244 CLR 462
Hoskins v R [2015] NSWCCA 245
Postiglione v The Queen [1997] HCA 26
Source
Original judgment source is linked above.
Catchwords
56 NSWLR 146
Green v The QueenQuinn v The Queen [2011] HCA 49244 CLR 462
Hoskins v R [2015] NSWCCA 245
Postiglione v The Queen [1997] HCA 26
Judgment (3 paragraphs)
[1]
Solicitors:
Zahr Partners - Applicant
Commonwealth Director of Public Prosecutions - Respondent Crown
File Number(s): 2012/2343732012/269685
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 13 July 2015
Before: Zahra SC DCJ
File Number(s): 2012/234373
2012/269685
[2]
Judgment
HOEBEN CJ at CL:
Offences and sentence
On 13 July 2015, the applicant was sentenced in the District Court at Sydney, by Zahra SC DCJ, to a term of imprisonment of 10½ years with a non-parole period of 6 years and 9 months, in respect of an offence of trafficking a commercial quantity of a controlled drug, contrary to s 302.2(1) of the Criminal Code (Cth). The maximum penalty for the offence is life imprisonment.
When imposing the sentence, Zahra SC DCJ took into account a further offence of trafficking a marketable quantity of a controlled drug, contrary to s 302.3(1) of the Criminal Code, on a schedule pursuant to the procedure provided by s 16BA of the Crimes Act 1914 (Cth). The maximum penalty for the s 302.3(1) offence is 25 years imprisonment.
By Notice of Application for Leave to Appeal, dated 30 September 2016, the applicant seeks leave to appeal his sentence. The applicant relies upon the following grounds:
Ground 1 - The learned sentencing judge erred in the manner in which the admitted offence on the Schedule pursuant to s 16BA of the Crimes Act 1914 (Cth) was taken into account.
Ground 2 - The applicant has a legitimate sense of grievance by reason of the sentence passed upon his co-offender Kathy Nguyen.
Factual Background
In 2012 a Melbourne man, Suky Lieu, was running a drug trafficking business, selling and distributing drugs in Melbourne. Some of the drugs that were trafficked by Suky Lieu were sourced and supplied in Sydney through a Hong Kong resident named "John". Through "John", Suky Lieu was able to place orders and arrange to collect drugs in Sydney.
When the drugs were required by Suky Lieu, and could be made available through "John", the two men would make arrangements via telephone for the supply and collection of the drugs in Sydney. Each of Suky Lieu and "John" used a network of intermediaries and associates to perform the physical acts of storing, supplying, collecting and transporting the drugs. When the drugs were available in Sydney, Suky Lieu would make arrangements for someone to travel to Sydney to collect the drugs from an intermediary of "John". In turn, "John" would make arrangements for one of his intermediaries to collect the drugs from a safe house location and transport the drugs to an agreed meeting place where the drugs could be handed over to Suky Lieu's associate.
In this fashion, the two men engaged in an ongoing enterprise of illicit drug trafficking between and in Sydney and Melbourne.
The applicant was a Sydney based intermediary of "John". At the direction of "John", on two occasions he collected a quantity of the controlled drug 4-methoxymethylamphetamine (also known as paramethoxymethamphetamine and referred to hereafter in shorthand as "PMMA") from the safe house, transported it to an arranged location and handed it over to Suky Lieu's associates.
At the time of the offending, PMMA was a controlled drug under s 314.1(2) of the Criminal Code because it was an analogue of other controlled drugs, i.e. amphetamine, methamphetamine and 3,4-methylenedioxymethamphetamine (MDMA). The table in s 314.1 provided different thresholds for the prescribed marketable and commercial quantities for each of these controlled drugs. Pursuant to ss 314.1(4) and (5), where a substance was an analogue of a controlled drug, the marketable and commercial quantity threshold for the analogue substance were taken to be the same as that for the prescribed controlled drug. Where the substance was an analogue of more than one controlled drug, the marketable and commercial quantity thresholds for the analogue substance were the smallest of the various marketable and commercial quantities applicable for the particular prescribed controlled drugs.
In this case s 314.1(4) and (5) required that the marketable and commercial quantity thresholds for the PMMA substance trafficked by the applicant be determined according to the prescribed thresholds for the controlled drug MDMA.
