He v R

The Remarks of the Sentencing Judge

1. Referring to R v Zhang [2017] SASCFC 5 at [37] the sentencing judge noted the importance of establishing the role played by the offender in the commission of the offence. His Honour found in He (No 3), at [6], that: "In the current case I have found that the offender was the principal organiser of this criminal operation in Australia. He had recruited Mr Wu and Ms Su to act for him. They were his "workers". Whether he had an associate or accomplice or partner overseas is not known. Clearly the tobacco products had to be purchased or otherwise acquired overseas then posted to Australia. At this end of the importation, the principal clearly was the offender. It may be that there was no "partner" overseas, merely that the offender remitted money to others to purchase or otherwise acquire the tobacco products and remit them by post to Australia. I do not know. All I can say is that in Australia the offender was the principal".
2. His Honour accepted that some planning was involved, although he was not persuaded that the offence was "very sophisticated". The operation was described as "small-scale", and current between at least 18 October 2018 and 9 April 2019, with the result being the evasion of over two million dollars in tobacco excise. The lost revenue had not been repaid.
3. The sentencing judge gave little weight to the applicant's asserted role as carer for his parents. Similarly, the diabetes from which the applicant suffered was not treated as a matter that could greatly mitigate sentence. Noting the time required to settle the disputed facts, his Honour was, with "reluctance", prepared to allow a discount on the sentence that would otherwise be imposed of 15% to recognise the late plea of guilty.
4. His Honour next turned to "the statutory checklist contained in s 16A(2) of the Crimes Act 1914 (Cth)", and considered the matters referred to in s 16A(2)(a), (c), (d) - (f), (g) - (h), (j) - (k), (m), (n), and (p). With respect to s 16A(2)(m) and (n) his Honour observed, at [35]-[36]: "…Paragraph (m) requires me to take into account the personal considerations of the offender, his character, antecedents, means and physical and mental condition. I have mentioned the relevant physical condition about which there have been submissions and I take that into account. Paragraph (n) requires me to take into account the prospect of rehabilitation of the person. The evidence before me does not enable me to reach any concluded view. As I cannot see any real contrition, it is hard to know whether there will be any effective rehabilitation. Perhaps the best pointer to rehabilitation will be a sentence to be imposed, if it deters this offender from offending again in the same way then it will achieve its effect. Furthermore, the offender, as a convicted criminal, will be under surveillance of a greater nature than most other members of our community by law enforcement authorities. He will find it harder to do what he has done in the past because his behaviour has now been detected and he is about to be punished".
5. A sentence of 2 years and 11 months imprisonment was imposed, commencing on 13 October 2021 and expiring on 12 September 2024. The applicant's release on recognisance on 12 October 2023 was ordered, with security in the sum of $1000.

The Application to this Court

1. If granted leave the applicant advances two proposed grounds, the first complaining of failure to address parity with Ms Su; and the second the failure to consider the applicant's character and antecedents.

