LIU v R

Zhi Meng Liu (Appl) PARTIES: The Crown

A Cook (Appl) COUNSEL: J Dwyer (Crown)

Legal Aid Commission of NSW (Appl) SOLICITORS: Solicitor for Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2005/1441

McCLELLAN CJ at CL STUDDERT J JAMES J

FRIDAY 16 DECEMBER 2005 LIU, Zhi Meng v R Judgment 1 McCLELLAN CJ at CL: Zhi Meng Liu pleaded guilty to one count of knowingly taking part in the supply of a large commercial quantity of heroin contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. He was sentenced to a total term of eight years imprisonment with a non-parole period of five years to date from 24 July 2003. The maximum penalty for the offence is life imprisonment. 2 The applicant seeks leave to appeal against the sentence on the following grounds:

(a) the learned sentencing judge erred when he imposed the same sentence upon the applicant as he had on the co-offender, Ching Sum Chan;

(b) consequently the sentence imposed on the applicant gives rise to a justifiable sense of grievance.

Relevant facts 3 The relevant facts are not in dispute. The applicant who had been dependent on heroin for some years had been able to successfully rehabilitate himself but again became dependent a short period before the offence. His renewed addiction led him to seek the drug in quantities which he was not able to afford. He borrowed money from Chan Thanh Ma and incurred debts which he was not able to repay. Ma asked him to "do a job for him" in payment for the debt. 4 The activities of the applicant, Ma, and a third unnamed person came to the notice of the Joint Asian Crime Group (JACG) who suspected that they were involved in the supply of heroin. Telephone surveillance was used to monitor their telephone discussions. 5 On 21 July 2003 Ma telephoned the applicant and told him "he had a job for him." He arranged that the applicant should come to his place at 6.30 pm. The applicant and Ma were later observed meeting with Ching Sum Chan on Burwood Road, Burwood. Chan was observed carrying an orange and green coloured Downtown Duty Free plastic bag. This bag was later found to contain 2.1 kilograms of heroin. The applicant was observed carrying this bag. He drove away from the meeting place in his car taking the bag with him. Chan and Ma were further observed and Chan was seen placing a white plastic bag in his car. They both then drove away. 6 Later that evening Ma made a phone call in which he complained that he had been given too much heroin and "that it is slow and the streets are flooded." Subsequent calls were made when the possible return of some of the heroin was discussed. On 24 July 2003 JACG surveillance observed the applicant driving Ma to Burwood. Shortly after the applicant, Ma and Chan were observed walking along Burwood Road. They were then observed standing at the rear of Chan's vehicle. The police moved in and arrested all three. A subsequent search of the boot located a plastic bag containing 1.4 kg of heroin and $20,000 in cash. 7 The applicant was interviewed by the police. He said that he had picked up Ma and drove him to Burwood on 24 July 2003 as Ma had arranged to meet someone but he did not know who this person was. He said that he did not go near Chan's vehicle and denied any knowledge of the money and the white powder. A search of the applicant's premises yielded no drug paraphernalia. A search of Ma's premises located 634.1 grams of heroin plus various tools of the drug trade. 8 The agreed facts summarised the applicant's role as follows: "Liu acted in concert with Ma for the successful supply of a large quantity of the prohibited drug, heroin. Although a necessary and willing participant in these illegal acts Liu generally acted on instructions given by Chan Than Ma who was the final receiver of such supplied narcotics and that the role of Liu was to assist in the supply and transportation of narcotics upon their initial supply by Chan." 9 The sentencing judge said of the applicant's role: "The offender's role was, at Mr Ma's direction to take the drugs away from the meeting place, and to mind them until it was safe and convenient for Mr Ma to take possession of them. He also provided a somewhat similar role when part of the drugs were returned, although on this occasion Mr Ma was present as well."

