Lam v R

Court of Criminal Appeal (NSW)|2021-08-13|Before: Payne JA, Wilson J, Fagan J

The Applicant Lam

The applicant Lam faced charges of attempting to possess a commercial quantity of unlawfully imported border controlled drugs, being methamphetamine, contrary to ss 307.5(1) and 11.1 of the Commonwealth Criminal Code Act 1995 ("the Code"), and a second charge in the same terms, referable to the drug heroin. The maximum penalty for these offences is life imprisonment and / or a substantial fine. Lam pleaded guilty to both offences in the Local Court, and was committed for sentence.
He was sentenced by his Honour Judge Zahra SC in the District Court of NSW on 7 March 2014 to a term of 18 years imprisonment, with a non-parole period ("NPP") of 12 years.

The Applicant Lay

The applicant Lay also faced two charges. The first was a charge of attempting to possess a commercial quantity of unlawfully imported border controlled drugs, being methamphetamine and heroin, contrary to ss 307.5(1) and 11.1 of the Code; the second an offence of trafficking a commercial quantity of a border controlled drug, being methamphetamine, contrary to s 302.2(1) of the Code. The latter offence also carries a maximum penalty of life imprisonment and / or a fine.
The applicant Lay entered pleas of guilty in the Local Court and was committed from that court to the District Court on 6 September 2013 for sentence. He was also sentenced by Zahra SC DCJ, on 14 February 2014, to a term of 17 years and 6 months imprisonment, with a NPP of 11 years and 6 months.
The Statement of Facts tendered to the sentencing court were substantially the same as those against the applicant Lam, summarised above, with some additional detail concerning the role of the applicant Lay. On 21 and 25 July 2012, after the drug shipment had arrived in Australia but before it was delivered to and unpacked at the Alexandria unit, the applicant was in telephone communication with Yet Toh Lay ("YT Lay"), a man who had travelled from Sydney to Hong Kong on 18 February 2012, returning to Sydney on 9 June 2012. There was further telephone contact between Lay and YT Lay on 28 July 2012, by which date the substituted drugs cargo was at the Alexandria unit being unpacked by Lam and HKL.
On 29 July 2012 Lee telephoned the applicant Lay and arranged to meet him the following day. After that call the applicant placed a number of telephone calls to YT Lay, eventually speaking to him at about 2pm. YT Lay telephoned a Hong Kong number immediately after speaking with the applicant.
The applicant met Lee in Haymarket in Sydney, after which Lee gave instructions to those in the warehouse about the division of the drug cargo. The applicant evidently told Lee that "number checking", presumably a count of the packages of drugs, was not necessary. Lay left, after which Lam joined Lee. The applicant Lay then returned, driving a vehicle. He stopped and spoke with Lee and Lam, after which Lam got into his car with him. The applicant Lay drove with Lam to the Alexandria unit.
At the unit, Lam walked off, and Lay reversed his vehicle into the warehouse. An unidentified male spoke to Tang, via a telephone in the possession of Tang, who was also at the warehouse. The male spoke to Lay, who was given the handset. Lay told the male he would confirm that the numbers were correct. To a second male who joined the conversation on the telephone, Lay said he was going to take "150 and 50" and said to let him check.
The applicant Lay then had a conversation with HKL, in which Lay confirmed with HKL that "the big one has fifty. The small one has one hundred". Lay and HKL then loaded the substituted drug cargo into Lay's car. They chatted as they worked, with Lay telling HKL that he was from Indonesia, and not China.
The two men loaded three cardboard boxes into the car; two of the boxes contained 200 packages of substituted heroin, whilst one held 50 packages of substituted methamphetamine. Lay again spoke with the unknown male on the telephone and confirmed that the "small ones were two hundred and the big ones were fifty".
There was 70.24 kilograms of powder in the boxes of substituted heroin. Had it been the original heroin cargo, with a purity of 69%, the pure weight of heroin would have been about 49.465 kilograms. The wholesale value of 70.24 kilograms of 69% pure heroin was almost $20 million at the time.
Lay took possession of 49.8 kilograms of substituted methamphetamine in the packages taken by him. The original substance was methamphetamine with a purity of 78%, yielding 38.844 kilograms of the drug. The cargo was valued at between $9,960,000 and $12,450,000.
Lay drove out of the warehouse with the cargo and went to his home at Green Valley. He spoke on the phone with YT Lay three times during the drive. YT Lay drove to the applicant's home later that day and took 20 of the packages from the boot of the applicant Lay's car, transferring them to his own car. YT Lay was arrested after he had driven away from the property; 20 packages of substituted heroin were found in the car.
The applicant Lay was arrested at his home soon after. He told AFP officers that there were boxes of drugs in his car and some on a shelf in his garage. The boxes of substituted drugs were then found in the applicant's car, with a quantity of drugs recovered from the garage.
When interviewed, Lay gave an account of having been asked to pick up some goods; he asserted that he just worked "as delivery". He claimed not to have touched the boxes in the Alexandria warehouse, and said he did not know what was inside. As to the drugs in his garage, the applicant said that he had been given them by a Chinese man who had paid him $10,000 at the same time. He later made a witness statement in which he said that YT Lay had asked him to pick up "dry food samples" and he had done so. He said he did not know that the substance he collected from the Chinese man, or the contents of the boxes he picked up from Alexandria, were drugs.