Ground 1

1. Properly, this ground should be dealt with last, since a parity ground accepts that the sentence imposed is otherwise appropriate: Crystal Lee England v R; Sackda Phanith v R [2009] NSWCCA 274 at [22]; Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [251]; McMullen v R [2013] NSWCCA 261 at [49]. However, since there is in our conclusion no basis for this Court to interfere with the sentence imposed in the District Court, the grounds will be addressed in the order in which the applicant advances them.
2. The applicant's complaint is of the failure by the sentencing judge to take into account a material matter, being the evidence concerning the role of and sentence imposed upon the co-offender, Ms Su.
3. Particularly in light of the subject matter of the disputed facts, the proceedings relating to Ms Su had considerable prominence in the sentence hearing against the applicant. Both the Crown and the applicant made submissions as to the approach his Honour should take to the parity principle, and it was plainly a matter that had to be addressed. Despite that, as Senior Counsel for the applicant submitted in this Court, the sentencing judge made no reference in his remarks on sentence to it, and nor was any consideration apparently given to the sentence imposed upon Ms Su and its relevance to that to be imposed upon the applicant. It may be that the sentencing judge proceeded on the basis that the respective roles of the applicant and Ms Su had been the subject of a separate judgment in He (No 1), and nothing further was required.
4. Whatever the basis of the failure to specifically refer to and consider the operation of the parity principle, it constitutes error. Leave should thus be granted to advance this ground.
5. Whilst there has been error in the failure of the sentencing judge to address the evidence concerning the co-offender and to apply the parity principle it is not, however, axiomatic that, because of that error, the applicant has a justifiable sense of grievance. Referring the Court to Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, at [28], the applicant argued that the failure of the sentencing judge to apply the principle of parity led to unjustifiable disparity and a sense of grievance. That part of his complaint cannot be made good, particularly since it is reliant to an extent upon this Court going behind the facts of the co-offender's crime as they were found to be by her Honour Judge Noman SC, to attribute greater criminality to Ms Su than she was found to have exhibited. That is not a legitimate approach for an appellate court to take.
6. Before this Court the applicant argued: "So we are saying that she, even though his Honour found she wasn't a principal or the principal, she played a very significant role in the whole matter and it's not something one could just say is just a minor role compared to the applicant who was more sitting and watching".
7. That submission traversed the unchallenged findings of fact made by Neilson DCJ against the applicant; and also contradicted the conclusions of fact made by Noman SC DCJ when sentencing Ms Su. Judge Neilson found the applicant was the principal of the enterprise, recruiting Ms Su and Mr Wu and directing their activities, including activities that left the subordinates far more exposed to detection and arrest than the applicant. Judge Noman SC concluded that Ms Su played a "low level role" and such profit as was made did not flow to her, her earnings from the scheme having been found to be limited.
8. As was observed in Martellotta v R [2021] NSWCCA 168 at [58] (per Adamson J, the other members of the Court agreeing): "A parity ground does not afford an applicant an opportunity to impugn the sentencing judgment of a co-offender by alleging error in the sentencing judgment for a co-offender. A parity ground is to be resolved by reference to a comparison between the sentence imposed on the applicant and the sentence imposed on a co-offender to determine whether the applicant has a legitimate grievance. As referred to above, where the co-offenders were sentenced by different judges, a further question arises as to whether the two sentences can be explained by reference to the different material before each sentencing judge. In order to answer that question, it is necessary to address the material before each judge and the assessment by each of that material as reflected in their respective reasons".
9. See also Narayan v R [2022] NSWCCA 163 at [53] - [54].
10. Whether the applicant has a justifiable sense of grievance falls to be assessed in accordance with what was said in Martellotta, and not by reference to what the applicant might think of the conclusions and reasons of the respective sentencing judges.
11. Whilst the applicant and Ms Su were undoubtedly co-offenders in a shared enterprise, the charge each faced, their respective roles in the enterprise as determined by the courts that imposed sentence, and their individual criminality and moral culpability were very dissimilar. The subjective case each advanced further distinguished their respective cases.
12. It is of no small significance that Ms Su was charged with a less serious offence than the applicant, which relied upon recklessness as to the defrauding of the revenue for the mental element of the offence, as opposed to the mental element of knowledge charged against the applicant. The difference in the seriousness of the two offences is demonstrated by the maximum penalties: the applicant faced a maximum penalty of 10 years imprisonment and a fine of in excess of eleven million dollars; Ms Su faced a maximum penalty of 5 years imprisonment and a fine of less than one million dollars.
13. Within the particularisation of the charges brought against the applicant and Ms Su respectively lay further distinction. The applicant's offence related to 691.33 kilograms of loose leaf tobacco and over 1.8 million individual cigarettes, the importation of which defrauded the revenue $2,272,192.36. The offence of which Ms Su was convicted related to the much lesser amounts of 130.31 kilograms of loose leaf tobacco and 139,760 individual cigarettes, the excise lost amounting to $256,369.64.
14. The respective roles of the co-offenders, as they were found to be by the sentencing judges, was also significant. Ms Su was found to be a low level recruit in the applicant's enterprise, taking much of the risk for limited financial gain. The applicant was held to be the principal, who was instrumental in the importation of the products, directed the activities of subordinates to receive and subsequently distribute the product, and received monies paid by customers who purchased the illegal tobacco.
15. Having made admissions to police and entered an early plea Ms Su was found to be remorseful, and to have facilitated the course of justice. She received a discount on sentence of 25%. The applicant received a discount of 15% having regard to his late plea. The sentencing judge found no "real admission of remorse" for his crime, and neither had there been any reparation made, or co-operation given to law enforcement.
16. Finally, the subjective cases of the co-offenders differed, with Ms Su presenting a more compelling case than did the applicant. Ms Su was a person with no criminal history, and good prospects of rehabilitation. Judge Noman SC concluded that the co-offender had learned "a salutary lesson" and was unlikely to reoffend, with specific deterrence of "highly limited significance". Ms Su was recruited to participate in the scheme because she had accrued a substantial gambling debt to the applicant. Her debt was that of "a single parent who encountered money problems after developing a gambling habit" (Remarks on Sentence in R (Cth) v Su (District Court (NSW), Noman SC, 14 September 2021, unrep at 3). Those features coupled with a background of depression and mental health episodes were found to explain the co-offender's crime.
17. The applicant by contrast had a criminal record containing convictions for two dishonesty offences which, if not particularly serious crimes, neither were they entirely irrelevant for an offender facing an offence with an aspect of dishonesty to it. The sentencing judge was unable to find that the offender was contrite, and he could make no conclusions as to the applicant's prospects of rehabilitation. Other matters relied upon by the applicant - his diabetes and the care he gave to his parents - were not matters the sentencing judge was persuaded operated to mitigate sentence.
18. When the cases relevant to the applicant and Ms Su are compared, it cannot be concluded that the sentences imposed upon each respectively are unjustifiably disparate. The greater sentence imposed upon the applicant and - because it exceeds 2 years - the unavailability of an ICO to him are properly explained by the significant differences in the two cases, which are not "relevantly identical" such that complete parity of punishment is required: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64, at [65]. The applicant may well feel aggrieved, but his grievance is not justified.
19. This ground of appeal should be dismissed.

