Lay v R

11The applicant relies upon two grounds of appeal: Ground 1: The sentencing judge erred in sentencing the applicant on the basis that his involvement commenced at least by 24 July 2012. Ground 2: The applicant has a justifiable sense of grievance as a result of the sentences imposed on Helio Lay and Chi Man Lam.

Proceedings on sentence 12At the sentencing hearing the Crown tendered an agreed statement of facts and the applicant's criminal history. Relevantly, for the purposes of the appeal, the applicant tendered a letter from the applicant's wife, a report from Dr Ton K Lee, general practitioner, dated 27 September 2013, and a report from Dr Mark Howard, psychologist, dated 5 November 2013.

The facts as found by the sentencing judge 13On 17 January 2012, Yuk Yin Tang arrived in Sydney from Hong Kong. Later that month he entered into a residential tenancy agreement over an apartment on Sussex Street. 14On 4 February 2012, Fu Vico Lee, also a Hong Kong citizen, arrived in Sydney. 15Later in February Tang registered the business name "Best at Home" as a retail homewares business operating from the Sussex Street apartment. 16On 18 February 2012, the applicant travelled to Hong Kong. 17On 23 February 2012, Tang and Lee signed a commercial lease over warehouse premises at Alexandria. 18On 4 March 2012, a shipping container imported from Bangkok consigned to the business Best at Home was delivered to the Alexandria warehouse. It contained ceramic vases and clay lamps. The statement of agreed facts refers to this consignment imported by Tang and Lee as a "dry run" designed to give the impression that Best At Home was a legitimate import business and to enable them to determine whether the consignment would be subjected to surveillance by Australian Customs or law enforcement agencies. 19Between 12 March and 13 June 2012, four further containers of homewares were imported, each of which were also described in the facts as "dry runs". 20On 9 June 2012, the applicant returned to Australia. 21On 12 June 2012, phone records indicated that the applicant was contacted by Helio Lay using a mobile phone with a number that ended in 448 ("the 448 number"). 22On 12 July 2012, the co-offender, Lam, arrived in Brisbane from Hong Kong, from where he travelled to the Sussex Street address in Sydney. 23On 18 July 2012, two further containers were consigned to the Best at Home business at the Alexandria warehouse. On this occasion, in addition to the containers of homewares, 300 oblong-shaped silver packages were located by Customs, each containing methamphetamine with a purity of 78 per cent. The calculated pure weight of the methamphetamine was 233,070 grams (233 kilograms). In addition, 720 further packages were located containing heroin with a purity of 69 per cent. The calculated weight of pure heroin was 174,483.8 grams (174 kilograms). 24The drugs were replaced with an inert substance for the purpose of a controlled delivery. The container was delivered to the warehouse at Alexandria on 26 July 2012. 25Lee and another Hong Kong national, Kwai Leung Poon, had various discussions concerning the anticipated arrival of Hung Kai Lok, another Hong Kong national. He arrived in Sydney on 19 July 2012 and took up residence in the Sussex Street apartment. 26Call charge records indicate that on 21 July 2012 Helio Lay and the applicant were in telephone contact, with the applicant using the 448 number and Helio Lay using a number that ended in 990 ("the 990 number"). 27Call charge records also indicate that at around 4.22pm on 24 July 2012 the applicant, this time using a mobile phone with a number ending in 181 ("the 181 number") called a Hong Kong telephone service ending in 991 ("the Hong Kong 991 number"). These records also indicate that the following day Helio Lay contacted the applicant by telephone, with the applicant now using the 448 phone number and Helio Lay using the 990 phone number. 28On 26 July 2012, Tang, Lam and Lok unpacked the two containers at the warehouse located in Alexandria. The sentencing judge found that over the course of the next two days Lam and Lok removed 714 of the substitute heroin packages and 306 of the substitute methamphetamine packages, apparently unaware that the drugs had been intercepted. 