John Giang Dieu Kook v Regina

1 MEAGHER JA: This is an application for leave to appeal against the severity of a sentence imposed by her Honour Judge Latham on 19 May 2000. The applicant was sentenced to a term of imprisonment of 12 years, with a non-parole period of 8 years. The applicant had, on 10 March 2000, pleaded guilty to one count under s 233B (1)(d) of the Customs Act (1901), namely that between 23 March and 13 June 1998 he was knowingly concerned in the importation of a commercial quantity of heroin. In fact the amount involved was nearly 2.5 kilograms. It was concealed inside hollowed out computer instruction books. 2 The principals in the importation were two men called Mei and Li. The hollowed books arrived by plane in Sydney on 17 April 1998. A Malaysian citizen called Pang was recruited by one Simon in Malaysia to collect and sign for the books. Thereafter the books were taken to the accused's premises, the key to which the accused gave to Pang. As her Honour said "in general terms Pang received instructions and expenses from the prisoner throughout this period". 3 It is contended on behalf of the applicant that the sentence was too harsh. This contention was advanced by four submissions. The first is that the sentence was outside the guidelines set by this Court in R v Wong & Leung (1999) 48 NSWLR 340. In that case the Chief Justice said that for "low range commercial quantities" of heroin (ie amounts between 1.5 kilos and 3.5 kilos), the conviction appropriate for "couriers and persons low in the hierarchy of the importing organisation" should be 8 to 12 years. Hence the applicant was "low in the hierarchy" and the amount involved was 2.5 kilos. Thus the applicant received a sentence towards the top of the range for importing a quantity in the middle of the range. I do not think the art of judging sentencing can be reduced to such jejune mathematics. 4 Obviously her Honour, who was aware of R v Wong & Leung, chose a period which was within the range, although towards the top of it. That she did so reflected her Honour's opinion that although the applicant was "low in the hierarchy", and "only a foot soldier", he was heavily involved in the transportation. He was the apparent lessee of the unit at Summer Hill to which the heroin was delivered; he gave the keys of it to Pang; he transmitted the orders of Mei and Li to Pang; he acted as Pang's chauffeur; and it was his duty to distribute the heroin to its ultimate users. What else he did we will never know, because he never told us. This submission should fail. 5 The second submission was that the principle of parity was offended because Mr. Pang's sentence (before discounting for assistance) was 10 years, with a non-parole period of 7 years. However, there were sufficient indications that the activities of the applicant were more intimately involved with the importation than were those of Mr Pang. This submission should fail. 6 The third submission was that her Honour gave insufficient weight to the plea of guilty. I do not think so. It arose at the last moment; it cannot be contorted into an expression of contrition; and the Crown case was extremely strong. This submission should fail. 7 Even less powerful is the fourth submission, to the effect that a greater discount should be allowed for assistance given to the police. This turns out to be no more than an interview with a police officer and conveying to him information which he already possessed. 8 The application should be dismissed. 9 HIDDEN J: I agree that the appeal should be dismissed for the reasons given by Howie J. 10 HOWIE J: I agree with Meagher JA that the application should be dismissed for substantially the reasons given by him. However, I wish to add a few comments of my own. 11 The applicant's principal contention was that the sentence imposed upon him ought to have been no more than that which the Court of Criminal Appeal thought was appropriate for Pang, absent any discount for assistance. That was a sentence of 10 years with a non-parole period of 7 years. 12 There were two arguments advanced to support that contention. The first was that such a sentence was an appropriate one to reflect the role played by the accused as a courier or a person low in the hierarchy in the importation of an amount of heroin coming within the middle of the "Low range commercial quantity" as specified in the judgment of the Chief Justice in R v Wong & Leung (1999) 48 NSWLR 340 at 366. The second argument was that the role played by the applicant in the importation was no greater than that of Pang and, therefore, the principle of parity requires that the applicant receive no greater sentence than that which would have been imposed upon Pang but for the assistance he provided. 13 In my view the contention fails on both arguments once proper regard is given to the actual part played by the applicant in the importation. 14 The majority of the High Court in R v Olbrich (1999) 199 CLR 270 at 279 although recognising the usefulness of the terms "couriers" and "principals" to describe the different kinds of participation in a single enterprise and the differing levels of culpability, warned against too much reliance being placed upon those terms when sentencing a particular offender. Their Honours stated: "Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did". 15 So too the use of the phrase "couriers and persons low in the hierarchy of the importing organisation" as used in relation to the guideline set out in R v Wong & Leung should not deflect the sentencing judge from focusing upon the acts performed by the offender in connection with the importation in which he or she is concerned when determining the sentence appropriate to reflect the offender's culpability. 16 In the present case, the issue raised before Judge Latham seems to have been whether the level of involvement of Pang and the applicant was the same, or whether one was more involved than the other sufficient to place them in different categories for the purpose of considering the guideline set out in R v Wong & Leung. Before her Honour the Crown submitted that, whereas Pang was a courier, the applicant was a go-between or intermediary in the importation and his role was to take possession of the heroin for dissemination in the community. On the other hand the submission made on behalf of the applicant was that Pang was not a "mere courier" but had a role higher in the organisation than the applicant as evidenced by his frequent and direct contact with the principals. 17 It is in the light of this controversy that the remarks of her Honour about the respective roles of the applicant and Pang in the importation have to be read and considered. So it was that Her Honour recognised that the applicant's role was different to that of Pang but she was not satisfied that his role was more significant "so as to attract an increment to the range of eight to twelve years". In other words her Honour rejected the Crown's contention that the guideline in R v Wong & Leung was not relevant because the applicant's role was as a middleman between the courier and the principals. Consistent with this finding her Honour expressed her agreement with the submission made on behalf of the applicant that he fell to be sentenced as "a person low in the hierarchy but not a courier". However, her Honour rejected the submission that Pang occupied a more senior position in the hierarchy than the applicant. 