Heng v R

Court of Criminal Appeal (NSW)|2019-11-01|Before: Macfarlan JA, Harrison J, Cavanagh J, MacFarlan JA

Solicitors: Matouk Joyner Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2013/2018300; 2014/259113 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 29 June 2018 Before: Lakatos SC DCJ File Number(s): 2013/2018300; 2014/259113

Judgment

MACFARLAN JA: On 29 June 2018 the applicant was sentenced in the District Court for an offence, to which he had pleaded guilty, of importing a commercial quantity of a border controlled drug, namely methylamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth) ("the Code").
The applicant had requested the Court, on sentencing him, to take into account, pursuant to s 16BA of the Crimes Act 1914 (Cth), an additional offence, namely aiding and abetting the manufacture of a commercial quantity of a border controlled drug, contrary to ss 11.2(1) and 305.3(1) of the Code. Both the principal offence and the additional offence carried a maximum penalty of life imprisonment.
The sentence imposed on the applicant was 23 years and 9 months imprisonment with a non-parole period of 15 years and 9 months, commencing on 9 July 2014. Approximately two years earlier the same judge had sentenced three co-offenders of the applicant, namely, Mr Yuk Ho Kwok, Mr Wai Man Wan and Mr Ka Ho Choy. They received sentences of 25 years (with a non-parole period of 17 years), 21 years (with a non-parole period of 15 years) and 21 years (with a non-parole period of 15 years) respectively.
The applicant seeks leave to appeal against his sentence. He requires an extension of time for the filing of his application for leave to appeal which was filed out of time.
His proposed grounds of appeal are as follows: "1 In assessing the objective seriousness of the offence, his Honour erred in his finding that the offence was 'amongst the most serious' of its kind. 2 The sentence imposed was manifestly excessive."

