Solicitors:
Jeffreys Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 14/152322
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 17 June 2016
Before: Lakatos SC DCJ
File Number(s): 14/152322
[2]
Judgment
BASTEN JA: On 12 May 2014 four co-offenders were involved in the supply of 15kgs of ephedrine to an undercover police officer. The supply in fact took place in two stages, being the supply of 5kgs in the first instance, followed by the supply of a further 10kgs in a backpack a few minutes later. All four co-offenders were arrested by police at or shortly after the event and all entered pleas of guilty to charges which included knowingly taking part in the supply of a large commercial quantity of a prohibited drug.
All four offenders were sentenced by Lakatos DCJ, although on two separate occasions. The present applicant Lin Zhiqiang and a second co-offender, Chen Rong, were sentenced on 17 June 2016. Two others, being He Haihui and Huang Enhua, were sentenced on 25 August 2016.
Although the sentencing judge did not have detailed information, nor submissions, in relation to Mr Huang and Mr He when he sentenced the applicant and Mr Chen, he nevertheless had statements of agreed facts in relation to the applicant and Mr Chen which set out the circumstances of the offending involving all four men. Mr Chen's role involved carrying the backpack with 10kgs of ephedrine in it from Mr Lin's car, by which it was brought to the place of supply. The trial judge accepted that Lin and Chen were less culpable than Huang and He. It was Mr Huang who dealt with the undercover officer and arranged with Mr He for the drugs to be brought to the rendezvous.
In the earlier judgment the sentencing judge sentenced Lin and Chen to imprisonment for 8 and 7 years respectively, with non-parole periods of 5 years 6 months and 5 years respectively. In the later judgment he imposed sentences of 9 years on Mr He (with a 6 year 3 month non-parole period) and 10 years on Mr Huang (with a 7 year non-parole period). He made extensive references to the circumstances of Lin and Chen in sentencing Huang and He. It must be accepted that there was a careful correlation between the respective sentences, designed to reflect their relative levels of culpability and, to an extent, a limited degree of disparity in their personal circumstances. The overall sentences were 7 years, 8 years, 9 years and 10 years; the non-parole periods increased by 6 months, 9 months and 9 months respectively, from the baseline of 60 months imposed on Mr Chen.
It appears that two of the four offenders appealed against their sentences. When the appeal by Mr Lin was heard on 27 November 2017 an appeal by Mr Huang had been heard (on 28 August 2017) but was still reserved, before a Court partly differently constituted. Judgment was delivered on 14 December 2017. [1] There were three specific grounds raised by Mr Huang, alleging error in finding that the offence had been aggravated in certain respects; ground 4 alleged that the sentence was manifestly excessive. There was no complaint of disparity. The Court upheld Mr Huang's appeal and reduced his sentence from 10 years to 7 years 6 months (with a non-parole period of 5 years 3 months).
As explained by Hamill J, Mr Lin relied upon five grounds of appeal, four of which were specific to the circumstances of his case and three of which dealt with the manner in which circumstances of aggravation had been addressed. Hamill J has set out the submissions in respect of these grounds. In my view none raised an issue of substance requiring the intervention of this Court.
Ground 5, however, complained of disparity between the sentence imposed on the applicant (and by implication Mr Chen) and those found to be more culpable, namely Mr Huang and Mr He. The submissions acknowledged that each of Huang and He received higher sentences, but submitted that the disparity was inadequate to reflect the differences in their respective levels of culpability. Prior to the reduction of Mr Huang's sentence, I would have also dismissed this ground of appeal. There was no ground of manifest excess raised by Mr Lin. However, because Mr Huang's sentence has now been substantially reduced by this Court, without reference to the careful structuring of the sentences as between the co-offenders, it seems difficult to resist the conclusion that the Court must intervene to reduce Mr Lin's sentence, he having expressly challenged the inadequate disparity between his sentence and that imposed by the sentencing judge on Mr Huang.