29On Saturday 28 July 2012, Lee and Poon discussed the fact that two people were to come to the Alexandria warehouse to collect the items on the following Monday or Tuesday (30 and 31 July). On the same day Helio Lay contacted the applicant on the 448 phone number. 30The following day, Poon instructed Lee to set aside what he believed to be 200 heroin packages and 50 methamphetamine packages, with instructions that the balance of the packages were to be given to the "person". At around 1.16pm Helio Lay, using a mobile phone with a number ending in 973, received a call from Lee and organised to meet him the next day at 1pm at Market City in Haymarket. Immediately after that call, telephone call charge records indicate a number of calls, or attempted calls, passed between the applicant and Helio Lay. After a call between the applicant and Helio Lay at 2pm, the applicant, using the 181 number, placed a call to a Hong Kong telephone service with a number ending in 938 ("Hong Kong telephone number 938"). 31On Monday 30 July 2012, Helio Lay and Lam arrived at the Alexandria warehouse and met with Tang and Lok. Helio Lay and Lok loaded three cardboard boxes containing 200 heroin substitute packages and 50 methamphetamine substitute packages into a Honda motor vehicle driven by Helio Lay. 32At around 1.27pm he left the warehouse and drove to his residence in Green Valley. At the same time the applicant, using his 181 number, called Hong Kong telephone service 938. Call charge records indicate that, while driving to his residence, Helio Lay had three phone conversations with the applicant, with Helio Lay using the 990 number and the applicant using the 448 number. 33When Helio Lay arrived at his residence the applicant's vehicle was parked outside. The applicant then removed 20 substitute heroin packages from the boot of Helio Lay's vehicle and placed them in the boot of his vehicle. At 4.19pm, using the 181 number, he rang Hong Kong telephone number 938. After leaving Helio Lay's residence, he was stopped by police and placed under arrest. 34Upon being searched, three clear clip-sealed bags were located in his jacket pocket which contained a white crystalline material which, upon later analysis, revealed no prohibited substances. A SIM card for the 973 telephone number (the number Helio Lay had used to communicate with Lee) was also located. The calculated weight of the pure heroin that the applicant attempted to possess was 4846.6 grams. Its total wholesale value was estimated to be around $1,966,720. 35The police located 180 heroin substitute packages and 50 methamphetamine substitute packages in Helio Lay's vehicle. Inside his premises a number of plastic bags which contained a white coloured crystalline substance were located which, upon analysis, contained methamphetamine, with a purity ranging between 70.1 per cent and 79.3 per cent. 36Lee, Lam, Tang and Lok were also all arrested. 37When interviewed by police, the applicant stated that he had first spoken to Helio Lay about the heroin on 30 July 2012, the afternoon of his arrest, when he was told to come to his cousin's home. He said it was only when he arrived that he was told about the drugs and shown them, at which time he asked for access to "20 pieces" on credit. He also told police that he planned to store the heroin at his home and "slowly over time" sell it at Star City Casino to discharge a $300,000 gambling debt which had accrued as a result of his gambling activities in China and Hong Kong. He told police he was to pay Helio Lay $3.2 million when the heroin was sold. The sentencing judge noted that the applicant also told Dr Howard that it was on the afternoon of his arrest that he was called by Helio Lay and asked to come to his home and that it was only upon arrival that he was asked if he wanted to take a quantity of heroin to sell. 38On sentence it was submitted that his Honour would find the applicant's involvement was limited in time, in accordance with what he told others after his arrest. The sentencing judge rejected that submission. He was satisfied that the applicant's involvement in what proved to be his attempted possession of the heroin on 30 July 2012 commenced at least by 24 July 2012. On the appeal it was submitted that this was a finding not open to him on the direct evidence or any inference legitimately capable of being drawn from that evidence.

