonetheless significant and his conduct objectively serious. His Honour rejected the applicant's submission that he was "at the lower end of the scale" saying "there is ample evidence to set out the propositions of fact which the Crown alluded to" and concluding the applicant "played a significant part" in the enterprise. They were, as set out in his Honour's findings, that the applicant: 1. together with Heng, assisted Wan between late April 2013 and late May 2013 in locating a premises for the clandestine laboratory; as well as assisted Heng in roughly the same time period to obtain a storage unit at St Peters; 2. liaised with a removalist company to arrange for the transportation of the consignment to the St Peters address; 3. collected the consignment from the consignee with the assistance of a removalist and unloaded it; 4. with Wan, separated the boxes with the drug concealed in them from the remainder of the consignment and loaded them into a van and transported them to the Beverly Hills premises; 5. liaised with Heng and Wan using falsely subscribed telephone numbers; 6. on Heng's instruction, and at the request of Wan, collected items to be used in the manufacturing process; 7. on Heng's instruction, liaised with Wan about the need for the manufacturing process and was on standby to help if required; 8. met with Wan and collected something from him, then delivered it to Heng (being a sample of the manufactured drugs); and 9. with Heng tested a substance received from Wan.
His Honour accepted the Crown's contention that the applicant knew that there was a massive quantity of illicit drugs involved.
The sentencing judge found that the hierarchy of known offenders consisted of Kwok at the apex, and the applicant and Wan at an "equal level" below him. His Honour found that the applicant engaged in the conduct "on occasions on directions (from Heng) and on other occasions using his own initiative as a trusted part of a larger criminal enterprise".
All of them were "indispensable to this significant criminal enterprise and properly described as a sophisticated operation". His Honour found that "each of them became involved in the process with the knowledge that very large quantities of drugs were in contemplation and with the knowledge that such drugs were intended to be on supplied or on-sold with, a view to earning a very large financial reward". His Honour concluded the offences were "amongst the most serious offences of this kind", warranting condign punishment.
Kwok was found to play a significant and high-level role in the enterprise, travelling to Australia for the specific purpose of manufacturing and supplying large commercial quantities of methamphetamine. Wan performed a crucial facilitating role in the preparation phase for the manufacture and in the supply of large quantities of the drug.
In the separate remarks on sentence dealing with Heng, his Honour found that Heng performed a high-level directing role in the importation (of the applicant) and a crucial facilitating role in the manufacture of a large commercial quantity of methamphetamine. Heng's conduct fell into the upper range of objective seriousness.

Sentencing judge's findings regarding the applicant's subjective case

There was a psychiatrist report by Dr Stephen Allnutt dated 4 June 2015 which referred to a past diagnosis of schizophrenia, although his Honour concluded that there was "great difficulty in understanding or knowing to what extent he suffers from schizophrenia and to what extent he properly reported his symptoms", including to Dr Allnutt. The sentencing judge had some regard to the applicant's mental illness and the fact it might work some difficulty in his custodial setting. The applicant "appeared to be sufficiently astute and resourceful to carry out part of a reasonably complicated criminal enterprise involving his undertaking many tasks albeit some of them menial".
Relevantly, his Honour rejected the applicant's suggestion that he became aware of the nature and scope of the enterprise belatedly. His Honour was not satisfied that the applicant was genuinely remorseful and concluded that he was not able to make an assessment of prospects of rehabilitation.