Mr Huang's head sentence and non-parole period have each been reduced by 25%. To reduce the applicant's sentence proportionately would require that he serve a 6 year sentence with a non-parole period of 4 years 1 month. Assuming that the sentencing judge achieved a reasonable proportionality between the respective sentences, it would follow that both Mr He and Mr Chen are now serving sentences which could not be supported. Nevertheless, they have no appeals before this Court and Mr Lin does, including a ground to which this Court must respond. These circumstances suggest an element of caprice in the administration of justice, but it is a consequence of individual offenders taking different forensic decisions. Accordingly, although the mechanism by which the result has been achieved is unfortunate, in my view the following orders must be made:
1. Allow the application for leave to appeal against sentence.
2. Allow the appeal.
3. Set aside the sentence imposed by the District Court on 17 June 2016 and in place thereof, sentence the applicant to imprisonment by way of -
1. a non-parole period of 4 years 1 month to commence on 20 May 2014 and expire on 19 June 2018;
2. a balance of term of 1 year 11 months commencing on 20 June 2018 and expiring on 19 May 2020.
1. The earliest date on which the applicant is eligible for release on parole is 19 June 2018.
BELLEW J: I have had the advantage of reading in draft the judgments of Basten JA and Hamill J.
For the reasons given by Hamill J, I agree that grounds 1, 2 and 4 should be rejected, and that ground 3 is made out. As error has been found, the applicant must be re-sentenced and it is not strictly necessary to resolve ground 5.
I agree with the orders proposed by Basten JA.
HAMILL J: Zhi Qiang Lin seeks leave to appeal against a sentence imposed by his Honour Judge Lakatos SC on 17 June 2016. Mr Lin was sentenced for knowingly taking part in the supply of a large commercial quantity of a prohibited drug (about 10kgs of ephedrine). The maximum penalty is life imprisonment and there is a standard non-parole period of 15 years. The applicant was arrested on 20 May 2014 and pleaded guilty prior to his committal for sentence on 13 May 2015. He received a discount of 25% for the utilitarian value of his plea of guilty. There were three co-offenders (Rong Chen, Haihui He and Enhua Huang). Sentencing proceedings took place on 29 February, 1 March and 27 May 2016. Judge Lakatos sentenced all four men although, for reasons of no significance, the proceedings of Mr He and Mr Huang were separated and they were sentenced on a later date (25 August 2016).
The applicant was sentenced to a term of imprisonment of 8 years comprised of a non-parole period of 5½ years and a balance of term of 2½ years. He relies on the following grounds of appeal:
1. The sentencing judge erred in failing to make a determination as to the objective seriousness of the offence.
2. The sentencing judge erred in finding that the offence was aggravated pursuant to s 21A(2)(n) Crimes (Sentencing Procedure) Act 1999 in that it was part of a planned or organised criminal activity.
3. The sentencing judge erred in finding the offence was aggravated pursuant to s 21A(2)(o) Crimes (Sentencing Procedure) Act 1999 in that it was committed for financial gain.
4. The sentencing judge erred in failing to explain how either aggravating factor impacted on the sentencing process.
5. Parity.
[3]
The facts of the offences and the applicant's personal circumstances
The facts were agreed between the parties and a document styled "Agreed Facts" was tendered on sentence. On 12 May 2014, Mr Huang negotiated with an undercover police officer and agreed to supply 15kgs of ephedrine at a price of $80,000 per kilogram. On 20 May 2014, the two men met at a car park in Auburn. The undercover police officer showed Huang the money ($1.2 million in cash). Mr Huang then spoke to Mr He to arrange for Mr He to attend with the drugs. A short time later Mr He and Mr Chen arrived. Mr He handed Mr Huang a bag containing 5kgs of ephedrine. The drugs were then handed to the undercover police officer. There was then a discussion about the remaining drugs (10kgs). Mr Huang said they would arrive in a few minutes.
Meanwhile, Mr Chen spoke to the applicant who was either in or near a car that he (the applicant) provided knowing it was to be used in a drug transaction. Mr Chen removed a backpack containing 10kgs of ephedrine from the boot of the car and took it to Mr Huang and the undercover police officer. After the police officer was shown the contents of the bag and Mr Chen was walking away, police "swooped" and arrested Messrs Huang, He and Chen. At the same time, surveillance police followed the applicant who had driven away from the place where he met Mr Chen and got into another car. He was arrested along with other people in the car, including Mr Kai Liu.