The applicant's criminal record and other subjective factors 39The applicant was charged in 1991 for his possession 4.2 kilograms of heroin contrary to s 233B of the Customs Act 1901 (Cth) which he told police on his arrest at that time he obtained on credit from an overseas supplier for resale with no particular purchaser in mind. In 1993 he was convicted and sentenced to 11 years imprisonment with a non-parole period of 7 years. 40His Honour regarded the significance of the applicant's previous drug conviction as disentitling him to the leniency which might be afforded an offender with no prior convictions. He also found that the subject offending was not an aberration and that its scale warranted the imposition of a sentence which factored in the need for personal deterrence as well as general deterrence. 41His Honour was unable to make any meaningful prediction of the risk of further offending given the applicant's reoffending after serving a lengthy period of imprisonment imposed in 1993, although he did accept that the applicant's age when he will be entitled to be considered for release to parole might diminish the risk to some extent. 42The applicant was 61 years at the time of sentence. He was at that time being treated for diabetes, hypertension and high cholesterol levels. There was also evidence that he has been hospitalised, on one occasion, as a result of a heart condition. The additional hardship that the applicant would suffer as a result of his age and ill health was taken into account by the sentencing judge in the imposition of sentence. 43The applicant did not give evidence on sentence. The sentencing judge treated the applicant's account to Dr Howard, including that he had no idea how to sell the heroin he claimed to have been given on credit or that his offending was unrelated with his past offending, with appropriate caution. Further, in the absence of evidence from the applicant, his Honour said he was unable to make any assessment of the genuineness of the applicant's remorse as expressed to others. 44His Honour was, it seems, prepared to accept that the applicant had accumulated gambling debts of $300,000 to "loan sharks" but he did not accept that this operated in mitigation of sentence, or that it diminished the applicant's ability to resist engaging in what his Honour described as serious offending given the quantity of heroin involved.

Ground 1: The sentencing judge erred in sentencing the applicant on the basis that his involvement in the offence commenced at least by 24 July 2012 45On sentence the applicant's senior counsel, who did not appear on the appeal, conceded that the applicant played a significant role in an enterprise in which a number of co-offenders were involved and which had as its objective obtaining possession of a very large quantity of border controlled drugs for distribution. Counsel accepted that the characterisation of the applicant's role was reflected in the agreed facts by his attempt to obtain possession of 20 kilograms of heroin (of the consignment of 174 kilograms) to sell. Counsel submitted, however, that did not allow for the further finding urged by the Crown that the applicant's involvement predated his arrest by weeks and months. It was the Crown's submission that the applicant's travel to Hong Kong in February 2012 was connected with the dispatch of the drugs to Australia. Counsel for the applicant submitted that at most his involvement predated his arrest by a day and, more likely, not until the day of his arrest, consistent with his account to police and his account to Dr Howard. 46His Honour was conscious of the need to ensure that the principle in R v De Simoni [1981] HCA 31; 147 CLR 383 was not breached by sentencing the applicant as if he had a role in the importation of 174 kilograms of heroin, repeating more than once in the sentencing reasons that the applicant's criminality was limited to the role he played in obtaining possession of a very large quantity, namely 20 kilograms, with the intention of distributing it for sale. Nonetheless, his Honour considered (as he was entitled to) that the duration of the applicant's involvement in the offence to which he pleaded guilty was a matter which informed the question of objective seriousness. Self evidently, a person who acquires knowledge of the pending availability of a commercial quantity of drugs on the day that possession is attempted is likely to be regarded as less morally culpable than a person who knows of that fact for a longer period of time and takes purposive steps over time to facilitate delivery to himself or herself, whether by maintaining or even initiating contact with those who are to make the drugs available. 47His Honour sentenced the applicant on that basis. Contrary to the both the submission advanced on the applicant's behalf and the finding urged by the Crown, his Honour concluded: "... I am of the view that the offender's involvement in the attempt to obtain possession of the drug predates the time he asserted to police when he was arrested. This conclusion is based upon the timing and frequency of calls the offender engaged in with the offender Helio Lay and calls made by the offender to unidentified persons in Hong Kong. The pattern of calls permits the drawing of an inference beyond reasonable doubt that the offender's involvement commenced by at least 24 July 2012." His Honour continued: "I am satisfied beyond reasonable doubt that the offender's involvement predates the time of his admitted involvement in attempting to possess the drug for which he faces sentence, that it the amount of 4.8 kilograms of heroin. I am of the view that the offender had contact with persons in Hong Kong in order to facilitate the transfer of possession of 4.8 kilograms of heroin to himself for the purpose of distribution in Australia. I cannot, however, be satisfied beyond reasonable doubt that his travel to Hong Kong in June was for that purpose." 