Sentencing judge's findings regarding discount for early plea of guilty

As already observed, Xiao had not been decided at the time the applicant was sentenced and so there was no explicit taking into account of the utilitarian value of the plea when applying s 16A(1)(g) of the Crimes Act, although his Honour did expressly recognise that the applicant's plea facilitated the course of justice.
His Honour made specific remarks regarding the applicant's withdrawal of the initial guilty plea, including an abandoned appeal to this Court to withdraw the plea: "… the offender entered pleas of guilty initially before the Local Court but subsequently withdrew those pleas. For reasons expressed below I consider that he should be accorded a lesser discount for facilitating the course of justice. I have quantified it, but I note that, pursuant Commonwealth legislation, quantification remains unnecessary." [1] And later in the remarks: "... the Crown points out the fact that the offender Mr Choy initially pleaded guilty in late 2014 but then unsuccessfully applied to withdraw his pleas in this court and appealed to the Court of Criminal Appeal to contest Acting Judge Garling's decision which did not allow him to withdraw his pleas. That was ultimately withdrawn in 2016 and the offender then proceeded with his guilty plea in this court. In my view, clearly enough, he has to a certain degree facilitated the course of justice and shown contrition, but it is hardly an early plea, and it is hardly unqualified contrition…" [2]
In the concluding parts of his remarks, the sentencing judge indicated that he "took into account the late plea of guilty by Mr Choy" and concluded "I have said, I have taken into account to a limited degree the fact that you have facilitated the course of justice but the discount which I have given if I could put it in that way is significantly less by the late plea of guilty". [3]
His Honour did not specify the percentage reduction applied to reflect that facilitation of the course of justice via that guilty plea, but when sentencing the co-offender Mr Heng in June 2018, he referred to having allowed the applicant a 10% discount to the applicant for a late plea citing the history of having withdrawn the guilty plea and thereafter continuing with them. [4]

This appeal

The grounds of appeal are stated as follows: 1. That in determining the appropriate discount to reflect the value of the applicant's plea of guilty in accordance with s 16(a) to (g) of the Crimes Act the sentencing judge did not have regard to the utilitarian value of the applicant's plea of guilty. 2. There is a disparity in the sentences imposed upon the co-offender Chan Heng and the applicant such as to give rise to justifiable sense of grievance by the applicant.
As noted, the Crown has conceded error in respect of both grounds of appeal but has not conceded that a lesser sentence was warranted and should have been passed for the reasons explained in the written submissions to which I will come to. There is in my view no question that there was Xiao error, the sentencing judge reflecting in his remarks the approach that was taken at the time to sentencing in Commonwealth matters.
Given this error, it falls to this Court to re-sentence the applicant.
There is a preparatory issue which needs to be dealt with regarding extension of time within which to appeal.