The Facts recorded that, as at November 2013, the applicant Lay was aged 56 years old, and was an Australian citizen. He had formerly owned a take- away shop in south-western Sydney and had no criminal convictions.
The applicant Lay both gave and tendered evidence to the sentencing court. In oral evidence through an interpreter, the applicant told the court that he and his wife had conducted a take-away business in Leumeah for twelve years and had not been in any financial difficulties. The couple had a mortgage and modest credit card debts but were managing repayments. Since his arrest, the applicant Lay said his wife had divorced him.
He gave an account of having seen his cousin YT Lay at a social event and being given his telephone number. He said that his cousin later asked him to collect something for him from a man in Rockdale. A telephone was placed in the applicant's letterbox and someone contacted him on the telephone, after which he collected a tightly wrapped package. He took the package home but, when it broke, he put its contents into a box in the garage at his home, where it remained (this relates to count 2.) He was subsequently given $10,000 by his cousin. In cross-examination the applicant said that it was just "random" that he had stored a quantity of resealable plastic bags and a heat press next to the substance in his garage. The bags and press had been given to him by YT Lay to use in his shop, but he had left them in the garage instead.
The applicant Lam said that, in July 2012 his cousin had again asked him to pick up something, with a telephone left in his mailbox and a $5 note given to him to use to identify himself when collecting the goods. He said that he suspected it might be drugs but, as YT Lay was his elder cousin, he thought it was alright to help him. He maintained that he did not know that the substance was a drug, instead believing it to be a "Chinese food item". He said he took what he had collected to his home and his cousin came and took "20, 30" and moved them from Lam's car to his own car.
The applicant Lay told Judge Zahra SC: "I did the wrong thing. I hope your Honour would sympathise me and give me a chance. I'm very sorry, your Honour, and I apologise to my family."
The applicant's daughter also gave evidence to the sentencing court. Ms Lay told the court that her father was very hardworking and kind-hearted and was a loving family man. She had visited him regularly in prison and he had expressed his regret and shame for the offences.
A psychological report prepared by Yat Sang Cheung on 13 November 2013 was tendered to the sentencing court.
Mr Cheung noted that the applicant was born in East Timor to an immigrant Chinese family. He had arrived in Australia 27 years previously as a refugee. His parents had operated a village store in East Timor, and he had enjoyed a positive childhood, with good schooling at a local Chinese school. He left school at age 18 after the Indonesian invasion of East Timor led to all schools closing. He worked, married, and had three children, before travelling to Australia as a refugee. In Australia he had worked and saved money before establishing his takeaway business. He had worked long hours and provided for his family. His children had grown up and had families of their own.
The applicant told Mr Cheung that, because of his crime, his wife had divorced him, and he was unable to be the family provider. He was ashamed at becoming a "burden" to his family.
The applicant Lay presented as coherent and with logical speech. He was not depressed or thought disordered. He had adjusted well to institutional life and was always housed with Chinese prisoners. Mr Cheung thought that the applicant Lay posed a low risk of further criminal conduct.
The applicant also relied upon some certificates of vocational and educational attainment showing his participation in custody in courses in Literacy and Numeracy, Vocational and Community Engagement, and Access to Work Training. Several references and testimonials noted the applicant Lay to be a hardworking and courteous individual who had taken on the care of the children of his youngest daughter, after her death from cancer in 2008. All of those who wrote spoke highly of him. His offences were said to be out of character.
Sentence was imposed upon the applicant Lay by his Honour Judge Zahra SC on 14 February 2014. His Honour recounted the facts of the applicant's crimes as advanced in the Crown case, and summarised the evidence placed before him by the applicant.
Referring to the applicant Lay's willingness to facilitate the course of justice, his Honour said: "The offender entered a plea of guilty in the Local Court. The Crown submits that the case against the offender was strong and was "recognition of the inevitable" and that any discount should be at the lower end of the scale. The offender participated in a recorded interview and made a further statement at the time of his arrest. The offender was less than frank with police and at times denied knowledge of the drugs. Ultimately, the offender admitted his guilt and entered a plea of guilty at an early stage in the Local Court in relation to both counts. He saved the cost of what would have been a lengthy trial. Whilst the guideline in Thomson and Houlton (2000) 49 NSWLR 383 was not intended to apply to Commonwealth offences it has been held that the range indicated in the guideline is a reasonable range to adopt. In my view, given the early plea, a discount in the order of 25% is appropriate."