48The pattern of calls to which his Honour referred necessarily included the applicant's use of the phone with the 181 number to contact the 991 Hong Kong number on 24 July 2012, two days before the container was delivered to Alexandria and after its dispatch from Hong Kong. This was an agreed fact, as was the fact that the applicant contacted the 938 Hong Kong number on three further occasions using the same number, namely on 29 July 2012, 30 July at 1.27pm, en route to collect the heroin from Helio Lay and 30 July at 4.19pm after collecting the heroin. The calls on 29 July and the call at 1.27pm on 30 July were after the applicant had phone contact with Helio Lay using another phone number, and after Helio Lay organised a meeting with Lee in Haymarket, following which he transported the drugs in his car to his home. On his arrest he was in possession of the SIM card Helio Lay had used to contact Lee. 49On the appeal, the applicant's counsel sought to emphasise that the call made to Hong Kong on 24 July was to the 991 Hong Kong number, whereas all the calls on subsequent dates were to the 938 Hong Kong number. The applicant also submitted that there was no direct evidence that any of these calls were drug-related and, in particular, nothing to link the 991 number to the drug enterprise, being the only call he made on 24 July 2012. Counsel submitted that it was equally open for his Honour to infer that the applicant was calling the 991 Hong Kong number on that date in relation to his $300,000 gambling debt, or that the call may have related to his employment with his nephew in a logistics business in China. 50Counsel also advanced the submission that the rejection of the applicant's account to police and Dr Howard as untrue did not, of itself, entitle the sentencing judge to find that the applicant's involvement predated the day of his arrest by at least the six days. What counsel on the appeal had to confront, and in my view what he failed adequately to address, was that his client did not give evidence to put the agreed facts of his contact with Hong Kong at a time which counsel conceded was significant in the overall scheme in an innocent context. While the applicant was not obliged to give evidence on sentence, the fact that he did not quite properly allowed for a contrary inference to be safely drawn, and beyond reasonable doubt, from the agreed facts. 51The fact that an alternate inference was open (assuming the submission put by counsel on the applicant's behalf can be so categorised) does not mean his Honour's finding cannot stand. As Basten JA observed in Aoun v R [2011] NSWCCA 284 at [8], a sentencing judge would not be bound to reject an impugned factual finding in those circumstances since he would be entitled to dismiss a competing inference (as his Honour did in this case), assuming a sufficiency of evidence or inferences from the evidence to establish the contrary as not raising a reasonable doubt in his mind. The distinction between a sentencing judge's assessment of facts and what they are capable of proving, and factual findings which this Court might make if it were to furnish its own view of agreed facts, must be maintained. Basten JA went on to say: "...The boundary between a difference of opinion and a finding of error may not be a bright line, but it involves a distinction which must be respected." 52This Court is bound by a sentencing judge's findings of fact, provided that they are supported by the evidence, or inferences legitimately drawn from the evidence, and that any facts that aggravate the objective seriousness of an offence or the applicant's offending are established beyond reasonable doubt. This Court has no power to substitute its own factual findings for those of the sentencing judge in the absence of error being demonstrated. 53Where a factual error is made in the exercise of the sentencing discretion adverse to an offender, or where the sentencing judge failed to consider a material fact or an immaterial fact was erroneously relied upon in the House v The King sense ([1936] HCA 40; 55 CLR 499), this Court does not assess whether, and to what extent, the error influenced the outcome. The sentencing discretion having miscarried, it is the duty of this Court to exercise the sentencing discretion afresh (see Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 per Spigelman CJ at [19], the approach recently endorsed as correct by the High Court in Kentwell v R [2014] HCA 37; 313 ALR 451 at [40]-[43]). 54For my part, I am not satisfied that any factual error of the kind contended for by the applicant has been demonstrated. 55In assessing the applicant's role, and in supporting what his Honour ultimately found to be a number of purposive steps the applicant took in the days before he took physical custody and control of what he believed to be 20 kilograms of heroin, his Honour took into account the entirety of the factual matrix in the evidence that was before him in his sentencing reasons. 56I would reject the first ground of appeal.

