Lee v R

1. The offences in question were committed in conjunction with a co-accused, Mr Wei-Lun Wang. The co-accused, Mr Wang, pleaded guilty to the same charges in the Local Court and, as a consequence of the early plea of guilty, received a 25% discount in recognition of the timing of the plea for its utilitarian value.
2. The co-accused's sentence is relevant and can be summarised by a similar table to that utilised above for the applicant: Count Quantity of Drug Maximum penalty for offence Co-accused's sentence Aggregate sentence Undiscounted starting point: 14 years commencing 12 years commencing 25 September 2015 1 19,056.3 grams of methamphetamine Life imprisonment 25 September 2015 NPP of 7 years and 6 months, commencing (pure weight) Discounted sentence: 25 September 2015 9 years Earliest release date: 24 March 2023 Undiscounted starting point: 16 years commencing 2 41,706.7 grams of methamphetamine Life imprisonment 25 September 2017 (pure weight) Discounted sentence: 12 years

1. As can be seen from the foregoing tables, the maximum penalty for each offence is life imprisonment. Such a sentence is, of course, applicable only to a sentence which warrants the maximum sentence. There is no suggestion in this appeal nor was there a suggestion before the sentencing judge that either the applicant or the co-accused warranted the maximum sentence or anything approaching it.

Grounds of Appeal

1. The applicant raises two grounds of appeal: Ground 1: In assessing the applicant's role in the offences, the sentencing judge failed to take into account that the applicant was exposed to the risk of investigative attention in a way that the co-accused was generally not; Ground 2: The applicant has a justifiable sense of grievance in respect of the overall sentence and the non-parole period imposed on him as compared to the overall sentence and the non-parole period imposed on the co-accused.

Facts

1. The offence charged in Count 1 related to methamphetamine that was found in the co-accused's premises in Chippendale. The drugs were discovered on 23 September 2015, together with other items of drug paraphernalia, including rubber gloves; a filtration device; strainer; electronic scales; and vacuum pumps.
2. The applicant provided an account of the conduct that was occurring that amounted to an admission of trafficking in the sense that the term has been construed as it is used in s 302.1(1)(b) of the Criminal Code.
3. The offence in Count 2 also related to methamphetamine. The drug was concealed in 118 metal rollers in a consignment that arrived in Sydney from China on 7 September 2015.
4. Law enforcement agencies removed the drug from the consignment and replaced it with an inert substance, after which the consignment was reconstructed for a controlled delivery. The consignment was then delivered to an address in Ashfield, where it was temporarily stored in a garage, before being moved to a storage facility in Burwood.
5. The applicant agreed on facts that formed the basis of the sentencing exercise. Those facts conceded the role of the applicant in both offences.
6. In the course of the offending, it was primarily the applicant that was left to make practical arrangements. Those arrangements included: 1. dealings with the initial delivery of the goods to the Ashfield address, including liaising with Binod Bhatta, who the co-offenders relied upon to facilitate the delivery, even though he was not involved in the offending; 2. conduct related to the movement of the goods from Ashfield to the storage unit at Burwood; 3. arranging and booking the storage unit in his own name; 4. hiring vehicles for use in the facilitation of the offences, again, in his own name; 5. opening and operating bank accounts in his own name, which accounts were used to deal with funds relating to the offending.
7. The applicant had arrived in Sydney on 24 August 2015 on a 90-day tourist Visa. The co-offender Mr Wang had arrived in Sydney on 11 July 2015 and was living at Chippendale at the time that the applicant arrived in Australia.
8. The foregoing is taken from the Agreed Statement of Facts. [1] Those Agreed Facts also include the comment that the applicant "was exposed to risk of investigative attention to some extent in this role in a way that generally Wang was not, though both men attended the storage unit, where both were arrested". [2]
9. Further, the Agreed Facts include the statement that Mr Wang was the resident in the apartment where the drugs were located. The applicant was a periodic visitor to the apartment. It is unnecessary to summarise or repeat the other facts agreed between the parties, but the Agreed Facts document has been taken into account in its entirety.

