Lam v R

Court of Criminal Appeal (NSW)|2014-04-04|Before: Hulme J, Davies J, Adamson J

Judgment 1R A HULME J: I agree with Davies J. 2DAVIES J: The Applicant stood trial before Judge Bozic and a jury on four counts as follows: Count 1: Ongoing supply of a prohibited drug being heroin between 17 May 2011 and 8 June 2011; Count 2: Supply a prohibited drug, namely heroin, on 18 May 2011; Count 3: Supply a prohibited drug, namely heroin, on 3 June 2011; and Count 4: Supply a prohibited drug, namely heroin, on 7 June 2011. 3The Applicant was found not guilty on counts 1 and 3 but guilty on counts 2 and 4. 4The Applicant was sentenced by Judge Bozic on 22 July 2013 as follows: Count 2: A non-parole period of 18 months commencing 22 July 2013 and expiring 21 January 2015 with an additional term of six months; Count 4: A non-parole period of 18 months commencing 22 July 2013 and expiring 21 January 2015 with an additional term of six months; 5At the same time a co-offender, Wei Pan, was charged with the following matters: Count 1: Supply a prohibited drug, namely heroin, on 4 May 2011; Count 2: Supply a prohibited drug, namely heroin, on 6 May 2011; Count 3: Supply a prohibited drug (heroin) on an ongoing basis on six occasions between 11 May 2011 and 7 June 2011; and Count 4: Supply a prohibited drug, namely heroin, on 6 July 2011. 6The co-offender pleaded guilty to each of the four counts. The two offences in respect of which the Applicant was convicted were concerned with the same transactions as formed part of the ongoing supply by the co-offender. 7On 1 March 2013 the co-offender was sentenced by Judge Bozic as follows: Count 1: A non-parole period of ten months commencing 20 May 2012 and expiring 19 March 2013 with an additional term of one year and two months; Count 2: A non-parole period of ten months commencing 20 May 2012 and expiring 19 March 2013 with an additional term of one year and two months; Count 4: A non-parole period of ten months commencing 20 May 2012 and expiring 19 March 2013 with an additional term of one year and two months; Count 3: A non-parole period of 15 months commencing 20 May 2012 and expiring 19 August 2013 with an additional term of one year and nine months. 8The overall effective sentence was a non-parole period of 15 months commencing 20 May 2012 with an additional term of one year and nine months. All the sentences were subject to a 25 per cent discount for an early plea. The notional starting point for counts 1, 2 and 4 was therefore 2.66 years and for count 3 was 4 years. 9The Applicant seeks leave to appeal on the following grounds: Ground 1: The Sentencing Judge erred in determining that because this was a case of trafficking to a substantial degree less weight should be accorded to good character. Ground 2: The individual sentences and the total sentence are manifestly excessive. Ground 3: The Applicant has a justifiable sentence of grievance as a result of the sentences imposed on the co-offender Wei Pan.

Circumstances of the offending 10The Sentencing Judge determined the facts as a result of the jury's verdict and the following summary is taken from his Honour's determination. 11Prior to 18 May 2011 an undercover officer had a number of dealings with the co-offender Mr Wei Pan. Pursuant to a control authority the undercover officer had, on previous occasions, purchased heroin from the co-offender. 12On 13 May 2011 the undercover officer had a conversation with Mr Pan and then further conversations on 16 May and 17 May 2011. In those conversations the undercover officer discussed with Mr Pan purchasing "a ball" of heroin. In evidence the undercover officer said that a ball of heroin was three and a half grams. A meeting was arranged for 11 am on Wednesday 18 May 2011. Prior to attending the meeting the undercover officer was fitted with a listening device and was given $2,200 in cash. 13The undercover officer attended a house in Matthes Street, Yennora. In the presence of the undercover officer Mr Pan spoke with someone and an arrangement was made for the undercover officer to return later that day. The undercover officer left the premises and returned about an hour later. He rang the bell at a side gate and was met by Mr Pan. The two men then went to a garden shed which was in the backyard of the house. It had been converted into a room with a chair and a coffee table. 14A short time later Mr Pan looked at his mobile phone and he and the undercover police officer then walked back to the front yard of the house. In the driveway of the house there was a black Honda. The Applicant was sitting in the driver's seat and she was the only person in the car. The undercover police officer stood at the front door of the car and had a conversation with Mr Pan and the Applicant. 15The undercover officer gave $2,200 in cash to Mr Pan. The Applicant then took out a scrunched up tissue bag and opened it up. There were four knotted clear plastic bags, each containing a white substance. The Applicant handed the bags to Mr Pan who then handed them to the undercover officer. The undercover officer then left. Subsequent analysis of the four clear bags show that they contained 3.39 grams of heroin with a purity of 70%. 16At about 6.46 pm on Monday 6 June 2011 the undercover officer rang Mr Pan. The undercover officer said that he needed "another one". Mr Pan suggested that he could meet with the undercover officer the next day but told the undercover officer to ring back in an hour. 17The following day, 7 June 2011, the undercover officer rang Mr Pan and had a conversation with him. At about 7.24 pm the undercover officer drove to the house in Matthes Street, Yennora. The officer walked to the gate of the house, pressed the bell and a short time later Mr Pan walked from the backyard to the gate. Mr Pan opened the gate and the two men then walked to the shed in the backyard. Mr Pan's wife was in the shed. 18At about 7.55pm Mr Pan received a phone call. He then left the shed and subsequently returned to the shed with the Applicant. The Applicant came into the shed. The undercover officer took out money totalling $2,000 and handed the money to the Applicant. The Applicant then handed to the undercover officer a scrunched tissue bag containing four small knotted plastic bags with a white substance. The undercover officer took the bags and left. Subsequent analysis of the four clear bags showed that they contained 3.41 grams of heroin with a purity of 70%. 19On 18 May the $2,200 was handed to Mr Pan by the undercover officer. There was no direct evidence that the money was handed on to the Applicant. The Sentencing Judge said that it was clear, however, that the Applicant would not have passed over the packages of heroin unless there was an understanding with Mr Pan that either the money was ultimately to be handed over to the Applicant or that Mr Pan would pass the money on to the relevant third party. 20On 7 June 2011 the Applicant received the $2,000 herself. On the question of how much money the Applicant received from the two suppliers, the Applicant gave evidence at the sentence hearing that she received $60 for each supply. 21A listening device recording made on 18 May 2011 captured an exchange in which Mr Pan and the Applicant were recorded as saying the following: The Applicant (in Mandarin): I just assist other people. Mr Pan: She don't make, she only make every time, see every time she run to me, make $50. The Applicant: Maximum of 60 and that's it.

