Hong v R

Xiao error conceded

1. Many years later, a five judge bench of this Court determined that a utilitarian discount is available in Commonwealth matters: see Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4. Legal Aid NSW, the solicitors for the applicant, then undertook the demanding task of identifying persons who, over the preceding years, had not received a utilitarian discount when, on the current understanding of the sentencing provisions in the Crimes Act 1914 (Cth), they may have been entitled to it. The logistics of that task explain why the application for leave to appeal was not heard before 3 August 2020. That hearing date also explains the brevity of this judgment, because my proposed orders show that time is of the essence.
2. The simple points made on behalf of the applicant are: there is a patent error demonstrated in the sentencing judgment; the applicant is entitled to have his matter considered afresh, pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW); in that process, events that have occurred since the imposition of sentence can be taken into account; a lesser sentence is warranted in law; and, to permit justice to be done, leave to appeal out of time should be granted.
3. In response, the Crown did not oppose leave to appeal out of time being granted, nor leave generally. Nor did the Crown deny that a "Xiao error" is established, and that re-sentence should be considered, taking into account all objective and subjective factors, including evidence as to events in the many years since imposition of sentence.

The real issue

1. The real point of dispute between the parties is simply whether, exercising the sentencing discretion afresh, and putting from our minds the sentence imposed many years ago, this Court would regard a lesser sentence as warranted. As I have said, that is the submission of the applicant; the Crown resists it, and submits that the appeal against sentence should accordingly be dismissed.

Confirmation of agreed error

1. In my opinion, the joint position of the parties is correct: the sentencing judge did not provide a utilitarian discount for the plea of guilty; the current understanding of the law is that one should have been provided; and error is therefore established. And the fact that the discount may have been, in the event, quantitatively correct is of no moment: see Diaz v R [2019] NSWCCA 216.
2. I turn immediately to resolve the real point of dispute.

Objective features

1. The facts of the offending can be summarised as follows.
2. In March 2011, the applicant, a citizen and resident of Malaysia, travelled to Myanmar. There he not only paid for, but also oversaw the packing of, a container of furniture to be shipped from that country to Malaysia.
3. On 24 April 2011, the applicant travelled from Malaysia to Sydney to accept the planned onward delivery of that furniture. In fact, it contained heroin. When the applicant arrived in Sydney, he was in possession of five mobile phones, and a USB containing documents pertaining to the export of furniture from Myanmar to Malaysia.
4. The applicant liaised with a logistics service and made arrangements for the splitting of the consignment of furniture and its delivery. In May 2011, the consignment containing the drugs arrived in Port Botany, New South Wales.
5. The applicant also had various conversations with a man by the name of Mr Long, to whom he reported in Malaysia with respect to the delivery of the furniture, on how to proceed further with the distribution of the drugs. The applicant also passed on instructions to his co-offender, Mr Lee.
6. When the two offenders were ultimately arrested, it was found that the furniture contained over 40 kilograms of heroin, amounting to nearly 25 kilograms of pure heroin.
7. With respect to the objective gravity of the offending, the sentencing judge found that the applicant's role fell "somewhere between a principal and a courier". The applicant and his co-offender were "critical participants", both in the actual importation of the drugs into Australia, but also in the early stages of its intended distribution.
8. The sentencing judge spoke of the applicant having been "entrusted with the responsibility of managing a consignment of a very large amount of heroin", throughout the different stages of drug importation and distribution.
9. Having said that, it was noted by his Honour that the interrupted offence did not ultimately involve any actual distribution of drugs into the community.
10. Of the two offenders, the sentencing judge distinguished the applicant as the more senior of the two and of greater importance in the drug operation. His Honour pointed to the applicant's possession of important documents on arrival, his communication with Malaysia, and some contact with Myanmar.
11. The quantity and purity of the drugs that were imported were of particular note; to repeat: nearly 25 kilograms of pure heroin.

