Hung v R

1. The applicant raises two grounds of appeal which are particularised as follows: "1. The sentencing judge erred in dealing with the applicant's mental illness, by: (i) Not making findings about the extent to which the mental illness affected the applicant's moral culpability; and (ii) Not making findings about whether lesser weight was to be given to general deterrence. (iii) Not making findings about the way in which the applicant's mental illness would have made his time in custody more onerous. 2. The applicant has a justifiable sentence of grievance regarding the sentences imposed, having regard to the particular differences between himself and his co-offender in: (i) The role played by each in the commission of the offences; (ii) The different number and seriousness of offences placed on the respective Form 1 documents; (iii) The applicant's mental illness; (iv) The applicant's significantly more positive subjective background, including the fact that he had no criminal record while the co-offender had an extensive criminal record."
2. Ground 1 was thus based on alleged error on the part of the sentencing judge in failing to have proper regard to the applicant's mental illness.
3. Ground 2 is in the nature of a parity appeal. The applicant submits that he has a justifiable sense of grievance having regard to the differences between him and his co-offender, Mr Tong. He submits that he should have received a much lesser sentence than Mr Tong.

Background Facts

1. There was a statement of agreed facts. As part of Strike Force Narine which was an investigation into the supply of methylamphetamine via a Sydney-based syndicate, Mr Tong and the applicant were identified. The applicant was identified as an associate of Mr Tong and acted as the primary driver for Mr Tong. In oral submissions, Counsel for the applicant, Mr Fernandez, suggested that this meant that he may have been the driver of choice but he was not the exclusive driver. He also did more than merely act as the driver.
2. It was an agreed fact that the applicant and Mr Tong attended the premises identified as a safe house to access drugs that were stored there and package drugs for sale. The Police executed a search warrant at those premises and found large quantities of prohibited drugs. In the lead-up to their arrest, the Police identified cars used by the applicant and Mr Tong, both at their residential addresses and at the location of the safe house. During the period 5-12 September 2016, the applicant and Mr Tong were captured on a surveillance device entering bedroom no. 2 of the unit at the safe house and packaging prohibited drugs for distribution and activities.
3. On 9 September 2016, the applicant and Mr Tong were the subject of physical and electronic surveillance. Mr Tong was monitored as he arrived at the safe house and packaged a quantity of methylamphetamine into plastic and paper bags for later distribution. A short time later, Mr Tong was seen being driven by the applicant towards Balmain where Mr Tong was observed supplying a quantity of drug to a customer, being a Police UCO.
4. On 12 September 2016, the Police executed a search warrant at the safe house. Inside a cupboard in bedroom 2, Police found two plastic crates and a blue cooler bag. The contents of the crates and blue cooler bag were sent for analysis by a government laboratory which confirmed a total of 20,723 grams of methylamphetamine with a purity ranging from 79.0 to 80.5 per cent; 2,935.38 grams of heroin with a purity ranging from 62.0 to 63.0 per cent; 1,362.9 grams of cocaine with a purity ranging from 72.5 to 87 per cent; and 11,979 grams of 3, 4-methylenedioxy-methylamphetamine with a purity of 78 per cent. In the same cupboard, Police found paper and plastic bags, scales and a heat-sealing machine.
5. On 12 September 2016, the applicant was arrested. Police seized $50,600 in Australian currency found in his possession, as well as finding 27.79 grams of methylamphetamine in a safe in the applicant's bedroom. Several items were seized from the safe house for forensic examination. The applicant's fingerprints were found on the keypad of the safe in the wardrobe in bedroom 2. His DNA was detected on a tape from the handles of the blue cooler bag found in bedroom 2.