When committing the admitted offence, the applicant used a falsely subscribed telephone service, which had been provided to him, to make contact with Suky Lieu's intermediary from Melbourne, Van Son Thieu (VS Thieu). In advance of meeting with VS Thieu, the applicant contacted Anh Thai Pham (Pham) to arrange to collect drugs from the safe house. On 2 July the applicant met briefly with VS Thieu at Bankstown and the pair arranged to meet later that day. After the meeting with VS Thieu, the applicant travelled to the safe house and collected the PMMA from Pham. On the way to the safe house, the applicant communicated with VS Thieu using the falsely subscribed telephone with which he had been supplied. The applicant told VS Thieu that his instructions were that 1kg of the drug was to be supplied. After collecting the PMMA from Pham, the applicant travelled back to Bankstown, met again with VS Thieu and delivered the PMMA to him.
When committing the primary offence, the applicant used a falsely subscribed telephone service, which had been provided to him, to make contact with Suky Lieu's intermediary from Melbourne, Kathy Nguyen. The pair had a coded telephone conversation in which they arranged to meet at a location in Sydney. Once the meeting with Kathy Nguyen had been arranged, the applicant used a different telephone number to contact Pham, so that he could arrange to collect the drugs from the safe house occupied by Pham. The applicant travelled by a circuitous route to Pham's house, where he then collected the PMMA to be handed over to Kathy Nguyen. On 24 July, the applicant then travelled to the pre-arranged meeting with Kathy Nguyen at a location in the vicinity of the Canley Vale High School, where he delivered the PMMA to her.
Following her conviction after trial, the applicant's co-accused, Kathy Nguyen, was sentenced by Zahra DCJ for a single offence of supply of a prohibited drug, namely PMMA, in an amount not less than the large commercial quantity, contrary to s 25(2) of the Drugs Misuse and Trafficking Act 1985 (NSW). His Honour imposed a sentence of 7 years and 9 months imprisonment, with a non-parole period of 5 years.
The offence committed by Kathy Nguyen was part of the same transaction which gave rise to the primary offence for which the applicant was sentenced. Kathy Nguyen was Suky Lieu's intermediary. She received the drugs in a shopping bag from the applicant at the handover location near Canley Vale High School in Sydney. Kathy Nguyen then took the drugs back to her mother's house in Canley Vale and left them there. The drugs were then taken by someone (the evidence did not establish the identity of the person) to an address in Harrington Street and were placed into a hidden fuel tank compartment of a Toyota Prado vehicle driven by the couriers, Van Thai and To Ly (Thai and Ly). Kathy Nguyen had earlier directed Thai and Ly to the Harrington Street address but the evidence was not capable of establishing whether she played any role in the loading of the drugs into the fuel tank of the Toyota Prado.
Sentence proceedings
On 12 June 2015, joint sentencing proceedings were conducted in respect of the applicant and Kathy Nguyen. The applicant was to be sentenced following his guilty plea to the primary offence. Kathy Nguyen was to be sentenced following her conviction after trial.
The nature and circumstances of the offences committed by the applicant were set out in the Agreed Statement of Facts tendered by the Crown. The nature and circumstances of the offence committed by Kathy Nguyen were established by the evidence adduced at her trial.
At the conclusion of the proceedings on sentence, Zahra DCJ reserved judgment in respect of each of the matters. Kathy Nguyen was subsequently sentenced on 3 July 2015 and the applicant on 13 July 2015.
In addition to reciting the factual background from the Agreed Statement of Facts, his Honour noted the following particular matters relevant to the objective gravity and seriousness of the applicant's offences:
1. The maximum penalty for the primary offence was life imprisonment and/or a fine of $825,000. The maximum penalty for the admitted offence was 25 years imprisonment and/or a fine of $550,000.
2. The applicant was part of a drug syndicate that operated in Hong Kong, Sydney and Melbourne. The syndicate engaged in a series of transactions attempting to transfer substantial quantities of prohibited drugs from Sydney to Melbourne.
3. The roles of each of the intermediaries in the syndicate were confined and designed so that each step and those involved in each step could be shielded from the other. The contact between intermediaries was closely managed and controlled. The applicant's activities were highly regulated.