The factual circumstances

The relevant factual circumstances, as agreed at the sentencing hearing or found by the sentencing judge without challenge to them on appeal, were as follows.
On 25 May 2013 a container arrived at Port Botany from China purporting to contain 258 boxes of furniture. The container was delivered to the consignee and contained flat pack furniture, which had, concealed within some of its components, a large quantity of methylamphetamine suspended within wax blocks.
In April 2013, prior to the container leaving China by ship on 14 May 2013, the applicant, at times with the assistance of Mr Choy, made a number of enquiries to locate a house for rental to be used by Mr Wan. The applicant was looking for a house to use for the extraction of the methylamphetamine from the wax blocks. Ultimately, Mr Wan determined that he could conduct the extraction process in his rented premises in Beverly Hills.
Commencing on or before 26 April 2013, the applicant, sometimes with the assistance of Mr Choy, arranged for the lease of a warehouse in St Peters ("the St Peters Warehouse") that was subsequently used as a delivery point for the contents of the container. The applicant paid $500 to the owner of the St Peters Warehouse as a deposit for the lease.
On 30 April 2013 the applicant told the owner that the container would be 40ft, containing flat boxes and furniture pieces. At some points, the applicant referred to "his container". The applicant also indicated that he wished to inspect the St Peters Warehouse before finalising the lease to see if there would be enough space. The applicant agreed with the owner that the lease would commence on 1 June 2013.
On or around 13 May 2013 the applicant picked up Mr Choy and went to the St Peters Warehouse to collect the keys, sign the lease and pay a bond of $5,500. The sentencing judge considered that the applicant "in all probability did sign the lease" but even if he was wrong about this, his Honour held that the applicant was "the driving force in that transaction". The applicant handed the owner $5,000 in cash for the bond, additional to the $500 he had already paid. The applicant directed Mr Choy to pay monthly instalments of rent.
There was regular liaison between the applicant and Messrs Choy and Wan in the period leading up to the arrival of the container. The applicant met Messrs Choy and Wan at a coffee shop on 7 and 14 May 2014. Mr Choy, at the applicant's direction, also met Mr Wan in the city on 10 May 2014. The applicant was in frequent contact with Mr Choy.
The applicant directed Mr Choy to arrange for the transportation of the contents of the container from Mascot to the St Peters Warehouse and the subsequent unloading of the flat pack furniture boxes there. The applicant monitored these activities at a distance.
Between 4 and 7 June 2013, Mr Wan, under the instruction of unknown persons in Hong Kong, selected a number of the boxes (in total 102) to be transported from the St Peters Warehouse to Mr Wan's rented home in Beverly Hills.
Mr Choy, under the instruction of the applicant, assisted Mr Wan with the transportation of the boxes. Mr Choy regularly reported the progress of the transportation to the applicant, and also reported problems arising to him.
Between 9 and 17 June 2013, Messrs Wan and Kwok (the latter having arrived on 5 June 2013 from Hong Kong to assist Mr Wan), under instructions from unknown persons in Hong Kong, extracted wax blocks concealed in the pieces of furniture and then extracted and further refined the methylamphetamine concealed in the wax.
On more than one occasion the applicant asked Mr Choy to find out if Mr Wan required anything to assist him in relation to the extraction process which Messrs Wan and Kwok were undertaking.
In this regard, prior to the extraction process commencing, the applicant arranged for Mr Choy to collect from a third party a pump that was used in the extraction process. The pump was collected by Mr Choy on 8 June 2013 and was found at the Beverly Hills house when the police executed a search warrant on 17 June 2013.
On 9 June 2013 the applicant arranged for Mr Choy to deliver to Mr Wan a number of things requested by Mr Wan. This resulted in 9 boxes of equipment for use in the extraction process being provided to Mr Wan by Mr Choy.
On 11 June 2013 the applicant and Mr Choy delivered a refrigerator to the Beverly Hills property. The applicant hired a utility for this purpose. The applicant and Messrs Choy and Wan carried the refrigerator into the enclosed porch at the front of the house.
On 11 June 2013 the applicant called Mr Choy and advised him that the "old man" had just messaged and said it was very important for Mr Choy to call Mr Wan and find out what he wanted. Mr Kwok received a call from a person referred to as "boss number 1" or "big boss". Thereafter Mr Choy called the applicant and told him that Mr Wan had called and wanted to meet at 1pm in the city. The applicant instructed Mr Choy to meet Mr Wan at 1pm and to make sure he was not late. The meeting was arranged to enable Mr Choy to collect from Mr Wan a sample of the extracted methylamphetamine. Mr Choy collected the sample from Mr Wan on 12 June 2013 and took it to the premises at Homebush West, where he gave it to the applicant to test.
On 17 June 2013 Mr Kwok left the laboratory with two sports bags. Mr Wan picked him up in a taxi and soon after they were arrested by police. The sports bags contained 15.94 kilograms of methylamphetamine, with a calculated weight of pure methylamphetamine of 12.64 kilograms.
Commencing on 17 June 2013, police executed a search warrant on the laboratory. The total net weight of the crystalline, paste, and liquid material seized from the laboratory was 128.68 kilograms, with the calculated weight of pure methylamphetamine being 61.15 kilograms.
The total weight of pure methylamphetamine was therefore 73.80 kilograms, with a wholesale value of approximately $23,862,300 and a street value of about $89,668,554.
The applicant intended to supply at least some of the methylamphetamine to a person called Mr Van.
On 9 July 2013 police arrested the applicant and Mr Choy.
During the course of their investigation, police intercepted a number of telecommunications services used by the applicant and Mr Choy. Four out of five services used by the applicant were subscribed in false names. Three out of the four services used by Mr Choy were subscribed in false names. On 18 June 2013, following the arrest of Messrs Wan and Kwok the previous day, the applicant conducted a "drive-by" of the Beverly Hills premises and then instructed Mr Choy to throw away the phone that he used to contact Mr Wan and the mobile phone that he was speaking to the applicant on at that time.

