Li v R

The Facts

1. The facts were agreed. They may be summarised thus - On 18 December 2006 the applicant and Koh were seen by police standing next to a van which was stationary in a street in Geelong. Koh was the driver of the van and the applicant was using a sedan which was parked not far away. As the police approached them, the applicant walked away towards his car. The police spoke to Koh. The applicant made to drive away but the police directed him to stop and he did so. The applicant denied knowledge of Koh and the van. The van contained 385Kg of MDP2P. The applicant and Koh were arrested. They were in possession of mobile telephones. In the applicant's car police found a key, two further mobile telephones and a rental agreement. The applicant was interviewed. He told police where he lived and answered general questions about himself. He said that his car was rented. He could not explain how the two telephones came to be in the car. He declined to answer questions about his involvement with Koh, what he was doing or where he was going.
2. In due course the applicant was sentenced in the County Court of Victoria to imprisonment for 6 years 6 months with a non-parole period of 4 years 6 months. Koh was sentenced to imprisonment for 6 years with a non-parole period of 4 years.
3. In the meantime, police made investigations in Sydney. They searched the applicant's house at Padstow and found taxi driver authority cards in his name. They searched a factory unit at Castle Hill. There they found almost 400 containers, each containing about 5 litres of liquid. The containers were packed in cardboard boxes and plastic tubs. The liquid in the containers was shown by analysis to be pure MDP2P. MDP2P is not itself generally used as a drug, but is used to make MDMA, a highly marketable drug of addiction.
4. The police received assistance from the manager of the factory unit. He described visits by two men. He identified papers which referred to Koh and a business name, Glory Trading. The papers bore a telephone number that matched one of the telephones found in the applicant's car at Geelong. It was agreed at the hearing that the applicant and Koh were the men who had visited the manager of the factory units.
5. Police established that a shipping container had been brought to the factory unit on about 18 December 2006 and that three Asian men had unloaded cardboard boxes and put them in the unit.
6. On 11 December 2006 a business name, Glory Trading, was registered at the offices of the Department of Fair Trading. The applicant and Koh were recorded on closed circuit television at that department's premises. In that way the applicant was identified retrieving the registration form. He could be seen watching Koh. The applicant paid the registration fee. The person lodging the applicant was stated in the form to be Koh. The address given was false but the telephone number matched a telephone found in the applicant's car at Geelong.
7. The van impounded in Geelong was rented from a hire company by Koh in his correct name. His date of birth and Singapore passport number were correctly recorded on the rental agreement. The car used by the applicant was rented from the same company. The applicant was recorded by name as the hirer and his date of birth was correctly recorded. A telephone number recorded on the papers matched a telephone found in the applicant's possession at Geelong.
8. Examination of mobile telephone records showed that the telephones possessed by the applicant and Koh were used between 15 and 18 December 2006 in the part of Castle Hill where the factory unit was situated, at the Department of Fair Trading where the business name application was lodged and at Padstow. In the same way police were able to establish that the users of the telephones travelled to Melbourne on 18 December 2006. The key found in the applicant's possession at Geelong opened the factory unit lock.
9. In due course the applicant and Koh were transferred from Victoria to continue serving their sentences in New South Wales. On 27 January 2010 they were charged with the offence now under consideration.
