DPP (Cth) v Estrada; DPP

1 Conspiracy to manufacture a commercial quantity of a controlled drug is an offence against the Criminal Code (Cth), for which the maximum penalty is imprisonment for life.[1]

2 The respondents, Edward Estrada ('Estrada'), Brian Yuan ('Yuan') and Robyn Byun ('Byun'), each pleaded guilty in the County Court on 15 April 2014 to an indictment which charged that 'between about the 1st day of June 2012 and the 15th day of August 2012 at Melbourne in Victoria and divers other places EDWARD ERIC ESTRADA, BRIAN YUAN and ROBIN HO BYUN did conspire with each other, and with Lloyd Rogation, Chuck Chung Uk Choi and unknown others, to commit an offence punishable by imprisonment for a period of more than 12 months, namely an offence of manufacturing a commercial quantity of a controlled drug, namely methamphetamine, for a commercial purpose'.

3 On 23 May 2014, each respondent was sentenced to be imprisoned for five (5) years, upon which the judge fixed a non-parole period of three (3) years.

4 By notices dated 17 June 2014, the Director of Public Prosecutions for the Commonwealth ('DPP' or 'appellant') has appealed against the sentences imposed in the County Court. Each individual notice contains three identical grounds of appeal as follows:

1. The learned sentencing judge erred in failing to take into account as a relevant consideration that the Respondent had come to Australia for the purpose of committing the offence he pleaded guilty to. In imposing sentence the learned sentencing judge therefore erred in giving excessive weight to a mitigating factor, namely imprisonment being more burdensome for the Respondent due to the isolation of the Respondent from his family.
2. The learned sentencing judge erred in failing to have regard to a relevant consideration, namely the nature and scope of the conspiracy and to assess the level of criminality exhibited by the conspiracy itself.
3. The sentence and the non-parole period imposed on the Respondent are manifestly inadequate.

Particulars of Ground 3

In imposing sentence the learned sentencing judge erred in that he:

(a) failed to give sufficient weight to the nature and circumstances of the offence;

(b) failed to give sufficient weight to the principle of general deterrence;

(c) failed to give sufficient weight to the need for consistency in sentencing standards; and

(d) gave excessive weight to the Respondent's isolation from his home country.

It should be noted, however, that in the course of submissions in this Court, the Director accepted that grounds 1 and 2 are, in effect, 'particulars' of ground 3, and should be treated as such.

5 For the reasons that follow, we would allow the appeal in each case, and sentence each respondent to be imprisoned for eight (8) years, upon which we would fix a non-parole period of five (5) years.

6 As seems to have become the practice, a written 'Prosecution Opening' was tendered towards the beginning of the plea hearing (Exhibit C). When opening the prosecution's case orally, however, the prosecutor told the judge that he wanted to 'make it clear' that the opening was 'not an agreed summary of facts at all'. He said that '[t]he Crown continues to rely on all the depositions material, but this is the document that we rely on by way of openings'. His Honour responded that, 'It's the document I will go to in order to form my factual basis for sentence, subject to submissions that are put to me or any evidence that's been called'.

7 The Prosecution Opening was elaborate. It comprehensively described the nature and scope of the conspiracy, its circumstances and the roles of the various conspirators (charged and uncharged). Essentially, the prosecution's case was that the three respondents and others entered into an agreement to manufacture a commercial quantity of methamphetamine for sale. The agreement contemplated setting up a clandestine laboratory, manufacturing (or 'cooking') a quantity of methamphetamine and selling the end product (although it was not the prosecution case that the respondents necessarily would themselves perform the manufacture). When reading from the document in his oral opening, the prosecutor gave an overview of the case:

The prosecution case is that the three accused and the other alleged conspirators entered into an agreement whereby they intended to manufacture a commercial quantity of methamphetamine for a commercial purpose, that is selling it. The agreement was that materials and equipment sufficient to manufacture a commercial quantity of methamphetamine would be procured and that a process of transforming pseudoephedrine and ephedrine into methamphetamine would be carried out. In laymen's terms the agreement was to set up a clandestine drug laboratory, carry out a methamphetamine cook and sell the product.