Applicant's Submissions

1. If the Court were to grant the appeal and move to resentencing, the applicant relies upon an Affidavit of Ms Frances Anne Lowe, the applicant's solicitor, who attaches the applicant's custodial history; the Corrective Services NSW notes as to the activities of the applicant; and the Record of an Inmate Disciplinary Action in relation to the applicant.
2. As can be seen from the second ground of appeal, significant attention was given to the difference in treatment of the applicant, on the one hand, and the co-accused. This is the basis, as explained during the course of oral submissions, of the first ground of appeal as well.
3. The first ground of appeal raises that the greater exposure of the applicant to the risk of investigative attention as compared to the co-offender demonstrates that the applicant was at a lower level in the hierarchy of the criminal conduct than was the co-offender. The second ground of appeal raises a justifiable sense of grievance and the principle of parity in sentencing.
4. The submissions of the applicant referred to a comparison of the findings of fact and conclusions of his Honour in relation to the co-offender and to the applicant. The co-offender was sentenced on 7 May 2018 and the sentencing judge had, before him, a Statement of Facts that differed slightly from that pertaining to the applicant. Nevertheless, the facts upon which the court relied in sentencing the co-offender did not draw any express distinction between the role of the co-offender and the role of the applicant.
5. The remarks on sentence in relation to the co-offender reveal that the court found that the co-accused must have been involved at least by 14 July 2015 when an amount of $15,000 was deposited into the co-offender's bank account. Further, the sentencing remarks concluded that the co-accused had knowledge of the drug to be imported, relating to Count 2, shortly before 17 September 2015, when he was observed with the applicant in the vicinity of the Ashfield premises. His Honour then made the following findings as to the co-accused's role: "So far as the trafficking offence is concerned, I am satisfied that the Offender [Wang] was a trusted custodian of the methamphetamine which he stored in an apartment in which he was living. So far as the attempted possession of the methamphetamine is concerned, I am satisfied that the offender [Wang] was a trusted intermediary who performed a critical role with Lee [the applicant] of facilitating the importation and securing the collection of the drugs for distribution." [3]
6. In relation to the applicant, the sentencing judge made the following comments: "So far as the offender's [the applicant's] knowledge in relation to the methamphetamine, in relation to the second count in the indictment, it is my view that his knowledge was sometime before he was observed on 17 September 2015. I am unable to be satisfied beyond reasonable doubt about how long before and accordingly I propose to sentence him on the basis that it was a short time before. In relation to the trafficking offence, I am satisfied that the offender, with Wang was a trusted custodian of methamphetamine which was stored in Wang's apartment. Between the two of them, Wang was more involved, in that he had a greater and longer degree of control over the drugs. In relation to the attempted possession of the methamphetamine, I am satisfied that the offender was a trusted intermediary who performed a critical role with Wang which facilitated the importation and securing the collection of the drugs for distribution." [4]
7. Essentially, in relation to Ground 1, the applicant submits that, while Judge Jeffreys recognised that the applicant and the co-accused played different roles in the offences, in considering the extent to which the applicant was subordinate to the co-offender, his Honour did not have regard to the fact that the applicant was exposed to the risk of investigative attention in a way that the co-offender generally was not. This, it is submitted, was to pay no regard to that which was agreed between the parties and expressly mentioned in the applicant's Agreed Statement of Facts. Further, the Crown, it was submitted on appeal, at the sentencing hearing, conceded that the foregoing agreed aspect served to differentiate the offenders as to their relative roles.
8. The applicant submits that the mere recitation of the foregoing agreed fact as part of the Agreed Statement of Facts, without explanation as to the impact, if any, such a factor would have on the relative roles of each co-offender was insufficient, given the significance of the factor in placing the applicant in a more distinctly subordinate position than his co-offender.
9. The applicant submits that a failure to explain requires the Court on appeal to take the view that the sentencing judge did not consider this aspect, which was a failure to take a relevant fact into account in the specific context of assessing the nature of the applicant's role relative to the co-accused.
10. In relation to Ground 2, the applicant submits that there was a misapplication of the principle of totality in structuring the overall sentence, which led to a disparity between the sentence imposed on the applicant and the sentence imposed on the co-offender. That disparity affected adversely the sentence imposed upon the applicant, being both the head sentence and the non-parole period.
11. The applicant submits that, while the applicant received a lesser overall sentence and non-parole period than did the co-accused, the difference was not proportionate or rational to the different roles played by each and the different indicative sentences that were set by the sentencing judge.