4. The applicant was an intermediary of the person "John". In that role, he engaged in the transfer of drugs on two occasions.
5. The applicant had physical control over the drug for a period of time before he on-supplied it.
6. The applicant was at all times operating at the direction of "John".
7. There was no evidence that the applicant had any prior contact with "John" before the offending. There was no evidence that he played any organisational role or was involved in any other planning beyond the steps he performed. There was no evidence that he had any contact with Suky Lieu.
8. The quantity of the drug was substantial. The quantity of the drug the subject of the primary offence was 3.1674kg pure PMMA. The threshold commercial quantity was 500g. The quantity was over six times the threshold commercial quantity. The quantity of the drug the subject of the admitted offence was 449.3g pure PMMA. The threshold marketable quantity was 100g. The quantity was four and a half times the threshold marketable quantity.
9. The applicant would have been aware that he was involved in the supply of substantial quantities of a prohibited drug.
10. The applicant played a crucial role in an organised criminal enterprise of some scale. He was trusted to carry out a crucial step in the transfer of the drug from the safe house to the intermediary of a principal in the drug enterprise. The transactions would not have been able to progress to the point they did without the conduct of the applicant.
11. The applicant's conduct involved more than delivering the drug and involved coordinating the collection and transfer of the drug with others.
In addition to these matters, the sentencing judge noted the need for general deterrence was particularly relevant when sentencing the applicant. His Honour noted the increasing prevalence of offences of the type committed by the applicant and the fact that such offences had substantial social consequences. His Honour stated that the interests of general deterrence were to be served by imposing a sentence that would signal to would be traffickers that the potential financial rewards to be gained from such activities would be neutralised by the risk of severe punishment. Although the sentencing judge did not make any express finding, it was uncontroversial that the applicant had committed the offences for financial reward.
In relation to the applicant's subjective case, the sentencing judge noted that he did not give evidence during the proceedings on sentence and therefore caution had to be exercised when assessing the weight to be given to the histories provided by him which were untested.
In addition to the applicant's general background, the sentencing judge noted and took into account the following subjective features of the applicant:
1. He resided in the family home with his parents and younger brother and had been in a stable relationship with his girlfriend for three years. He had significant family support. He was aged 24 years.
2. He had worked in a variety of jobs and had maintained consistent long-term employment until his father became ill in 2010.
3. He had pleaded guilty to the primary offence and had asked the court to take into account the admitted offence. His guilty plea was not an early plea. The sentencing judge allowed a 12.5% discount to reflect the applicant's willingness to facilitate the course of justice.
4. His account to the psychologist that he had met a group of Chinese people at a karaoke bar in 2011 and that they had told him they could help him with his financial problems by helping them with some deliveries, provided some context to his offending. However, it did not diminish the objective seriousness of his offending. It had some bearing on the assessment of his moral culpability for his offending. According to the psychologist, it appeared that the applicant's underlying symptoms of financial and emotional stress, due to his father's illness, made him vulnerable to the influence of this group of people.
5. He was experiencing severe symptoms of depression and moderate levels of anxiety. A term of imprisonment was likely to worsen and prolong his symptoms of depression and anxiety.
6. He had a number of prior convictions for driving with the prescribed concentration of alcohol but no other significant convictions.
7. His prior good character was of less weight as a mitigating factor because he had been involved in trafficking substantial quantities of illicit drugs.
8. He had expressed remorse to others for his offending and his remorse was relevant to the assessment of his prospects of rehabilitation.
9. There had been some delay since the time of charging and sentencing. During that time the applicant had achieved significant rehabilitation.
Because of Ground of Appeal 2, it is necessary to set out in some detail the findings which the sentencing judge made in respect of Kathy Nguyen.
In addition to the identification of the general factual background established by the evidence adduced at trial, the sentencing judge noted the following particular matters relevant to the objective gravity and seriousness of the offence committed by Kathy Nguyen:
1. The maximum penalty for the offence was life imprisonment.
2. The quantity of prohibited drug supplied was an admixture of 5.837kg of PMMA. The commercial quantity threshold for PMMA was 250g and the large commercial quantity was 1kg or more. The quantity of the drug had the potential to cause considerable harm to the community if it were disseminated.