The acts of the three accused in furtherance of the conspiracy were to (1) travel to Melbourne in June 2012, (2) rent a house at a quiet location in Greenvale that was used as a base for the operation, (3) make untraceable case purchases of chemicals and equipment (caught on store CCTVs) for the manufacture of methamphetamine, (4) use a storage unit at Kennards, Port Melbourne, to store chemicals, equipment and methamphetamine, (5) hire a series of rental cars to transport the chemicals and equipment and the storage unit, (6) communicate by using mobile phones registered in the names of other people.

Police carried out covert surveillance and tape recording of the accused's conversations in the hire cars, in telephone calls and at the storage unit. The recorded conversations indicate that the accused were afraid that police and/or a rival drug syndicate had learned of their plans and decided to leave Australia. The accused packed the chemicals, equipment and a quantity of pure methamphetamine in the storage unit, cleaned up the rental house and moved to accommodation at Crown Casino, Melbourne.

...

Police searched both the rental house and the storage unit and located drugs and drug equipment at both properties. The three accused were arrested by police at Crown Casino on 15 August 2012, the day they were booked to fly out of Australia. ...

8 For the purposes of sentencing, the judge described the offending as follows:

During the period June to mid-August 2012, the three [respondents] took part in a conspiracy to manufacture a commercial quantity of the drug, [methamphetamine]. The arrangement was to provide and/or store relevant materials and equipment to set up a clandestine [methamphetamine] laboratory. Yuan ... left Australia for five days in mid-July. The activity of [Yuan's] group within the enterprise included renting a house in Greenvale, on the outskirts of north-western Melbourne, which was used as a base; purchasing relevant chemicals and equipment; attending and using a storage unit in Port Melbourne to store chemicals and equipment. Such activity entailed using mobile phones registered in the names of others and the hire and use of rental cars to transport items and attend at the unit.

[The respondents] all came from Canada and arrived here in mid-June, within five days of each other. [The respondents] Byun and Yuan, arrived together on 14 June. Within days of [their] arrival, [and] Estrada, on 19 June, the property at Greenvale was rented and occupied by the three [respondents]. On the evidence of police surveillance, the enterprise seems to have been aborted in early to mid-August in fear of police interest or that of others in the drug trade. A precise finding on that does not matter. [The respondents] were planning to leave Australia when arrested together on 15 August.

From early August to that time there were police searches of the Port Melbourne storage unit. [The respondents] were also seen to be active there. Finally, a 15 and 16 August search revealed a large amount of chemicals, materials and equipment consistent with that required to manufacture large quantities of the drug. I find that [the respondents], and perhaps others, had stored and secured much of this in response to [the respondents'] fear of arrest or interference and prior to [their] planned departure.

A level or the magnitude is indicated by the discovery of the chemical precursors, pseudoephedrine and ephedrine, in pure quantity or weight of about 25 kilograms and 14 kilograms.[2] The Crown opening states that such quantities can practically produce about 25 kilograms of [methamphetamine] base. That is over 30 times the legislative commercial quantity threshold of 750 grams. Other relevant chemicals were found, some in similarly substantial quantities. Other smaller quantities of relevant equipment, drugs and chemicals were found at the Greenvale premises.

It is conceded by the Crown that the period of [the respondents'] conspiracy, and role within it, ended at arrest. ...

9 As the judge said, each respondent came from Canada. Byun and Yuan arrived in Melbourne together on 14 June 2012, and Estrada arrived on 19 June 2012. The prosecution alleged that the respondents had the intention to manufacture and sell methamphetamine prior to travelling to Melbourne in mid-June 2012. That this was so was contested by the respondents from the Bar table, each asserting through counsel that their involvement only occurred shortly after their respective arrivals in Melbourne.

10 The respondents were arrested on 15 August 2012. At the conclusion of a

contested committal in April 2013, the respondents pleaded not guilty,[3] and a trial was fixed for February 2014. Following negotiations, however, the respondents first entered guilty pleas on 17 December 2013.

11 Counsel for Estrada submitted that if the prosecution wanted the judge to sentence him on the basis that he was party to an agreement prior to him coming to Australia, then the judge would need to be satisfied about that beyond reasonable doubt. The totality of the material did not bear out the prosecution's case on that point.