Crown Submissions on Appeal

1. The Crown submits that the sentencing judge dealt with the issue of the greater risk of investigative attention suffered by the applicant in his remarks on sentence. First, the Crown submits that this issue was dealt with in the course of describing the role of the applicant; and, secondly, without expressly referring to the words "risk of investigative attention", by reference to the actual conduct of the applicant compared with the co-offender.
2. The Crown submits that the applicant has failed to articulate clearly the manner in which the learned sentencing judge is supposed not to have taken into account the factor to which the applicant refers. Nor has the applicant articulated the difference that, it is said, this factor ought to have made. Moreover, the Crown points to the absence of any finding that is challenged or criticised by the applicant that could be related to the alleged failure.
3. The Crown submits that the applicant's submission is to the effect that every part of an Agreed Statement of Facts would need to be the subject of an express reasoning process the absence of which would be error.
4. In respect to Ground 2 the Crown refers the Court to the oral and written submissions before the sentencing judge and notes that the exchanges about parity between the two offenders occupied more time than any other particular issue in the sentencing proceedings. [5] The Crown at the sentence proceedings dealt with the issues of parity in writing, both in the original written submissions, [6] and in supplementary written submissions. [7]
5. Similarly, the applicant dealt with parity in writing both in his original written submissions [8] and in his supplementary written submissions. [9] The judge dealt with parity in his remarks on sentence and did so in detail. [10]
6. Over and above the foregoing, the Crown points to the following differences between the circumstances pertaining to the applicant and those that pertain to the co-offender: 1. While the charges and the criminal enterprises were the same, slightly different dates are referred to in the Indictments, which gives the applicant a slightly longer period of offending compared with the co-offender; 2. The mental health of the applicant and the co-offender is different - the co-offender having clinical depression, with the applicant not having any condition warranting formal diagnosis; 3. The applicant's plea of guilty was very late, entered during the time that his trial was to take place, which was reflected in the applicant receiving a 15% discount compared to the co-offender's 25% discount for the early plea of guilty; 4. The applicant and the co-offender had different roles. While both men were to some extent "hands-on", the co-offender also attended the storage unit where both men were arrested; and 5. There would be different financial benefits for each of the two offenders.
7. The Crown submits that the differences in the sentence imposed on each of the applicant and the co-offender does not give rise to a justifiable sense of grievance. Each sentence is capable of explanation by reference to the differences between their circumstances and offending.
8. The differences between the sentences imposed on the applicant and the co-offender are justified, it is submitted, by the differences in facts found and by the treatment of the timing of the respective pleas of guilty.