Ground 2: The applicant has a justifiable sense of grievance as a result of the sentences imposed on the co-offenders 57Two submissions were advanced to support what was said to be a disparity between this applicant's sentence and those of his co-offenders giving rise, in the applicant, to a justifiable sense of grievance. 58Firstly, counsel drew attention to the commercial quantities of both the heroin and methamphetamine as the border controlled drugs involved in the offences committed by the applicant's co-offenders which, counsel submitted, exceeded the quantity of heroin the applicant sought to obtain possession of by an order of magnitude not adequately reflected in the sentences imposed in relative terms. It was further submitted that, irrespective of whether the first ground of appeal is made out, the applicant's offending was for a relatively short time as compared to the length of time during which his two co-offenders were involved in their attempts to access the drugs (including, in the case of Lam, his arrival in Australia for that purpose) and, further, that the gravity of the applicant's conduct in attempting to obtain possession of 20 kilograms of heroin was, for that reason, markedly different from their proven conduct. 59In Gill v R [2010] NSWCCA 236 at [58], McColl JA (with whom RS Hulme J and Latham J agreed) observed that an applicant faces a considerable obstacle in invoking the parity principle where a sentence said to give rise to a justifiable sense of grievance was imposed in circumstances where the sentencing judge was aware of the sentence imposed on co-offenders and it is clear that the sentences are structured in that knowledge. In this case, the co-offenders (who did not complain of disparity) were sentenced after the applicant. That said, as noted earlier, the sentencing judge was alert to parity considerations. 60The principle of parity derives from the fundamental norm of equal justice. In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [28] per French CJ, Crennan and Kiefel JJ, their Honours said of equal justice: "...It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584 at 608, [65]: "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect."..." 61The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender, or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders are disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender's subjective circumstances. There are, necessarily, degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases that requires that different sentences be imposed. However, it is only where there is a marked discrepancy between sentences not reasonably explained by the degree of difference between co-offenders and their offending that the disparity gives rise to a justifiable sense of grievance requiring appellate intervention. 62On the appeal, insufficient attention was directed by both counsel to the sentencing reasons which attended the sentence imposed on the applicant's co-offenders. My analysis of that material leads me to conclude that this ground of appeal must fail.

The sentence of Helio Lay 63On 14 February 2014, Helio Lay was sentenced. It was the Crown case in those sentence proceedings that the heroin was to be distributed in 1 kilogram lots and that Helio Lay agreed to store it at his house for an indefinite period, distributing it to another person or other people who would collect it from him from time to time. That was accepted for sentencing purposes. Further, his Honour concluded that Helio Lay was at all times acting at the direction of others, not as an "unknowing dupe" but as somebody who had taken a number of steps before and at the time of the collection of the drugs at Alexandria, well aware of the scale of the illicit drug trade in which he was involved, including his collection of a very substantial quantity of two types of border controlled drugs for transportation to his home. His Honour was satisfied that the weight of the border controlled drugs has increased significance on sentence where an offender has knowledge of the quantity that is ultimately the subject of the charge without that feature being determinative of the sentence to be imposed. 64It is clear from the sentencing reasons in Helio Lay's case that it was the Crown case that the call charge records, summarised in the agreed facts, did not reveal the complete picture of his relationship with this applicant given that, in total, the conversations between them only extended over about five minutes. Counsel for Helio Lay submitted that his client was at all times operating at the direction of the applicant. The sentencing judge noted that the sentence proceedings of this applicant proceeded on the basis that there was no evidence that he was involved other than in collecting a portion of the heroin of which the larger portion remained under the custody and control of Helio Lay. 65In resolving that issue in his Honour said: "... On the material placed before me, whilst there is grave suspicion that it was [the applicant] who was at all times directing the offender here, I am unable to determine whether, if it were not for the intervention of police, he would have further involvement with the drug collected from the Alexandria warehouse or had any involvement with the methamphetamine found in the offender's garage. The further material place d before me in those sentencing proceedings does not permit me to conclude that he was the person who was at all times directing the offender though, as I have indicated, I am of the view that the offender here was primarily acting under the direction of a person or persons in relation to both offences." 