The sentencing judgment

As to the applicant's criminal history, the sentencing judge said that the applicant had been before the courts "on not a great number of occasions" but there had been one matter "of considerable moment", namely the applicant's conviction of an offence of supplying a prohibited drug of more than a commercial quantity, in relation to which a head sentence of 7 years and 6 months, with a non-parole period of 3 years and 9 months, was imposed. The applicant was on parole in relation to this sentence when he committed the offences the subject of the present proceedings.
The sentencing judge concluded as follows concerning the applicant's role in relation to the importation and manufacture offences: "I conclude as the Crown has contended that the offender performed a significant role in the direction and directing the importation and facilitating the manufacture of a large commercial quantity. He assisted finding Mr Wan a rental property. He assisted finding a storage unit where the furniture was originally taken. He assisted liaising with a removalist to take the consignment to the St Peters location. He monitored the activities of Mr Choy at the warehouse. He ensured Mr Choy assisted the co-offender, Mr Wan in relation to separating the boxes. He liaised with Mr Choy and Mr Van on falsely subscribed telecommunication services. He arranged for Mr Choy to collect the items used in the manufacturing process, a pump and the other equipment which was delivered as well as the fridge to the Beverly Hills premises. He liaised with Mr Wan about what was later needed. The offender told Mr Choy to meet Mr Wan and to collect something from him whilst wearing work clothes. Along with Mr Choy, there was a testing of substances received from Mr Wan. Between April and May 2013, he communicated with Mr Van with a view to supplying drugs to him and finally he used the offender's van registered in Mr Choy's name, for the transportation of the drugs and various items. I accept that these facts have been established beyond a reasonable doubt and I consider that they demonstrate that the Crown submission is correct, namely that this offender had a significant and leading role in the enterprise. He was responsible for organising transportation, of storage for consignment and carrying out the requirements of the Hong Kong parties to find suitable premises and a drug lab for the manufacturing process. In my opinion, this offender's conduct does indeed fall in the upper range of objective seriousness."
His Honour found that the "adulterated" drugs weighed 144.6 kilograms and the pure methylamphetamine weighed 73.8 kilograms (see [24] above). His Honour noted that the latter was 98 times greater than a "commercial quantity" of the drug and found that although the applicant may not have known the precise quantity of drugs, he knew that a substantial quantity of drugs was involved. His Honour also found that the applicant's motivation in committing the offences was financial reward (see [24] above).
His Honour said that the applicant's plea of guilty had been late and although the applicant sought a significant discount for his assistance to authorities, the assistance that he gave was limited. His Honour did not quantify the discount that he allowed for these matters but by inference it would not seem to have been more than about 10%.
His Honour's conclusions on sentencing were as follows: "I am satisfied beyond a reasonable doubt that this offender took part with his co-offenders in a previous importation and to that extent this therefore was not an isolated incident but, as the Crown submits, part of a sophisticated system of trafficking in prohibited drugs. … The Crown submits and I accept that it appears to be the case that a previous lengthy term of imprisonment, three and three-quarter years, did not act as a deterrent to this offender. He wilfully breached his parole order. The Crown argues for a greater emphasis on the principles of retribution, deterrence and protection of society. … I recognise the quantity of the drug is but one factor to be considered in the objective seriousness of the criminal offence but the courts have pointed out that if an offender knowingly takes part in the importation or manufacture or supply of a very large quantity of drugs and does so out of profit motive generally the proper characterisation of such an offence is that it is to be considered at the higher end of the objective seriousness of an offence of that kind. In my opinion the quantity of drugs involved, the value of the drug, the important role of this offender directed towards the success of a criminal enterprise and the self-evidently serious harm and harmful impact upon drug users in Australia had this enterprise been successful marks this offence or these offences as amongst the most serious of this kind. … Accordingly, I take into account the following matters in passing sentence: The late plea of guilty, the role in the criminal enterprise of this offender and the sizeable quantity of the drug and in my view, the issue of remorse needs to be weighed as against the offender's previous conduct, his breach of parole and his improbable version of how he became involved in these offences".

Ground 1: assessment of objective seriousness - offence "amongst the most serious" of its kind

In his submissions on appeal, the applicant accepted the sentencing judge's findings that he performed a "significant role" in directing the importation, that his role was "a high level directing role", that he played a "crucial facilitating role" in the manufacture offence and that his conduct fell in the "upper range" of objective seriousness.
The applicant submitted however that if the sentencing judge found that the objective seriousness of the applicant's offences was "right at the utmost upper end of the upper range", his Honour erred.
The sentencing judge did not however make that finding. As recorded at [29] above, his Honour found that the applicant's conduct fell "in the upper range of objective seriousness", which is a finding that the applicant expressly stated that he did not challenge on appeal. This ground of appeal therefore depends upon a submission that by saying later in the same paragraph that the applicant's offences were "amongst the most serious" of their kind, his Honour was elevating his finding to one, to use the expression in the applicant's submissions, that the offences fell at "the utmost upper end of the upper range" of seriousness.
This submission cannot be accepted as, read in context, his Honour was simply repeating in different words what he had found in the previous sentence in his judgment, namely, that the offences were at the "higher end of the objective seriousness" (see [32] above).
That his Honour did not intend more than this is confirmed by the fact that his Honour did not impose a sentence anywhere near the maximum penalty available (life imprisonment) which the High Court has stated is reserved for the gravest cases (R v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [17]-[20]).