The Applicant To

The applicant To was sentenced for an offence of aiding and abetting TTP to traffick a commercial quantity of a border controlled drug, contrary to ss 11.1(1), 11.2(1) and 302.2(1) of the Code, an offence which carries a maximum penalty of life imprisonment and / or a fine. He was also sentenced for four State offences, being knowingly taking part in the manufacture of a commercial quantity of a prohibited drug (methamphetamine), taking part in the supply of a large commercial quantity of a prohibited drug (methamphetamine), and two counts of supplying a prohibited drug (methamphetamine). These offences reflected the applicant's involvement in the conduct of a clandestine methamphetamine laboratory in May 2012, and in July 2015, in the supply of 14 kilograms of methamphetamine, together with supplies of two smaller quantities of the same drug, respectively 26 grams and 27 grams. There is no application with respect to the State offences.
The applicant To had been actively sought by police on 30 July 2012, but was unable to be found - despite the continuing efforts to locate him - until 31 July 2015, when he came under notice for the State drugs offences.
He entered a plea of guilty to the Federal and State charges in the Local Court on 23 May 2016, almost a year after his arrest.
His Honour Judge Williams SC sentenced the applicant To on 1 December 2016, imposing a term of 14 years and 6 months imprisonment, with a NPP of 8 years for the Federal offence.
The Statement of Facts that was before the sentencing court noted that the applicant arranged for TTP to collect, transport and store around 198.8 kilograms of pure methamphetamine and 124.5 kilograms of pure heroin on To's behalf.
The applicant obtained a mobile telephone service that he subscribed using false details and, using this service, an appointment was made for him to meet Lee at the Haymarket area in Sydney. He identified himself to Lee at the meeting on 28 July 2012 by handing him a $20 note with a serial number known to Lee. He told Lee he was using another person to physically collect the drugs.
Following the meeting the applicant To obtained another two mobile telephones, again using false subscriber details, one of which he gave to TTP, to be used to communicate with him.
On 30 July 2012 the applicant called TTP and arranged to meet him in Alexandria. At the meeting he gave TTP the address of the Alexandria warehouse where TTP was to collect the drugs for To. Separately, the applicant To called Lee and arranged a time for TTP to attend and collect the drugs. TTP drove to the location and loaded the boxes containing the substituted drugs into his car. The applicant To checked on his progress in a telephone call with Lee.
TTP then drove the boxes to a residential address in Fairfield that he had leased for the purposes of storing the drugs.
Lee telephoned the applicant To and confirmed that TTP had collected the product. To told Lee that he intended to turn the mobile phone off, and Lee would not be able to contact him again.
He exchanged some text messages and phone calls with TTP concerning the collection of the drugs.
Soon after, TTP was arrested at the Fairfield premises. The applicant could not be located by police at either of two premises he was believed to be associated with, and a warrant issued for his apprehension on 1 August 2012. He was unable to be located and remained at large until he was arrested on 15 July 2015 for the unrelated State drug offences. A false passport was found in his possession together with a Statement of Facts relevant to these matters with those portions relating to his own and TTP's involvement highlighted.
The quantities of the drugs TTP collected on To's behalf, and which were specified in the charge against To, were 124.5 kilograms of pure heroin and 198.8 kilograms of pure methamphetamine. The wholesale value of the heroin was between $45 million and $50 million; the street value was even higher at between $124 million and $145 million. The methamphetamine would fetch between $50 million and $63 million wholesale, and between $178 million and $204 million on the streets at the relevant time.
In addition to the Statement of Facts the sentencing judge was provided with the applicant To's criminal history, which showed that he had been before the criminal courts since he was a child, accruing entries in the Children's and Local Courts for dishonesty and driving offences. He had failed to appear before the Local Court on 29 August 2012 for offences of driving whilst disqualified and driving with a prescribed concentration of alcohol, offences charged against him on 22 June 2012, and conviction warrants had issued for his arrest. The applicant To's Victorian criminal history showed convictions for earlier dishonesty and driving offences in 1994. His custodial history recorded an institutional offence of damaging property.
A schedule of other decisions of the courts concerning similar offending was also provided to the sentencing court, together with the details of the cases relevant to, and sentences imposed upon, co-offenders, including the applicants Lam and Lay, as then applied. For other co-offenders, sentences as follows had earlier been imposed (for Tang and Lee after a second joint trial, the verdicts returned in the first trial having been set aside on appeal: Lee v R; Tang v R [2015] NSWCCA 157). Offender Offences Sentence Imposed Sentencing Judge Yet To Lay Attempt to possess an unlawfully imported border controlled drug 13 years imprisonment; NPP 8 years 6 months, on 9.12.2013 Zahra SC DCJ Man Fu Lee Conspiracy to possess a commercial quantity of a border controlled drug 27 years imprisonment; NPP 18 years, on 6.5.2016 Williams SC DCJ Hin Yiu Tang Conspiracy to possess a commercial quantity of a border controlled drug 25 years imprisonment; NPP 15 years, on 6.5.2016 Williams SC DCJ TTP [1] Attempt to possess a commercial quantity of a border controlled drug 14 years imprisonment; NPP 8 years, on 6.5.2016 Williams SC DCJ