3. Kathy Nguyen would have known a substantial quantity of drugs were to be on-supplied.
4. Kathy Nguyen was involved in a number of steps which involved co-ordinating with others. However, she was at all times engaged in acts predetermined by Suky Lieu and there was no evidence she was involved in planning of any.
5. Kathy Nguyen was recruited a relatively short period of time before travelling to Sydney. She only became involved in the supply on or about 24 July and shortly before her departure from Melbourne.
6. There was no evidence that Kathy Nguyen had any understanding of the extent to which the syndicate operated or the scale in which they were involved in the supply of other drugs or that she had any knowledge of prior supplies or attempted supplies by the syndicate.
7. There was no evidence that Kathy Nguyen played any role other than agreeing to travel to Sydney; agreeing to make contact with and take possession of the drug; retaining the drug at her mother's address until such times as it was taken to the Harrington Street address for loading into the Toyota Prado; making contact with Thai and Ly at Cabramatta and taking them to the Harrington Street address. Although there was evidence that Kathy Nguyen had some relationship with Suky Lieu in the trafficking of drugs, there was no evidence that she had any prior criminal relationship with any other members of the syndicate or was involved in any other supply or attempted supply of the syndicate. Kathy Nguyen was not to be sentenced for any offence with which she had not been charged.
8. Kathy Nguyen was, however, an important part of a network that was involved in the supply of a substantial quantity of drug. She had a crucial role and was trusted against the background of previous failed supplies. Her role was essential to the success of the enterprise and she was engaged because she was a person who could be trusted by Suky Lieu.
9. The offending was of a most serious kind.
10. The motivation for the offending was financial return.
The sentencing judge noted that a strong measure of deterrence was called for when sentencing Kathy Nguyen. His Honour rejected Kathy Nguyen's claim of non-exculpatory duress.
The sentencing judge took into account Kathy Nguyen's subjective case:
1. She was born in Vietnam and was 43 years old. She had four children, aged 24, 23, 16 and 14 years, from two previous relationships. After migrating to Melbourne she had trained and worked as a nail technician.
2. She was arrested on 27 July 2012 in Victoria and was extradited to New South Wales where she was released on bail on 31 July 2012. She had remained on bail until 31 March 2015, being the date of her conviction following trial.
3. She had a history of depression and met the criteria for having developed a Major Depressive Disorder in 2009, with the condition persisting to the present time.
4. Although the psychologist who assessed her expressed the opinion that her judgement and problem solving skills were compromised at the time of their offending as a result of her depressed mood and social isolation, there was little before his Honour to suggest that her judgement was impaired to any significant extent.
5. She was likely to experience deterioration in her mental health in custody in the long term and she would suffer hardship in custody arising from the separation from her youngest children. She would require continuing assistance over the long term upon her release from custody. For these reasons the sentencing judge found special circumstances.
6. She had a relatively minor previous criminal history, with previous convictions for possession of a prohibited drug for which she was fined, some driving offences and an offence of trafficking in amphetamine, which was dismissed upon compliance with a bond/undertaking.
7. Because the evidence suggested some involvement in other drug trafficking with Suky Lieu, she was denied any leniency she might otherwise have received had the offence she had been convicted of been isolated conduct.
8. No meaningful prediction about her prospects of rehabilitation could be made but long term supervision upon her release directed at monitoring associates would reduce the risk of reoffending.
9. She had made formal admissions which had thereby shortened the trial, though not to a substantial extent. The utilitarian benefit of the admissions was minimal. However, the sentence to be imposed would reflect that limited utilitarian benefit.
The appeal
The applicant's focus was on Ground of Appeal 2 - the parity ground. Accordingly, that ground of appeal is dealt with first.
Ground 2 - The applicant has a legitimate sense of grievance by reason of the sentence passed upon his co-offender Kathy Nguyen.
The applicant submitted that he had a justifiable sense of grievance because of the sentence imposed on Kathy Nguyen in that her offending was more serious than his or at the very least, at the same level of seriousness. He submitted that when regard was had to the fact that Ms Nguyen's sentence was not reduced by a plea of guilty, the difference between the sentences became even more obvious, i.e. an undiscounted head sentence of 12 years compared with 7 years and 9 months and an undiscounted non-parole period of 7 years and 9 months, compared to 5 years for Ms Nguyen.
