Ma v R

Ma v R - [2010] NSWCCA 320 - NSWCCA 2010 case summary — Zoe

[17]

The sentence is manifestly excessive." 6 Ground 3 of the appeal was not pressed. The background 7 The agreed statement of facts referred to a police investigation into a Frank Hu Yang and a company of which he was a director, Australia China International Exchange Centre Pty Limited. The investigation revealed a $AUD17,192,315.50 remittance by Mr Hu and associates to various bank accounts in China between November 2006 and February 2008. Police became aware of an impending importation of a shipping container from China by the company, which was described as containing furniture and handicraft work. On 10 February 2008, Ms Wang arrived in Sydney from Hong Kong and made contact with Mr Hu. Her ex husband, Mr Yu Diao arrived the following day. On 2 March, the container arrived in Australia and Mr Hu contacted Ms Wang, who arranged to meet him with Ms Ma. 8 On examination by the Australian Customs Service the container was found to contain 10 boxes each containing 23-27 vacuum-sealed foil packets, purporting to be Chinese tea, amongst other items. On examination it was found that the packets contained cocaine. The cocaine was substituted with an inert substance. The pure weight of the cocaine was found to be 201.2465 kg, with purity ranging from 72.3% to 88.2%, with a wholesale value estimated to range between $32.5 million and $45 million and a street value ranging between $50 million and $112.5 million. This was the fourth largest importation of cocaine. 9 Mr Hu and Ms Wang met. She arranged for the drugs to be retrieved from the container, once it was delivered to premises at Auburn and for them then to be transported to her flat in Rockdale. Ms Wang and Ms Ma had several telephone conversations in which Ms Ma enquired whether the container had arrived and whether Ms Wang had spoken to Mr Hu. Ms Ma drove Ms Wang to the Auburn premises. The next day she again drove Ms Wang to those premises, where they supervised the removalists. Ms Ma drove Ms Wang to her home, where the removalists delivered the inert substance. Ms Wang and Ms Ma later opened the boxes and removed the contents. Ms Wang and Ms Ma then drove to Ms Ma's home and later returned to Ms Wang's home, where they again dealt with the products of inert substance, discussing which were their drugs and how the rest was to be dealt with. 10 The applicant, Ms Ma and Mr Hu were arrested on 11 March 2008. Nine boxes of the of the inert substance and part of the tenth box were discovered at Ms Wang's home, as well as scales and seal bags. The first and second grounds of appeal - 1 - a legitimate sense of grievance, given the discount by comparison to that provided to Ms Wang and 2 - the trial judge erred in the assessment of the discount to which the applicant was entitled for her assistance. 11 Both the applicant and Ms Wang received a discount of 35%. In accordance with s 21E of the Crimes Act his Honour specified that the applicant had received a 6% discount for future assistance and Ms Wang 15% discount for future assistance. The section provides:

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(c) proceedings for restraining orders and pecuniary penalty orders under Part XIII of the Customs Act 1901 ." 12 No specific discount was identified for the value of the applicant's plea, but his Honour noted that there had been significant assistance provided by the applicant, with the result that Ms Wang had entered her plea after hearing about the applicant's plea. He also took the view that while significant, the assistance was limited in that the applicant really only knew of Ms Wang's involvement and to a limited extent, the involvement of her husband. Her future evidence in relation to Mr Hu would be relatively minor. 13 While Ms Ma was in protection at the time of sentence, she was no longer in that position when the appeal was heard. 14 The applicant's case was that there had been patent error. It was argued that her plea of guilty alone was worth a 25% discount, as the Crown had conceded at trial. It followed that the discount given for her past and future assistance totalled 10%, which fell at the lower end of what the Crown had contended in its submissions was appropriate. His Honour assessed future assistance at 6%, leaving only 4% for past assistance. 15 It followed that the assessment of both past and future assistance was erroneously low and left the applicant with a legitimate sense of grievance, given the discount afforded Ms Wang, who received the same total discount, with the result a term of 18 years, with a non parole period of 11 years and 6 months. 16 It was also argued that there was a second error in the conclusion that her evidence would not provide much future assistance. Under the Evidence Act 1995 it was capable of corroborating that of her co-offender, by giving an account of coincidence representations made to her about by Mr Hu by Ms Wang. Such evidence would provide significant support for Ms Wang's credibility. 17 In his sentencing remarks his Honour noted that the applicant admitted that on arrest she had lied to police in her record of interview and in a subsequent interview. In a third interview she provided a more detailed and honest account her involvement to police, when she had entered her plea. This was about a year after her arrest. His Honour also noted the evidence given at trial, where the applicant explained that she got involved in this drug operation for money. She was employed at the Department of Taxation as a customer service officer and had a second job. She was under considerable financial pressure because she was attempting to pay for a visa to permit her mother to stay in Australia. As an only child she felt deeply responsible for her mother, who had been left behind when she came to Australia as a 13 year old, to live with her father. She was otherwise a person of good character with no other convictions, but his Honour found this not to be a significant factor, given the nature of her offending. 18 His Honour said that '[w]hilst the offender's role might be described as relatively minor, that has to be put in the context that this was an extremely serious offence'. While she was the lowest of the four involved and not party to the actual importation, she was aware that a quantity of drugs was to be imported and that she was going to be paid $400,000 for what objectively appeared to be minor assistance with unloading the drugs. He found: "That is an extraordinary return for such minor work and obviously the offender, who was a very intelligent young woman, would well and truly have understood that she could only have been paid that amount if the import involved a large quantity of valuable illicit drugs. She does not deny that.