Police seized the applicant's mobile telephone and retrieved a number of messages in Mandarin that were translated. The messages involved communications between the applicant and Kai Liu in the period around the drug transactions. They included the applicant asking Kai Liu to tell the "the boy" to stay in the car and to "bring the stuff over". There was also discussion about the arrest of "the boy".
The applicant agreed to be interviewed and made a number of admissions. He said he agreed to lend his car to Mr He knowing that it would be used in a drug transaction involving a substance "they need … to make drugs." The applicant described the transaction in which he waited for Mr He to drive his car out and Mr Chen took the drugs from the boot of the car. The applicant said that he was to be paid $2,000 for his involvement.
Analysis of the two bags showed there was a total of 14.94kgs of ephedrine with a purity of 77.5% and 78.5% respectively.
Judge Lakatos recounted these facts in his judgment. His Honour also described the contents of the separate facts sheet tendered in Mr Chen's case. His Honour noted the facts in each case were similar but that there were some differences.
The applicant relied on his lack of criminal history and the contents of a pre-sentence report. He tendered a letter from his de facto wife along with a birth certificate and medical report relating to his daughter. The sentencing judge referred to this evidence and set out the applicant's personal circumstances. No criticism was made of the judge's summary of the applicant's personal case. The applicant was aged 24 years at the time of sentence. He was a Chinese national who came to Australia on a student visa in 2008. The visa expired in 2012 and he was, under Australian law, "an illegal non-citizen" subject to deportation. He was one of two sons. His parents separated when he was an infant and he was raised by his grandparents. The applicant finished high school when he was 15 and got work as a "gyprocker" in the construction industry. He came to Australia with his mother when he was 17 years old. He studied English for a while and then got work in an abattoir in the Hunter Valley. He returned to Sydney where he worked as a gyprocker. He met his de facto wife in 2011. She was also a temporary resident on a student visa. They had a child in December 2014, after the applicant was arrested. The child suffers from epilepsy and has returned to China for medical treatment and is being cared for by an aunt. The de facto wife remains in Australia and is supportive of the applicant.
The applicant told the author of the pre-sentence report that he became involved in the use of methylamphetamine ("ice") for a short time prior to his arrest. He said he was smoking ice up to twice a week. There were problems with his relationship and he had ceased employment. He said he was involved in the offence because those supplying him with drugs suggested he take part to assist in payment of his drug debts. He claimed that threats were made to members of his family. He was assessed as having a "low/medium" risk of re-offending.
[4]
Ground 1: The sentencing judge erred in failing to make a determination as to the objective seriousness of the offence
The applicant submitted that because the offence carried a standard non-parole period, the sentencing judge was "obliged … to make a determination as to where the relevant features of the offence that the Applicant committed lay within the range of objective seriousness". It was submitted that Judge Lakatos erred in failing to make such a finding and that, in spite of legislative changes, "it remains desirable for a judge to make some assessment of the objective seriousness of the offence." It was submitted that an assessment of the objective seriousness of the offence "is a critical component of the sentencing process."
Each of the propositions put by the applicant is uncontroversial. However, there is no requirement that a sentencing judge necessarily express their assessment of the objective criminality of an offence by reference to the putative "middle of the range of seriousness" referred to in s 54A(2) of the Crimes (Sentencing Procedure) Act 1999. Such an approach is customary and, in many cases, provides a useful explanation for the sentencing outcome. However, a failure to express the assessment of objective criminality in this way is not necessarily erroneous.
In the present case, Judge Latakos did not make an explicit finding that the offence fell below the middle of the range of seriousness by reference to the objective circumstances of the offence. However, it is clear that this was his Honour's view both by reference to his findings as to the facts and the imposition of a non-parole period of 5½ years considered against a standard non-parole period of 15 years. Judge Lakatos described the role played by the applicant and the nature of the criminal enterprise in which he was involved. His Honour referred to the total amount of drugs involved and the fact that the applicant was only involved in supply of the second package containing 10kgs of ephedrine. His Honour referred to the concession by counsel for the applicant that "the offence was a planned and organised one and undertaken for financial gain." The judge referred to the applicant's admission that he was to receive $2,000 for his involvement although his Honour was not "entirely certain" whether that assertion should be accepted "at face value". His Honour said that neither Mr Chen nor the applicant "were particularly high up in the hierarchy involved in this crime" but held that "the offence would not have been facilitated and/or affected" if not for their involvement. In written submissions on the appeal issue was taken with this last finding. However, the finding was open on the limited evidence available to the sentencing judge and read in context meant no more than that the transaction could not have occurred in the way that it did if the applicant had not provided the car that was used to transport the 10kgs to the scene of the transaction.