The applicant relied upon the following evidence to make out that argument.
Ms Nguyen's offence involved the same drugs as those, the subject of the applicant's primary offence. Her role was very similar to his. Her role complemented his. She was Suky Lieu's "trusted" intermediary whereas he had a similar relationship with "John". Each performed a "crucial role" which was "essential to the success of the enterprise". Ms Nguyen was involved in co-ordinating others at the direction of Suky Lieu. She was the applicant's direct counterpart in relation to the primary offence.
The applicant identified the following differences between the part played by Ms Nguyen in the primary offence and his role which indicated that Ms Nguyen's offending was more serious than his.
Her participation involved an interstate element with her being required to fly from Melbourne to Sydney. She inspected the contents of the bag containing the drugs. She had control and the "stewardship" of the drugs for a period of time before transferring them to another person. There was a strong likelihood that she participated in secreting the drugs in the Toyota Prado. Unlike the applicant, Ms Nguyen had direct contact with her principal, Suky Lieu, when they met in person and discussed the price and quantity of the drugs before she departed for Sydney. She remained in direct phone contact with Suky Lieu for the next two days. She met with and directed the couriers Thai and Ly to the Harrington Street address.
The applicant submitted that he had a stronger subjective case than did Ms Nguyen. He had a relatively minor criminal history, comprising drink driving offences whereas Ms Nguyen had a prior conviction for possession of a prohibited drug and was prosecuted for trafficking in amphetamine for which she was placed on a 12 month bond without a conviction. While both had engaged in the offending for financial reward, the financial need of the applicant's family as a result of his father's cancer had also played a part. An intercepted coded conversation on 23 July between Ms Nguyen and Suky Lieu suggested some involvement in other drug trafficking leading to a conclusion by his Honour that her offending here was not isolated. Unlike the applicant, Ms Nguyen did not benefit from a finding of remorse. Unlike the applicant, there was no finding in favour of Ms Nguyen of demonstrated rehabilitation.
The applicant submitted that taken as a whole, the matters referred to above indicated that Ms Nguyen's offending was more serious in important respects than was his and that her subjective circumstances were less favourable. Ms Nguyen was also subject to a standard non-parole period which did not apply in his case.
The applicant accepted that the admitted offence was an important distinguishing feature between his offending and that of Ms Nguyen. He submitted that that offending did not explain the disproportionately severe sentence imposed upon him and that his Honour gave too much weight to that offence. Given the other matters referred to above, the applicant submitted that the admitted offence did not justify the significant discrepancy between his sentence and that of Ms Nguyen. This was particularly so when his Honour made no mention of parity as between him and Ms Nguyen, leaving open an inference that he did not consider it.
Consideration
While his Honour did not refer to parity, between the sentence imposed on the applicant and that imposed on Ms Nguyen, it is most unlikely that he did not have it in mind. This is because the sentence proceedings were heard together on 12 June and the sentences were handed down on 3 and 13 July 2015. In the remarks on sentence directed to Ms Nguyen, his Honour expressly referred to parity as it affected some of the other offenders.
When considering this issue, it is useful to keep in mind the following statements of principle.
"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them [see Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610 - 611, per Mason J]. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error: Lowe v The Queen at 617-618 per Brennan J. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance": [Lowe v The Queen esp. at 610 per Gibbs CJ; at 613 per Mason J; and at 623 per Dawson J.] If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." (Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301 - 302 per Dawson and Gaudron JJ.)
In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 the plurality (French CJ, Crennan and Kiefel JJ) said:
"31 Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may "reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender." The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen:
"the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done."
The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.
32 A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. …" (Footnotes omitted)
The fact of the admitted offence and the circumstances surrounding it cannot be disregarded. It clearly played a significant part in his Honour's exercise of the sentencing discretion. This can be seen from the detailed description given by his Honour of the actions taken by the applicant in relation to this offence. In that regard, the oft quoted passages from Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 in the judgment of Spigelman CJ (with whom Wood CJ at CL, Grove, Sully and James JJ agreed) remain pertinent:
"18 A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. (See e.g. The Queen v White (1981) 28 SASR 9 at 13; Murrell v The Queen (1985) 4 FCR 168 at 179 per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128-129; R v Morgan (1993) 70 A Crim R 368 at 371-372.)
