Kwan v R; Kwok v R

Court of Criminal Appeal (NSW)|2020-11-09|Before: Meagher JA, Walton J, Beech-Jones J

Solicitors: Legal Aid of NSW (Applicants) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2013/153101; 2013/153102 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 1 May 2014 Before: Blackmore SC DCJ File Number(s): 2013/153101; 2013/153102

Judgment

MEAGHER JA: I agree with the orders proposed by Walton J for the reasons his Honour gives.
WALTON J: On 15 November 2013, Chun Yu Kwan and Kai Wing Kwok (collectively, "the applicants") pleaded guilty in the Local Court of New South Wales to attempting to possess a commercial quantity of a border controlled substance, namely 33.1565 kilograms of methamphetamine contrary to ss 307.5(1) and 11.1(1) of the Criminal Code 1995 (Cth). The applicants were committed for sentence that same day.
The sentencing hearings of the applicants were heard together on 1 May 2014 before his Honour Judge Blackmore SC ("the sentencing judge") in the District Court of New South Wales. His Honour sentenced each applicant to 20 years' imprisonment with a non-parole period of 13 years' imprisonment. The sentence commenced on 16 May 2013 and the applicants will be eligible for release on parole on 15 May 2026.
By an application for leave to appeal filed 24 July 2020, each applicant sought leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon them by the sentencing judge. On that same date, the applicants each filed a notice of an application for extension of time to seek that leave pursuant to s 10(1)(b) of the Criminal Appeal Act.

GROUND OF APPEAL

The applicants nominated a single ground of appeal which was expressed in the following terms: That in determining the appropriate discount to reflect the value of the Applicant's plea of guilty in accordance with s 16A(2)(g) Crimes Act 1914 (Cth), his Honour did not have regard to the utilitarian value of the Applicant's plea of guilty.

UTILITARIAN VALUE OF PLEA

The sentencing judge stated with respect to the applicant's guilty plea that: The offenders pleaded guilty at the first reasonable opportunity, that was both a recognition of the extremely strong Crown case but also an acknowledgment of their willingness to facilitate justice.
His Honour also found, with respect to penalty, that: The maximum penalty for this offence is life imprisonment and given the roles played by each of these offenders, which was certainly in my view not at the bottom of the range, had these matters gone to trial that penalty was available on the facts.
Those reasons for sentence were given at a time when the decisions in this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 and Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57 and Jinde Huang aka Wei Liu v R (2018) 332 FLR 158; [2018] NSWCCA 70 ("Huang") had not been determined. Those, and subsequent decisions, hold that in sentencing for a Commonwealth offence, a discount may be given for the utilitarian value of a plea.
It was common ground that the sentencing judge had allowed no discount for the utilitarian value of the plea of guilty. That concession was well made. Recognition of the strength of the Crown case in the sentencing judgment and an acknowledgement of willingness to facilitate justice are not relevant to the utilitarian value of the plea: Bae v R [2020] NSWCCA 35 ("Bae") at [57]-[58]; see also R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32(4)] (per Howie J, with McClellan CJ at CL and Simpson J agreeing).
In Huang, the Court held that a failure to have regard to the utilitarian value of a plea of guilty when sentencing for a Commonwealth offence amounted to an error. (See also Hijazi v R [2020] NSWCCA 97 at [8].) The Crown properly conceded that error.
That same consideration was productive of a concession by the Crown, again properly made, as to the appropriateness of granting an extension of time: Baladjan v R [2018] NSWCCA 304 at [92] (per Bathurst CJ, with whom Hoeben CJ at CL and Fagan J agreed). Leave should be granted upon the same basis.