18 It is clear that her Honour was aware of the following matters when determining the sentence to be imposed upon the applicant: the range of sentence applicable by reason of the amount and nature of drug imported and the applicant's role in the importation as specified in R v Wong & Leung; the issue of parity between the applicant and Pang based upon their similar position in the hierarchy of the organisation involvement in the importation; and the sentence imposed upon Pang and the basis upon which that sentenced was calculated by the Court of Criminal Appeal. Yet her Honour determined that an appropriate sentence to reflect the prisoner's culpability and subjective circumstances was greater than that which would have been appropriate in Pang's case had there been no assistance provided by him. 19 In my view the only basis upon which her Honour could reasonably have reached that conclusion was that she considered the applicant's role in the importation was greater than Pang's notwithstanding that, generally speaking, they both fell in the lower end of the hierarchy. In my opinion, not only was her Honour entitled to come to that finding of fact, it is the only finding reasonably open on the evidence. 20 I acknowledge that at one point during her remarks on sentence, her Honour expressed the view that there was "little which distinguishes the prisoner from Pang in terms of the objective gravity of the offence". If by that statement her Honour meant to convey any more than that the culpability of the applicant and Pang was similar because they both held a position at the lower end of the hierarchy, then it is inconsistent with the sentence imposed on the applicant, the general tenor of her Honour's discussion of their differing roles in the importation, and the undisputed facts. 21 Pang's role was to receive the package containing the drug when it was delivered to the unit in which he had been installed and then, some time later under instructions, to convey the package from the unit to the applicant who was waiting nearby in a motor vehicle. Pang had been recruited to carry out the task in Malaysia and was to be paid a sum of money and his expenses for carrying out this task. Clearly those who organised the importation perceived that the receipt of the package posed the most serious risk of detection for any person involved in the venture and recruited a person from outside the organisation to perform that task. 22 The applicant, however, was a person within the organisation who was assigned the task of taking care of Pang by, at various times, giving him instructions and directions, amounts of money, a mobile telephone, and the keys to the unit to which the drugs were delivered. But the applicant's role in the importation was not limited to his dealings with Pang. The applicant was also involved in receiving the drugs from Pang so that the process of their dissemination into the community could commence. The box, in which the books containing the drugs had been delivered to Pang, was found in premises where the applicant lived within a relatively short period of time after the drugs were delivered to Pang. After the applicant's arrest on 3 June, six of the hollowed-out books which had contained the drugs were found in these premises. 23 Although this Court should accept her Honour's finding that the applicant's level of involvement in the importation was low in the hierarchy for the purpose of considering the relevance of the guideline in R v Wong & Leung, in my view he came at the very top of that level and he was more significantly involved than Pang. I am not persuaded that the sentence imposed was manifestly excessive in itself or by reference to the guideline, notwithstanding the amount of drug involved. 24 Nor do I believe that her Honour erred by giving insufficient weight to the applicant's plea. The applicant did not indicate that he was prepared to plead guilty to the charge until 11 days before his trial was to commence. Apart from the plea, her Honour found no other evidence of contrition for the applicant's involvement in the commission of the offence. Her Honour stated that the plea was in the face of an overwhelming Crown case. Yet her Honour said that she was taking the plea into account. 25 Although the guideline in R v Wong & Leung encompasses all relevant matters including a plea; R v Thomson & Houlton (2000) 49 NSWLR 383 at 419, it does not follow that her Honour erred in choosing a sentence which is at the top of the range specified in the guideline for the quantity of drug involved. 26 It is important to bear in mind that a sentencing guideline is indicative only and it may be departed from in the proper exercise of a sentencing discretion; R v Jurisic (1998) 45 NSWLR 209 at 220; R v Henry (1999) 46 NSWLR 346 at 356, 359. It may well be that a sentence which is outside the guideline may attract the close scrutiny of this Court to determine whether the sentence was justified by the particular facts of the matter. But the fact that the sentence imposed by her Honour is at the top of the range of sentences reflected in the guideline, notwithstanding that the applicant pleaded guilty, does not necessarily require a finding that her Honour's sentencing discretion miscarried or that the sentence is manifestly excessive. 27 Finally I am unpersuaded that Judge Latham erred in failing to give any discount to the applicant for, what was said to be, assistance provided by him to the police. On 15 March 2000, that is almost two years after his arrest, the applicant spoke to a police officer for about one and a half hours about his role in the importation and what he knew about it. It should be noted that, before the applicant gave the police his account, Pang had given evidence in the applicant's committal proceedings. The police officer gave evidence before her Honour that the information was of no assistance because the applicant told the officer nothing that the police did not already know. 28 Although there was no evidence of what the applicant had told the police officer, her Honour assumed, not unreasonably, that it would have been consistent with an account given by the applicant to a psychologist on 13 April 2000. The applicant told the psychologist he was not aware that drugs may have been involved until he received the hollowed-out books. He emphasised to her that his role was minor and involved "just that of driving Pang around and keeping the books". Judge Latham placed no weight on what the applicant told the psychologist about his part in the importation because the account was self-serving, the applicant did not give evidence before her, and it was inconsistent with other evidence which she did accept. 29 In my view it was well within her Honour's discretion to determine that the information provided by the applicant to the police did not warrant a discount of his sentence. Clearly her Honour did not accept that the applicant's version given to the psychologist was a full and frank account of his involvement in the importation. Her Honour was accordingly unpersuaded that the information provided to the police amounted to full and frank co-operation and, therefore, could significantly assist the authorities: R v Cartwright (1989) 17 NSWLR 243 at 253.

---