…
42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another."
More recently in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Bathurst CJ (with whom Hoeben CJ at CL, Garling and Campbell JJ agreed) said:
"22 In my respectful opinion, the approach suggested by Adams J is incorrect if it is interpreted as meaning that a sentence cannot be increased to take into account an additional need for deterrence and retribution in respect of the offences charged by virtue of the Form 1 offences being taken into account. Such an interpretation is contrary, in my opinion, to the meaning of s 33 properly construed and to what was said by Spigelman CJ in Attorney General's Reference. Section 33(1) empowers the Court to take the further offences into account where the preconditions in that section and s 32 are met. It is clear from the provisions of s 33(3) that that could lead to an increase in penalty up to the maximum penalty for the principal offence. The existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged. This does not mean the Court is imposing a separate penalty for the Form 1 offences. Rather, as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen [2005] HCA 25; (228 CLR 357 at [51]-[54], it takes these matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted.
23 That approach would generally, but not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the Form 1 offences were not taken into account: R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185. That does not mean that the principle of proportionality referred to by the High Court in cases such as Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354; Veen v The Queen (No 2) supra at 472 and 477; Markarian supra at [83], is offended. Rather, the fact that the sentence is to be determined by reference to the additional need for personal deterrence and retribution for the offence for which the offender is being sentenced as a result of the Form 1 charges means that the principle of proportionality falls to be assessed by reference to matters which include those additional factors. That does not involve any injustice to the offender who has chosen to avail him or herself of the s 33 procedure. Nor does it mean that the offender is being sentenced for offences for which he or she has not been convicted. This is because the sentence is imposed by reference to the offence for which the offender has been convicted, by contrast to the "top down" approach rejected in Attorney General's Reference."
The fact of the admitted offence goes further than explaining why in the case of the applicant the sentence for the primary offence should be substantially increased. It also provided an insight into the part played by the applicant in this drug supply enterprise. It made it clear that the applicant's involvement extended from 29 June until 27 July 2012 when he was arrested. That contrasted starkly with the period of the involvement of Ms Nguyen which was in the order of two days.
The admitted offence made it clear that although in simple terms the applicant and Ms Nguyen could be styled as counterparts, their criminality was not the same. The applicant's offending was more serious. He was involved in trafficking for the syndicate on two occasions over a significant length of time whereas Ms Nguyen's offence was on a single occasion for a very short period. There is no challenge to his Honour's finding that Ms Nguyen had no knowledge of the activities of the syndicate before she left Melbourne, nor had she been involved in any preparations.
In both the admitted offence and the primary offence, the applicant's offending involved arranging for and carrying out the collection of drugs from the syndicate's safe house and dealing with Mr Pham on two occasions, who was, in effect, the warehouseman in Sydney for the syndicate. The applicant's communications over the period employed a number of different phones and were in code. Those communications were maintained over the entire four week period. During that period, the applicant was dealing with two of Suky Lieu's intermediaries.
The applicant transported the drugs by car to prearranged meetings and engaged in the physical handover of the drugs to others. Ms Nguyen's offending involved the collection of a bag of drugs from the applicant, walking with the bag back to her mother's house where the bag was left and then directing the couriers, Thai and Ly, to another address where they collected the drugs. The fact that she was required to fly to Sydney to participate in her part of the offending adds nothing to her culpability nor does the fact that her offence carried a standard non-parole period.
It is also not without significance that the applicant throughout the period was in contact with "John" and receiving instructions from him concerning who to contact and the codes to be used for identification and other purposes. The fact that the applicant was in contact with "John", who was based in Hong Kong, allows an inference to be drawn that he was well aware of the syndicate extending at the very least to Melbourne, Sydney and Hong Kong. He would also have been aware that the drug supply in which the syndicate engaged was not limited to a one off transaction, but had included at least two episodes of supply, the second of which involved a substantial quantity of drugs. There is no evidence that Ms Nguyen had any knowledge of any other drug supply by this syndicate before the one in which she was involved. The recorded conversation between her and Suky Lieu in which she expressed some knowledge of drug supply generally, goes no further than that. There was nothing in that conversation to connect Ms Nguyen with any other supply by this syndicate.