RE-SENTENCING

Having found error in the sentencing judgment, this Court must exercise the sentencing discretion afresh taking into account the purposes of sentencing and the factors that the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") requires to be considered: see ss 3A and 21A; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43] and Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255 at [60], [65], [86] and [128]. Such an exercise involves the exercise of an independent discretion with a sentence fixed which is appropriate having regard to the offender and the offence. (See also: O'Neile v R [2018] NSWCCA 291.)
Five further concessions in the proceedings were made by the parties which will substantially reduce the length of these deliberations: 1. In written submissions, the Crown initially contended that, upon the exercise of the Court's discretion upon a sentence, no lesser sentence than imposed by the sentencing judge was warranted in law. However, upon a review of the schedule of relevant cases on which it relied, in particular, R v Pham; Ex parte Director of Public Prosecutions (Cth) [2017] QCA 46; Director of Public Prosecutions (Cth) v Peng [2014] VSCA 128; and Chan, Lo and Nguyen v Regina [2010] NSWCCA 153, and making due allowance for the limitations of such a comparative analysis, the Crown accepted that its initial contention could not be sustained. It was accepted that some lesser penalty was appropriate in all of the circumstances. Having regard to the authorities in question, and the facts and circumstances of the offending and the offenders, that submission should be accepted. 2. As earlier mentioned, it was common ground that no discount had been given by the sentencing judge for the utilitarian value of the plea. The assessment of the utilitarian value of the plea is predominantly governed by the timing of the plea: Bae at [59]. As the applicants entered pleas of guilty at committal, the Crown accepted that each plea warranted a discount of 25 per cent. Again, that concession is well made. 3. Consistently with the sentencing proceedings below, it was agreed that the sentencing of the applicants may be undertaken jointly, with differences in the respective cased identified where applicable (there were no issues of parity). 4. Further, the applicants did not challenge any of the facts found by the sentencing judge, or any other findings of the sentencing judge (other than in relation to the plea of guilty). The Court may, therefore, have regard to the unchallenged findings of fact made by the sentencing judge: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]. 5. The Court can also, in the circumstances, have regard to the sentencing judge's findings regarding objective seriousness: Mulato v R [2006] NSWCCA 282 at [46]. The appropriate sentence is to be determined on the material that was before the sentencing judge, the sentencing judge's unchallenged findings, and any relevant evidence of post-sentence conduct: DL v The Queen at [9].

THE NATURE AND CIRCUMSTANCES OF THE OFFENCE

The summary of the facts that follows is taken from the factual summary provided by the sentencing judge, as well as an agreed statement of facts.
On 27 March 2013, a Sydney based freight forwarder, Ace Logistics, was contacted via email in relation to the importation of a shipment of hair salon furniture and equipment. The shipment was from Hong Kong to Sydney by sea carrier.
The person contacting Ace Logistics identified themselves as "Hong Yan" of Cool Cuts Hair Design in Hurstville. There was a real "Ms Yan", but she told police she was not involved in the importation of hair salon furniture and that the email address used to contact Ace Logistics was not hers.
On 11 April 2013, Mr Kwan, a Hong Kong national, arrived in Sydney on a flight from Hong Kong.
On 14 April 2013, Mr Kwok, also a Hong Kong national, arrived in Sydney on a flight from Hong Kong.
The applicants began living together at an address in Hurstville Grove. Mr Kwan later told police he lived at the Hurstville Grove address free of charge and that the accommodation had been arranged by an acquaintance called "George". Mr Kwan could not provide a last name for George or any other details.
Between 1 and 15 May 2013, there were multiple emails between "Hong Yan" and Ace Logistics concerning the shipment and its arrival in Sydney.
On 6 May 2013, the shipment arrived in Sydney. The consignee was "coolcutshairbeauty" in Hurstville. The mobile phone number was registered to a false name.
The consignment contained 12 pallets. One pallet purported to contain bottles of shampoo, conditioner and perming colour. This pallet contained 72.492 litres of a crystalline substance containing methamphetamine of 45.5% purity.
The exterior of the pallet was marked with masking tape, ostensibly so that it could be identified by the recipients as containing the boxes that contained the drug.
Police replaced the methamphetamine with an inert substance. Listening devices were placed inside the boxes.
On 15 May 2013, an Ace Logistics courier transported the consignment to their warehouse in Zetland. Ace Logistics contacted "Hong Yan" via email to advise that the shipment was awaiting collection. "Hong Yan" replied that someone would collect the consignment the following morning.
At 12.48pm on 16 May 2013, video footage showed Mr Kwok and two unidentified men arriving at the Ace Logistics warehouse with a truck. They collected the shipment. They then travelled to a Rent A Space storage facility in Bexley, which had been rented since December 2011 under a false name.
The listening devices recorded Mr Kwok telling the unidentified men which items to unload into the storage facility and which were to remain on the truck. The boxes containing the methamphetamine remained on the truck.
Mr Kwok and the two unidentified men then went to the Hurstville Grove address and unloaded the boxes from the truck into the house at around 3.15pm.
Telephone calls were recorded on listening devices at the following times: 1. At 7.08pm, the applicants discussed the number of boxes. Mr Kwan said to Mr Kwok, "five boxes though", and then directed Mr Kwok to "open and check them". 2. At 7.14pm, the listening devices recorded noises consistent with persons attempting to access the consignment. 3. At 7.17pm, Mr Kwan questioned Mr Kwok regarding the weights of the larger items of the consignment stored at the storage facility. 4. At 7.22pm, the applicants discussed the consistency of the inert substance. Mr Kwan said, "It's been mixed so thinly, eh. Like water" and "It is very liquid-y, fuck it ... ". Mr Kwan then told Mr Kwok to "[g]ive it a test". 5. At 8.13pm, Mr Kwan said to Mr Kwok, "Cooking so soon ... cook so quickly?" 6. At 8.37pm, Mr Kwan received a telephone call. He said, "Hello ... that box has been delivered ... already got that". 7. At 8.45pm, the applicants had a conversation during which Mr Kwan attempted to calculate the number of various sized bottles within the consignment. 8. At 9.16pm, Mr Kwan instructed Mr Kwok to bring him the customs documents. 9. At 9.20pm, the applicants had a conversation regarding the number of boxes which contained bottles. 10. At 9.42pm, Mr Kwan told Mr Kwok, "They are kept separated ... those bottles had been rinsed ... just put put put put those washed ones to one side and the ones which hadn't yet been rinsed to put on the other side ... ". 11. At 9.51pm, Mr Kwan described to Mr Kwok irregularities with the substance including the lack of any odour, the incorrect consistency and the absence of rice-like residue.
I agree with the submissions made by the Crown that these conversations made clear that Mr Kwok and Mr Kwan were aware of the nature of the substance they were attempting to possess.
On 17 May 2013, police executed a search warrant at the Hurstville Grove address. Police found the three boxes previously containing the methamphetamine in the house. The applicants were arrested.
The total weight of pure methamphetamine was 33.1565 kilograms which can produce 43.010 kilograms of methamphetamine hydrochloride ("ice"). The wholesale value of the quantity of drugs was estimated at $10,752,000 and the street value was estimated at $34,408,000.