Extension of time

There was obviously a long delay between the date the applicant was sentenced, August 2016, and the filing of his appeal in April 2022, however the affidavits of Mr Eccleshall and the applicant explain that delay.
The applicant filed a Notice of Intention to Appeal on 6 September 2016 and applied for legal aid shortly after he was sentenced. His application was rejected due to a failure by the applicant to provide certain information requested by Legal Aid shortly after his application was submitted. The applicant deposed to having not seen or having not understood the relevance of the written request. There were further efforts to engage a solicitor privately with money provided by his mother, however that money ran out by early 2018. Extensions were provided by the Registrar to the Notice of Intention to Appeal until the end of September 2018 when a further extension was refused.
Subsequent advice provided in March 2019 by a barrister to a Mr Galloway (a new solicitor retained via a partial grant of Legal Aid) in March 2019 made no reference at all to Xiao and concluded that there were no prospects of success of an appeal.
In the background, given the decision in Xiao in February 2018 followed by Huang in April 2018, solicitors at the Legal Aid Office sought advice as to the effect of these decisions on those sentences that had proceeded on the basis of no discount applying to reflect the utilitarian value of an early guilty plea in Commonwealth matters. Action included liaison with the Commonwealth DPP and with the Department of Corrective Services to try and identify which inmates may meet the relevant criteria and to obtain the relevant sentencing remarks from the various sentencing courts. Unsurprisingly this process took some time. There were delays during 2018 and 2019 associated with organising the best way to proceed, obtaining the sentencing remarks and organising the funding and staffing of an appropriate review team amongst the demands of other ongoing work. Priority was based on those sentenced offenders who had an earlier parole date. (The applicant's earliest parole date was 2028).
I accept that the applicant was first informed by Ms Knowles of the Legal Aid Office in late 2019 that his sentence may be affected by Xiao error. There were further steps to be taken, including collating relevant documents and obtaining the 2018 remarks on sentence for the co-offender Mr Heng.
In February 2022 Mr Eccleshall received an Advice from Mr Steel, Public Defender, that a sentence appeal had reasonable prospects of success and that preparation of appeal submissions was under way. The appeal was filed on 8 April 2022.
This Court has discretion to extend the time within which notice of an intention to apply for leave to appeal is to be filed: s 10(1)(b), Criminal Appeal Act. In exercising that discretion the Court is to have regard to the prospects of success of the application for leave to appeal. It must also be satisfied with the explanation as to why the appeal was not brought within the relevant time period, particularly if the delay is considerable. The overarching question for the Court is whether it is in the interests of justice for the discretion to be exercised in favour of the Applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [30] to [32]: "[30] In R v Young, the Court of Criminal Appeal observed that it is impossible to foresee all of the circumstances that may bear on the determination of an application to extend time in which to seek leave to appeal against a sentence. Correctly, the Court refrained from formulating any guideline for the exercise of the discretion, holding that the application was to be determined by asking whether "it is just under the circumstances that such an order should be made". The wide discretion conferred on the Court of Criminal Appeal under the Act and Rules is to be exercised by consideration of what the interests of justice require in the particular case. Abdul was wrongly decided. It was an error to introduce in applications for an extension of time based on asserted "Muldrock error" consideration of whether refusal of the application would occasion substantial injustice. [31] The respondent's submission that, in its application, the test applied by the Court of Criminal Appeal in the appellant's case amounted to no more than the determination of "what justice requires" must be rejected. Before turning to the principal reason for that rejection, something should be said about the Court of Criminal Appeal's treatment of the relevant factors. The weighing of the factors of the length of the delay, the reasons for it and the possibility of adverse effect on the victim were matters of judgment. However, the Court went on to identify as a discrete factor against the grant of the extension that it would "offend the principle of finality". [32] The Act confers a right to appeal against conviction in stated circumstances and provides for an appeal against conviction and/or sentence with the leave of the Court. These provisions (among others) are exceptions to finality in the trial and sentencing of offenders. The principle of finality finds expression in the prescription of the time limit within which an appeal or an application for leave to appeal may be brought. The discretionary power to extend the time limit is a legislative recognition that the interests of justice in a particular case may favour permitting an appeal or an application for leave to appeal to be heard, notwithstanding that it was not brought within time. The interests of justice will often pull in different directions. As earlier noted, they may include consideration of the adverse effect on the victim, or on the community generally, occasioned by re-opening a concluded criminal proceeding. However, at least in the case of an out-of-time challenge to a sentence that is being served, the principle of finality does not provide a discrete reason for refusing to exercise the power."
As submitted by counsel for the applicant, the appeal was initially delayed by legal aid funding queries and complications, then delay around pursuing Xiao repercussions and investigating potential parity issues. Whilst a long delay, the explanation provided is detailed and reasonable. In circumstances where error is conceded and the nature of that conceded error arose from decisions of a superior court that occurred after sentence, and the delay is adequately explained, it is in the interests of justice to extend the time within which to appeal and so time should be extended accordingly.

First appeal ground - Xiao error

As submitted by counsel for the applicant, when sentencing the applicant the sentencing judge effectively eschewed any regard to the utilitarian value of his plea of guilty. That approach was entirely in line with the approach taken by sentencing courts at the time and NSW guideline judgments such as R v Thomson and Houlton (2000) 29 NSWLR 383; [2000] NSWCCA 309 ("Thomson and Houlton").
In Xiao the Court of Criminal Appeal sitting as a bench of five (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ) held: "[277] In providing for the fact of a plea to be taken into account, in our opinion, the legislature intended the encouragement of guilty pleas not only to provide evidence for remorse or contrition but to assist in the administration of justice. The principle of legality should not affect the attainment of that object. [278] In these circumstances it is our opinion that in sentencing proceedings governed by s 16A of the Crimes Act 1914 (Cth), a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458 and the cases which followed it provide to the contrary, they should not be followed."
In Huang the Court of Criminal Appeal sat comprising the same bench of five judges. At [81] Beazley P (as Her Excellency then was, and with whom the other members of the Court agreed) referred to Thomson and Houlton and the statement by Spigelman CJ (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) at [152] to [154] that the appropriate range for a discount is from 10 to 25%, with two circumstances generally affecting the appropriate level of discount in a particular case, being: 1. The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. 2. The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.
I accept that the sentencing judge not expressly taking into account the applicant's entitlement to a discount for the utilitarian value of his guilty plea amounts to error of the kind referred to in House v R (1936) 55 CLR 499 at 505; [1936] HCA 40, comprising a failure to take into account a material consideration when determining sentence.
Error has also been (properly) conceded regarding parity, the second ground of appeal, limited to disparity in the ratios between the applicant's and Mr Heng's non-parole period to head sentence in circumstances where they were sentenced separately and there were no subjective features which could explain the 5% difference in the proportions of the non-parole periods imposed. It was conceded that this has led to the applicant having a justifiable sense of grievance.
Whilst in the sentencing remarks regarding Mr Heng the sentencing judge demonstrated mindfulness of the role of parity, there is nowhere any explanation as to why the sentencing judge considered a non-parole period reflecting 66.3% of the head sentence was appropriate for Mr Heng, but that a non-parole period reflecting 71% of the head sentence was appropriate for the applicant. The Crown's concession was properly made and is accepted.