Ground 1

1. There is no dispute that the applicant suffered from a mental illness which was relevant to the sentencing process. He had been diagnosed with a major depressive disorder and comorbid anxiety condition.
2. The applicant had submitted on sentencing that these conditions affected his moral culpability; were relevant to the weight to be given to general deterrence; and should lead to a finding of special circumstances based on the evidence that his mental illness would make his time in custody more onerous.
3. The applicant directs the Court's attention to the submissions of Senior Counsel for the applicant on sentence and submits that, although the sentencing judge referred to the applicant's mental illness on a number of different occasions throughout the remarks on sentence ("ROS"), he did not make specific findings which would demonstrate that he took account of the applicant's mental illness in the ways suggested which (it is submitted) would have resulted in a lesser sentence.
4. The Crown submits in response that on a fair reading of the ROS the sentencing judge did take account of the applicant's mental illness, both in respect of its impact on moral culpability and in respect of the finding of special circumstances, as well as general deterrence.
5. The Crown points to the numerous references to the applicant's mental illness throughout the ROS, suggesting that on a proper reading of the whole of the ROS, the sentencing judge must be taken to have considered the applicant's mental illness for all relevant purposes.

Consideration

1. When an offender's mental illness contributes to the commission of an offence, it is open to a sentencing judge to find that moral culpability is diminished and that there may be grounds for special circumstances as his time in custody may be more onerous: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 ('De La Rosa').
2. The issue is whether the sentencing judge failed to have regard to the applicant's mental illness both in determining objective gravity and considering special circumstances, as well as in considering parity with the co-offender.
3. The sentencing judge sentenced the co-offenders over two days. His Honour considered the report of Dr Jonathon Adams in some detail. His Honour referred extensively to the applicant's long history of mental health problems, dating back to childhood. He detailed the applicant's periods of self-harm, low self-esteem, poor confidence, negativity and hopelessness. He referred to the applicant suffering panic attacks and anxiety when his son was born. He referred to the deterioration of his mood in 2016. His symptoms were consistent with a depressive disorder.
4. The sentencing judge observed that the passage which he had quoted from Dr Adams adequately reflected the offender. His Honour went on to say: "In terms of psychiatric management, it is said that a protracted period of incarceration would impact deleteriously upon the offender's mental health. If I accept that to be the case, it is sufficient to sound in special circumstances which I am prepared to find."
5. The sentencing judge continued to consider the applicant's mental health in other parts of the ROS. Only two paragraphs further, the sentencing judge referred to Dr Adams' further report of 5 October 2018 with reference to his psychological condition and history and Dr Adams' opinion that the applicant deteriorated up to and including the point of his arrest but that he is a different person in custody.
6. The sentencing judge then went on to consider the report from the psychologist, Howard Colin-Thome, in referring to the family history of depression, psychometric testing and the applicant's history of anxiety. The sentencing judge then further reviewed the report of a consultant psychiatrist, Dr Clayton Smith, and of another psychologist, Dr Mark Benad.
7. The sentencing judge referred to the submissions of Senior Counsel for the applicant, Mr Dhanji, to the effect that the applicant was burdened by such mental health issues and that decisions such as De La Rosa, R v Hemsley [2004] NSWCCA 228 and R v Engert (1995) 84 A Crim R 67 ('Engert') should be brought forth to ameliorate the penalty that Mr Hung might otherwise suffer and also to explain why he might have engaged upon the misconduct with which he is charged and to which he has admitted. His Honour said, after noting the submission: "I have already indicated in the analysis of the material provided by Doctor Jonathon Adams and other documents tendered on behalf of the offender that he has suffered as a consequence of what was a rather dysfunctional relationship between the offender and his father and his father's perception that the offender was not achieving as he might. It certainly explains I would suggest why he might have been tempted to engage upon this criminality. It is brought to account when I determine the extent of his moral culpability."
8. Finally, the sentencing judge said: "Bringing all of that material together in the synthesis that I am required to undertake and the finding of special circumstances which I am satisfied exist in respect of both offenders: in the case of Mr Hung this is the first time he has spent in custody, he will need a longer period of time on parole than would otherwise [be] contemplated upon a strict application of section 44 of the Crimes (Sentencing Procedure) Act 1999 to facilitate his reintegration and return to community life …"
9. It is plain that the sentencing judge had regard to the applicant's mental health condition when considering moral culpability. Having summarised the purported opinion of Dr Adams over a number of pages in the ROS and referring again to the material provided by Dr Adams and other documents, the sentencing judge said: "It is brought to account when I determine the extent of his moral culpability …"
10. It is notable that during submissions on sentencing the sentencing judge specifically engaged with Senior Counsel for the applicant on this issue. He then made the finding about it.
11. The sentencing judge said that he was taking it into account. It is not necessary for a sentencing judge to offer some more detailed explanation as to how it is taken into account. The sentencing judge is not required to identify some percentage reduction or weighting of relevant factors. It is only necessary for the sentencing judge to identify that the applicant's mental illness was brought to account in determining the extent of moral culpability and this is precisely what the sentencing judge did. As such, particular 1 of Ground 1 is not made out.
12. Particular 2 relates to general deterrence.
13. Senior Counsel for the applicant on sentence submitted that: "The offender's mental condition is such that general deterrence can be given less weight in the sentencing exercise. Expressed differently, general deterrence has more work to do in the case of persons making considered decisions to commit criminal offences. Circumstances may indicate that a condition or problem of modest severity may still be relevant: Carroll v R [2012] NSWCCA 118 at [58] citing De La Rosa at [178]."