10. In dealing with the objective seriousness of the applicant's offence, her Honour began by drawing attention to the amount of MDP2P involved, 2.2 tonnes, a quantity 4,000 times the prescribed large commercial quantity for the drug. Her Honour described the amount as "staggering" but correctly observed that the amount itself was not determinative of the sentence to be imposed. Comparing the two cases, her Honour said at RS 22-26 - On behalf of the offender it was submitted that Mr Li was nothing but the local contact for fulfilling the role as translator and transporter for Mr Koh who was, it was submitted, flown to Australia as the syndicate delegate. In support of the contention that Mr Koh should properly be regarded as the syndicate delegate and more involved than Mr Li, whom it was said could not be shown to have any contact with the principal, Mr Price tendered the record of interview made by Mr Koh to New South Wales Police on 27 January 2010. I have read the whole of that interview. It is correct to say that Mr Koh said he had contact with a man in Malaysia whom he had first met years before when they were in a gang in Singapore. It is also correct to say that Mr Koh said that that man in Malaysia asked him to come to Australia because he trusted him. It is also correct to say that Mr Koh said in his interview the man in Malaysia told him to register the company, rent the warehouse and rent the van. However much of what Mr Koh said to police in that interview does not bear out the contention that Mr Li was merely acting as a translator and driver to Mr Koh. It was submitted also that the fact that it was Mr Koh who had the drugs in the van he was driving (the Victorian offence) was consistent with him exercising control over the drugs as the syndicate delegate. On behalf of the Crown it was submitted that Mr Li's involvement was greater than Mr Koh, that Mr Li was higher in the hierarchy. The Crown pointed to several matters including: the actual acts performed by Mr Li; his possession of the key to E15; his activation of the 988 phone four days prior to the arrival of Koh in Australia; his possession of three mobile phones including one which was made (sic) some thirty-nine attempts to call overseas on the evening before setting off to Victoria; and the fact that Mr Li distanced himself from both the registration of the business name and the driving of the van containing the drugs such that of the two Mr Koh was exposed to the greater risk of identification and arrest. Apart from Mr Li's evidence that he had accumulated a gambling debt of some $10,000 no detail has been revealed as to the particulars of Mr Li's involvement with what has been described in the agreed facts as "the syndicate". In order to assess the offender's role and his level of participation, I regard it as appropriate then to consider what it is that can be proved Mr Li I actually did. The evidence establishes the following: · Mr Li was in possession of the mobile phone (the 988 service) that had been activated on 7 December 2006, that is four days before Mr Koh's arrival in Australia; " · On the afternoon of 11 December 2006 Mr Li went to the Department of Fair Trading at Hurstville in the company of Mr Li (sic) where they jointly filled out a business registration form in the name of Glory Trading Company. Mr Li can be seen on the CCTV footage retrieving the registration form. The application was made in Koh's name and signed by him as director of the Glory Trading Company. Incorrect addresses were supplied. A mobile number was supplied. A phone utilising that number was located in the Camry in which Mr Li had driven to Victoria. It was Mr Li, not Mr Koh, who paid the $137 registration fee. It can be inferred that the purpose of the registration of the business name was to feign legitimacy to the lessor of the factory premises which were intended to be used to store the prohibited drugs; · On 12 December 2006 the offender Li, together with Koh, organised and provided the factory unit in which the drugs were subsequently stored. In that regard it was Mr Li who rang Mr Hoyle and inquired about the size and cost of the factory units. Shortly after the offender and Mr Li attended the factory unit at E15 when Mr Li spoke with Mr Hoyle about the rental of the 9.1 metre wide and twelve metre deep factory unit. It was Mr Li who paid Mr Hoyle $2,100 in cash for the rental. · On 15 December 2006 the key for the unit was collected by Mr Li. When Mr Li handed over to Mr Hoyle a piece of paper containing the business name Glory Training Company, it contained the name James Ho and the mobile phone number which was the same number that had been placed on the business registration form and which was the number of a phone found in the Camry which Mr Li was driving on 18 December 2006. There is no evidence that Mr Koh was present on the occasion of the 15th. · The key was not only collected by Mr Li in time for the delivery of the shipping container to E15 (which must have occurred around the 15th to 17 December 2006) the key was retained by him, it having been found in his possession on 18 December 2006. It is apparent from the acts performed by Mr Li that he played a greater role in the obtaining of the premises for the purpose of the storage of the drugs. It was he who paid the money for the registration of the business and the rental of the premises. It was he who dealt with Mr Hoyle and attended upon him to collect the key. His possession of the key for E15 can be regarded as an indicator of his superior position, relative to Koh, particularly