Judge Lakatos identified (correctly) what the applicant actually did and then, by reference to his limited involvement, acknowledged that the applicant was not "high up" in the hierarchy of participants in the criminal enterprise. The applicant's "objective criminality" is clearly stated in the judgment. The failure specifically to place that criminality on a scale by reference to a so called "mid range" offence did not, in the circumstances of this case, cause the sentencing proceedings to miscarry. There is no legal error in his Honour's approach and ground 1 must be rejected.
[5]
Ground 2: The sentencing judge erred in finding that the offence was aggravated pursuant to s 21A(2)(n) Crimes (Sentencing Procedure) Act 1999 in that it was part of a planned or organised criminal activity
His Honour made reference to the fact that the offence was "a planned and organised criminal activity" when dealing generally with the "objective seriousness of the offence". His Honour said "it is accepted and I find that the offence was a planned and organised one and undertaken for financial gain." The reference to the fact that this was "accepted" must have been a reference to the written submissions of counsel for the applicant which included under the heading "The role of the offender" at paragraph 8:
"The offending took place in the context of a two-stage supply, one of 5kg of ephedrine to an UCO; and one of 10kg of ephedrine to an UCO within a short time period. Mr Lin's involvement was in the supply of 10kg. The overall offending involved 3 co-accused. It was a planned, organised offence, for financial gain."
Mr Ramage QC submitted that the judge erred in taking into account the planning and organisation as an "aggravating factor". Reliance was placed on a number of authorities that the aggravating feature identified in s 21A(2)(n) is not engaged unless the evidence permits a finding that the degree of planning "exceeds the norm" for similar offences. For example, in R v Yildiz, Simpson J said that to constitute an aggravating feature under s 21A(2), the planning must:
"[exceed] what would ordinarily be expected in an offence of this kind - that is, the degree of planning that would be inherent in the possession of a large quantity of drugs for the purpose of supply." [2]
Simpson J referred back to Elyard v R [3] where Howie J made similar observations. In that case, both Basten JA and Howie J explained the operation of s 21A and the complications that arise from its terms.
Mr Ramage QC also relied on Fahs v R [4] in which Howie J said that the words of s 21A(2)(n) require "more than simply that the offence was planned" and that "a level of planning" does not justify a finding that the offence is aggravated by the fact that the offence was "part of a planned and organised criminal activity". His Honour distinguished between the situation of a "normal street dealer" and an offender "who was committing the crimes as part of a drug trafficking organisation capable of supplying large amounts of different types of drugs to order".
In the present case, Judge Lakatos referred to the fact that the offence itself "was a planned and organised one". His Honour did not suggest, either in express terms or implicitly, that the applicant's criminality was aggravated pursuant to s 21A(2)(n). The structure of the judgment suggests otherwise. The remarks about planning were part of an overall assessment of the objective seriousness of the offence. His Honour separately dealt with "the aggravating and mitigating circumstances in the Crimes (Sentencing Procedure) Act". There was no reference in that part of the judgment to the planning constituting an aggravating feature.
Accordingly, ground 2 is not established. Similarly, in so far as ground 4 refers back to ground 2 and the "aggravating factor" of planning, the ground does not arise. In any event, the judgment makes it clear that the sentencing judge took the planning and organisation into account in his overall assessment of the criminality involved in the offence, rather than in finding that the applicant's criminality was aggravated because he participated in an offence involving a planned or organised criminal activity going beyond that which is typical for an offence of supplying a large commercial quantity of prohibited drugs.
[6]
Ground 3: The sentencing judge erred in finding the offence was aggravated pursuant to s 21A(2)(o) Crimes (Sentencing Procedure) Act 1999 in that it was committed for financial gain
Different considerations arise in respect of ground 3 which asserts error in the sentencing judge taking into account financial gain as an aggravating feature. In this case, the judge clearly and explicitly found that the offence was committed for financial gain and that this was an aggravating circumstance under the Crimes (Sentencing Procedure) Act 1999 [5] .