Consideration

1. As earlier indicated, the kernel of the applicant's complaint is the failure of the sentencing judge to allow sufficient distinction between the applicant and the co-offender in terms of the sentence imposed on each, given the roles each played. The first ground of appeal, in effect, submits that the explanation for that failure is the failure of the sentencing judge to take into account the greater risk of investigative attention suffered by the applicant and not the co-accused in determining the relative roles of each.
2. The second ground of appeal asserts a justifiable sense of grievance in relation to the relative sentences imposed upon the applicant and the co-accused. It is convenient to deal with both grounds together.
3. As has been explained on a number of occasions, the parity principle that applies to the process of sentencing co-accused is an expression of the principle of equal justice and is fundamental to a rational and fair system of criminal sentencing. As the High Court has stated, [11] the parity principle requires "identity of outcome in cases that are relevantly identical" and "different outcomes in cases that are different in some relevant respect". [12]
4. Equal justice requires that like should be treated alike and that the difference in treatment of relevantly different persons should be rational. [13] Equal justice is a principle that is fundamental to the exercise of judicial power.
5. In the United States, it is guaranteed by a combination of the Fifth Amendment and Fourteenth Amendment and in Canada by s 15 of the Bill of Rights. [14] In Andrews v Law Society of British Columbia [15] , McIntyre J recited the principle by reference to the Aristotelian principle of formal equality, namely, that "things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their 'unalikeness'." [16]
6. The application of the principle to sentencing was discussed by the High Court in Green & Quinn, [17] in which the High Court said: "[28] 'Equal justice' embodies the norm expressed in the term 'equality before the law'. It is an aspect of the rule of law. It was characterised by Kelsen as 'the principle of legality, of lawfulness, which is immanent in every legal order.' It has been called 'the starting point of all other liberties.' It applies to the interpretation of statutes and thereby to the exercise of statutory powers. 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: '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.' (emphasis in original) Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. [29] General concepts of 'systematic fairness' and 'reasonable consistency' in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is 'consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence.' That kind of general consistency is maintained by the decisions of intermediate courts of appeal. The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of 'co-offenders', albeit the limits of that term have not been defined with precision." [18] (Footnotes omitted.)
7. In the current proceedings, the complaint is not that there is no differential between the co-offenders, but that the differential does not reflect rationally the difference between the roles played by each of them and, as a subset thereof, the aggregate sentence imposed on the applicant does not reflect the difference in the roles to the extent decided by the sentencing judge.
8. It is necessary to return to first principles. Sentencing is not a mathematical exercise; it is a process of intuitive or instinctive synthesis.
9. In performing the task, a sentencing judge takes the objective seriousness of the criminal conduct and the subjective circumstances of the offender and synthesises them to achieve the goals of sentencing. Those goals are prescribed by s 16A of the Crimes Act 1914 (Cth) and have been described as including the protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. [19] Each of those purposes overlap and cannot be considered in isolation. Each is a guidepost, as is the maximum sentence and, if there be one, the standard non-parole period. Often the purposes of sentencing point in different directions.
10. Where, as here, co-offenders are sentenced, there is a necessity to reflect the respective roles of each of the offenders and appropriate parity between the sentences in fixing the appropriate sentences.
11. One of the submissions of the Crown, on appeal, is that the sentences are different because of the different discounts for the pleas of guilty, each of which was given at different points in time relative to the criminal process. However, such a factor would account for a disparity only to the extent that one was comparing the final sentence imposed, rather than the starting point for each such sentence.
12. The sentencing judge, as was required, indicated that the co-offender, Mr Wang, received a discount of 25% for the utilitarian value of the early plea of guilty, while the applicant received a discount of 15% for the utilitarian value of the plea of guilty given at the time that his plea was entered. Thus, the Court, on appeal, is in a position where it is capable of comparing like with like in determining whether there is an appropriate distinction that reflects rationally the differences between the co-offenders.
13. In setting the relative sentences of co-offenders, the sentencing judge is involved in an exercise of discretion and the principles relating to appeals from such judgments apply. But it is unnecessary to find any error other than the lack of parity in the sentence imposed.
14. So fundamental is the principle of equal justice and its implementation as the parity principle in sentencing that an otherwise correct sentence may be reduced to overcome disparity.
15. The principle applies even where a subsequent sentence creates the disparity and a justifiable sense of grievance in the earlier-sentenced co-offender. It is not every difference in sentence that will give rise to a disparity, but the Court will intervene where the difference is irrational and does not adequately reflect the different circumstances of the offending and the offender, or does not reflect that there is no relevant difference.
16. However, the mere fact, if it were the fact, that the Court on appeal may have set the relativity between two co-offenders differently from the sentencing judge is, in and of itself, insufficient to warrant intervention by the Court; it is necessary that the relative sentences disclose an irrational difference or lack of difference.
17. As earlier stated, sentencing is not a mathematical exercise. Nevertheless, for the purposes of comparison between the applicant and his co-offender, it is necessary to restate that which is set out in the tables above. In terms of the undiscounted indicative sentencing, for the first Count, the applicant was sentenced to 8 years and 3 months, while the co-offender, Mr Wang, was sentenced to 12 years' imprisonment. As a consequence, the applicant's indicative sentence represents 68% of the co-offender's sentence.
18. Again, comparing undiscounted indicative sentences, for the second Count, which is a more serious offence, the applicant was sentenced to 13 years and 10 months' imprisonment, while the co-offender was sentenced to 16 years' imprisonment. Arithmetically, this represents the applicant receiving approximately 86.5% of that indicated for the co-offender.
19. Ultimately, again comparing undiscounted sentences, the applicant was sentenced to an aggregate sentence of imprisonment for 13 years and 3 months, which, readjusted for the 15% discount, would calculate as a starting point of approximately 15 years and 6 months and a starting point for the non-parole period of 8 years and 4 months. This compares with the calculated starting point for the co-offender of 18 years and 8 months for the head sentence and 10 years for the non-parole period. This represents the applicant receiving a sentence that is approximately 83.5% of the sentence imposed on the co-offender.
20. As earlier stated, the exercise is not mathematical. A sentencing judge fixes an appropriate ratio to give effect to the different roles of each and the different circumstances of each. In so doing, the sentencing judge takes into account the fixing of a sentence that is neither too low nor too high and adequately reflects the seriousness of the offending.
21. In order for an applicant to succeed on the basis of disparity in sentencing, there must be a justifiable sense of grievance. Such a justifiable sense of grievance derives from an irrational lack of differentiation between, in this case, the applicant and the co-offender.
22. In determining the aggregate sentences, the circumstances associated with the commission of the first Count notionally added, in terms of the total sentence imposed upon the applicant, 18 months, after discount. If undiscounted amounts were utilised, the first Count notionally added 2 years and 6 months to the second Count. For the co-offender, added to the indicative sentence for Count 2, on account of Count 1, was an additional 2 years and 8 months, on the undiscounted figures, and 2 years on the discounted figures.
23. The learned sentencing judge dealt with the fact that the applicant had been exposed to the risk of investigative attention as a fact in his recitation of the facts applicable to the applicant. His Honour described and took account of the different roles. It is unnecessary to do so in the express terms used in the Agreed Statement of Facts.
24. Moreover, in the circumstances of these proceedings, the exposure of the applicant would have inevitably led to the exposure of the co-offender, such that the exposure on which the applicant relies was not such as to highlight, in and of itself, the different roles of each of the applicant and the co-offender.
25. The learned sentencing judge has expressly differentiated the roles and subjective circumstances of each of the applicant and the co-offender and has provided for a significant differential in both the aggregate head sentence and non-parole period. The factor to which Ground 1 of the appeal refers is, as the applicant submits, of some significance, but it has been properly considered in determining the respective roles of each offender.
26. It is the aggregate sentence that is the subject of the appeal and must be. Nevertheless, even if one were to examine the indicative sentences, the learned sentencing judge has indicated a significant differential between each of the indicative sentences that would have been imposed and were set for the applicant and the co-offender.
27. Even if this Court were of the view that a slightly different differential should have been applied, there is a rational differentiation between the applicant and the co-offender, which reflects the differences in the role each played in the criminal conduct and the subjective features pertaining to each of them.
28. In my view, there can be no justifiable sense of grievance. I would propose that the Court make the following orders: 1. Leave to appeal be granted; 2. Appeal be dismissed.
29. Dhanji J: For the reasons given by Rothman J I agree that the applicant does not have a justifiable sense of grievance as a result of the sentence passed on his co-offender. I also agree with the additional reasons of the Chief Justice.