when regard is had to the fact that it was Mr Koh who was exposed to the great risk of detection by reason of his name being placed on the business registration form, and particularly having regard to the fact that it was he who drove the van to Victoria, whilst Mr Li was in another vehicle which would have provided him with the opportunity to avoid detection had he not stopped to assist when the van broke down. Whilst there is a basis then to conclude that Mr Li was in a slightly more superior position to Mr Koh in the hierarchy of this criminal drug organisation, it is apparent that they acted jointly in organising and providing the factory unit. They each played an integral part in the scheme. On the established facts, the offenders' involvement was limited to several days over December 2006. There is no evidence to establish that Mr Li had any greater role than that established by the facts already set out. Indeed, as the agreed facts state, the Crown concedes that it cannot prove beyond reasonable doubt that Messrs Li and Koh were the only participants in the criminal enterprise, or that they were themselves going to supply the drug to any person, although they did arrange for the premises knowing that it was to be used to store the drug that would be supplied by members of the syndicate. Mr Li, together with Mr Koh, played a vital role in what was clearly a large commercial enterprise involving an enormous quantity of drugs, and potentially involving enormous profit for those members of the syndicate who were to supply the drugs. and at RS 29 - I have already indicated that I do not accept that Mr Li's role was limited to driving Mr Koh around. On the objective facts already set out, it is clear that Mr Li participated knowingly in this offence by playing a vital role in organising and providing the factory premises in the knowledge that it was to be used to store a substantial quantity of drug that was to be supplied by members of the syndicate.
11. Having weighed the relative objective seriousness of the criminality of the applicant and Koh, her Honour brought subjective features into the balance. Her Honour continued at RS 34 - In the determination of an appropriate sentence I have taken into account the circumstances of the offence, those matters related to its commission and the circumstances of the offender in light of the purposes of sentencing.
12. Her Honour discussed general deterrence and continued at RS 34-35 - I have had regard to the sentence imposed upon the co-offender Mr Koh, in light of the parity principle. I have already recorded that each played an integral role in the offence, albeit that Mr Li's role and level of participation was greater than that of Mr Koh, although not substantially so.
13. Her Honour referred to the sentence previously imposed on Koh and continued at RS36 - Mindful of the sentence imposed upon Mr Koh and having weighed the similarities and differences in the respective cases I have determined that the appropriate starting point for the sentence to be imposed on Mr Li is the same as that adopted for Mr Koh.

The Grounds of Appeal

1. It is convenient to deal with the first two grounds of appeal together. They are - 1. The Sentencing Judge erred in failing to determine the objective seriousness of the offence. 2. The Sentencing Judge erred in applying the parity principle.
2. Mr Odgers, SC, for the applicant, submitted in this Court that after noting the parties' respective positions. Her Honour erred in going on to identify what the applicant did rather than where in the hierarchy his role lay. Attention was drawn first to certain passages in the Remarks on Sentence extracted above. It was submitted that her Honour's reasons were not entirely clear, but should be understood to be - 1. the sentencing judge was not satisfied that (as counsel for the applicant submitted) the applicant's role was substantially that of "translator" and "transporter" not that he had a "lesser role" than that of Mr Koh for the purposes of applying parity principles; 2. the sentencing judge was not satisfied beyond reasonable doubt that the applicant was in a superior position to Mr Koh in the hierarchy of the criminal drug organisation; 3. the sentencing judge was satisfied that the applicant "played a greater role in the obtaining of the premises for the purpose of the storage of drugs", in that he performed more acts in that regard than Koh, although this did not mean that he had a "substantially" greater role and level of participation than Mr Koh; The culpability of the applicant was "greater" than Koh but his subjective circumstances were "more favourable", with the consequence that the applicant's starting point sentence should be the same as that of Koh.
3. The quoted words were extracted from the remarks on sentence. It was submitted that this reasoning involved error. First, her Honour failed to determine the objective seriousness of the applicant's offence. Secondly, her Honour elided the application of the principle that a sentence should be determined by an instinctive synthesis of all relevant factors with the application of the parity principle. Thirdly, her Honour's reasoning was inconsistent and illogical in that, having found that the applicant's role and level of participation were not substantially greater than those of Koh, her Honour concluded that the appropriate starting point of the applicant's sentence should be the same as that for Koh, even though the applicant's favourable subjective circumstances were much more strongly in his favour than Koh's were in his.