14. The Crown submitted on sentencing that the principles of general deterrence and community protection were of high importance. The applicant submits that the sentencing judge did not make an assessment of whether general deterrence should have been given lesser weight.
15. The applicant submits that the sentencing judge referred to general deterrence only in general terms such that, when compared to the sentencing judge's references to specific deterrence, the sentencing judge should be taken not to have regard to the applicant's mental condition when assessing general deterrence.
16. The fact that an offender is suffering from a mental illness, intellectual handicap or other mental problems may have a consequence that the offender is an inappropriate vehicle for general deterrence which could result in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-1; De La Rosa at [177].
17. The sentencing judge made reference to general deterrence only in the following circumstances: "General deterrence and community protection are of significance in the sentencing exercise here, but I must also bring into account the need to provide a sentence addressing the particular offenders and the risk that they might re-offend, and of course there should be appropriate punishment and denunciation and recognition of the harm that the community might have suffered."
18. It is not possible to determine from those comments the extent to which the sentencing judge took account of general deterrence but in my view his Honour was on the one hand mentioning the importance of general deterrence and then qualifying its significance having regard to the applicant's particular circumstances. Having already considered the applicant's mental health issues (which formed part of his personal circumstances) in such detail, it was hardly necessary for his Honour to more specifically identify those particular circumstances.
19. By qualifying the reference to general deterrence and community protection with the words, "but I must also bring into account the need to provide a sentence addressing the particular offenders", the sentencing judge was indicating that the significance of general deterrence and community protection must be balanced by the particular circumstances of the particular offenders.
20. Having regard to the emphasis placed on the applicant's mental illness throughout the ROS, there is no reason to consider that the sentencing judge placed too much weight on general deterrence in the circumstances of this matter. There is no reason to suspect that the sentencing judge failed to take account of the applicant's particular circumstances for relevant purposes including general deterrence.
21. The third way in which the applicant submits error under Ground 1 is that the sentencing judge did not make findings about the way in which the applicant's mental illness would have made his time in custody more onerous. This submission is made, despite the remarks in the ROS to which I have referred above at [ 23 ].
22. The sentencing judge considered the applicant's submission on the relationship between his mental health and a protracted period of incarceration. The applicant acknowledges this in his written submissions. However, the applicant submits that because the sentencing judge did not repeat or reiterate those comments when referring to special circumstances later in the ROS, this Court should accept that the sentencing judge paid no regard to the applicant's mental illness in terms of findings that this would have made his time in custody more onerous. Acceptance of that submission depends upon what his Honour meant by the words to which I have referred.
23. It is difficult to understand the purpose of the final phrase, "which I am prepared to find", unless his Honour was intending to find special circumstances, if he accepted the assumption to which he referred. On a proper reading of his Honour's sentence, it was unnecessary to include the final phrase, "which I am prepared to find", if his Honour was intending merely to indicate that if his Honour accepted the proposition it would be sufficient to sound in special circumstances leaving it to a later time to make the finding.
24. The only other possible meaning is that his Honour was intending to indicate that, if he made a finding that a protracted period of incarceration would impact deleteriously upon the applicant's mental health, then he would be prepared to find those special circumstances.
25. Having regard to the following paragraphs of the ROS, it may be that his Honour was not satisfied as to the basis of the submission. Again, there can be no dispute that his Honour was accepting that such a finding could sound in special circumstances. The issue is whether he made the finding of special circumstances or whether he made the finding that the protected period of incarceration would impact deleteriously upon his mental health.
26. His Honour goes on to say, "what would be a protected period of incarceration is not quantified". He further refers to the comments of Dr Adams that, far from deterioration in the applicant's mental health, there was significant improvement. According to the applicant's wife, he deteriorated up to and including the point of arrest but he was a different person in custody. He valued his family. There is reference to him not wasting his time in custody. He has been undertaking TAFE studies.
27. The review by the sentencing judge in the ROS of the applicant subsequent to his arrest does not point to deterioration in the applicant's mental condition as a result of his incarceration. It does not tend to support the proposition that his mental condition would deteriorate or that his mental illness would make his time in custody more onerous.
28. In my view, whilst the sentencing judge's finding on this issue is not necessarily clear, there are only two alternatives, neither of which assists the applicant. The sentencing judge either made a finding of special circumstances because he accepted that the applicant's mental illness would make his time in custody more onerous or he did not accept the proposition advanced by the applicant, being that the mental illness would have that effect. On either scenario, the point raised by the applicant under particular (iii) of Ground 1 is not established.
29. I do not think the reference to the observations of R A Hulme J in R v Van Ryn [2016] NSWCCA 1 at [123] assists the applicant. The numerous references to the applicant's mental health in the ROS are hardly statements of general principle without explanation as to how the principle is being applied.
30. In the circumstances, the applicant has not made out Ground 1.