The applicant did not give evidence before the sentencing court.
He tendered a psychological report from Anita Duffy, dated 22 November 2016, to the sentencing court. The report set out the history given to the author by the applicant. To reported to the psychologist that he was born in Vietnam but settled in Australia at the age of 3 years, with his family, being his parents, grandmother, and four siblings. The applicant described himself as the "black sheep" of the family. Whilst his siblings all did well at school the applicant was a poor student and truanted frequently. The applicant told the psychologist that he had been sexually assaulted as a child but had told no-one at the time.
He left school at 14 years and worked, principally in the family bakery. He had married at 22 years of age and had 3 children and, with his wife, had built up three successful small businesses. He did not pay his taxes however, and this was discovered in 2011 when his business was audited by the Australian Taxation Office. He had a personal and business tax debt of some $1.5 million.
He separated from his wife in 2012 and had no contact with her or his children until after his arrest and incarceration in 2015.
The applicant To said that he had used cannabis as a teenager, and then "recreational" drugs in around 2011, becoming dependent on methylamphetamine from about 2014. He also reported a substantial gambling habit at about this time, blaming business associates from whom he borrowed money for his involvement in the offences before the sentencing court.
He was said by Ms Duffy to be anxious when interviewed, having reportedly been threatened by the "business associates" to whom he owed money. Although he had had no contact with his children after separating from his wife in 2012, he said it "broke his heart" to be in gaol and unable to be a father to his daughters.
The applicant told the psychologist that his family were supportive of him, and that he "bitterly regrets his offending behaviour and its effect on his family".
On psychological assessment, the applicant To gave "inconsistent" answers to questions which raised concerns about the validity of the results, although it was "thought that his results are interpretable". On the assumption that the results were valid, the applicant was said to be a person with strong feelings of inadequacy and limited competencies in dealing with stress, with scores indicative of major depression, and anxious distress over the mistakes he made in life. He was said to be motivated to undertake drug rehabilitation programmes.
Several testimonials were also tendered by the applicant on sentence. His wife described the applicant as a dependable and honest man with integrity, whom she was confident would not return to drugs. His sister said that he was remorseful and wanted to be a better citizen.
In his Remarks on Sentence his Honour Judge Williams SC noted that the applicant had spent some three years "on the run" prior to being apprehended for the State offences on 31 July 2015, then being brought before the courts for all matters.
His Honour set out the facts of the applicant's crimes, referring in that context to the sentences that he had imposed upon co-offenders Tang, Lee and TTP, and those imposed by Judge Zahra SC on the applicants Lay and Lam and YT Lay.
He summarised the applicant's background and circumstances as given by Ms Duffy in her report, although his Honour noted that the psychological report was "not adopted" [by the applicant in evidence] and its contents should therefore be treated with "considerable caution".
Of the applicant's role in the Commonwealth offence the sentencing judge observed: "[…] it is clear that To procured TTP to collect and transport large quantities of border control drugs to a residence that had been rented for that purpose of storing. He was a trusted member of the drug syndicate who liaised with the co-accused responsible for the importation in relation to drugs with a street value of up to $350,000,000. […] The offending here was very serious and that involved the attempted trafficking of a very large and valuable quantity of drugs. The offender's role has been adequately covered in the summary of facts and it is accurate to say that his role was significant, planned and central to the offending conduct. Planning and pre-meditation are relevant in weighing the seriousness of the offence. […] The quantity and value of the drugs was extremely high and has increased significance where the offender has knowledge of the amount of drug involved in the offending. Here it is clear that he knew how many packages TTP would be collecting and his knowledge can be inferred from the scale of the operation."
His Honour concluded that financial gain was the applicant's motive in participating in the offence, with his expectation of receiving "a very substantial benefit", likely being enough to discharge his $1.5 million tax debt, thus heightening the objective seriousness of the offence.
The sentencing judge noted the applicant's concession that it was open to the court to infer that the applicant was aware that police were looking for him for the Commonwealth offence for the three years before his arrest, and that "this may legitimately lead to some reduction in the prima facie discount for the plea". His Honour concluded: "He was arrested only as a result of the State police involvement, but once arrested he did plead at the earliest opportunity and his guilty plea should be given some weight, which I regard as justifying a 15% discount, even though I am not required to quantify the discount."
Although his Honour observed that there was "little, if any guide to the prospects of rehabilitation" he was prepared to conclude that they were reasonable.
The sentences imposed upon the six co-offenders, and their respective cases, were noted. His Honour rejected the applicant's contention in submissions that he should be more leniently dealt with than all other offenders, and should receive a lesser sentence than TTP, who went to trial: "However, I do not accept that his role is comparable to TTP, for as the Crown submits, TTP was lower in the hierarchy because To was monitoring and arranging the collection. I accept that the facts outlined, illustrate a greater degree of involvement than TTP, and together with the fact that his May 2012 offending does not entitle him to leniency as conceded, the starting point before discount of the term of imprisonment for this offence will reflect that."
His Honour imposed an aggregate sentence of 11 years with a NPP of 6 years and 3 months for the State offences, which was, having regard to the principle of totality, partially accumulated upon the sentence for the Commonwealth matter, commencing three years into that sentence. Its term was imprisonment for 14 years and six months to date from 31 July 2015; with a NPP of 8 years. For all offences the effective head sentence was one of 14 years and 6 months imprisonment with an effective NPP of 9 years and 3 months.

The Present Applications

As noted above, although each of the applicants received a discount on sentence to acknowledge the pleas of guilty each entered, consistent with the practice at the relevant times the discounts were expressed as an acknowledgment of the willingness of each applicant to facilitate the course of justice, rather than to recognise the utilitarian value of the early entry of a plea of guilty.
The Crown conceded that there had been Xiao error in the imposition of sentence at first instance, insofar as the sentencing judge in each case did not describe that discount by reference to the utilitarian value of the plea.
That concession takes into account the conclusions of this Court (differently constituted) in Diaz v R [2019] NSWCCA 216, wherein it was held at [9] that: "[…] Xiao error is established. As for the question of whether it is, in the circumstances of this case, the kind of error that does not call for consideration of resentence pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW), I think that the question should be answered in the negative; to remove that confusing double negative, I think that resentence must be considered."
Thus, to the extent that the discount on sentence was described by reference to a feature other than "the utilitarian value of the plea", there was error in the sentencing process, bearing in mind the principle enunciated in Xiao. The authority of Diaz makes clear that the error is one which calls for consideration of resentence pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW).
It follows that leave should be granted to each applicant to advance the proposed ground that complains of a failure by the sentencing judge to have regard to the utilitarian value of the plea (or pleas) of guilty. Necessarily, that also requires a grant of leave to each to advance that ground (substantially) out of time, with an extension of time allowed in each instance until the date of filing of the relevant Notice of Appeal.
The applicant Lay advances a second ground of appeal, complaining that he has "a justifiable sense of grievance when his sentence is compared to that imposed on his co-offenders Hin Yui Tang, Man Fuc Lee and Dien To". Having concluded that there was Xiao error, and having granted leave to the applicant to appeal on that ground, it is not strictly necessary to determine this second ground, except insofar as it is appropriate to have regard to the parity principle when undertaking the resentencing exercises required, in accordance with the principle in Kentwell.
That will require the Court to consider the sentences imposed upon co-offenders, to ensure "identity of outcome in cases that are relevantly identical": Wong v The Queen (2001) 207 CLR 584 at 608 [65]; [2001] HCA 64. Of course, the parity principle also "allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances", or where there are other differences in some relevant respect: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28].
In sentencing the applicants both Judge Zahra SC and Judge Williams SC were provided with all relevant material concerning sentences imposed upon those co-offenders where proceedings had been finalised.