Subjective factors 22The Applicant was aged 43 years at the date of sentence. She grew up in Vietnam and migrated to Australia when she was 21. She had lost her parents at a young age and thereafter lived with her older sister and brother until she left Vietnam. 23After she came to Australia she worked in the retail industry for ten years, ceasing work after the birth of her youngest child. She had three children to her partner of 15 years and a 21 year old child from a previous marriage. 24The Applicant told the case manager from the Probation and Parole service that she suffered from depression. She had not, however, sought any professional treatment to address mental health concerns. However, when she saw a psychologist, Ms Pamela Costantini, she said that she was not depressed and not anxious and had never taken medication to treat depression or anxiety or sleep problems. 25Ms Costantini noted the Applicant's low level of education and her ongoing difficulties with speaking and understanding English. The Sentencing Judge rejected Ms Costantini's opinion that the Applicant's low level of education might have meant that she did not fully grasp the serious implications of her involvement in the matters that led to her being charged. 26The Applicant had no criminal record.

Ground 1: Drug trafficking and good character 27The Sentencing Judge said this: The offender has no prior criminal history. As a first time offender she is entitled to leniency although if this is a case of trafficking to a substantial degree, a question with which I will deal shortly, less weight is accorded to good character. 28The Sentencing Judge found that the Applicant was involved in trafficking to a substantial degree. He said that the supplies of heroin on each of the two occasions were not isolated incidents. The Applicant was part of some form of organisation where an order was placed with a co-offender, the order was conveyed to the Applicant who then obtained the drugs from a third party in order to fill the order and then provided it in person to the co-offender to supply to the ultimate purchaser. 29The Applicant in her written submissions on the appeal did not take issue with the finding that she was involved in trafficking to a substantial degree. 30The Applicant's counsel drew attention to the categories of offences referred to in Athos v R [2013] NSWCCA 205 at [36] where it was held that limited weight may be given to good character. Two of the groups listed that appeared to be relevant were drug couriers and federal drug importation offences. It was submitted that the Applicant fell into neither of those groups. 31Attention was further directed to what Price J (Beazley P and Johnson J agreeing) discussed at [38]-[45], highlighting that good character placed the offender in a position where he or she was more likely to be selected to become involved in an offence. That picked up a similar discussion in R v Leroy (1984) 13 A Crim R 469 and Brent Redfern v R [2012] NSWCCA 178 at [23]. In the last mentioned case Adams J (McClellan CJ at CL and Hoeben J agreeing) said at [24]: There is no special class of offence, including drug dealing, which requires a different rule to be applied to the significance of the particular subjective circumstances in an individual case. 32Nothing in the Remarks on Sentence in the present case suggests that no weight was given to the fact that the Applicant was a first time offender nor that she was not accorded some leniency for that fact. 33As the ground of appeal makes clear, the complaint is one that less weight was accorded to one factor by the Sentencing Judge. The issue of what weight is to be given to factors is a matter peculiarly within the discretion of the Sentencing Judge: R v Baker [2000] NSWCCA 85 at [11]. The Sentencing Judge's statement that less weight is accorded to good character in relation to offences involving drug supply is well supported by authority. There is a variety of reasons for that approach including the importance of both general deterrence as well as planning in drug supply cases: Van Can Ha [2008] NSWCCA 141 at [43]; Sinkovich v R [2011] NSWCCA 90 at [53]. 34This ground fails.