Ground 2

1. The applicant raises a parity point. He submits that he has a justifiable sense of grievance, having regard to the differences between himself and his co-offender.
2. Mr Tong received a 30 per cent discount, comprising 25 per cent on account of the utilitarian value of his guilty plea and 5 per cent for assistance provided to law enforcement authorities. He was sentenced to an aggregate sentence of 13 years 6 months with a non-parole period of 7 years 6 months.
3. The Court is required by s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to take into account the range of both aggravating and mitigating factors set out in s 21A and any other factors affecting the relative seriousness of the offence. Further, as specified in s 21A(1), these are in addition to matters that are "required or permitted to be taken into account by the court under any Act or rule of law."
4. This would include the avoidance of unjustifiable disparity between the sentences imposed upon offenders involved in the same criminal conduct or a common criminal enterprise: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 ("Green"); Bell v R [2019] NSWCCA 271 at [55]-[56].
5. In Green, at [31]-[32], French CJ, Crennan and Kiefel JJ identified the correct approach to an appeal based on a sense of grievance arising from a lack of parity as follows: "31 Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may 'reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender.' The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: 'the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.' The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. 32 A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment." (Footnotes omitted.)
6. The test for determining the existence of a sense of grievance is objective, not subjective.
7. In Fenech v R [2018] NSWCCA 160 at [30], R A Hulme J, when referring to the statement of the parity principle in Green, suggested that the proper approach required consideration of whether there was a "marked" or "marked and unjustified" disparity.
8. The question is whether there is due proportionality between the offenders having regard to any relevant differences: Postiglione v R (1997) 189 CLR 295 at 301; [1997] HCA 26.
9. The applicant identifies a number of differences between him and the co-offender, including that: 1. Mr Tong was found by the sentencing judge to be rather more complicit than the applicant. The Crown acknowledged the slightly elevated role played by Mr Tong, as it was he who arranged for the pick-up, payment and delivery of the drugs and who was seen actually packing the drugs and physically handing them over. The sentencing judge found that the applicant's role appeared to be to a degree subordinate to that of Mr Tong. The applicant emphasises his role as the primary driver for the co-offender. Yet, as the sentencing judge observed, there was no attempt to quantify or qualify that role in the presentation of the case. 2. He points to his subjective circumstances, in particular, being that: 1. he had no criminal history, whereas Mr Tong had an extensive criminal history; 2. he had long-standing issues with mental illness (on which I have already commented); and 3. he had family support and was assessed as having positive prospects of rehabilitation. 1. The sentencing judge found that Mr Tong's prospects of rehabilitation were more guarded than those of the applicant.
10. The Crown submits that on a proper comparison between the co-offenders, including their subjective circumstances, the differences between the two are not so significant as to necessitate a more significant departure between their respective sentences.