The applicant Lam

In an affidavit of 25 May 2021 the applicant Lam gave an account of his time spent in custody, and the work and training he has undertaken since his incarceration. He has worked as a packer and, more recently, as a clerk, and has consistently received good reports as to the performance of his duties. He has also participated in vocational and educational courses, such as a First Aid course and a Certificate course in Animal Studies.
The applicant deposed that he has learned about the effects of drugs in society and feels more regretful than ever for his offending conduct. He feels he has shamed his family, whom he misses. He has weekly contact with family in Hong Kong through a video link. The applicant has found prison to be lonely, and he has sought assistance in coping from a psychologist in the past. When not working, he reads and paints.

The Applicant Lay

Setting aside an affidavit from the applicant's solicitor that deals with the issue of delay in bringing these proceedings, the applicant Lay relies upon his affidavit of 17 June 2021. He gave an account of his experience in custody, where he has been employed consistently since sentence was imposed upon him, receiving positive appraisals of his work and work ethic. The applicant has also studied in custody and his English language skills have greatly improved.
The applicant deposed that he was sincere in evidence to the sentencing judge as to his regret for what he did; he says that the choice he made to break the law changed his life and brought shame to his family. He continues to receive regular visits or telephone calls with family members, who remain supportive of him. He said that his separation from his family saddens him, but he "accepts [his] punishment".

The Applicant To

The applicant To relies upon his own affidavit of 15 July 2021 and upon that of his solicitor, Stephen Eccleshall, of the same date.
The applicant says that, after the imposition of sentence upon him, he was classified as a "B medium security" prisoner but has since progressed to a "C1 minimum security" classification. He is now housed in a low security prison. The applicant says that he has been well behaved in prison, disputing his guilt for an institutional offence that was recorded against him for concealing items used to escape. He says that, although he was a drug user prior to his incarceration, he has not used drugs since entering custody.
The applicant is focused on educational opportunities and has undertaken several certificate courses in business and hospitality. He continues to study. He has worked consistently in custody, being presently employed as a clerk. The applicant is multi-lingual and uses his language skills to assist other inmates to navigate the prison system by acting as interpreter.
The applicant maintains contact with his wife and daughters, and with his mother and sister, telephoning them once or twice daily. Sadly, his father died in 2019. He was able to attend the funeral but continues to grieve for his father. The applicant's mother is ill and frail, and he worries that she may die before he is released from custody. Since June 2021 the applicant has only had telephone contact with family, due to restrictions associated with the COVID-19 pandemic. He is anxious about his own health in the pandemic.
He is sorry for his offending conduct and is determined not to offend again.
In his affidavit Mr Eccleshall provided copies of material from the applicant's custodial file which supports the applicant's assertions as to courses and work undertaken, and the positive appraisals the applicant has received from Corrective Services staff.

The Applicant Lam

The applicant takes no issue with any of the factual findings made by the sentencing judge. He accepts that a sentence of appropriate severity must be passed upon him, having regard to the essential role he played "in what was a large and sophisticated drug operation", and noting the importance of principles of specific and general deterrence, when viewed in the context provided by the applicable maximum penalty of life imprisonment.
He submits that, in imposing sentence, the Court must have regard to his progress in custody, the utilitarian value of his early plea, and parity with Lee and Tang, whose sentencing followed trial.
As to the utilitarian value of the plea, it is submitted that a discount of 25% should be allowed, with the subjective factors inhering in the plea also attracting a reduction in sentence.
The co-offenders Lee and Tang, who were sentenced by his Honour Judge ML Williams after trial, received sentences of 27 years with an 18 year NPP, and 25 years with a NPP of 15 years respectively. It is submitted that these offenders were "significantly more senior" and played a more extensive role in the enterprise than did the applicant Lam, whose role was "limited and menial". The applicant contends that his sentence should be markedly less than that of Lee and Tang.

The Applicant Lay

Lay submits that, even though the discount on sentence of 25% that was allowed to him by the sentencing judge recognised his plea of guilty, and even though his Honour specifically referred to the savings to the community of the cost of a lengthy trial, the discount was not expressed to be a recognition of "the utilitarian value of the plea" and thus there is error, warranting intervention by this Court and resentencing.
In exercising the resentencing exercise afresh, the applicant submits that the Court should impose a sentence upon him that is markedly less than those imposed upon Lee and Tang, as the criminality of each co-offender was significantly greater than his own, with each playing a more senior, "middle management", role than did the applicant. Further, it is argued that the applicant To "had a higher role" than the applicant Lay, and with respect to a greater quantity of drugs, and so the sentence imposed upon Lay should be a much lesser sentence than that which was imposed, and is now to be imposed, upon To. The applicant contends that he should receive greater leniency than Lee, Tang or To.

The Applicant To

The applicant To also argues for error in the discount afforded to him for his willingness to facilitate justice, as opposed to one allowed in recognition of "the utilitarian value of the plea". He submits that, on resentence, this Court should allow the full discount of 25% in recognition of the latter sentencing concept, as his plea was entered in the Local Court.
The applicant otherwise accepts that the findings of the sentencing judge are relevant, although it is submitted that the date of commencement of the aggregate sentence imposed for the State offences "should be altered to adjust the degree of accumulation and the overall non-parole period".