Findings made by the sentencing judge 10 When sentencing the applicant the sentencing judge made the following findings: · Although entered on the first day of the trial, it was conceded that the applicant's plea was entered at the first opportunity and a 25 percent discount on sentence was to be given. · The applicant had participated in the criminal activity in order to pay off his debt to Ma. · The applicant was well aware of the activities of Ma as a Mr Big of the drug world. His Honour did not believe that the applicant thought that there were only a couple of ounces of heroin in the Downtown Duty Free bag. His Honour was satisfied that the applicant knew that he was getting involved in the supply of a substantial quantity of heroin. · The applicant got involved with Ma because of his drug use. His heroin use has been his downfall. · The applicant has a criminal record. Significantly the repeated offences of supplying a prohibited drug indicated a continuing attitude of disobedience towards the law, and in particular the law regarding the supply of drugs. · This was not an offence to which the standard non-parole period applied, although there was argument on this point. · The offence was clearly part of a planned and organised criminal activity. Nor was it a matter that the applicant simply became involved in and then immediately had nothing else to do with Ma and the drugs. Instead he was also involved in the return of part of the drugs to Chan. · The applicant's prospects of rehabilitation could not be described as good, nor could his Honour say that the applicant was unlikely to re-offend. · His Honour accepted that the applicant was sorry for what he had done although he suspected that he was more sorry that he now faced a significant period of custody. · It was a large quantity of drugs that made the offence very serious but on the other hand it could not be said that the applicant played a high level role in the offence. His role was to transport the drugs and mind them for Ma. · His Honour found special circumstances as the applicant would benefit from supervision upon his release to assist him with his drug addiction. 11 His Honour determined that the sentence which he would impose should bear a relationship to the objective gravity of the applicant's conduct. His Honour found that the applicant with "his eyes wide open" got involved in a most serious criminal offence. It was necessary for the sentence to act as a deterrent to others who may be tempted to assist high-level drug suppliers. His Honour recognised that there is a substantial community interest in such suppliers being exposed. If they are unable to call on the services of persons such as the offender that is much more likely to happen. 12 The co-offender, Chan, was sentenced on 11 March 2005. He was sentenced by the judge who sentenced the applicant. When sentencing Chan his Honour said: "I earlier sentenced Mr Lou (sic), however he was sentenced for knowingly take part in the supply of a large commercial quantity of heroin and I held that that was not an offence for which there was a standard non-parole period described. While I will endeavour to ensure that the offender does not have a justifiable sense of grievance when he compares his sentence with that of his co-offender, the different roles played by the co-offender and this offender, means that this offender will receive a substantially longer sentence." 13 Notwithstanding these remarks his Honour imposed the same sentence upon Chan as he imposed upon the applicant. This is the source of the grounds of appeal on behalf of the applicant. 14 The third offender, Ma, was sentenced on 26 August 2005, again by the judge who sentenced the applicant and Chan. On this occasion his Honour said: "I earlier sentenced two other men involved in this offence, Mr Lu (sic) and Mr Chan. They both received sentences, identical, consisting of non-parole periods of five years with head sentences of eight years. Upon re-reading my remarks on sentence for the purposes of sentencing this offender, I am a bit perplexed at something I said concerning parity. Mr Lu (sic) I understand has appealed against severity of the sentence I imposed upon him, basing his appeal on a parity argument when his sentence is compared to that of Mr Chan." 15 His Honour offered no further explanation for those remarks. However, it is apparent that his Honour recognised that he had not sentenced in accordance with his expressed intention; he had intended to impose a greater sentence upon Chan than had been imposed upon the applicant.

Matters of Parity 16 In the submissions made on behalf of the applicant the Court has been directed to the remarks of Mason J in R v Lowe (1984) 154 CLR 606 where his Honour emphasised the importance of consistency in punishment between offenders. Inconsistency "is regarded as a badge of unfairness and unequal treatment under the law, (and) is calculated to lead to an erosion of public confidence in the integrity of the administration of justice." Mason J went on to emphasise that when questions of parity arise the issue for the court is whether the articulated sense of grievance (or of injustice) is a legitimate one. 17 In the present case it is submitted that his Honour having expressed an intention to impose sentences which reflected the differences between the offence committed by the applicant and that committed by Chan, the fact that their sentences are identical reveals error. The error is said to be in the sentence imposed on the applicant. It is further submitted that a reasonable mind would in the circumstances come to the view that in all of the circumstances the applicant's grievance is justified: R v Doggett (unreported, NSWCCA, 24 March 1997).