In describing the objective seriousness of the offence, Judge Lakatos referred to the concession made by counsel for the applicant that a proper assessment of the objective seriousness of the offence included the fact that it was committed for financial gain. That finding was not controversial. However, in separately dealing with the aggravating and mitigating circumstances, his Honour said:
"In terms of [aggravating] [6] circumstances the offence was clearly committed for financial gain. Whether or not the $2,000 for the loan of the car is the sole financial gain is hard to say. I have some doubts about that, but I am prepared to act upon that."
The respondent's written submission went very close to conceding error under this ground:
"The amount of $2000 might not be seen as a significant amount, that is, not more than might be expected in the lowest level of offending for this type of offence and that therefore the commission by the applicant of this offence for the sum of $2000 was not an aggravating circumstance. There is however no concession by the Crown that this is the case."
The respondent went on to submit that, in the light of the applicant's lack of income, the amount of the reward "was significant enough to aggravate the offence" and distinguished the case from one where an offender committed the offence "spontaneously or through addiction". In conclusion, the respondent submitted:
"Therefore it could be accepted that it was open for the sentencing judge to conclude that the applicant's commission of the offence for financial gain was an aggravating circumstance".
The applicant submitted that his Honour erred in taking into account the financial gain as an aggravating feature over and above its accepted significance in the proper assessment of the objective criminality of the criminal enterprise. It was submitted that a sentencing Court may only take into account "financial gain" as an aggravating feature where the gain in question is significantly higher than is inherent in an offence of supplying a large commercial quantity of drugs. Reliance was placed on the fact that the offence with which the applicant stood to be sentenced involved a large commercial quantity and it was put that the word commercial "connotes financial gain as an element of the offence".
I do not accept that financial gain is an "element of the offence" as a result of the quantity of drugs exceeding the amount stipulated in the Drug Misuse and Trafficking Act 1985 as constituting a large commercial quantity. However, a number of authorities in this Court support the approach urged by the applicant that where drugs are supplied in commercial quantities, financial gain will only be an aggravating feature under s 21A(2)(o) where the gain in question is "significant" and exceeds that which is inherent in an offence of supplying commercial quantities of drugs.
I put to one side the observations of Howie AJ in Prculovski v R. [7] As Basten JA pointed out in Kassoua v R, [8] Prculovski involved an offence under s 25A of the Drug Misuse and Trafficking Act 1985 which makes it an offence for a person on three or more occasions over 30 days to supply "a prohibited drug (other than cannabis) for financial or material reward". Financial gain (or reward) is clearly an element of such an offence.
In AB v R, Adams J (dissenting in the outcome) said: [9]
"Cases of the commercial supply of a drug which do not involve the factor of monetary gain are extremely rare though one can imagine (with some difficulty) cases where the motive is otherwise. It seems plain that the penalty for the offence is in large part set with reference to the criminality of the trafficking in the drug for financial gain. The evident purpose of the legislation is to deter the commercial trading in drugs; and the fact that the level of punishment is measured by the amount of drugs involved does not in any way qualify this point. The description of the quantity as 'commercial' is an obvious demonstration of this point. Moreover, in this case, the judge implicitly had regard to the motive of financial gain when assessing objective seriousness in her Honour's description of the nature of the applicant's dealing and, thus, to treat it as an aggravating feature was to double count."
More recently, in Wat v R, Price J (Bathurst CJ and Walton J agreeing) said [10] :
"For an offence of knowingly taking part in the supply of not less than the large commercial quantity of a prohibited drug contrary to s 25(2) of the DMT Act, it will almost inevitably be the case that inherent characteristics of that class of offence are a level of planning and financial gain. These inherent characteristics are not to be treated as aggravating factors, unless 'the financial gain or the planning is significant, that is, more than might be expected in the lowest level of offending for this type of offence' Prculovski v R [2010] NSWCCA 274 at [43] (Howie AJ, McClellan CJ at CL agreeing); Farkas v R (2014) 243 A Crim R 388; NSWCCA 141 at [62] (Campbell J, RA Hulme J agreeing)."