(i) Affidavit material on resentence

The applicant's affidavit outlines in broad terms his experiences since entering custody on 10 July 2013. He described two minor disciplinary matters and the efforts he has made with programs and learning English. He has worked first as a sweeper and then in the printing shop. There was a swift reduction in his security classification to the lowest security classification. The Special Offenders Review Council report from September 2020 refers to amongst other things that the applicant has an intellectual disability, low cognitive function, a history of self-harm and need for medical attention regarding a respiratory condition.
The minor misconduct reports comprised having tested positive for quetiapine, a drug which he was not prescribed at the time, (January 2017), and possession of what was described as "huge amounts of items not on his property card" including items that were not permitted in the Correctional Centre.
An extract from the Justice Health notes confirmed that since at least February 2017, if not before, the applicant has been treated with medication for schizophrenia. Assessment by a psychiatrist Dr McClure on 13 March 2017 noted that the applicant complained of hearing voices. Dr McClure also noted a history of the applicant being prescribed Olanzapine 10mg for the last 18 months, that the applicant felt stressed and worried about his family, paranoid, and that the voices were recurring. A family history of schizophrenia was noted. Dr McClure made a provisional diagnosis of chronic schizophrenia and advised a trial of quetiapine in place of olanzapine, and for the applicant to be followed up in six weeks.
A further note by Dr McClure in September 2021 recorded that the applicant had been in segregation for 24 days and that he had told Dr McClure that he was angry, anxious and could not sleep. On examination the applicant was noted to appear anxious and distressed. Dr McClure made a plan of short term increase in Clonidine given that the applicant was already taking a maximal dose of mirtazapine and that the applicant should be reviewed in 4 to 6 weeks.
Dr Kelman psychiatrist made a note on 21 October 2021 that he had been asked to review the applicant who had been refusing mirtazapine for the last two weeks. Dr Kelman noted that there was a background of schizophrenia, hypomania and personality disorder and that the applicant's mental state had settled and that there were no psychotic features. Dr Kelman recorded a plan to cease mirtazapine and if restarted it should be at a lower dose, and to refer the applicant to the mental health assessment waitlist and continue to monitor his mental state.
Appended to Mr Eccleshall's 12 July 2022 affidavit were medical records regarding the applicant's parents, confirming that the applicant's mother has a history of diabetes, spondylosis, fatty liver, asthma, gastritis, schizophrenia, tenosynovitis and in December 2021, a COVID infection. His father who is 63 years old is confirmed to suffer from serious osteoarthritis in both arms, both knees and his lumbar spine and has a significant spinal canal stenosis for which surgery had been recommended in July 2022.