12 Counsel submitted that Estrada was a man with no prior criminal history. He had a certain naivety and lack of sophistication so far as the criminal enterprise was concerned. Estrada had grown up with Byun in Canada, and they would socialise together, but he did not know Yuan prior to coming to Australia. Estrada had suffered financial problems before coming to Australia. In June 2012, he was in the Philippines attempting to overcome problems with his migration business. While there, he received an offer - which he accepted - to come to Australia to gamble. He became involved in the conspiracy after he had arrived in Australia and joined Byun.

13 Evidence was called on the plea from Estrada's brother as to his personal circumstances, and to establish that he would have work available to him in Canada upon his return.

14 It was submitted that Estrada would be isolated in custody in this country.

15 Counsel for Yuan submitted that there was no evidence as to where the agreement was entered into. If the prosecution wished to contend as an aggravating factor that the respondents were recruited as part of the conspiracy in Canada before being sent to Australia, it bore the onus of proving that fact to the criminal standard, and would need to adduce evidence to do so. Further, counsel challenged the role attributed to his client by the prosecution. Senior counsel submitted that the evidence did not show that he had significant involvement. In discussion, however, counsel agreed with the judge's suggestion that, given the gravamen of the offence is an agreement, there was no sensible way to distinguish the roles of the three respondents.

16 It was submitted that Yuan came to Australia to play poker at the same time as Byun. Once in Australia, Yuan discovered that his wife had lost a great deal of money gambling in China, so he joined the conspiracy hoping for financial reward.

17 Counsel relied on the fact that - since he had no support in Australia, and no relatives or friends - Yuan had found custody very difficult, lonely and extremely isolating. It was submitted that the respondents were vulnerable, first offenders, and that they were selected for their vulnerability. Although counsel accepted that the need for general deterrence in cases such as this was high, that did not dictate in this case a substantial term of imprisonment. The sentence to be imposed should be tempered with some mercy.

18 For Byun, it was submitted that the judge could not be satisfied beyond reasonable doubt that the respondents were recruited in Canada, and came to Australia with the intention of being involved in the conspiracy. Counsel submitted that the prosecution's assertion that Byun came to Australia as part of the conspiracy was unsupported by the evidence, although the judge may not be able to make a positive finding at all about timing.

19 Byun, it was submitted, had incurred substantial debts. He came to Australia to gamble, but became part of the conspiracy when offered a means of getting out of debt.

20 Counsel submitted that his client's plea could be categorised as early; and the fact that he had become a disability mentor whilst in custody boded well for his prospects of rehabilitation.

21 It was submitted that Byun would suffer hardship in an Australian prison. Further, relying on Verdins,[4] counsel submitted that prison would be more onerous for his client due to a pre-existing anxiety disorder and as a result of post-traumatic stress disorder arising from being shot in the face in 2002.

The appellant's submission concerning manifest inadequacy

22 In support of the ground claiming manifest inadequacy, the appellant submitted that it was not reasonably open to the sentencing judge to impose a sentence of five years' imprisonment, and a non-parole period of three years, if proper weight had been given to the relevant circumstances of the offence and of the offender.

23 Insufficient weight, it was contended, must have been given to factors bearing objectively on the gravity of the offence including:

• First, the prescribed maximum penalty for the offence is life imprisonment. The maximum penalty reflects the seriousness with which Parliament regards this offence.[5]
• Secondly, the amount of ephedrine and pseudoephedrine seized (39 kilograms pure) could 'practically' have produced 25 kilograms of methamphetamine base, which is in excess of 30 times the commercial quantity.[6]
• Thirdly, the offence was committed for profit, and so much was accepted by the sentencing judge.
• Fourthly, the wholesale value of the ephedrine and pseudoephedrine was assessed as being in the range of $1,764,000 and $5,040,000.
• Fifthly, the significant, trusted and extended role played by the respondents in the conspiracy to manufacture.

24 Further, the appellant submitted that the sentencing judge failed to have sufficient regard to the nature and circumstances of the offending, that is, the criminality of the conspiracy to manufacture a commercial quantity of a controlled drug. General deterrence, the appellant submitted, should have been given chief weight in sentencing the respondents; but that, despite his reference to the importance of general deterrence, the sentence imposed did not adequately reflect general deterrence as a paramount sentencing consideration.

25 Moreover, so the appellant contended, the sentence imposed clearly falls below the range of sentences for an offence of importing, trafficking or manufacturing many multiples of a commercial quantity of a controlled drug or border controlled drug, and so much so that it demonstrates latent error. A survey of current sentencing patterns for commercial quantity importation offences,[7] and the table of comparative cases (so called) provided to the sentencing judge - to which the judge made no reference to in his reasons for sentence - demonstrate that this is so. The sentences imposed were, it was submitted, more in line with those given to 'mere couriers'.