Resentence

In Kentwell, the High Court said, at [42]: "When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence [footnotes omitted]."
Despite the requirement that the sentencing discretion is to be exercised "afresh", this Court is obliged to proceed on the basis of acceptance of the conclusions of the sentencing judge at first instance where there is no challenge to them, as was stated in DL v The Queen (2018) 265 CLR 215 at p 224; [2018] HCA 32 at [9]: "Exceptional cases apart, the Court of Criminal Appeal's determination of the appropriate sentence is determined on the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of the offender's post-sentence conduct."
I have summarised the unchallenged factual findings of the respective sentencing judge for each of the applicants and set out the detail of the subjective case that each presented.
In brief, each of the applicants played a critical, if different, role in a very sophisticated international syndicate with a plan to import and distribute vast quantities of two border-controlled drugs, for financial gain.
The applicant Lam was recruited in Hong Kong and specifically travelled to Australia for the purpose of fulfilling his role in the enterprise. Clearly, he was recruited because he was trusted over local persons, to the extent that it was worthwhile to fly him into Australia to undertake his part in the criminal activity. During the time in which he participated in the enterprise he was closely involved with co-offenders such as Lee, living with him in the Sydney apartment. At the warehouse, he unpacked the cargo from the containers and extracted the substituted drug packets, counting the parcels and issuing directions to HKL from time to time. Together with HKL he guarded the cargo, staying overnight at the warehouse, on one occasion. He attempted to possess very large amounts of two border-controlled drugs, later separating the packets into designated quantities to facilitate the movement of the drugs to others. In that context the applicant met and accompanied Lay to the Alexandria warehouse, directing him as to its location, and thus easing his attempt to possess drugs. Lam's only motivation in undertaking these tasks was the prospect of financial reward.
His Honour Judge Zahra SC found that, whilst Lam's position was at the lower end of the hierarchy of offenders, he provided significant assistance within the enterprise. His offending was assessed to be of a "most serious kind" and his moral culpability was found by his Honour to be "of a high order".
The applicant's subjective case was not a powerful one, and nor has it become so with the passage of time. As the sentencing judge noted, the applicant was a person formerly of good character, and he had been employed in Hong Kong until shortly before his decision to participate in this enterprise. He had and has supportive family. His Honour found that the applicant had good prospects of rehabilitation, and that remains the case, with the applicant having conducted himself well in custody and undertaken such study and work as he could, such that he is likely to be placed in the near future in a training unit working in custody with therapy dogs for disabled veterans, or made a "Mentor Inmate" given the task of working with young inmates.
As a Hong Kong national he is isolated from family.
He is entitled to a discount on sentence of 25% in recognition of the utilitarian value of the pleas of guilty.
The applicant Lay was involved in this substantial enterprise at the level of collection and storage of the products. He met with the co-offender Lee, whilst using an alias, for the purpose of travelling to the Alexandria warehouse to collect discrete amounts of border-controlled drugs. He discussed the number of packages to be taken by telephone with another when at the warehouse, and liaised with co-offenders Lam, Tang and HKL about the collection of the product. He attempted to possess over 48 kilograms of pure heroin and over 38 kilograms of pure methamphetamine, although earlier discussions between him and YT Lay had concerned the collection of larger quantities, 70 and 50 kilograms of those drugs respectively. Having loaded the product into his car the applicant liaised with YT Lay by telephone as he transported it to his home at Green Valley.
When his premises were searched by police the applicant had in his possession the packets collected at Alexandria, other than the 4.85 kilograms earlier taken by YT Lay, together with an unrelated quantity of drugs, and pieces of equipment typically associated with the supply of drugs. Despite acknowledging to police that there were drugs in his garage and car, the applicant said in evidence to the sentencing judge that he thought the items he collected were food items. Unsurprisingly, his Honour did not regard the applicant as a credible witness, and concluded that he was aware of the nature of the product, and the scale of the trade in which he played a part.
The sentencing judge regarded the applicant's crimes as serious breaches of the Code which had the potential to cause great harm in the community.
Favourably to the applicant, and notwithstanding the presence at his home of a quantity of drugs unconnected with the Alexandria collection that were stored next to equipment typically used by a drug trafficker, his Honour Judge Zahra SC concluded that the applicant's role was to collect and store the drugs until their collection by another person or persons. His Honour could not be satisfied to the criminal standard that the applicant intended to distribute the drugs. His Honour thus concluded that the applicant operated at a low level within the syndicate. The applicant's role, however, was a crucial one, and he undertook it willingly, for profit.
The applicant's financial circumstances were not such as to prompt his involvement in this enterprise; he owned and operated a small business and had only modest debts which he serviced without difficulty.
The applicant Lay, now an older man in his sixties, had and has supportive family. He was well regarded by those who knew him and was formerly of good character. The applicant was assessed as having good prospects of rehabilitation, the correctness of that assessment being supported by the applicant's conduct in custody since sentencing.
He is entitled to a discount on the sentence that would otherwise be imposed of 25% in recognition of the utilitarian value of his early pleas of guilty.
The applicant To had been responsible for arranging for the co-offender TTP to collect and transport 198 kilograms of pure methamphetamine and 124 kilograms of pure heroin to a premises obtained by TTP, where the drugs were to be stored. He used clandestine means to liaise with co-offenders and provided TTP with the information and some equipment to carry out his role.
His Honour Judge Williams found that the applicant had been a trusted member of the drug syndicate, with a significant role to play. The Commonwealth offence had been planned, and his place in the hierarchy of offenders had been superior to that of TTP, in that he arranged for the collection of the drugs by TTP, and monitored TTP's activities. His Honour concluded that the trafficking offence was very serious, relating as it did to a very large and valuable drug product, carried out for financial gain, with a profit expected to be sufficient to discharge a $1.5million tax debt.
The applicant could not call on former good character: he had previous convictions for driving and dishonesty offences, and had failed to appear before a court to face criminal charges at around the time of his involvement in the Federal offence. He was, on his own admission, a drug user, and he acknowledged having failed to pay income tax, such that he was in debt to the Federal government for a very substantial amount.
Aware that he was wanted for the Commonwealth offence, the applicant remained in the community, committing very serious State drug crimes during his time at large. Specific deterrence clearly has a strong role to play in the exercise of the sentencing discretion.
The applicant did have a positive work history and, until such time as his failure to pay taxes became known, had worked hard and provided for his family. His family remain supportive of him. The applicant has been generally well behaved in gaol since sentence was imposed upon him. It is likely that he will remain crime free on release from custody, having regard to the strong support he continues to receive from family, and the vocational and other courses he has undertaken to date.
As to the discount on the sentence that would otherwise be imposed in recognition of the utilitarian value of the applicant's plea, I would allow a reduction in the order of 15%. At first instance, the sentencing judge observed in the context of the applicant's willingness to facilitate the course of justice: "It was conceded that I could infer that he knew that police were looking for him during this period. However, Mr Boulten submits that his early plea indicates a willingness to facilitate the course of justice and the Court should not hold against him the fact that he did not surrender to police after the others were arrested. He points out that other co-offenders chanced their arm, as it were, and ran trials for what turned out to be several months, in contrast to the position of To, once he was arrested. However, he conceded that if an offender avoided arrest when he knew the prosecution was contemplated, this may legitimately lead to some reduction in the prima facie discount for the plea. He was arrested only as a result of the State police involvement, but once arrested he did plead at the earliest opportunity and his guilty plea should be given some weight, which I regard as justifying a 15% discount, even though I am not required to quantify the discount."
Those comments remain apposite to the assessment of the utilitarian value of the applicant's plea.
Although the applicant submitted that he should receive the full extent of the discount for a plea entered in the Local Court, three observations are pertinent to the quantification of the discount.
Firstly, as the applicant conceded, the extent of any discount afforded to an offender in recognition of his or her plea of guilty is a discretionary matter. There is no automatic entitlement to a discount in Commonwealth sentence matters [2] , nor to a discount of one quarter of the sentence that would otherwise be imposed if the plea is an early one: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, at [151] - [155] ("Thomson & Houlton"), wherein it was said, by Spigelman CJ: "The task of this Court is to identify a discount range which is appropriate and which will serve the public interests sought to be attained in New South Wales from encouraging early pleas of guilty. In my opinion, the appropriate range for a discount is from 10-25 percent. The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. There are however two circumstances which will generally affect the appropriate level of discount in a particular case:

(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.

(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, e.g. on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial."

Secondly, the utilitarian value to the justice system of the plea of guilty is what is being recognised by the reduction in sentence. That will vary according to circumstance and particularly, as Spigelman CJ said, the time at which the plea was entered.
The applicant was charged on 31 July 2015, three full years after police sought to apprehend him. Despite the strength of the evidence against him, he did not enter his plea of guilty until 10 months after he first appeared before the Local Court, on 23 May 2016. By that time, the co-offender TTP (and others) had been tried and found guilty, in TTP's case a guilty verdict having been returned by a jury on 5 January 2016.
Although the applicant's plea is one entered in the Local Court and, in the language of the authorities, at the earliest opportunity, the delay of 10 months from charge to plea is not irrelevant to the assessment of the value of public resources conserved.
Thirdly, because the applicant managed to remain at large - committing other serious crimes in that time - his case was heard alone; the ordinary savings of resources to the criminal justice system that flow from joint proceedings against co-offenders were not obtained in the applicant's case. In the circumstances of this case, the applicant's plea of guilty did not have the same utilitarian value as did those of co-offenders entered in joint proceedings years earlier, and whose sentence hearings were heard jointly. Its value should be recognised in accordance with the principle in Xiao, but that value is not as great as the value of the pleas of guilty of other of the applicant's co-offenders. A discount of 15% is an appropriate acknowledgement of the utilitarian value of the applicant's plea of guilty in the circumstances that apply here.
Given that other offenders have been dealt with by the criminal courts for their respective roles in this enterprise, the parity principle has operation, and the sentences imposed upon co-offenders must be considered. In that regard it is noted that prosecutions against both HKL and TTP remain outstanding, following appeals to this Court.
The applicant Lam submits that the sentence imposed upon him should not just be less than those imposed upon Tang and Lee, but substantially so, having regard to the more senior role of each, and the less compelling subjective cases advanced by them.
It is contended that a starting point prior to the discount on sentence of 24 years imprisonment is too high when compared to those imposed upon Tang and Lee, both of whom went to trial.
The applicant Lay argues that he has a justifiable grievance when comparing the sentence imposed upon him at first instance with those imposed upon Tang, Lee, and the applicant To, and the sentence imposed by this Court should be less than that imposed by Judge Zahra SC. He makes no complaint about the sentences imposed upon YT Lay and the applicant Lam. He submits that Tang and Lee played a more senior role in the syndicate with respect to a greater quantity of drugs than him, and his subjective case was stronger than those advanced by either Tang or Lee, such that the sentence to be imposed upon him should be a much lesser one than those imposed upon the co-offenders.
The applicant To made no complaint about the relativities of first instance sentences, submitting that the Court must have regard to the parity principle.
I have considered the relevant sentences imposed upon co-offenders, and had regard to the objective and subjective cases of each. I do not accept the arguments that the sentences to be imposed upon the applicants Lam and Lay should be substantially less than those imposed upon Tang and Lee, (allowing for the absence of any discount on sentence applicable in their cases). Some differentiation is warranted, but not to any extent greater than that allowed at first instance. Tang and Lee had a greater organisational role than the applicant Lam, but Lam's role was critical to the success of the enterprise, and his criminality was, as Judge Zahra SC found, very high. The role of the applicant Lay was different in character to that of Tang and Lee, in that his conduct was a step in the process of the intended distribution of a very large quantity of drugs and, although his criminality was less than that of Tang and Lee, the difference was appropriately reflected by the relativities of sentences imposed in the District Court. The differences in the offences charged against Lay and To have some relevance to the differences in outcome, as do differences in the respective subjective cases. The applicant To's role was different in character to that of Tang and Lee, as he too was involved in the distribution aspect of the enterprise and involved another in criminality of a very high order. The subjective case presented by the applicant To before the sentencing judge and to this Court was not one that could be regarded as compelling. I regard the sentence imposed upon him in the District Court as lenient.