Subjective features

1. Subjectively, the applicant is a Malaysian citizen who was 29 years of age at the time of offending, aged 31 at the imposition of sentence, and now aged 39.
2. The applicant had no criminal history in Australia or anywhere else in the world when sentenced, and as at today.
3. He had been in steady employment since leaving school at the age of 19, but experienced difficulties with gambling coming into his early 20s. There was some evidence placed before the sentencing judge to indicate that the applicant had accrued a substantial debt, and that there was a direct nexus between that debt and his offending. Whilst the sentencing judge explicitly rejected the proposition that the applicant was acting under duress, there was some recognition of the pressures faced by the applicant, in light of his owing a substantial debt as a deleterious consequence of gambling.
4. The sentencing judge accepted that the applicant was genuinely remorseful.
5. Furthermore, his Honour recognised the applicant's difficult experiences whilst in custody, marked by an absence of visitors and support from people in Australia, and further isolation from his loved ones. In addition to that, his limited English skills were also noted in the sentencing judgment.
6. As I have said, the sentencing judge did provide a 25% discount for the applicant having facilitated the administration of justice, by way of his plea of guilty at the earliest available opportunity.
7. Turning now to the position of the applicant at the date of the hearing of the appeal, eight years after the imposition of sentence, he has significantly improved his spoken and written English whilst in custody. He has undertaken a number of courses in custody between 2012 and 2019, including to do with: visual arts, first aid, certificates in information technology, tourism, skills for work and training, a young adult preparation program, work safety, and general construction induction training.
8. For the most part of his time in custody, the applicant has been employed as a clerk in the learning centre, furniture factory and engineering factory at South Coast Correctional Centre, and as a clerk with the manager of industries at Mannus Correctional Centre. I interpolate that he is obviously a person of intelligence, industry, and ability.
9. In his affidavit read on re-sentence, the applicant pointed to his abstinence from gambling despite its prevalence in custody. He also spoke of an almost complete lack of family visits, asides from some digital visits from his siblings, and the very difficult emotional experience of having his mother pass away overseas whilst he was in custody in New South Wales.
10. As for the applicant's security classification, it has gradually improved from A2 maximum at the imposition of sentence to a C2 minimum in May 2018.
11. To be weighed against the many opportunities that the applicant has seized in custody and the significant progress he has made is a negative event. In December 2018, he was found to be in possession of a USB flash drive containing sensitive material linked to his work. Of particular note were staff rosters, sick leave applications, and time sheets. Separately, the USB flash drive also contained violent pornography which included depictions of severe sexual violence.
12. A prison discipline infraction was recorded against him. It led to the loss of his job, confinement to his cell for five days, a regression in his classification from C2 to B, and his being transferred to Junee Correctional Centre for three months.
13. In an affidavit affirmed by the applicant that was read on the application without objection, he stated that the use of the USB flash drive was a necessary adjunct to his work responsibilities as an office clerk, assisting the Manager of Industry (MOI). His duties included running certain farming businesses and involved the operation of various electronic devices, including a camera, and the transfer of "data from the apple farm, cattle farm and timber factory computers and uploading that data in the MOI's computer. I used the computer to operate all kinds of forms, word processing, spreadsheets and the PRONTO business system." He said his responsibilities were shared with some others, including another clerk. In relation to his possession of the USB flash drive outside his work hours, he stated: "I was told it had some explicit material on it and I told the officer that I was not responsible for that, which I was not. My offence related to being in possession of the USB itself out of hours."
14. Copies of Department of Corrective Services documentation concerning the disciplinary measures were annexed to an affidavit affirmed by the applicant's solicitor and read on the application. The USB flash drive seized from the applicant was marked "MOI". The "Inmate discipline action form" had a note that, following his plea of guilty to the disciplinary offence of "creating or possessing prohibited goods", the applicant was invited to "comment by way of mitigation", and stated: "The USB was used for MOI duties every day. I mistakenly brought it back to the unit on Friday in my pocket. I was going to return the USB on Monday. I didn't know about the porn."
15. Since the disciplinary matter, the applicant has been at Macquarie Correctional Centre, has regained employment in the furniture factory there, and has advanced back to a C2 security classification.