26 The appellant also submitted that the judge erred by giving excessive weight to the separation of the respondents from family as a mitigating factor because imprisonment would be more burdensome.

27 Ultimately, the appellant submitted that the sentences imposed demonstrate such manifest inadequacy and inconsistency with sentencing standards for offences of manufacturing commercial quantities of controlled drugs so as to constitute error and justify intervention by this Court.

28 Without descending to unnecessary detail, counsel for the respondents took issue with the various propositions sought to be developed by the appellant. In essence, counsel submitted that it was open to the judge not to be satisfied beyond reasonable doubt that the respondents had joined the conspiracy before coming to this country. Further, the judge was entitled to take into account as a mitigating factor that the respondents, because of isolation from friends, family and other supports, would find imprisonment burdensome. Although it is fair to say, we think, that all counsel accepted that the sentence imposed on their respective clients was lenient, all submitted that the sentence was not so low as to be outside the range open in the proper exercise of discretion. Counsel for the respondents also sought to invoke the overarching discretion that an appellate court has to dismiss prosecution appeals.

29 Although it might be thought that the principles that guide the Court on a prosecution appeal are well-understood, it is as well to repeat some of them.

30 Hence, as Gleeson CJ and Hayne J made clear in Dinsdale,[8] manifest inadequacy of sentence is a conclusion which does not depend on the attribution of specific error. Their Honours observed:[9]

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at that conclusion. ...

31 In the same case, Kirby J (with whom Gaudron and Gummow JJ agreed) said:[10]

The legal process before the Court of Criminal Appeal was, as described, an appeal. This is a creation of statute.[11] An appeal may take several forms, the precise nature in a particular case depending upon the legislation in question.[12] Here, that legislation, by providing for an appeal, required the demonstration of error before the appellate court enjoyed the authority to disturb the decision subject to appeal.

'a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. ... The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.'

The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence.[13] ... Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it.[14] As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.[15]

As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly.[16] In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.[17]

The existence of this residual basis for appellate intervention is well established. In fact, it is inherent in the provision by statute of a facility to appeal against sentence to a court of criminal appeal. It enables such a court to correct 'idiosyncratic views'[18] of individual judges about punishment for particular crimes or types of crime and to replace a sentence that is manifestly disproportionate to the circumstances. Such disproportion can arise where the punishment imposed is considered to be plainly excessive. But it can also arise where such punishment is judged to be manifestly inadequate.

32 Sentencing, quintessentially, is an exercise of discretionary judgment. Thus, there is no single correct sentence for an offence and an offender.[19] This Court's power can only be animated if the Court is satisfied that the sentencing judge's discretion miscarried because in the result the judge imposed a sentence that was below the range of sentences that could justly be imposed for the particular offending consistently with sentencing standards.[20] The Court may not intervene simply because its individual members would, if sentencing at first instance, have imposed a different sentence. Intervention is warranted only if it is 'plainly apparent' that the sentences imposed on the respondents are inadequate, as being 'manifestly ... too short'.

33 Although in the appellant's written case it had been submitted that it had not been open to the judge to find other than that the respondents had come to this country for the purposes of committing the offence to which they pleaded guilty,[21] the Director resiled from that submission in oral submissions. He conceded that he could not argue that it was not 'open' to the judge to find as he did. In our view, that was a realistic position to adopt.

34 As we have earlier indicated, the timing of the respondents' involvement in the offending was contested before the sentencing judge. Each respondent asserted that his involvement occurred only after arriving in Melbourne. No evidence on the topic was called by or for the respondents. And although the prosecutor told the judge that the prosecution relied on the whole of the material (depositions, statements and exhibits, including covertly recorded conversations and CCTV footage), the appellant did not distinctly present evidence in the course of the plea hearing in an attempt to establish that the respondents were parties to the conspiracy alleged prior to their arrivals in Australia.