4. Mr Odgers began by citing Director of Public Prosecutions (C'wealth) v Gregory [2011] VSCA 145; (2011) 211 A Crim R 147 and the error exposed there. That was a Crown appeal against a sentence imposed in the Supreme Court of Victoria. The respondent's offence was a criminal conspiracy. A co-conspirator, one Wheatley, had already been sentenced and it became relevant for the sentencing judge to compare his and the respondent's respective parts in the conspiracy. The method adopted by the sentencing judge was to use Wheatley's sentence as a starting point and to add to or subtract from it factors which aggravated or mitigated the respondent's criminality. The instances of the process are set forth in the Judgment at [30]. The sentencing judge concluded thus - When one considers these competing considerations, it seems to me that the sentence imposed upon you must be greater than the 18 month "but for" sentence imposed upon Mr Wheatley. In substance, I have reached this conclusion for two reasons. First, Mr Wheatley pleaded guilty and must have received a reduction in his sentence for that. Secondly, your use of your position as a solicitor in the relevant offending conduct means that your offence is, in my view, more serious than his, notwithstanding that his financial benefit was greater. In all the circumstances, it seems to me that the appropriate sentence is two [years'] imprisonment.
5. The members of the Supreme Court of Victoria (Court of Appeal) disapproved of that approach. Their Honours said this at [36] - The approach adopted by his Honour was a form of the two stage sentencing but one that lacked even the benefit of an initial assessment of the objective criminality of the offence. By adopting Mr Whealey's "but for " sentence as his starting point, or first stage, and then considering the various differential factors as between Mr Wheatley and the respondent in the second stage of his reasoning, his Honour erred in principle. If the sentence imposed upon Mr Wheatley was disproportionate to the objective criminality of the offence, his Honour would also have been operating from the outset on an unsound base.
6. Mr Odgers submitted that her Honour erred in precisely the way the sentencing judge had erred in Director of Public Prosecutions (C'wealth) v Gregory. That was because her Honour had essentially begun with the sentence previously imposed on Koh and had compared similarities and differences before concluding that the applicant's sentence should have the same starting point as Koh's. Mr Odgers submitted that her Honour never determined the degree of objective seriousness of the applicant's criminality. Whereas her Honour had to work out the applicant's position in the hierarchy relative to Koh's, her Honour merely focussed on what the applicant did. There was no finding as to his position in the hierarchy.
7. Mr Odgers referred the Court to the judgement of Simpson J in Tyler and Chalmers v R [2007] NSWCCA 247; (2007) 173 A Crim R 458). Her Honour said this at [78] - [81] - It has long been the case that a relevant consideration in sentencing for conspiracy is the "role" played by the offender being sentenced: R v Olbrich (1999) 199 CLR 270; 108 A Crim R 464; Sawas v The Queen (1995) 183 CLR 1; 78 A Crim R 538; R v Wong (1999) 48 NSWLR 340; 108 A Crim R 531. But this, to my understanding, has generally been intended, and read, as a reference to the position or seniority in the organisation of the offender whose sentence is under consideration. Those low in the hierarchy, such as couriers, are usually to be sentenced less harshly, because, although they are of fundamental importance in the execution of the object of the conspiracy - in a drug importation conspiracy, without couriers, no drug could or would be imported - they have no managerial or decision making function; and,experience shows, usually derive the least monetary reward. By contrast, those who have managerial or decision making functions are seen to occupy a more senior position, and, accordingly, to be more culpable. A relevant factor here is the level of profit to be derived. That is not the same as saying, as was here said, that a participant in a conspiracy is to be sentenced (solely) for what he or she does. In this case, that was applied to mean that Chalmers was to be sentenced only for his physical (or overt) acts undertaken in pursuance of the conspiracy.