ROLE OF THE OFFENDERS

In relation to Mr Kwan's role, the sentencing judge found: 1. He travelled from Hong Kong to Sydney on 11 April 2013. 2. He moved into the Hurstville Grove premises with Mr Kwok. 3. He gave Mr Kwok a number of directions in relation to the boxes from the consignment on the evening of 16 May 2013, which was the night the applicants collected the consignment. 4. He spoke to an unidentified person on a mobile phone in relation to the consignment. He reported the condition and quantity of packages received to this person. 5. He told Mr Kwok that when they got back (presumably to Hong Kong) there would be "money" as "his brother was not lying. No need to lie". 6. He was concerned about the appearance, smell and quality of the substance. He made comments that it had the wrong appearance and was not oily enough, and did not have the correct smell. 7. He had three mobile phones in his possession when he was arrested. Each was registered to a false name on 11 April 2013, which was the day Mr Kwan arrived in Australia.
In relation to Mr Kwok's role, the sentencing judge found that to some extent it was a lesser role in the sense that he appeared to have been directed in some things by Mr Kwan. On the other hand, his telephone conversations with Mr Kwan made it clear that he was also aware of the nature of the substances in the packages. In my view, overall Mr Kwok played a similar role to that of Mr Kwan.

QUANTITY

Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: R v Nguyen; R v Pham [2010] NSWCCA 238 at [72(d)].
The weight of the drugs, and their value, was substantial. The applicants attempted to possess 44 times the commercial quantity of methamphetamine.
The conversations between the applicants recorded by the listening devices made clear that they were both aware of the nature of the substance they were attempting to possess.