35 In his reasons for sentence, the judge noted that 'there was a deal of submission and consideration of the origins of [the respondents'] involvement in the conspiracy and the extent of [their] respective roles within it'. After considering those submissions, the judge said:[22]

I do not accept the propositions, similarly put on behalf of all of you, that you came to Australia in innocence to gamble and broadly put, events after that compromised you financially, leading to your recruitment into the enterprise. The extent of interconnected prior association between you, how quickly after arrival and where the Greenvale premises were set up, the level of remarkable coincidence in these explanations and that they were not supported by evidence such as your own testimony, lead me to reject them as implausible in the extreme. However, the evidence does not properly support a finding beyond reasonable doubt that you were recruited in Canada and came here for the purpose of your offending, although I see this as much the more likely. Therefore, the precise origins of your recruitment is not resolved. I find beyond reasonable doubt that your involvement existed very soon after your arrivals in Melbourne. I do accept that it is likely that financial problems related to business or gambling debts were the context for your recruitment and your decision to take part and offend in the way you did.

36 Though the judge thought it 'much more likely' that the respondents were recruited in Canada for the purposes of carrying out a criminal enterprise in Australia, he thought that the evidence did not support that finding beyond reasonable doubt. He did find, however, that the respondents' 'involvement existed very soon after [their] arrivals in Melbourne'. It was, in our view, open to the judge to harbour a reasonable doubt about the exact time that the respondents joined the conspiracy, and so to conclude that 'the precise origins of [their] recruitment is not resolved'. Given the paucity of any direct evidence of a criminal combination between the respondents (or others) in Canada, the judge was entitled to enjoy the doubt that he did. Of course, whether that much avails the respondents is another matter.

37 With respect to the complaint that the judge gave 'excessive weight' to the burden of imprisonment, given the respondents' isolation from friends and family, the Director accepted that he could not maintain this as a separate ground. He was correct to do so. Whether a judge has given too much, or too little, 'weight' to a relevant factor or factors usually can only be judged by synthesising all relevant features and looking at the end result.[23] If, having synthesised all factors relevant to the offence and the offender, and all features going in aggravation and mitigation, the members of the appellate court conclude that the sentence imposed is either manifestly excessive or manifestly inadequate, the almost inevitable inference must be that the sentencing judge gave too much or too little weight to a matter relevant to the exercise of the sentencing discretion. But to try and isolate a single feature, and to suggest that the judge gave that feature too much weight, is a profitless exercise.

38 One might ordinarily expect that foreign nationals incarcerated in Australian prisons will find imprisonment more burdensome by virtue of the fact that usually they will be separated from family and friends, and thus be deprived of their companionship, comfort and support. That factor will, in our opinion, always be relevant to the exercise of the sentencing discretion, but the weight it is to be given will vary from case to case.[24] Given the manner in which the argument unfolded in this Court, however, it is unnecessary to say more on this aspect, save to observe that we found nothing in the judge's remarks themselves which would support the view that he gave undue weight to the burden of imprisonment that the respondents would suffer because of their isolation in this country. The judge said:[25]

Each of you, in individual but similar ways, will find imprisonment difficult in this country because of isolation and, in your cases, particularly Byun and Yuan, identified psychological conditions. Those risk further deterioration in prison. In view of my earlier findings, it cannot be certainly said that you came here to offend. Your isolation and difficulty in Australian prison remains relevant. This is probably a generous finding.

39 In the course of the plea hearing, the prosecution put a large table of what were said to be 'comparable' sentencing cases before the judge. There was also a deal of discussion in this Court as to how the sentence in this case compared with sentences passed in other 'similar' cases. As to the use of so-called comparable cases, we respectfully adopt what was said in Hudson,[26] where the Court (Ashley, Redlich and Harper JJA) observed:[27]

The selection of a sentence involves the exercise of a judicial discretion which is informed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender. It is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty. The method of instinctive synthesis will by definition produce outcomes upon which reasonable minds will differ. For that and other reasons, counsel are precluded from submitting that a specific sentence should be imposed.

Sentences imposed in 'like' cases provide some indication of the range that is open in the proper exercise of the discretion. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the 'instinctive reaction' when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of 'current sentencing practices' which is one factor that the court must consider under s 5(2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.

'Like' cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that 'comparable cases' can only provide limited assistance to this court. They may however be used in search of unifying principles. That was not the use to which counsel sought to employ them here.