Ground 2: manifest excess

The applicant first raises a number of specific matters in support of this ground of appeal.
First, the applicant complained that the sentencing judge did not quantify the discount that he allowed for the applicant's plea of guilty which his Honour described as late. His Honour was not however obliged to state the quantum of the discount he allowed and the absence of him doing so did not constitute error (Xiao v The Queen (2018) 96 NSWLR 1; [2018] NSWCCA 4 at [280]).
Secondly, the applicant submitted that the fact that he committed the subject offence whilst on conditional liberty relating to his earlier drug offence should have had less impact on the setting of the subject sentence than might otherwise be the case because the result of his further offending was that he served a year of his earlier sentence in custody when he would otherwise have been on parole. This does not however mean that the commission of the subject offence whilst on parole was not an aggravating feature of it, nor does the applicant submit otherwise.
Thirdly, the applicant drew attention to the evidence that he was prepared to provide some assistance to authorities. The sentencing judge however examined that evidence and accepted the Crown's submission that the assistance was such that "there should … not necessarily [be] a quantifiable discount for assistance".
The applicant then submitted: "In circumstances where the applicant was not the principal of the importation and was required to follow orders from persons in Hong Kong, where he otherwise had no role in financing and/or arranging the importation into Australia, and where he was unaware of the precise amount of the drug, it is respectfully submitted that the sentence imposed was manifestly excessive."
Whilst these factual matters may be accepted, matters that supported the imposition of the substantial sentence that was imposed included the following: 1. Whilst not determinative of the sentence, the significant weight of the drug (73.8 kilograms of pure methylamphetamine) and its wholesale ($23 million) and street ($89 million) values were of considerable significance (R v Nguyen and Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [72(d)]). 2. The applicant's knowledge that a very large quantity of drugs was involved. 3. The applicant's directing of and crucial role in the criminal enterprise. 4. The applicant's profit motive. 5. The applicant's involvement in the significant planning and organisation of the enterprise. 6. The applicant's subjective circumstances did not provide significant assistance to him.
In support of his contention that the sentence imposed on him was manifestly excessive, the applicant referred to four cases which, in my opinion, do not provide that support on a proper analysis.
Before referring to these cases, I note that "[c]are must be taken … in using what has been done in other cases" (Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]). The proper use of past sentences was explained in Hili at [54] (with reference to the observations of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194): "a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits … Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'". See also Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41].
First, the applicant referred to R (Cth) v Yuan [2015] NSWCCA 198 in which this Court imposed a sentence of 15 years imprisonment with a non-parole period of 10 years in relation to an offence of importing approximately 55 kilograms of pure methylamphetamine. Whilst the quantity concerned was large, it was less than that involved in the present case and the applicant's role in the enterprise was more significant than that of Mr Yuan's. As well, Mr Yuan had no prior convictions, had a previous good character and had reasonable prospects of rehabilitation, unlike the applicant.
Secondly, the applicant referred to Lin v R; Ng v R [2016] NSWCCA 200 where a sentence of 12 years imprisonment, with a non-parole period of 8 years, was imposed in respect of an importation of 21.9 kilograms of high purity methylamphetamine. In that case, a 30% discount for assistance to authorities and guilty pleas was allowed. The discount allowed in the present case is not known but the sentencing judge's remarks make it clear that the discount was likely to have been in the order of 10% only. As well, the pure weight of drugs involved in Lin was less than a third of that involved in the present case. In addition, this Court's decision was simply that the sentence imposed on Lin was not manifestly excessive. It does not therefore give any guidance as to what the sentence this Court would have considered appropriate if it had had to resentence.