The exercise of adding to the applicant's sentence the 12.5% discount which he received for his plea of guilty, is not determinative of there being an unjustified discrepancy between the length of his sentence and that of Ms Nguyen. While it is a relevant consideration, the true subjects of comparison are the actual sentences imposed. When considering that aspect of the matter, it also needs to be kept in mind that some unspecified allowance was made in favour of Ms Nguyen by his Honour because of her co-operation and assistance in making admissions during the course of her trial. While that discount was described as "minimal", his Honour clearly intended to apply a discount.
There was not a great deal of difference in the subjective cases of the applicant and Ms Nguyen. She had a pre-existing depressive condition which would make her time in custody more difficult as did the applicant. Her time in custody would involve greater hardship because of the separation from her two youngest children, a problem which the applicant did not have to deal with.
Taking into account the admitted offence on the schedule and the much greater knowledge which the applicant had of what was described by his Honour as a "sophisticated drug trafficking operation capable of supplying large amounts of different types of drugs" and his involvement over a much longer period, i.e. four weeks compared to two days, there is ample justification for the difference in the length of his sentence compared to that of Ms Nguyen.
This ground of appeal has not been made out.
Ground 1 - The learned sentencing judge erred in the manner in which the admitted offence on the Schedule pursuant to s 16BA of the Crimes Act 1914 (Cth) was taken into account.
It was common ground that his Honour took the admitted offence into account in the following way:
"Whilst the primary focus is on the primary offence, I am required to take into account the further offence to which the offender has admitted his guilt with a view to increasing the penalty that would otherwise be appropriate for the primary offence. Greater weight must be given to the need for personal deterrence and the community's entitlement to extract retribution for the serious offence to be dealt with pursuant to s 16BA. The admitted offence involves offending of substantial gravity. Having assessed the objective criminality represented in the admitted offence, the sentence to be imposed for the primary offence must reflect the criminality involved in both offences as the agreed facts have disclosed. In my view, a significantly higher penalty must be imposed than would otherwise have been appropriate for the primary offence if it stood alone."
It was common ground that s 16BA permitted a court, if it thinks fit, to take into account a further admitted offence when passing sentence for the offence of which the offender has been convicted. While the court might make certain ancillary orders in respect of the admitted offence, it was prohibited from imposing "any separate punishment". The admitted offence is not to be regarded for any purpose as an offence of which a person has been convicted. It was also common ground that the approach of Spigelman CJ in Attorney General's Application applies to Federal offences included on a s 16BA schedule (R v Lamella [2014] NSWCCA 122 at [48]).
The applicant submitted that the sentencing judge had misstated the relevant principle when he said that greater weight had to be given to the need for personal deterrence and the community's entitlement to extract retribution "for the serious offence to be dealt with pursuant to s 16BA". The applicant submitted that this amounted to error and that the correct approach was to consider whether the need for personal deterrence and retribution "in respect of the principal offence" was increased having regard to the admitted offence on the s 16BA schedule. The applicant submitted that his Honour erred by increasing the sentence for the principal offence in order to impose retribution "for the admitted offence".
The main thrust of the applicant's submission under this ground, however, was that the circumstances of the admitted offence were not such as would significantly increase the penalty for the primary offence. On that issue, the applicant relied upon the following matters:
1. There was a single offence only on the s 16BA schedule.
2. The applicant performed the same limited role in both transactions.
3. The primary offence concerned trafficking over 3kg of the substance whereas the admitted offence was concerned with a substantially lower quantity.
The applicant submitted that because of those matters, the sentence for the primary offence was largely able to comprehend and reflect the criminality involved in the admitted offence so that there was no justification for imposing a "significantly higher penalty in respect of the primary offence".
Consideration
It is not correct to characterise what his Honour said as involving error. The better approach is to accept that the impugned remarks were an imprecise statement of the practical effect of taking into account a further serious offence when sentencing for the principal offence. While the language employed by his Honour was infelicitous, no error of principle actually occurred. While his Honour's remarks made express reference to giving greater weight to personal deterrence and retribution "for the serious offence to be dealt with pursuant to s 16BA", his Honour was doing no more than attempting to provide reasons regarding the effect of the admitted offence on the sentencing exercise as a whole.