Conclusion

In each instance, and setting aside the sentence imposed in the District Court as irrelevant to the present exercise, I have considered the evidence that was before the sentencing court, the unchallenged factual conclusions of the court, and the evidence read before this Court. I have had regard to the statutory guidepost provided by the maximum penalty of life imprisonment for each applicant's crimes and to those matters set out in s 16A of the Crimes Act, including s 16A(1), which provides that in determining the sentence which is to be passed, a court must impose a sentence that is of a severity appropriate in all of the circumstances.
The offences for which the applicants stand to be sentenced are gravely serious and the sentences required to reflect the circumstances of the crime or crimes of each must be stern. Nothing in the respective subjective cases ameliorates that requirement.
I have considered the parity principle, and the relativities that are appropriate as between the sentences to be handed down. I have also considered the need for the sentences imposed to deter others from pernicious and harmful drug crimes such as these.
Having undertaken that process, I have arrived at a sentence for each applicant individually that I regard as an adequate reflection of the great gravity of the offending conduct and which takes into account the particular subjective case. In each instance the sentence that I would impose is not one that is less severe than that imposed at first instance: s 6(3) Criminal Appeal Act 1912 (NSW). On that basis, I would not re-sentence the applicants: Kentwell at [43].
Accordingly, I propose the following orders:

Orders Proposed

With respect to the applicant Lam I propose these orders: 1. Time in which to apply for leave to appeal is extended until 10 December 2020; 2. Leave to appeal is granted; 3. Appeal is dismissed.
With respect to the applicant Lay I propose these orders: 1. Time in which to apply for leave to appeal is extended until 4 May 2021; 2. Leave to appeal on ground 1 is granted; 3. Appeal is dismissed.
With respect to the applicant To I propose these orders: 1. Time in which to apply for leave to appeal is extended until 7 April 2020; 2. Leave to appeal is granted; 3. Appeal is dismissed.
FAGAN J: I agree with the orders proposed by Wilson J and with her Honour's reasons and those of Payne JA. The quantities of drugs involved in these crimes were very large. Taking into account the part played by each applicant and the subjective circumstances of each, the Commonwealth Parliament's prescription of a maximum term of life imprisonment necessarily leads to very substantial sentences. Upon exercising the sentencing discretion afresh, with due application of this Court's decision in Xiao v R, I would not arrive at a lesser sentence, for any of the applicants, than the sentence imposed on each respectively at first instance.

Endnotes

TTP's conviction was quashed by this Court after an appeal. There was no appeal against sentence: TTP v R [2018] NSWCCA 225.
It is noted that Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) has no application to this matter. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 October 2021

Judgment

PAYNE JA: I have read the decision of Wilson J in draft and agree with the orders proposed for the reasons her Honour gives. What follows is by way of amplification and not qualification.
In Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 at [369] their Honours said: "So far as the plea is concerned, the applicant is entitled to a discount for the utilitarian value of his plea of guilty. It seems to us in the circumstances of the present case that it is immaterial whether the discount is described as being given for facilitating the course of justice or for its utilitarian value. Although the plea was entered at the Local Court, the extent of the discount is lessened by the fact it was only entered following the applicant's departure to Hong Kong and his failure to return in breach of the Court's order necessitating a contested extradition proceeding. In these circumstances we would allow a discount of 15% for the plea."
In each of the cases considered here, the sentencing judge did not take into account the objective utilitarian value of the applicant's plea of guilty. On resentence, applying the correct approach, however, no greater discount than 25%, in the case of Messrs Lam and Lay, and 15%, in the case of Mr To, was warranted. In each case, as in Xiao, it is immaterial whether that discount is described as being given for facilitating the course of justice or for its utilitarian value. Each of those matters have been taken into account.
Taking into account all of the matters required by s 16A of Part IB of the Crimes Act 1914 (Cth), I have concluded that no lesser sentence is warranted in law for any of the applicants.
WILSON J: This judgment deals with applications for leave to appeal against sentence made by three co-offenders in a 2012 enterprise to import very substantial quantities of border controlled drugs into Australia: Chi Min Lam, Helio Lay, and Dien To. In each instance the applicant complains of so-called "Xiao error" in the sentence imposed at first instance. In the case of the applicant Lam, that sentence was imposed on 7 March 2014; Lay was sentenced on 14 February 2014; and To was sentenced on 1 December 2016. All proceedings were finalised long before the decision in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 was handed down by this Court. In Xiao the Court (constituted by Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ) concluded, at [278], that "a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing" when dealing with matters governed by s 16A of the Crimes Act 1914 (Cth).
The Crown concedes that Xiao error attended the sentencing exercises at first instance, and submits that this Court must exercise the sentencing discretion afresh, in accordance with the principles stated by the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
To the extent that the applicant Lay also raises a parity ground, which may have some impact upon the re-sentencing exercise for all applicants, the Crown does not concede error.

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