Thirdly, the applicant relied on Obiekwe v R [2018] NSWCCA 55 in which this Court found that a sentence of 12 years with a non-parole period of 7 years for importing 17.43 kilograms of pure methylamphetamine was not manifestly excessive. The role of the offender in that case was much more limited than that of the applicant in the present case and the quantity of drugs was far less than that involved here. As well, Mr Obiekwe had no criminal history and was regarded as having very good prospects of rehabilitation and being unlikely to reoffend (at [79]).
Fourthly, the applicant relied on Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270 in which one of the offenders, Mr Shih, was sentenced to imprisonment for 27 years, with a non-parole period of 18 years for importing approximately 142 kilograms of pure methylamphetamine. This Court set aside the sentence imposed on Mr Shih, finding that his role was at the "middle level". It resentenced him to 22 years imprisonment with a non-parole period of 14 years. Mr Shih had an insignificant criminal history and some prospects of rehabilitation. His involvement in the criminal enterprise was not as significant as that of the applicant in the present case.
In response, the Crown relied on a number of cases as follows.
First, it relied on the decision in Kuo to which I have referred in [49] above.
Secondly, it relied on a decision in Teng, Lam, Tan and Wong v R (2009) 22 VR 706; [2009] VSCA 148 in which head sentences of 24 years for Tan, 23 years for Lam and Wong, and 22 years for Teng were imposed for an offence of aiding and abetting the importation of 150 kilograms of heroin, of which 125 kilograms reached Australia. The Victorian Court of Appeal found that "[n]one of the individual sentences was manifestly excessive nor in any way affected by specific error" (at [69]). The Court considered however that each sentence imposed on Teng, Lam and Wong offended against the principle of parity (at [66]). Teng, Lam and Wong's appeals were allowed and they were consequently resentenced to 20, 22 and 22 years imprisonment respectively. There were differences from the present case but the decision is supportive of the applicant's sentencing.
Thirdly, in R v Lee [2007] NSWCCA 234, this Court allowed a Crown appeal and imposed a head sentence of 28 years, with a non-parole period of 19 years and 6 months, for an offence of importing 76.3 kilograms of heroin. The Court found that although the offender was not the "mastermind" of the operation, he held more than a "middle level" of responsibility for the importation.
In that case McClellan CJ at CL said at [37] (with the concurrence of Howie and Hall JJ), after a consideration of sentences imposed after the repeal of s 16G of the Crimes Act, "that offenders who, although not at the pinnacle, were key organisers or critical to the success of the operation received head sentences in excess of 20 years and a number received life sentences".
Fourthly, the Crown relied on Chan, Lo and Nguyen v The Queen [2010] NSWCCA 153 in which a head sentence of 12 years and 6 months was imposed (after a 30% discount) in respect of the importation of 10 kilograms of methylamphetamine. This Court did not consider that the sentence was manifestly excessive.
Fifthly, the Crown relied on R v Nguyen and Pham in which the offenders were resentenced by this Court to head sentences of 16 years and 15 years respectively in respect of the importation of approximately 27 kilograms of cocaine and 13 kilograms of methylamphetamine. The Crown relied on this case to demonstrate that the sentences in this appeal were within range.
Sixthly, the Crown relied on DPP (Cth) v De La Rosa in which, after an analysis of relevant cases, McClellan CJ at CL said that, in what his Honour described as "Group 2", the head sentences imposed ranged from 18 to 24.5 years and the non-parole periods from 10 to 16 years (at [211]). His Honour described the cases in that category as follows (at [224]): "Import commercial quantity Customs Act (Cth) s 233B and Criminal Code (Cth) s 307.1 … Group 2 High quantity; high value; guilty plea; principal, member of upper management or 'essential' role with moderate to very high level of responsibility; reward in tens of thousands of dollars although finding of reward not indicative …"
Neither this review of sentences imposed in other cases nor any other matter in my view indicates that the sentence imposed on the applicant was manifestly excessive. I therefore reject this ground of appeal.

Orders

For these reasons I propose the following orders: 1. Grant the applicant an extension of time to file his application for leave to the date upon which the application was filed. 2. Leave to appeal against sentence granted. 3. Appeal against sentence dismissed.
HARRISON J: I agree with Macfarlan JA.
CAVANAGH J: I agree with Macfarlan JA.

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