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The quantity of drugs imported, as already noted, was huge. Its value was equally very high. In terms of seriousness the quantity involved here places the offence into a category approaching if not in the worst category. The preparedness of persons such as this offender to involve themselves in offences such as this for purely selfish financial gain marks this as a sentence that must reflect general deterrence. The offender herself referred to risk and reward when discussing her reason for proceeding with the offence. There is clearly no identifiable equation that can be used to fix a sentence in that regard because everyone's circumstances are different, however the principle of general deterrence also carries with it recognition of risk versus reward." 19 His Honour noted that the applicant initially indicated a plea of not guilty, but before the case was committed for trial she pleaded guilty in the Local Court It followed that the plea acknowledged that the applicant had the effect of facilitating justice and that it could be inferred that Ms Wang's plea after that of the applicant, was the result of the entry of her plea. Her assistance was found to be 'significant, if relatively limited', because she only really knew of Ms Wang's involvement and to a limited extent that of Mr Yu. If she gave evidence against Mr Hu, of necessity her evidence would be relatively minor. A discount for future assistance related only to Mr Hu and Mr Yu, as Ms Wang had pleaded guilty. This resulted in 35% discount, of which 6% reflected future assistance, if required. 20 In imposing that sentence his Honour also noted that Ms Wang was not on protection and her case and that of the applicant were subjectively similar He found Ms Wang objectively more culpable than the applicant, being 'a long way further up the chain' and that her assistance in the prosecution of Mr Hu was likely to be 'significant and powerful, falling at a medium level'. He did not find Ms Wang as credible a witness as the applicant, but concluded that her evidence against Mr Hu was likely to be more important than the applicant and that if Mr Yu was charged, 'it could be vital'. This explained the difference in the discount for future assistance of 6% for the applicant and 15% for Ms Wang. 21 It followed, it was argued for the applicant, that his Honour had allowed only a 10% discount for Ms Wang's plea and 10% for past assistance, given that she had received 15% for future assistance, to make a total discount of 35%. By comparison to the applicant must have received 4% for her past assistance, because the value of her early plea was accepted by the Crown as being 25%. Even if 15% had been given for Ms Wang's guilty plea, Ms Wang still received 5% for her past assistance, greater than the 4% which the applicant had received. This analysis, it was argued, revealed that the applicant had not received the benefit of his Honour's own assessment that the applicant's past assistance had been higher than that of Ms Wang, triggering the provisions of s6(3) of the Criminal Appeal Act. That section provides:

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The case advanced below 25 In considering the case now advanced for the applicant on appeal, the way in which the case was advanced below, may not be overlooked. There the Crown had put in written submissions, that while 'discounts for assistance have customarily ranged between 10% to 50%, 50% was only appropriate for assistance 'of a very high order' (R v Sukkar per Latham J at [54]). The practical benefit flowing from the assistance had to be objectively assessed (R v Louis Sukkar [2005] NSWCCA 55 at [52] and Alchikh v The Queen [2007] NSWCCA 345 at [25]). The applicant's assistance was useful but limited, with the result that the appropriate level of discount would be 10 - 15% and that the discount given for future assistance had to be stated (s 21E Crimes Act). 26 His Honour discussed this submission with the applicant's counsel. He submitted that a 30% discount for future assistance and 20% for past was appropriate, which his Honour rejected outright, observing that such a conclusion would be appellable and plain wrong. His Honour suggested that this was not a 50% discount case, but that realistically the applicant's position was in the range of 35 - 40% at the highest on the authorities, to which there was no demur. 27 The Crown's oral submission was somewhat disjointed. It was put at one point that there was no dispute that there would be 25% for the plea. It was also submitted that 10 - 15% would be given for assistance, resulting in a global rolled up discount of 35 - 40%, with the figure for future assistance having to be quantified in accordance with s 21E. It was also argued that the value of the applicant's past assistance was limited, given the strength of the Crown case as the result of electronic and physical surveillance of her and Ms Wang and that the value of assistance lay with that to be provided in future, which could be valued at 10 - 15%. 28 His Honour fixed the total discount of 35%, at the bottom of the range suggested by the Crown. On any view his Honour would have erred if he had fixed more than 40%. It is difficult to see that his Honour erred in concluding that the total discount should be 35%, or that only a 6% discount should be allowed for future assistance, in the circumstances. The effectiveness of the applicant's assistance and its benefit to authorities were matters for his Honour to assess (see R v El Hani [2004] NSWCCA 162 at [73]). He was not bound by the submissions advanced by either party.

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Past assistance and plea 32 His Honour did not identify any specific discount for plea or past assistance, other than the result of 29%, when 6% is deducted from the total 35% discount given. It was not suggested that there was any error in that approach. As his Honour also expressly observed, in Commonwealth offences a guilty plea is not to be taken into account for its objective utilitarian value, or that it saves the expense of a contested trial (see Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 at 343 and Tyler v The Queen; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at [110] - [114]). 33 The applicant's purported analysis of what the 29% discount comprised, sheds no light upon what view his Honour took of the value of the applicant's plea and what reflected past assistance. In coming to his conclusions on the value of the plea his Honour took into account the strength of the Crown case against the applicant, as he was entitled to do (see Tyler v The Queen; R v Chalmers at [110] - [114]. There can be no question that the case against the applicant was a strong one, given the electronic and other surveillance evidence and that in part her plea was a recognition of the inevitable, when it was entered some 12 months after her arrest, after twice having made false statements to the police. 34 His Honour observed that the entry of the plea acknowledged that the applicant was prepared to facilitate justice; that while the past assistance provided was significant, it was limited; and that future assistance would be relatively minor. On the evidence there was no error in those conclusions, reflecting as they did the extent of the applicant's knowledge of and involvement in the operation, and the time that her assistance was forthcoming. 35 It follows that the assumption that of the 29% discount given for the plea and past assistance, only 4% was for past assistance, is not open. While the applicant entered her plea before Ms Wang did, it was a plea entered only a year after her arrest, having earlier twice made false statements to the police in circumstances where there was already other substantial evidence against her available to the Crown. In those circumstances it is entirely unlikely that his Honour valued the entry of the applicant's plea at 25%, or even 20%. Nor does it follow that the applicant received only 4% for her past assistance. It was undoubtedly a higher figure, albeit it must be accepted that the applicant must have received a somewhat higher discount for her plea than did Ms Wang, given the time that her plea was entered, after that of the applicant. 36 A 29% discount for the applicant's plea and past assistance, by comparison to the 20% discount given to Ms Wang, does not however establish that the applicant's combined discount was too low. While Ms Wang's plea was entered later than the applicant's and must on that account have had a smaller role to play in the 20% discount she received, than that aspect played in the 29% which the applicant received, that Ms Wang's past assistance was much less valuable than that given by the applicant does not follow. To the contrary, given her role in the operation and his Honour's assessment of the likely value of her future assistance, it is likely that he also took the view that Ms Wang's past assistance had a higher value than that which the applicant sought to have placed upon it. That is a conclusion which was open to his Honour on the evidence. 37 In my view the applicant has not established any failure on his Honour's part to give adequate weight to relevant considerations in determining what discount the applicant should receive for her plea and assistance, so as to amount to a failure to exercise the discretion. Nor has it been shown that relevant considerations were overlooked, or that the discount given was too low, by comparison to that provided Ms Wang. 38 For these reasons, I am of the view that this ground of appeal was not established.