(ii) Submissions

Counsel for the applicant submitted that this affidavit material first, provides evidence that supports a reduction in moral culpability based on DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 ("De La Rosa") at [171] to [178] given his diagnosed mental illness about which the sentencing judge expressed some reservations, second, evidence of good prospects of rehabilitation, a matter that the sentencing judge said he was unable to assess at the time based on material then available and third, evidence demonstrating that the applicant's time in custody will be more onerous, both on the basis of his now confirmed diagnosis of schizophrenia and the parlous state of health of his parents.
In response, the Crown submitted that despite the requirement that the sentencing discretion is to be exercised "afresh", this Court is obliged to proceed on the basis of acceptance of the factual conclusions at first instance where there is no challenge to them: DL v The Queen (2018) 265 CLR at 224; [2018] HCA 32.
The Crown also submitted that it is appropriate to adopt relevant assessments made by the sentencing judge of objective gravity and other matters, (such as remorse and prospects of rehabilitation), as those have not been the subject of challenge and the applicant does not contend that the sentence imposed on him was manifestly excessive.
The Crown submitted that no discount for the applicant's plea of guilty greater than one at the lower end of the scale, as the sentencing judge already found, is warranted. There is no automatic entitlement to a discount in Commonwealth sentencing matters for guilty pleas. While there is a conceptual difference between the subjective willingness to facilitate or co-operate in the course of justice and the objective utilitarian value of the plea, ordinarily there will be no material difference between the discount to be allowed for each consideration. The observation made in Khalid v R [2020] NSWCCA 73 by Bathurst CJ (as he then was) at [88] that since the guidance in Xiao and Singh v R [2018] NSWCCA 60, "there may be a question in many cases where [Xiao error] is identified, whether any potential utilitarian discount has been subsumed by any discount for facilitating the course of justice, or, as a demonstration of contrition and remorse", is apt.
In the present case, the sentencing judge's comments as to the late timing of the applicant's plea potentially apply to the assessment of the utilitarian value of the plea, not merely the applicant's subjective willingness to facilitate the course of justice.
In assessing the point in time at which the plea is entered, the delay from charge to plea is relevant to the assessment of the value of public resources conserved as a result of the plea: Lam v R (Cth); Lay v R (Cth); To v R (Cth) [2021] NSWCCA 242 per Wilson J at [163] (with whom Payne JA and Fagan J agreed). The sentencing judge noted that the applicant had initially pleaded guilty (in the Local Court) in late 2014, then unsuccessfully applied to the District Court to withdraw his plea (requiring a two day hearing) in 2015. This decision was then appealed to the Court of Criminal Appeal. The Crown had completed the preparation of the Application Book and submissions for the appeal ready for filing on 26 April 2016. On the same day, the applicant withdrew his appeal. He then indicated a further application would be made to withdraw his plea, which was listed for hearing and then abandoned the following month. He then proceeded with his plea. [5]
The Crown noted that the pleas of both the applicant and Heng were properly described as "late". In sentencing Heng, the sentencing judge did not quantify the discount, [6] however did take into account the utilitarian value [7] . By inference the discount given to Mr Heng was no more than 10%. [8] While the applicant did not cause the matter to be prepared for trial like Heng, he did delay his own period between charge and plea by the bringing and abandoning of contested committal proceedings, as well as the repeated bringing and abandoning of proceedings to withdraw his plea of guilty.
The Crown submitted that no lesser discount is warranted having regard to that history, the fact that the discount of 10% was given, and the fact other subjective features such as contrition did not make a significant contribution to the discount accorded.
The Crown submitted that matters raised in the affidavits served by the applicant for the purpose of resentence are not materially different from the matters known and taken into account by the sentencing judge. While the applicant has continued to experience some mental health issues in custody and his progress and behaviour have been unremarkable. The Crown submitted that this Court would be circumspect in relation to the submission that his prospects of rehabilitation are now capable of being assessed as being "reasonable" as submitted by the applicant. The sentencing judge was not able to make such an assessment at the time of sentence, in part because of the applicant's lack of candour with Dr Allnutt as to his knowledge of the enterprise and dubious contrition. [9]