The situation is not dissimilar to that which occurred in Hoskins v R [2015] NSWCCA 245. In that case, an offence on a Form 1 was taken into account when sentencing an offender for a principal offence. The impugned remarks said to reveal error of principle were to the effect that the Form 1 offence "aggravated" the principal offence and the penalty to be imposed for that offence. The particular statements in question were set out by Button J (Hoeben CJ at CL and Hall J agreeing) at [42] - [44] as follows:
"42 The first thing said about that topic in the remarks on sentence was as follows: "The matters on the Form 1 must aggravate the penalty I impose in relation to sequence 1. Each of the individual offences was serious in its own right".
43 The second was as follows: "The aggravating matters are, of course, confined to sequence 1, which has the Form 1 matters to be taken into account".
44 The third was as follows: "I do find that the Form 1 aggravates sequence 1 - that is the only aggravating matter of which I am satisfied beyond reasonable doubt"."
Button J held that although the first statement was "infelicitously stated", it was not erroneous. In contrast, his Honour concluded that each of the second and third statements were incorrect. In relation to whether the incorrect statements demonstrated a misapplication of principle however, Button J said at [55] - [56]:
"55 … I do not accept that the sentencing judge was applying a wrong principle. Rather, I have come to believe that what was said in the second and third extracts was a combination of a slip in language and the use of a shorthand with regard to a very commonly encountered procedure and very well-established principles. That occurred in remarks on sentence delivered, if not extemporaneously, then shortly after the proceedings on sentence had concluded.
56 In the result, despite the infelicity of language, I am not satisfied that the sentencing judge applied a wrong principle with regard to taking the Form 1 into account. For that reason, I would not uphold ground two."
I am satisfied that a similar situation occurred in the present case. While the express words of his Honour incorrectly stated the relevant principle, the incorrect statement was a slip in language and the use of shorthand with respect to a commonly encountered procedure and very well-established principles. In all the circumstances, the impugned remarks did not constitute a misapplication of principle. It is plain from the sentencing remarks, read as a whole, that the sentencing judge was always aware that he was sentencing the applicant only for the primary offence and not punishing the applicant for the admitted offence.
Contrary to the applicant's submissions, it was well open to the sentencing judge to conclude that the circumstances of the offending warranted a significantly higher penalty in respect of the primary offence than that which would otherwise have been appropriate had the primary offence stood alone. The criminality involved in the commission of the admitted offence was significant and substantial for the reasons already given.
The admitted offence occurred several weeks before the primary offence. At the time of the commission of the admitted offence, the applicant demonstrated his knowledge and awareness of the bulk quantity of the drug involved. Despite knowing that he was trafficking a significant quantity of an illegal drug, he repeated the act again when committing the primary offence (which involved a substantially greater quantity of the drug). It is not appropriate to regard what occurred as a single criminal enterprise. The obvious fact is that the applicant committed two separate hand overs of drugs to different recipients on different occasions at different locations. The repetition of the trafficking conduct must have made plain to the applicant that he was involved in organised criminal activity of a high order. So too would the fact that the applicant was aware that he was communicating with "John", a Hong Kong resident, to co-ordinate the hand over of drugs warehoused in a safe house in Sydney to a person representing Melbourne interests.
The applicant's repeated trafficking in controlled drugs for financial reward meant that greater weight was to be given to deterrence and retribution when sentencing him for the primary offence. Such an approach meant that it was open to his Honour to impose a sentence that was longer than the sentence which would have been imposed had the primary offence stood alone.
The applicant's submission that the sentence for the primary offence was largely able to comprehend and reflect the criminality involved in the admitted offence should not be accepted. As a matter of principle, it is wrong to expect that any increase in sentence brought about by taking into account an admitted offence can only be small. It is not correct that matters which are to be taken into account are to simply be noted in passing, or that little by way of additional penalty should be imposed by reason of their existence (R v Lulham [2016] NSWCCA 287 at [57] per Bellew J (Bathurst CJ, Beazley P, Hall and Adams JJ agreeing)).
This ground of appeal has not been made out.
The orders which I propose are:
1. Leave to appeal against sentence is granted.
2. The appeal is dismissed.
WALTON J: I agree with Hoeben CJ at CL.
LATHAM J: I agree with Hoeben CJ at CL.
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Decision last updated: 06 March 2017