8. Having referred to other authority, her Honour continued at [83] - Identifying the "role" of a participant by reference to his position in the organisational hierarchy is a very different proposition from isolating the precise physical acts that can be attributed to the particular offender, and selecting the punishment by reference solely to those isolated acts. It would be quite artificial, and contrary to the very concept of a conspiracy, to dissect with precision the physical acts of each of the conspirators, and to sentence that conspirator for those acts alone. That would be a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. It would represent too literal an application of the decisions that identify the "role" of any participant as a relevant factor in the sentencing exercise. It would be to ignore the essential feature of the offence of conspiracy - the agreement to participate in an organised criminal activity.

Consideration

1. I do not agree with the applicant's characterisation of her Honour's enquiry and conclusion. Having summarised the positions taken first by the applicant, that he was just an interpreter and a mover of goods, and by the Crown, that his involvement was greater than Koh's and that he was higher in the hierarchy, her Honour considered what the applicant did as compared with what Koh did. Her Honour pointed out things done by the applicant and not by Koh and referred to the greater role the applicant had played in obtaining premises, paying rent and the like, and avoiding the risk of detection while exposing Koh to the same risk. Her Honour concluded that there was a basis for concluding that the applicant was in a slightly superior position in the hierarchy.
2. What her Honour was doing is clear from her stated intention to assess his role and level from what the applicant did. It was on those findings that her Honour concluded, in the passage I have extracted above, that there was a basis to conclude that the applicant's position was slightly superior to Koh's.
3. That last finding was, in my opinion, the very one Mr Odgers submitted had not been made. Her Honour could not have come to the conclusion that the applicant occupied a superior position without finding what he had done. Moreover the evidence would not have enabled her Honour to find out more about his position in the hierarchy than that it was above Koh's.
4. Accordingly, I would not accept Mr Odgers' submission that her Honour failed to determine the applicant's role, that is to say, his position in the hierarchy.
5. I return to Mr Odgers' last submission under these grounds. Essentially it amounted to this, that the applicant's subjective case was so much better than Koh's and the finding as to the objective seriousness of the applicant's case, as gauged by his position in the hierarchy, was so little worse than Koh's that her Honour could not, taking them both into account for each offender, properly have come to the conclusion that the starting point of the sentences for both men should be the same.
6. Mr Odgers pointed to these favourable features and submitted that the comparison between them and Koh's subjective circumstances was stark - 1. Motivation. The applicant's motive "was a financial one, brought about by his perceived need on his account to deal with his gambling debts". In contrast, Koh's motive was simply "financial" who simply expected to be "paid a sum of money". 2. Prior good character. While the applicant was of prior good character, Koh 'became involved in anti-social groups and activities from a young age, leading to his imprisonment as a teenager and young man". 3. Prospects of rehabilitation. The applicant has good prospects of rehabilitation and is unlikely to re-offend while "Koh's prospects of rehabilitation are guarded" Age. The applicant was aged 50 at the date of the commission of the offence and 56 years old at the date of sentencing while Mr Koh was "a good deal younger", aged 27 at the time of the offence and 31 at the date of sentence Health. There was evidence that the applicant was in poor health while Mr Koh was in good health Concerns over family. The applicant will find his continuing imprisonment difficult by reason of his concerns for his mother, wife and children while Mr Koh had no such family concerns.
7. Her Honour was obliged to impose a sentence commensurate with the objective seriousness of the applicant's crime. While the amount of the drug could not determine the sentence, it was a matter her Honour had to take into account. It was accepted that the Crown could not prove that the applicant knew the quantity of the drug with which he was concerned, but he could not have failed to realise that the amount was enormous. That was bound to be of considerable weight in the determination of the sentence. Her Honour had to give appropriate weight to subjective features as well, but not so as to produce a sentence that failed to reflect the objective seriousness of the offence.
8. The result criticised by Mr Odgers shows that her Honour gave more weight to the applicant's subjective features than to Koh's. In the applicant's favour were findings as to his prior good character, his good prospects of rehabilitation, his age (56 years as against Koh's 31 years), his poor health and concerns about his family.
9. In Koh's favour were lack of intelligence and education and a consequent vulnerability to criminal exploitation. Koh had not seen any of his family since his arrest in 2006. His mother and paternal grandparents had died while he was in custody. His wife had divorced him. He had no family or friends in Australia. He had not been visited in prison.