Ground 2

1. This proposed ground advances a complaint as to the asserted failure of the sentencing judge to consider the applicant's character and antecedents as required by s 16A(2)(m) Crimes Act 1914 (Cth). That section relevantly provides: 16A Matters to which court to have regard when passing sentence etc. - federal offences (1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: […..] (m) the character, antecedents, age, means and physical or mental condition of the person; […].
2. The applicant argues that, despite referring to s 16A(2)(m) in his remarks, his Honour did not make any reference to the evidence of the applicant's character and criminal history or to submissions on that issue. As this is a mandatory sentencing consideration, it is submitted that his Honour fell into error.
3. In addressing this ground, it is important to note that, in giving his sentencing remarks on 15 October 2021 the sentencing judge expressly incorporated, at [30], the content of his earlier judgment in the disputed facts in He (No 1). Whilst the applicant is correct to assert that his Honour did not refer in He (No 3) to his criminal antecedents, there was reference to the applicant's criminal record in He (No 1). His Honour referred to the relevant aspects of the applicant's "character, antecedents, age, means and physical […] condition" in both judgments.
4. In He (No 1) the sentencing judge had regard to two affidavits the applicant had sworn together with oral evidence he gave before the sentencing court. His Honour set out the circumstances of the applicant's emigration from China; gave an account of the applicant's early years after arriving in Australia; noted his occupational history in China and Australia; summarised the applicant's family history and circumstances; and detailed his recent life, and work and financial circumstances. At [116] his Honour noted that the applicant's criminal history was in evidence before him and referred to entries against the applicant for driving offences and the suspension of his driver's licence, a matter of relevance to the resolution of the disputed facts. He did not specifically refer to the two convictions for goods in custody.
5. In He (No 3) the sentencing judge noted the applicant's age; personal and family circumstances; employment; his gambling problem and the steps the applicant had taken to address it; and the issues connected with the applicant's health and that of his parents (although giving the latter little weight). His Honour specifically referred to the operation of s 16A(2)(m) of the Crimes Act 1914 (Cth).
6. The sentencing judge was clearly aware of the requirement established by s 16A(2)(m) and referred to and evidently took into account all aspects of the applicant's character and antecedents; the exception being the failure to mention the applicant's two prior convictions for goods in custody.
7. It is not, of course, necessary for a sentencing judge to detail every conviction an offender may have in his or her criminal history. What is required is to make clear that the criminal history and any particular relevance it may have has been considered. The applicant submits that his Honour did not do that and, in failing to consider the limited nature of the applicant's antecedents, he failed to have regard to a mandatory matter that may, in the circumstances of this case, have entitled the applicant to a degree of leniency.
8. As the applicant submits, there is nothing in the remarks on sentence, or in He (No 1), to make clear that the sentencing judge gave attention to the applicant's relatively limited criminal history and to the effect it might have on sentence. To that extent, error has been established, there being a possibility of the error having affected the exercise of the sentencing discretion. This ground should be upheld.
9. The error requires this Court to proceed to re-sentence if of the opinion that some other sentence is warranted in law and should have been passed: s 6(3) Criminal Appeal Act 1912 (NSW). For reasons that follow, we are not of that opinion.
10. Whilst both parties referred to the criminal history in the proceedings before the sentencing judge, neither party made any particular submission as to how the court should approach the criminal history, and what if any relevance it had. The applicant made no submission to the effect that the criminal record was such as to call for or permit leniency to be extended to him.
11. It may be that such a submission was not made because it was unlikely to meet with favour. Whilst the applicant's criminal record was limited, the fact that the two more significant convictions against him were both offences of dishonesty was of direct relevance to the commission by the applicant of another, more serious, offence of dishonesty. His conduct reflected ongoing, if sporadic, dishonesty, and there was little basis for him to be accorded any mitigation on sentence because of it. Rather, the commission of the present offence suggested that the applicant had not learned from his earlier experiences of the criminal justice system, and arguably elevated the need for a sentence importing a greater degree of specific deterrence to be imposed upon him.
12. It is unlikely that the failure of the sentencing judge to specifically refer to the applicant's criminal history operated to the applicant's disadvantage. Certainly, there is nothing in the penalty imposed that suggests that the applicant was more harshly dealt with than he would have been had his criminal history been fully considered. Having considered all those features relevant to the determination of sentence, we would not, on re-sentence, impose a lesser penalty than that which was imposed upon the applicant at first instance. It follows that we are not of the opinion that some other sentence is warranted in law and should have been passed.

Conclusion

1. For these reasons the Court makes the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 September 2022