(iii) Decision

I do not understand the applicant to be submitting differently to the Crown that there is no issue taken with his Honour's findings as to the objective seriousness of the offending and the applicant's role but that the applicant is asking this Court on resentence to consider first, on the basis of an appropriate discount for the utilitarian value of the plea, second, the De La Rosa aspects related to his mental health and third, the question of prospects of rehabilitation that his Honour specifically said he was unable to assess at the time of sentence. He has also raised the stress caused to him whilst in custody by the nature and extent of his parents' ill-health which is now the subject of specific medical evidence.
Dealing first with the applicant's submissions regarding De La Rosa, it is worth returning to the principles set out by McLellan CJ at CL at [177] to [178]: "[177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing. They can be summarised in the following manner: ● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. ● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. ● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. ● It may reduce or eliminate the significance of specific deterrence. ● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public. [178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence." (Citations omitted)
I also note the comments of Simpson J (as her Honour then was) in Aslan v R [2014] NSWCCA 114 at [34] to the effect that none of these principles are absolute but direct attention to considerations that experience has shown commonly arise in such cases. There is no automatic reduction in the moral culpability for offending simply because a person has a mental illness. Nor do the type of matters identified by McLellan CJ at CL in De La Rosa provide some kind of automatic basis for reduction in sentence simply because a potentially relevant mental illness is found to exist.
I am not satisfied that there is anything in the material tendered on sentence or in the affidavits read on resentence that supports a reduction in moral culpability for the applicant's offending given his diagnosed mental illness of schizophrenia. True it is that his Honour had expressed some reservations about the diagnosis given the somewhat selective and tainted history given by the applicant to Dr Allnutt, but other than confirming the applicant has a clear enough diagnosis of schizophrenia and has occasionally had some ongoing difficulties associated with it and the medications prescribed for the management of its symptoms, there is nothing connecting the condition to the offending or identifying that it had a causal role.
This issue was dealt with in the sentencing judge's conclusions where his Honour said: "So far as I am able to discern Dr Allnutt's report does not suggest that any mental illness suffered by the offender was the cause of his entering into this criminal conduct. He spoke of vulnerabilities and the fact that Mr Choy was easily manipulable. I am not convinced of that assessment, that not necessarily being a psychological/psychiatric assessment. In my view he had enough wherewithal to be able to carry out some reasonably sophisticated tasks involved here." [10]
I agree with and adopt that assessment of the opinion of Dr Allnutt and its reach. There is nothing in the psychiatrists' notes from Justice Health now tendered that makes any relevant link.
The third category referred to in De La Rosa, that a custodial sentence may weigh more heavily on the person with a mental illness, is a matter his Honour specifically addressed in his remarks noting that he: "Had regard to the mental illness and considered it that it may work some difficulties in the custodial setting. As I say I am not free from any scepticism as to the extent of it but nevertheless it appears that that may well cause his time in custody to be difficult." [11]
What the affidavit material demonstrates is that the diagnosis of schizophrenia has been confirmed by at least one treating psychiatrist in custody and the symptoms of it have on occasion since incarceration in 2016 caused some difficulty for the applicant, but it was no more or no less than what would be expected, and it certainly has not been demonstrated to be so serious that some kind of separate reduction in sentence should be recognised and applied.
In terms of prospects of rehabilitation, there is nothing in the affidavit material that sheds any light on this consideration. The fact that the applicant has only engaged in minor offending in custody, and has engaged well in work and available programs, does not really shed any light on whether he has particular prospects of rehabilitation, in circumstances where he sought to minimise his role in and understanding of this serious offending at the time of sentence to attempt to persuade the sentencing court that he was naïve and not as culpable as it appeared.
I am not persuaded that the evidence regarding the applicant's parents' state of health is significant. Although no doubt it causes the applicant some worry while he is in custody, it is not something that adds significantly to his subjective case.
I am satisfied that no lesser head sentence is appropriate given the unchallenged conclusions by the sentencing judge as to the seriousness of the offending and the applicant's central and necessary role in it. There is no basis for a lesser head sentence to reflect a reduction in moral culpability, or that the applicant is an inappropriate vehicle for special or general deterrence, or that anything about his mental health condition or circumstances will make his time in custody so onerous that a lesser head sentence is appropriate. However, acknowledging that there is no particular requirement as to the proportion of non-parole period to head sentence in matters of this type, it seems to me that a non-parole period of 14 years is sufficient to reflect the criminality of the offending and the minimum sentence that the applicant should serve and accordingly a lesser sentence is in my view warranted to that extent, and should have been passed.

Orders

I propose the following orders: 1. Extend the time for appeal to 8 April 2022. 2. Leave to appeal granted. 3. Appeal allowed. 4. The sentence imposed on the applicant by the District Court on 19 August 2016 is quashed and in lieu thereof the following sentence is imposed: 21 years imprisonment to date from 9 July 2013 to 8 July 2034 with a non-parole period of 14 years to expire on 8 July 2027.

Endnotes

Remarks on Sentence, 19 August 2016, p 2
Remarks on Sentence, 19 August 2016, p 44 to 45
Remarks on Sentence, 19 August 2016, p 54 to 55
Remarks on Sentence, R v Chan Heng, 29 June 2018, p 2
Remarks on Sentence, see Heng at [44]-[45]
Remarks on Sentence, at [43]-[44] and [47]
Remarks on Sentence, Heng at [47]
Heng v R [2019] NSWCCA 317 at [31]
Remarks on Sentence, at [14]
Remarks on Sentence, 19 August 2016
Remarks on Sentence, 19 August 2016 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: 23 February 2023

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