Decision 18 It is apparent that there are differences between the situation of the applicant and that of Chan. The applicant pleaded guilty to a count of knowingly taking part in the supply of heroin whereas Chan pleaded guilty to a charge of actual supply and had another equally serious supply charge on a Form 1 as well as a count of goods in custody. The sentencing judge found that the applicant's role was to transport the drugs and mind them for Ma and, accordingly, "it could not be said that the offender played a high-level role in the offence." 19 By contrast Chan was found to be "acting as a courier" although his Honour found that "I do not believe it is accurate to describe him as a mere courier … he did contact Ma and make arrangements regarding the return of that quantity of drugs which Ma did not want." 20 When sentencing Chan his Honour expressly found that he could not be described as a mere courier. Ma, who received on sentence a non-parole period of five and a half years with a head sentence of eight and a half years, was described by his Honour as a "Mr Big" of the drug world. One significant factor which impacted on the severity of Ma's sentence was the fact that he would be required to serve his sentence in protection, having given assistance to the authorities. 21 There are other differences. 22 Chan had no prior convictions. By contrast, the applicant had previously been dealt with in the Local Court for offences of supply and possessing a prohibited drug. The applicant had become involved in the offences because of his need to raise money to pay a debt incurred as a consequence of his drug addiction. On the other hand Chan was involved purely for the purpose of making money and was, as his Honour found, motivated by greed. 23 There can be no doubt that the applicant's offence was serious and deserved a significant term of imprisonment. He was part of an operation designed to distribute a significant quantity of heroin. He was 29 years of age with a prior record for repeated offences of supplying a prohibited drug. Although he was entitled, as his Honour found, to a discount in relation to his plea of guilty, his poor record disentitled him to leniency. The need for specific deterrence was obvious. 24 His Honour found that the applicant had poor prospects of rehabilitation. To my mind, this finding was appropriate having regard to the attitude which the applicant had displayed to offences relating to the supply of drugs in the past. 25 The real question in this case is whether the applicant can sustain a justifiable sense of grievance. In Postiglione v The Queen [1996-1997] 189 CLR 295 Dawson and Gaudron JJ said at 301-302: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them (see Lowe v The Queen (1984) 154 CLR 606 at 610-611). In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error ( Lowe at 617-618). Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen ( Lowe at 606), recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance" ( Lowe at 610). If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. The different circumstances involved in this case, namely, the fact that Savvas was the principal organiser in both conspiracies and that Postiglione rendered significant assistance to police and prosecuting authorities, clearly require that Postiglione receive a markedly lesser sentence than that imposed on Savvas." 26 Although the High Court has stressed the need for consistency in punishment, particularly of co-offenders, this does not have the consequence that if in all the circumstances a co-offender should have received a greater sentence than the other offender, the latter may complain of a justifiable grievance requiring intervention by this Court. If the error has been made when sentencing another offender the co-offender's grievance may not require the intervention of this Court. 27 In the present case, as I have indicated, the remarks of the sentencing judge when sentencing Chan suggest that his Honour had in mind a more severe sentence than he imposed upon the applicant. In the circumstances, this may have been appropriate. However, this does not mean that his Honour has erred when sentencing the applicant. To my mind the serious criminal activity in which the applicant participated coupled with the adverse subjective matters more than justified the sentence which he received. To my mind, if error has occurred it is revealed in the sentencing of Chan rather than the sentence imposed upon the applicant. 28 I am satisfied that no basis has been made out for the intervention of this Court. Although I would grant leave to appeal in my opinion, the appeal should be dismissed. 29 STUDDERT J: I agree with McClellan CJ at CL. 30 JAMES J: I agree with McClellan CJ at CL. **********

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