Ground 2: Sentences manifestly excessive 35The Applicant submitted that a sentence of two years imprisonment for supplying 3.39g and 3.41g of heroin in circumstances where the Applicant was said to receive only $60 from each supply, was found to be a street level supplier and had no criminal record was a manifestly excessive sentence. It was accepted that a period of full time imprisonment was likely to be inevitable but it was submitted that it ought to have been measured in months rather than years. 36However, the Sentencing Judge found that the Applicant was involved in trafficking to a substantial degree, that the two supplies in respect of which she was convicted were not isolated and that she was clearly part of some form of organisation. This organisation involved the Applicant's being rung by the co-offender or his wife, followed by the Applicant's driving to their house with the heroin and receiving money, most of which would be passed on to some unknown third person. 37Two other matters are of importance in considering whether the sentence was manifestly excessive. The first is that the offences were committed for financial gain, the second is that the purity of the drugs was 70%. Both are matters which elevate the seriousness of the offences. The fact that the individual supplies were of relatively small weight does not remove the substantial need for deterrence: Restuccia v R [2012] NSWCCA 15 at [14]. 38This ground fails.

Ground 3: Parity 39The Crown had submitted that the role of the Applicant was higher than that of the co-offender because she was not a street dealer. His Honour was not able to be satisfied beyond reasonable doubt that the Applicant's role was in substance greater than that of the co-offender. 40There were both similarities and differences between the two offenders: (1) The co-offender was a user/addict which the Sentencing Judge said placed him in the lower range of criminality than a drug trafficker motivated purely by greed. (2)The co-offender pleaded guilty to more offences than the two in respect of which the jury found the Applicant guilty. The Applicant received a 25% discount for her early offer to plead to the two offences in respect of which she was found guilty. (3)The Sentencing Judge found that the co-offender was genuinely remorseful but found that the Applicant was not genuinely remorseful for her actions as opposed to remorse for her predicament and the effect that it had on her family. (4)The co-offender suffered from depression and anxiety in the severe range. (5)The Sentencing Judge found that the co-offender had made progress with his attempt to address his problems and that if he maintained that motivation he would have good prospects of rehabilitation. (6)As with the Applicant, the Sentencing Judge was unable to conclude that he was unlikely to re-offend. (7)The co-offender had a large number of offences on his record whereas the Applicant had none. (8)The co-offender was on conditional liberty at the time of his offending. 41In considering the issue of parity two things are important. The first is that it was the same judge who sentenced both offenders and he expressly made reference to the issue of parity between the Applicant and the co-offender. He concluded: Given the differences between the offender and Mr Pan, both in a favourable and in an unfavourable sense to this offender, I determine the sentences to be imposed on the offender with only limited regard to the sentences imposed on Mr Pan. 42It has been said in many cases that this Court will be cautious before determining that one co-offender has a justifiable sense of grievance because of different sentencing outcomes where the same judge has sentenced each and has had regard to the differing criminality and the different subjective circumstances of each: R v Swan [2006] NSWCCA 47 at [71] per Barr and Howie JJ. The various authorities are gathered in Loader v R; Dunn v R [2013] NSWCCA 215 at [91]-[96]. 43The second matter of significance is that counsel for the Applicant submitted to the Sentencing Judge that parity did not apply. He said: Well I would submit that there's differences and significant differences so as not to enliven that principle. Where there are differences in culpability or circumstances then obviously due allowance must made (sic) for those differences. Now here I would respectfully submit that obviously parity does not apply as Mr Pan pleaded guilty to ongoing supply, a significant difference and then to three other charges of supply. Further and also extremely significant as to whether Wei should be treated as like, now in my submission they are not alike. ... so I would respectfully submit that the Court your Honour would treat the cases entirely differently. HIS HONOUR: Meaning that one concludes there's just not a relevant parity issue here? HARRISON: In my submission there's not ... 44In Zreika v R [2012] NSWCCA 44 at [81] Johnson J (with whom McClellan CJ at CL and Rothman J agreed) said: [81] The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29]. 45In the face of a concession appropriately made by counsel at the sentencing hearing, exceptional circumstances would now need to be demonstrated before there was any variation to the sentence arising from a lack of parity. No such circumstances are shown here. 46In any event, his Honour carefully considered the parity question. I am not persuaded that he fell into error in the sentences that he imposed on the Applicant and on the co-offender in the sense that the sentences individually or together objectively give rise to a justifiable sense of grievance on the part of the Applicant. 47This ground fails. 48The orders I propose are these:

Leave to appeal granted.
Appeal dismissed. 49ADAMSON J: I agree with Davies J.

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