Endnotes

1. Agreed Statement of Facts; Appeal Book, p 109 and following.
2. Ibid, p 113.
3. Remarks on Sentence (Wang), 7 May 2018; Appeal Book, p 140.
4. Remarks on Sentence (Lee), 1 May 2020; Appeal Book, pp 18-19.
5. Transcript of Sentence proceedings before his Honour Judge Jeffreys, 12 September 2021; Appeal Book, p 58.
6. Crown Submissions on Sentence, pp 11-12; Appeal Book, pp 160-161.
7. Further Crown Submissions on Sentence, p 1; Appeal Book, p 169.
8. Applicant's Written Submissions on Sentence, 27 June 2019, p 6; Appeal Book, p 209.
9. Applicant's Supplementary Written Submissions on Sentence, 6 October 2019, p 1; Appeal Book, p 210.
10. Remarks on Sentence (Lee), 1 May 2020; Appeal Book, pp 20-23.
11. Wong v the Queen (2001) 207 CLR 584 at 608, [65]; [2001] HCA 64.
12. Wong, supra, (Gaudron, Gummow and Hayne JJ) (emphasis in original).
13. Postiglione v the Queen (1997) 189 CLR 295 at 301-302 (Dawson and Gaudron JJ); [1997] HCA 26, citing with approval Lowe v the Queen (1984) 154 CLR 606 at 610-611 (Mason J), at 617-618 (Brennan J), at 610 (Gibbs CJ) at 613 (Mason J) and at 623 (Dawson J); [1984] HCA 46.
14. Andrews v Law Society of British Columbia [1989] 1 SCR 143.
15. Ibid.
16. Ethica Nichomacea, trans., W. Ross, book 3 at p 1131a-6 (1925).
17. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49.
18. Green & Quinn, supra, at [28] and [29]; see also Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60.
19. Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Mason CJ, Brennan, Dawson and Toohey JJ). 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: 21 December 2021