40 Every case must, of course, depend on its own facts. When a judge is called upon to sentence a number of offenders in connection with a multi-faceted criminal conspiracy, it will ordinarily be necessary for the judge to assess their respective culpability. In sentencing the respondents, the sentencing judge addressed their roles:

Police surveillance, including electronic surveillance, makes up a significant part of the evidence against you. Such evidence is often sporadic or, at least, paints only a partial picture; and I find, in this case, does not in a fair and precise way describe the nature and level of your respective roles. I find that your roles were similar and, in some ways, joint. Differences, for example, in the greater exposure of you, Estrada, in hiring motor cars, signing the Greenvale lease and purchasing, usually with Byun, at large hardware outlets should not be seen as safely or properly depicting respective roles or levels of seniority in an enterprise such as this.

After considering the broad sweep of relevant material, including electronic surveillance relied upon, I see you as similarly placed in the scheme of things. Importantly, the level of your culpability and criminality is similar. One cannot doubt that you chose to significantly assist a large drug conspiracy for financial benefit. The level of expected benefit is not shown, as is often so.

You are not to be sentenced for any role in the manufacture or distribution of the drug. I also accept that the enterprise you joined was active and, for example, leasing and likely illicit use of the Port Melbourne storage unit going before your involvement. There is evidence of other drug activity prior to your involvement at another storage unit.

41 And when dealing with the extent of the criminal enterprise, and having noted that the respondents' plan was to leave Australia on 15 August 2012, the sentencing judge further observed:

From early August to that time there were police searches of the Port Melbourne storage unit. You were also seen to be active there. Finally, a 15 and 16 August search revealed a large amount of chemicals, materials and equipment consistent with that required to manufacture large quantities of the drug. I find that you, and perhaps others, had stored and secured much of this in response to your fear of arrest or interference and prior to your planned departure.

A level or the magnitude is indicated by the discovery of the chemical precursors, pseudoephedrine and ephedrine, in pure quantity or weight of about 25 kilograms and 14 kilograms. The Crown opening states that such quantities can practically produce about 25 kilograms of [methamphetamine] base. That is over 30 times the legislative commercial quantity threshold of 750 grams. Other relevant chemicals were found, some in similarly substantial quantities. Other smaller quantities of relevant equipment, drugs and chemicals were found at the Greenvale premises.

It is conceded by the Crown that the period of your conspiracy, and role within it, ended at arrest. You are not to be sentenced for anyone's further plans.

42 The appellant argued that, whilst the sentencing judge referred to the scope of the conspiracy, his reasons for sentence, and the sentences actually imposed, reflect that he sentenced according to the respondents' roles within the conspiracy to manufacture and failed to have sufficient regard to the nature and circumstances of the offending, that is, the criminality of the conspiracy to manufacture a commercial quantity of a controlled drug.

43 Counsel for the respondents argued that the respondents' limited roles could be judged by the activities in which they participated as part of the conspiracy. In particular, counsel for Yuan submitted that his client had limited physical participation. It seemed to be submitted - at least tacitly - that the role an offender played in a conspiracy might be judged simply according to the physical acts that he performed.

44 There can be no doubt that the conspiracy in which the respondents involved themselves was a commercial enterprise, and that there was a hierarchy within that commercial enterprise. It might be expected that the level of sentences imposed for those involved in the criminal enterprise would - all other things being equal - vary according to the particular offender's position in the hierarchy. That is not to say, of course, that the criminality of the respondents was to be assessed merely by reference to their respective roles in the conspiracy. The sentence imposed on the respondents had to reflect the organisational nature of the conspiracy, and not simply be confined to an examination of the physical acts that each respondent performed. It was necessary to examine the nature and scope of the conspiracy and to assess - on a basis common to all its participants - the level of its criminality.[28]

45 That said, in our opinion it remained necessary for the sentencing judge - as best he was able - to assess the role of the respondents in the enterprise, so long as he did not lose sight of the overall scope of the conspiracy and its objective criminality. Such an assessment was necessary to determine, so far as the judge was capable of so doing, the respondents' level of culpability.[29] In Tyler,[30] Simpson J observed:[31]

Identifying the 'role' of a participant by reference to his position in the organisational hierarchy is a very different proposition from isolating the precise physical acts that can be attributed to the particular offender, and selecting the punishment by reference solely to those isolated acts. It would be quite artificial, and contrary to the very concept of a conspiracy, to dissect with precision the physical acts of each of the conspirators, and to sentence that conspirator for those acts alone. That would be a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. It would represent too literal an application of the decisions that identify the 'role' of any participant as a relevant factor in the sentencing exercise. It would be to ignore the essential feature of the offence of conspiracy - the agreement to participate in an organised criminal activity.