66The sentencing judge also found that Helio Lay involved himself in both drug offences for which he was sentenced for financial reward. He rejected Helio Lay's assertion that he was to receive $10,000, concluding that the return (from making the drugs available for distribution) would have been "significantly higher than that". He made no finding that Helio Lay was to sell the drugs for profit or that the applicant was to account to him for the heroin sold. 67In dealing with Helio Lay's subjective circumstances, his Honour noted that he was aged 56 at the time of sentence and that he had an established work history after settling in Australia from East Timor as a refugee 27 years previously when he migrated as a married man with three children. His wife filed for divorce some months after he was remanded in custody. He reported having a good relationship with his children and grandchildren. 68Helio Lay was also in good health and had no previous criminal record. The sentencing judge accepted that he was a person of previous good character and that his offending was out of character. That being so, his Honour found it difficult to understand why Helio Lay had involved himself with offending of such gravity. While he was satisfied that Helio Lay's motivations were financial, his Honour also found that the offending appeared to be "an aberration". He was satisfied that Helio Lay had good prospects of rehabilitation.

The sentence of Chi Man Lam 69On 7 March 2014, Lam was sentenced. The sentencing judge accepted the Crown's submission that the offender performed an essential role as a trusted member of the drug syndicate, travelling to Australia for the sole purpose of committing the offences with which he was charged, principally by removing the secreted drugs from the imported homewares in the container. He was also satisfied that Lam facilitated the collection of the drugs from Alexandria by Helio Lay. 70Nevertheless, his Honour was ultimately satisfied that Lam's overall knowledge of the enterprise was limited to what he needed to know to assist in the removal of the drugs from the container and that he had a limited understanding of the role that he was to perform at the time of his arrival in Australia, being reliant on instructions from others after that date. Lam was sentenced on the basis that he was recruited to undertake a role as unpacker and facilitator only, and that whilst he directed or facilitated the collection of the drugs by Helio Lay, even then he was acting at the direction of others. The sentencing judge positioned Lam at the lower end of a hierarchy of offenders. 71Lam, who was aged 31 at the time of sentence, had no prior criminal record. He was unemployed in Hong Kong in the period leading up to his travel to Australia for the purpose of participating in the criminal syndicate. His Honour was satisfied that the assessment by Community Corrections that Lam had a low risk of reoffending was accurate, and that he had good prospects of rehabilitation having constructively utilised his time in custody since his remand in both employment and study. 72Upon that analysis, it is clear that there were a range of factors, including an assessment of the role the offenders occupied in a multi-faceted drug enterprise and their subjective circumstances (in particular, the prior good character of both co-offenders), differentiating this applicant from his co-offenders for sentencing purposes. In my view, those factors provide a more than sufficient explanation for the sentence imposed on this applicant relative to the sentences imposed on Helio Lay and Lam despite the fact that the commercial quantity of drugs he was charged with attempting to possess was significantly less than the commercial quantity of drugs the subject of the charges with which his two co-offenders were sentenced and that, on his Honour's findings, he was involved for a confined period of time prior to his arrest. 73I do not regard the fact that the principle of totality was necessarily invoked in the partially accumulated sentences imposed on the applicant's co-offenders as dictating any different result. 74I would reject the second ground of appeal. 75The orders I propose are: (1)Leave to appeal is granted. (2)The appeal is dismissed. 76HAMILL J: I agree with Fullerton J.

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: 19 December 2014