Crown submissions

1. While the Crown conceded that the applicant had made significant progress in custody, it was submitted in written and oral submissions that a lesser sentence is not warranted in law, on the following bases.
2. First, it was noted that the applicant had engaged in a serious disciplinary offence by improperly acquiring possession of the USB flash drive, which, as mentioned previously, contained sensitive information about the operation of the Department of Corrective Services, as well as violent pornography.
3. Secondly, the Crown pointed to the assessment of the applicant's prospects of rehabilitation by the sentencing judge. In the sentencing judgment, his Honour had noted the applicant's chances of reoffending would be reduced if the applicant refrained from gambling and obtained appropriate financial skills.
4. Making reference to that specific finding of the sentencing judge, the Crown submitted that, while the applicant has resisted the opportunity to engage in gambling in custody, he has not received any relevant professional treatment for it. It was suggested that, in the absence of such professional help, his ability to abstain from gambling when released into the community should be approached cautiously.
5. Furthermore, with respect to acquiring financial skills, while the Crown noted that he may have gained some business skills, the applicant has not undertaken any courses in personal financial management, nor held a position where he would have significant responsibility for financial management.
6. At the hearing before this Court, it was particularly emphasised that the applicant was not a man who came into the prison system uneducated, and has therefore obtained several new skills and education. Rather, he was a qualified professional at the time of the offending. I understood the underlying point to be that the sentencing judge was concerned about the criminogenic factor of gambling addiction, and it cannot be assumed to have disappeared.
7. Finally, it was submitted that, but for the identified Xiao error, the sentence imposed at first instance was well within the discretionary range open to the Court, even despite the new material proffered by the applicant to this Court.

Applicant's submissions

1. In submitting that this Court should re-sentence the applicant to a lesser sentence, counsel for the applicant relied upon the significant education and employment that the applicant had undertaken whilst in gaol.
2. Whilst counsel for the applicant acknowledged the gravity of the possession of sensitive information held by the applicant, it was said that the USB flash drive was part of his work, and he simply failed to return it, as opposed to deliberately possessing it for a malevolent purpose.
3. Further, counsel pointed to the fact that he was obviously punished for the possession of the USB flash drive by his regression in custodial conditions, including spending a few days in restrictive custody. If it had been of greater severity, counsel argued, criminal charges would have been laid against him. None were.
4. Ultimately, it was submitted that, aside from the one aberration by way of his possession of the USB flash drive, the applicant had shown himself to be a model prisoner. Reflecting on everything, including but not limited to the many years of progress, it was said that a lesser sentence could and should be imposed.

Instinctive synthesis

1. Reflecting on re-sentence in a global way, the applicant played a significant role in the attempted importation of an extremely large quantity of a prohibited drug that, over the past many decades, has caused a great deal of death and suffering and grief in Australian society.
2. Although an addict himself - albeit to gambling not heroin - the reason he attempted to inflict that harm was simply for money. And that harm is very often inflicted upon persons - those who tend to become heroin addicts - who are the most vulnerable and damaged in Australian society. Patently, this was a very grave offence.
3. To be weighed against that is his absence of prior offending; the plea of guilty, both in terms of its utilitarian value to the criminal justice system, and as a sign of acceptance of responsibility and remorse; the excellent, almost completely unblemished, progress that he has made over the past many years; and the obvious potential of the applicant if he can rebuild a law-abiding life.
4. On reflection, I think that the possession of the USB flash drive, whilst troubling in a number of ways, when weighed against the applicant's three thousand days and nights in custody of otherwise unblemished progress towards rehabilitation and release, is of limited relevance in the re-sentencing exercise.
5. Sentencing afresh, I would adopt a starting point head sentence of imprisonment for 19 years. I would grant a 25% discount for the utilitarian value of the plea of guilty, arriving at a head sentence of 14 years (with rounding down of a few months), to commence on 12 May 2011. I would impose a non-parole period of 9 years to expire on 11 May 2020.
6. It follows that I consider that a lesser sentence is warranted in law, that the sentence imposed many years ago should be quashed, and that the applicant should be re-sentenced.
7. It also follows that, because the non-parole period I propose has expired, I recommend that the applicant should be considered for release to parole as soon as reasonably practicable.

Orders

1. I propose the following orders: 1. Leave to appeal out of time granted. 2. Appeal allowed. 3. The sentence imposed by Judge Cogswell SC on 27 June 2012 is quashed. 4. The applicant, Boon Piau Hong, is sentenced to imprisonment for 14 years, to date from 12 May 2011 and to expire on 11 May 2025, with a non-parole period of 9 years that expired on 11 May 2020.
2. IERACE J: I also agree with Button J.

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