That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry ...

46 In a similar vein, Redlich JA observed in Pham:[32]

[I]t will be useful in some circumstances to distinguish the positions occupied by offenders within a hierarchical criminal organization as a means of determining the offender's level of culpability. For example a courier will generally attract a more lenient sentence than a principal within a criminal drug hierarchy. The characterization of an offender's position may not always illuminate and may sometimes obscure the actual level of criminality of the offender assessed by reference to his conduct.[33] Where the evidence establishes the acts performed by the offender and their position within the criminal organization, the offender's criminality is to be assessed by a consideration of both the actions of the offender and the role he occupies within the organization.[34]

47 Beyond those aspects of the judge's sentencing remarks to which we have already made reference, the judge found that the respondents chose to give significant assistance to a large drug conspiracy for financial benefit, the level of that expected benefit remaining unclear. Although the surveillance material did not provide a precise description of their roles, the respondents' roles were similar and, in some ways, joint, in an enterprise which was active prior to their involvement. They had taken part in a conspiracy to commit a very serious and damaging crime, the seriousness of which is reflected in the maximum penalty of life imprisonment. Deterrence - particularly general deterrence - and the need to strongly condemn the offending were of great importance. The respondents' moral culpability was high, given that they had chosen to assist in the manufacture of a socially damaging drug for profit. They were not major entrepreneurial players in the enterprise, but their roles were necessary and important.

48 Further, the judge also had regard to a variety of factors in mitigation. Thus, he took into account the respondents' pleas of guilty and cooperation, and the various matters personal to them (including psychological difficulties). Having no prior convictions and previous good character, Estrada had genuine prospects for rehabilitation; and, although Yuan and Byun had limited prior convictions, given the nature and age of the convictions, the two respondents were also found to be capable of rehabilitation.

49 Importantly, having considered each case individually, the sentencing judge came to the conclusion that each respondent should receive the same sentence.

50 As we have said, the judge found that the respondents were actively involved in a very serious crime. It could not be doubted, the judge said, that the respondents 'chose to significantly assist a large drug conspiracy for financial benefit'. Their moral culpability was high. They may not have been major entrepreneurial players in the enterprise, but their roles were 'necessary and important'. Moreover, the judge thought that the magnitude of the conspiracy was 'indicated by the discovery of the chemical precursors, pseudoephedrine and ephedrine, in pure quantity or weight of about 25 kilograms and 14 kilograms', being enough to produce about 25 kilograms of methamphetamine base (or more than 30 times the commercial quantity provided for by statute).

51 In our opinion, however, despite the judge's findings concerning the respondents' roles in the conspiracy, those findings are not sufficiently reflected in the sentences imposed. General deterrence was of significant importance, as was the need to condemn the respondents' conduct and to punish them adequately for their offending. In our view, the matters relied upon in mitigation, properly assessed, could not have led his Honour to impose a sentence of the order that he did. The sentences imposed go beyond being merely lenient. They are, in our opinion, manifestly inadequate. The sentences imposed in the County Court must be set aside and the respondents sentenced afresh.

52 As the judge recognised, the personal circumstances of the respondents differed in some respects. (Indeed, it might be said that, in particular, Byun laboured under some psychological difficulties that the others did not.) His Honour found, however, that the respondents' roles were 'similar and, in some ways, joint'. That, in our view, was an apt characterisation. In our opinion, having regard to the similar roles played by the respondents, the marginal differences in the respondents' personal circumstances ought not dictate that they be sentenced differently one from the other.

53 In each case the appeal should be allowed. Each respondent should be imprisoned for a period of eight (8) years. We would fix a period of five (5) years before which the respondents should not be considered eligible for release on parole.

[1] Criminal Code (Cth), s 305.3(1), s 11.5(1).

[2] In the prosecution's written sentencing submissions provided to the judge on the plea, it was said: 'The 25 kilograms of pure pseudoephedrine and 14 kilograms of ephedrine had a wholesale value of between $1,760,000 and $5,040,000 if sold in kilogram quantities. That quantity of precursor drugs could practically produce 25 kilograms of methamphetamine base, which is 31 times the commercial quantity for methamphetamine.'