PROFIT

The sentencing judge found: "The extremely large amount of the drug is matched by the very large amount of money that the drug could have been traded for".
Neither applicant gave evidence in the sentencing proceedings but each provided written statements. Mr Kwok wrote: I agreed to come to Australia to move some goods. I followed their instruction to move the goods to the premises where I lived. When police came and arrested me I became aware that the goods were drugs. At that point in time it was all too late.
His Honour rejected those written statements. As to the statements of Mr Kwok, he held: Those statements cannot be accepted. They are entirely inconsistent with the Crown facts and in particular with the fact that these offenders sort[ed] through a number of boxes before certain particular boxes were taken to the address at Hillcrest Avenue, Hurstville Grove. The boxes taken were the ones that contained the drugs which had been substituted. In addition the conversations quoted in the Crown's agreed facts make it patently clear that both offenders were well aware of the nature of the contents of the boxes and that they contained prohibited drugs. Any other conclusion is simply untenable. Consequently the statement of Kwok about his knowledge of the existence of drugs is untrue and I reject the entire contents of the statement as at least unreliable. I do not accept his claim to be acting under duress, even if it was true that his wife had a gambling addiction it provides no reasonable explanation for his involvement in this offence.
As to the statement of Mr Kwan, he observed: In that statement he says that he came to Australia to do some illegal activity. He further said that he did not take any step to fully understand the nature of the illegal work. When arrested he was told by police that he was involved in drugs. Again those statements cannot stand any objective analysis. The statement to the effect that he was unaware of the nature of the illegality that he was involved in is untrue and as a consequence I reject the entirety of his statement as at least unreliable.
The sentencing judge concluded that the applicants were both motivated by profit: So it is completely clear, I reject both statements as being unsupported by sworn evidence and also unsupported by independent evidence. I do not accept on the balance of probabilities that either man had a gambling addiction or that a gambling addiction of another person or that they were acting under duress which motivated their trips to Australia. The only reasonable conclusion is that they came to this country to sell a huge quantity of drugs worth many millions of dollars. On any view this was a very large quantity of drugs. … There is no evidence that either of these offenders were themselves addicted to the drug and the only reasonable conclusion from the evidence is that they were fully aware of the nature of the substance and that they were in Australia to deliver.
The sentencing judge stated: This drug importation was an entirely cynical exercise by foreign drug dealers intent on flooding the Australian market with a pernicious and illicit drug. The only possible motivation for this exercise was to make money.
Upon the material before this Court relevant to resentencing, and having regard to the aforementioned discussion of principles earlier in this judgment, I consider that the finding of the sentencing judge, in this respect, may be accepted. The motivation of profit increases the objective gravity of the applicant's offence: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [261].

OBJECTIVE SERIOUSNESS

The seriousness of the offending contrary to ss 11.1(1) and 307.5(1) of the Criminal Code, and the context in which it occurred, is evident. In E/ Ghourani v R (2009) 195 A Crim R 208; [2009] NSWCCA 140, Spigelman CJ stated at [30] that: "the circumstances relating to the process of importation may also be relevant to a charge of possession ... the overall context was pertinent to an assessment of the culpability of the accused for the offence charged".
In my view, the findings of the sentencing judge as to the objective gravity of the offences remain appropriate and I adopt those findings for the purposes of re-sentencing.
The maximum penalty for the offences is life imprisonment. The applicants knew the boxes they acquired contained the drugs and came to Australia for the purpose of dealing with illicit drugs. There was a very large quantity of drugs which had been acquired for profit. Their roles were similar. Notwithstanding that Mr Kwok received instructions, he was aware of the drugs and was actively engaged in dealing with them.