In Kassoua, Basten JA placed that remark in the context of the cases that came before and said "it would be wrong to rewrite s 21A(2)(o) so that the phrase 'for financial gain' was read as if it said 'for a financial gain which exceeded that which might be expected in the lowest level of offending for this type of offence.'" [11] Basten JA spoke of "a more general risk" involved in the counting of aggravating factors by reference to s 21A(2):
"The relevance of aggravating factors is in determining the culpability of the offender. Often aggravating factors will not be independent of each other and there is a risk that any attempt to give particular weight to a particular factor will result in double counting, or worse."
In essence, this identifies the heart of the applicant's complaint in the present case.
Since the hearing of the appeal, the Court (differently constituted) published its decision in the appeal of one of the applicant's co-accused. [12] Mr Huang was one of the offenders who was sentenced after the applicant although the proceedings on sentence commenced together and were largely heard together. Mr Huang was charged with the offence of supplying a large commercial quantity (15kgs) (as opposed to an offence of knowingly taking part in the supply of 10kgs) and was operating at a higher level of the enterprise. On 25 August 2016, Judge Lakatos sentenced Mr Huang to 10 years imprisonment with a non-parole period of 7½ years. This was reduced on appeal to a sentence of 7½ years with a non-parole period of 5 years and 3 months. This is relevant to the parity ground (ground 5) in the applicant's appeal.
Ground 3 in Mr Huang's appeal asserted a similar (but not identical) error to that advanced by the applicant in relation to the treatment of financial gain as an aggravating feature. In Mr Huang's case the ground was advanced by reference to the lack of evidence of precisely what Mr Huang was to receive as a result of his involvement. Davies J (with whom Hoeben CJ at CL and Bellew J agreed) upheld this ground noting at [61]:
"There was no evidence to justify a finding that the financial reward was more than was inherent in the offence itself."
I am satisfied that his Honour fell into a somewhat similar, but not identical, error in sentencing the applicant. His Honour was prepared to act on the only evidence available, that is, that the applicant was promised $2,000 for his involvement. In the context of a transaction involving a payment of $1.2 million (to Mr Huang) it is difficult to accept that the applicant's receipt of $2,000 constituted the kind of financial gain that would further aggravate the offence. It may be that his Honour merely identified the aggravating feature under s 21A(2) and then included that feature when he spoke more generally about the objective seriousness of the offence. However, reading the two passages in context and in the context of the whole of the judgment, it appears that there was "double counting" of this factor. The approach to financial gain was different to the approach to planning. The former was specifically referred to as an "aggravating … circumstance in the Crimes (Sentencing Procedure) Act."
I would uphold Ground 3.
[7]
Ground 4: The sentencing judge erred in failing to explain how either aggravating factor impacted on the sentencing process
Part of the reason I would uphold ground 3 is that the judge's remarks are, at least, opaque as to the way in which the financial reward operated in the sentencing process. I have concluded that his Honour erred in taking the matter into account as an aggravating feature. In the circumstances, it is unnecessary to resolve ground 4 because the complaint has been dealt with in my consideration of grounds 2 and 3.
[8]
Ground 5: Parity
Because I would uphold ground 3, it may not strictly be necessary to resolve ground 5 because, in exercising the sentencing discretion afresh, the Court must apply the principles of equal justice by considering the sentences imposed on the co-offenders, including the sentence imposed on Mr Huang following his successful appeal.
I would only say that the reasons for the differences in the sentences imposed on the applicant (8 years with a non-parole period of 5½ years) and Mr Chen (7 years with a non-parole period of 5 years) are not readily apparent or persuasive. There was some evidence that the applicant directed Mr Chen to carry the package from the car to the transaction. However, both young men were operating at a very low level and Mr Chen was involved in both the first (5kgs) supply (albeit that he was not charged with that offence and his involvement was minimal and peripheral) and also the subsequent (10kgs) transaction. The applicant was only involved in the latter transaction. His Honour accepted that Mr Chen was a courier and not the owner of the drugs or a principal in the transaction. Those latter two observations apply equally to the applicant. The act of lending the car for the purpose of transporting the drugs to the second (10kg) transaction was no more critical to the enterprise than Mr Chen's act in accompanying Mr He to the vicinity of the first (5kg supply) meeting and then delivering the drugs himself in the second (10kg) transaction. However, it is unnecessary to resolve this ground and appropriate to pay some deference to the discretionary judgment of the judge who sentenced all four offenders.