[3] It should be noted, however, that on 22 March 2013, through his lawyers Byun offered to plead guilty to a charge of possessing a drug of dependence under to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), or alternatively, possessing precursor chemicals contrary to s 71D of that Act. Further, on 27 March 2013, Byun's lawyers wrote to the appellant and advised that he did not require witnesses for cross-examination at the committal.

[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[5] Markarian v The Queen [2005] HCA 25; (2008) 228 CLR 357.

[6] The prescribed commercial quantity is 0.75 of a kilogram. See s 314.4 of the Code.

[7] DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, [207]-[214], (McClellan CJ at CL); Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32; (2011) 31 VR 673, [35]-[36] (Maxwell P). See also R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106, 131-3 [96]-[111] (Johnson J).

[8] Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 ('Dinsdale').

[9] Ibid 325-6 [6] (emphasis added). See also DPP v Werry (2012) 37 VR 524, 534 [52]-[53] (Warren CJ, Maxwell P, Buchanan, Weinberg and Bongiorno JJA).

[10] Dinsdale, 339-40 [57]-[60] (emphasis added).

[11] State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306, 322 [72]; [1999] HCA 3; 160 ALR 588, 609.

[12] Fleming v The Queen (1998) 197 CLR 250, 258-260 [17]-[21]; cf Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297-298 (Glass JA).

[13] See eg R v Tait (1979) 24 ALR 473, 476; Allpass (1993) 72 A Crim R 561, 562; R v Clarke [1996] VicRp 83; [1996] 2 VR 520, 522.

[14] Cf House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-505.

[15] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509, 519-520; Harris v The Queen [1954] HCA 51; (1954) 90 CLR 652, 655.

[16] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

[17] Valentini and Garvie [1980] FCA 133; (1980) 2 A Crim R 170, 174; Davey [1980] FCA 134; (1980) 2 A Crim R 254, 259-261.

[18] Cf R v Osenkowski (1982) 30 SASR 212, 213 (King CJ); cf R v P [1992] FCA 626; (1992) 39 FCR 276, 285.

[19] Bugmy v The Queen (2013) 249 CLR 571, 588-9 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

[20] Ibid. See also Munda v WA [2013] HCA 38; (2013) 249 CLR 600, 613 [34] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).

[21] Upon the assumption that this constituted a feature of aggravation, the prosecution was required to prove it beyond reasonable doubt: R v Storey [1998] 1 VR 359; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

[23] See DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, 459-60 [5]; Gorladenchearau v The Queen (2011) VR 149, 158 [34] (Maxwell P).

[24] Cf R v Adams [2007] VSCA 37, [24] (Vincent JA) and Lau v The Queen [2011] VSCA 324, [43] (Neave and Hansen JJA, and Beach AJA). See also Tsang v DPP (Cth) (2011) 35 VR 240, 278 [180] (Nettle and Neave JJA and Sifris AJA); Pham v The Queen; Tang v The Queen [2012] VSCA 101, [8] (Redlich JA), [41] (Harper JA) ('Pham').

[26] Hudson v The Queen; DPP v Hudson (2010) 30 VR 610 ('Hudson')

[27] Ibid 616-7 [27]-[29] (footnotes omitted; emphasis added).

[28] R v Elomar; R v Hassan; R v Cheikho; R v Cheikho; R v Jamal [2010] NSWSC 10; (2010) 264 ALR 759, 763 [15] (Whealy J).

[29] Olbrich v The Queen [1999] HCA 54; (1999) 199 CLR 270, 279 [19]-[20] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). See also 277-8 [13]-[15].

[30] Tyler v The Queen; Chalmers v The Queen [2007] NSWCCA 247; (2007) 173 A Crim R 458 ('Tyler').

[33] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 279 [19]-[20]; De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, 62 [255]; Nguyen and Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106; Phommalysack v R [2011] VSCA 32; (2011) 31 VR 673, 681-2 [34] (citations omitted); Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104.

[34] R v Olbrich (above); Savass v R [1995] HCA 29; (1995) 183 CLR 1; R v Wong; R v Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340; Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458, 471-4 [78]-[95] (Simpson J with Spigelman CJ and Harrison J agreeing); R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524, 533-4 [37]-[41].