SUBJECTIVE FEATURES

Mr Kwan is presently 42 years of age. Mr Kwok is presently 51 years of age.
Neither of the applicants had any criminal history in Australia and no finding was made by the sentencing judge that they had a criminal history of any relevance outside of Australia. Neither of the applicants gave evidence. The sentencing judge correctly stated that, whilst each applicant had criminal records in Hong Kong, they were not an aggravating factor on sentence.
I note that, in relation to each applicant, the sentencing judge did not find that the subjective circumstances amounted to any mitigating factors. His Honour referred to the applicants' status as foreign nationals and the isolation they may experience in custody as a result but noted that those considerations were due to the offending.
Overall, I do not consider the cases for the applicants had particularly strong subjective features.
The subjective material relied on by Mr Kwok included: 1. Confirmation of English course work undertaken in custody. 2. A letter from Mr Kwok's son dated 10 April 2014 and from his wife dated 10 April 2014 attesting to his hard working nature and care of his mentally ill wife. 3. A letter from Mr Kwok dated 25 February 2014 setting out his background. This included that he was educated until his third year of high school and commenced work at age 17 to support his family. He worked in various trades. He married in 1999 and had a son soon after. In 2012, he opened a grocery store. His wife had a gambling problem and the business suffered financially. This motivated him to commit the offences. He expressed remorse for his offending. 4. Various documentation was provided attesting to Mr Kwok's wife suffering from schizophrenia in 2007-2008 and attending a Hong Kong psychiatric centre in 2014 and 2015.
The subjective material relied on by Mr Kwan included: 1. Confirmation of various course work undertaken in custody. 2. A letter from Ho Ka Wah dated 29 April 2014 about the applicant's good character. 3. A letter from Mr Kwan dated 27 February 2014 set out his background. This included that he was educated to the equivalent of year 10 and worked as a chef for 15 years. He started to gamble and borrow money from a loan shark. As a result of his gambling debts, he engaged in the offending conduct. He expressed remorse and concern for the health of his elderly parents who he wanted to look after. 4. A letter from various family members of Mr Kwan (undated) as to his elderly parents requiring his support.
Since being in custody each of the applicants has been well behaved and has sought to use their time constructively.
With respect to Mr Kwan, relevant details of his time in custody include: 1. Mr Kwan had worked, processing headsets, engineering, textiles, laundry and bumper repairs. 2. Further, Mr Kwan had worked in food services, as a chef. He intends to work again as a chef when he returns to Hong Kong. 3. He consistently received positive work reports. 4. He had not been the subject of any internal gaol charges. 5. Prior to the COVID-19 pandemic, Mr Kwan completed English language courses. 6. He had completed a food processing course. 7. When not working, Mr Kwan engaged in exercise. Further, he reads newspapers, which he able to purchase written in Cantonese. 8. Mr Kwan maintained contact, via telephone conversations, with his mother.
With respect to Mr Kwok, relevant details of his time in custody include: 1. Mr Kwok had worked, processing headsets, bumper repairs, fencing and furniture assembly. 2. Mr Kwok consistently received positive work reports. 3. Mr Kwok had not been the subject of any internal gaol charges. 4. Prior to the COVID-19 pandemic, Mr Kwok completed English language courses. 5. When not working work, Mr Kwok reads, practices Tai Chi and constructs craft photo frames and toy models.
Nevertheless, I do not consider that the material before the Court permits of a favourable conclusion about the applicants' prospects of rehabilitation.

PARITY

As previously mentioned, no issues of parity arise in these proceedings on re-sentencing. There is no relevant difference between the role of each applicant in the offence nor their subjective circumstances.

GENERAL DETERRENCE

The sentence to be imposed on the applicants is one in which general deterrence must figure prominently: DPP (Cth) v De La Rosa at [260]. Regard must be given to the significant adverse effects of drug distribution in the community and the circumstances of the offending in this matter.

THE SENTENCES

Each applicant has been convicted of the offence charged. Neither party made any submissions contrary to the sentencing judge finding it appropriate to impose a non-parole period in a range of 60% to 66% of the total sentence. Nor was there any demur as to the starting date for the sentences.
In all of the circumstances, and having undertaken the process required by Kentwell v The Queen, I am satisfied for the purposes of s 6(3) of the Criminal Appeal Act that a lesser sentence should be imposed in this case having regard to all the relevant objective and subjective factors and after applying the 25% discount for the utilitarian value of the applicants' plea of guilty.
In the result, I would sentence each applicant to an overall sentence of imprisonment of 16 years, with a non-parole period of 10 years.

ORDERS

I propose the following orders: 1. Pursuant to Criminal Appeal Act 1912 (NSW), s 10(1)(b), extend the time for each of the applicants to seek leave to appeal. 2. Grant leave to each of the applicants to appeal against sentence. 3. The sentences imposed upon Chun Yu Kwan and Kai Wing Kwok in the District Court of New South Wales on 1 May 2014 are quashed. 4. In their place, Mr Kwan and Mr Kwok are each sentenced to a term of imprisonment comprising of a non-parole period of 10 years commencing on 16 May 2013 and expiring on 15 May 2023, with a balance of term 6 years commencing on 16 May 2023 and concluding on 15 May 2029.
BEECH-JONES J: I agree with Walton J and the orders his Honour proposes.

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Pursuant to Criminal Appeal Act 1912(NSW)

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