In relation to the sentences imposed at first instance on the more senior offenders, there was nothing remarkable about the extent of the difference between those sentences and the sentence imposed on the applicant. Judge Lakatos sentenced Mr Huang to 10 years with a non-parole period of 7½ years. Mr He was sentenced to 9 years with a non-parole period of 6 years and 3 months. There was an appropriate proportion between those sentences and that imposed on the applicant.
However, now that Mr Huang's sentence has been reduced to 7½ years with a non-parole period of 5 years and 3 months (a shorter sentence than that imposed on the applicant), the proportions between the sentences imposed by the sentencing judge has been disturbed. Given their respective roles and positions in the hierarchy, the applicant is entitled to have a justified sense of grievance. As I have said, these matters must be considered in exercising the sentencing discretion afresh.
[9]
Re-sentencing
Because I have found error under ground 3, it is necessary to exercise the sentencing discretion afresh. It is not necessary fully to explain my reasons but I have taken into account all relevant factual matters and balanced the objective seriousness of the offending against the fact that the applicant is still a young man and was a first offender. For the purpose of the application of the standard non-parole period, the offence falls below the middle of the range of objective seriousness for an offence of its kind. However, the offence remains a very serious one and the purposes of deterrence, denunciation, accountability and adequate punishment call for a custodial sentence of some substance.
But for Mr Huang's sentence on appeal, a sentence around the same as that imposed on Mr Chen (7 years with a 5 year non-parole period) would be appropriate. However, such a sentence would not reflect the differences in the role and conduct of the present applicant compared to Mr Huang in light of the sentence imposed on Mr Huang on appeal (7½ years with a non-parole period of 5 years and 3 months). There would be a lack of due and proper proportion between the sentences given Mr Huang's much greater role and involvement. [13] The applicant would wear "the badge of unfairness" and feel justifiably aggrieved. [14]
Taking into account all matters, including the relevant differences between the cases of the four co-offenders and the sentences imposed on the other men, I initially concluded that a sentence of 6½ years with a non-parole period of 4½ years would be an appropriate sentence. I found special circumstances for the same reasons as Judge Lakatos, that is, the desirability of the applicant having an extended period of parole to assist in his "rehabilitation and also to address such remnants of his drug use as still remain". Like the sentencing judge and in accordance with well-established authority, I have disregarded the likelihood that the applicant will be deported at the conclusion of the sentence or non-parole period.
Since reaching that initial conclusion as to the appropriate sentence, I have read the draft judgment of Basten JA. His Honour concludes that a sentence of 6 years with a non-parole period of 4 years and 1 month is appropriate because such a sentence strictly and mathematically reflects the reduction in Mr Huang's sentence following his successful appeal. Having re-considered the question of re-sentencing in light of the judgment of the presiding judge, I agree that the sentence therein proposed is the correct outcome in the particular circumstances of this case. I do not suggest that such mathematical precision is necessary in every case but, on reflection, I agree with the sentence proposed by Basten JA.
Accordingly, and for those reasons, I agree with the orders proposed by Basten JA.
[10]
Endnotes
Huang v R [2017] NSWCCA 312.
See R v Yildiz [2006] NSWCCA 97; (2006) 1670 A Crim R 218 at [39].
Elyard v The Queen [2006] NSWCCA 43.
Fahs v R [2007] NSWCCA 26.
The transcript of the judgment refers to this as a "mitigating circumstance" but it is clear from the context that this is either an error in the transcription or a slip of the tongue on the part of the sentencing judge.
See note 4. The transcript refers to "mitigating circumstances".
Prculovski v R [2010] NSWCCA 274 at [43]-[44].
Kassoua v R [2017] NSWCCA 307.
AB v R [2013] NSWCCA 160 at [33].
Wat v R [2017] NSWCCA 62.
Kassoua v R [2017] NSWCCA 307.
Huang v R [2017] NSWCCA 312.
Postiglione v The Queen (1997) 189 CLR 295 [1997] HCA 26 at 301-302.
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46.
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Decision last updated: 14 February 2018