10. Both offenders were motivated by financial gain. Mr Odgers submitted that the applicant had a better case for leniency because his motivation for participating in the crime was to pay off a gambling debt of $10,000. Although her Honour recited the fact and extracted portion of a psychological report dealing with the applicant's addiction to gambling and his anxiety about it, I think that her Honour did so only as a recitation of the underlying facts. While her Honour accepted the applicant's proffered reason for his desire to raise money, she did not treat that expressly as a mitigating feature. Nor, in my opinion, was her Honour obliged to do so. Her Honour referred to the applicant's need to overcome his addiction and the desirability of assistance from others to do so in support of his eventual reintegration into the community.
11. My impression is that on balance, the applicant had a better subjective case for leniency than Koh, but I would not describe the difference between the cases as stark.
12. In my opinion her Honour's conclusion that the different objective cases and the different subjective cases warranted the same starting point lay within the proper limits of her Honour's discretion. I do not think that the applicant has a justifiable sense of grievance by reference to the sentence imposed upon Koh.
13. In my opinion these grounds of appeal have not been made good.
14. The third ground of appeal asserts that her Honour erred in applying the totality principle.
15. As I observed earlier in these reasons, her Honour fixed the commencement of the applicant's sentence to effect a partial accumulation of two years 3 months upon the Victorian sentence. In Koh's case her Honour accumulated the sentence by two years. The reason for the difference was that the period of accumulation was in each case equivalent to 50% of the non-parole period fixed by the County Court of Victoria.
16. It was submitted in this Court that the degree of accumulation was impermissibly high and that, if that were not so, the period of accumulation of the applicant's sentence ought not have exceeded that of Koh's.
17. It was common ground in the District Court that the drugs in the van came from stock in the premises at Castle Hill. Mr Odgers submitted that in driving the drugs to Victoria, all the applicant and Koh had done was move 12% of the total stock from one place to another. If all they had done had been to move 12% of the stock from one factory to another in Sydney, he submitted, it would be hard to imagine that any significantly longer sentence would have been imposed. Mr Odgers referred to remarks in the Judgement of Howie J, with which Adams and Price JJ agreed, in Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41. At [27] his Honour said: [T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentence will exceed that which is warranted to reflect the total criminality of the two sentence. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality.
18. Mr Odgers submitted that the circumstances comprehended by the New South Wales and Victorian offences amounted to a single course of criminal conduct in relation to the total amount of the drug. He drew attention to the effect of the accumulation, which was to increase a sentence of 19 years 6 months to an aggregate sentence of 21 years 9 months. He submitted that a sentence of 19 years 6 months would have been sufficient to reflect the whole of the applicant's criminality.
19. In effect, Mr Odgers' final submission was that the applicant had a justifiable sense of grievance by comparing the partial accumulation of 2 years 3 months in his sentence with the accumulation of only 2 years for Koh's sentence.

Consideration

1. I note that counsel for the applicant who appeared before her Honour asked her Honour to "accumulate or run the sentences as concurrently (as) possible". It would not be correct, I think, to characterise the events in Geelong as tantamount to a local movement of part of the drug stock from one premises to another. The events could be understood, I think, as no less than a significant step in the distribution of the drug interstate. The applicant's knowingly taking part in the supply of the drug at Castle Hill could not comprehend and reflect the criminality involved in the events that took place in Victoria. I do not think that the principle explained in Cahyadi assists the applicant.
2. Mr Odgers' second submission really amounted to an argument that her Honour's sentence was excessive, given the totality of the criminality comprehended by the two offences. In my opinion it fell well within the limits of her Honour's sentencing discretion.
3. In accumulating the applicant's sentence by 2 years 3 months and Koh's by 2 years, her Honour's intention was to allow the distinction the Victorian Court had drawn to continue to have some effect. In my opinion her Honour was entitled to do so. In the result her Honour discriminated in a way that did justice to both offenders.
4. In my opinion the third ground of appeal has not been made good.
5. I propose the following orders - 1. Grant leave to appeal 2. Dismiss the appeal.

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: 17 October 2016