Consideration

1. Plainly there are differences between the co-offenders. The sentencing judge was careful to identify them (as he expressly said he would at an early stage of the ROS).
2. However, the sentencing judge found that both offenders were active in the commission of the offences.
3. Further, the applicant's role was much more than merely a driver, even a primary driver. The applicant was involved in the packing and distribution of the drugs and took control over them. Both were captured on surveillance devices entering bedroom 2 of the premises where the drugs were stored and packing prohibited drugs for distribution.
4. Large quantities of prohibited drugs were found at the premises. The enterprise was one for the large-scale supply of the substances for profit. Whilst neither were principals in the operation, they were both at the same level. The sentencing judge found that the conduct of the applicant was integral to the commission of the offences as was that of Mr Tong.
5. When arrested, the applicant was found to be in possession of 27.29 grams of methylamphetamine and $50,600, being the proceeds of crime. Mr Tong was found with a higher amount of cash ($272,090 compared to $50,600). The sentencing judge described both amounts as significant.
6. The sentencing judge found that the objective seriousness in respect of count 1 for both fell slightly above mid-range and in respect of counts 2-4 for both about mid-range. Form 1 offences were taken into account for both offenders.
7. As I have already indicated under Ground 1, the sentencing judge took account of the applicant's subjective circumstances. That only leaves open the question of whether they were so much more favourable than those of the co-offender that, as the applicant submits, his lesser sentence remains disproportionate.
8. Mr Tong had an extensive criminal record but it was mainly drug related. Mr Tong did not suffer from a mental illness. He was diagnosed with a substance abuse disorder. Mr Tong had a difficult childhood, leaving school early and finding himself living alone at the age of 15. He was introduced to drugs at that time. Both the applicant and Mr Tong had the benefit of a finding of special circumstances.
9. A complaint of a difference of only six months is a little illusory because the applicant received a lesser discount than the co-offender. Mr Tong received an additional 5 per cent discount in accordance with s 23 of the Crimes (Sentencing Procedure) Act in respect of assistance given to the police.
10. The fact that the co-offender received that additional discount distorts the issue of parity to a certain extent. The applicant cannot complain that the sentences are not sufficiently disparate if that lack of disparity arises from the co-offender receiving a higher discount as a starting point. Without that additional discount, the difference would be closer to 12 months.
11. As the applicant submits, there is a difference in the subjective circumstances but the applicant received a lesser sentence than Mr Tong. It is always possible to maintain, as the applicant does, that there should have been a more significant distinction to take account of the differences in subjective circumstances but this Court would not intervene unless there is a marked and unjustified disparity or there is an absence of due proportionality.
12. In my view, when considered as a whole, the differences between the co-offenders are not as stark or as significant as the applicant maintains.
13. A reasonable mind looking objectively at what has happened would not consider that the applicant's sense of grievance is justified. Ground 2 is not established.

Orders

1. Accordingly, I would propose the following orders: 1. Leave to appeal is granted. 2. The appeal is dismissed.

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