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"A. Because I've never been in contact with anyone who's done this sort of thing before. I kind of didn't have any idea how much they generally pay for what amount, because this is my first time. Q. But wouldn't matter where you are, whether you're in Australia or in China, it would be serous. In China they'd probably execute you? A. I know. I know there's a lot of money. And that's part of the reason why I committed myself to it, because I was being desperate." 42 Given the role which it was found that the applicant agreed to play, having been recruited by Ms Wang, and the very substantial payment which she was to receive for those services, that she was agreeing to involvement in a very substantial drug operation, was unquestionably apparent to her. This was confirmed by the evidence which the applicant gave in Ms Wang's case. There her evidence was that the money was the first thing she was concerned about when approached. She was told that it was drugs and 'obviously I wanted to know how much money was involved for me to risk it' and when asked whether it was an extraordinary amount of money to do what she had agreed to, she said '[t]hat's why I risked being involved in drugs, otherwise I wouldn't have'. Initially the applicant said that she was not shocked by the amount she was offered, but later, she said she was 'pretty shocked that I was only going to get $400,000', when she found out how much the drug cost. 43 The evidence showed that during the course of her involvement the applicant became aware that 251 packets of cocaine had been imported, each said to be worth at least $150,000, that is some $37,650,000. This is presumably why the applicant was shocked at the relatively small amount that she was to receive for her services. There was also evidence that the applicant was aware of the earlier delivery of $300,000 cash. This was why the applicant was prepared to pursue her involvement in the operation. Her evidence was that she did so in order to be able to repay a debt of $37,000, and in order to meet her rent and living expenses while she was supporting herself and her mother and repaying a car loan. 44 This offence, attempting to possess an unlawfully imported commercial quantity, (2 kg), of a border controlled drug, cocaine, carried with it a maximum penalty of life imprisonment. Here some 201 kg was involved. The amount of the drugs involved is a highly relevant matter in assessing the objective seriousness of an offence. As Kirby J recently discussed in Chan, Lo and Nguyen at [114]: "114 Dealing with these suggestions, I believe that, in view of the comments by the High Court, the guideline judgment is of limited assistance when determining the sentencing range. Further, it is not entirely clear that the table was intended to reflect sentences after trial or after a plea of guilty (and, if the latter, the assumption made as to the timing of that plea) (cf DPP (Cth) v De La Rosa [2010] NSWCCA 194, per McClellan CJ at CL at [192]). That said, the weight of the drugs remains a most important matter. In R v To and Ors [2005] NSWCCA 362; 157 A Crim R 80, Howie J said this: (at [110]) "There is nothing in the passage from Wong v The Queen (2001) 207 CLR 584 ... that suggests that in an appropriate case the amount of the drug involved in the importation is not a highly relevant factor in determining the objective seriousness of the offence even to the extent of assessing that a particular offence is in the worst category of its type. In many cases the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar." ' 45 In oral submissions the case for the applicant was advanced by way of analogies drawn with the importation offences dealt with in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194. This was not a guideline decision, but McClellan CJ in CL there analysed numerous decided cases, each dealing with offences attracting a maximum penalty of life imprisonment. His Honour sorted them into four groups, by reference to features which they had in common. 46 The applicant's case was that she was a low level functionary, consistent with that of a courier and that her offence fell between the third and fourth groups which his Honour identified. Those groups attracted head sentences ranging from 8 to 15 years and non-parole periods between 4 and 11 years (3rd group) and from 6.25 to 8 years and non-parole periods between 3 to 4.5 years (4th group) respectively. 47 It was argued that even if a sentence at the level of that applying to the third group had been increased by 50%, it would only have resulted in a sentence of between 10 and 12 years. It followed, it was submitted, that thereby the manifest excessiveness of the sentence imposed on the applicant was revealed. 48 In making those submissions it was conceded that the first group dealt with in De La Rosa, where sentences ranged from 25 years to life imprisonment and non-parole periods ranged from 8.5 to 30 years, included cases to which s 16G of the of the Crimes Act (before its repeal in 2002) applied. The second group, which attracted sentences of 18 to 24.5 years and non-parole periods between 10 and 16 years, involved cases similar to those dealt with in the first group, but where guilty pleas had been entered. 49 The features of the first group were that they involved a high, or very high commercial quantity of drugs, in the tens if not hundreds of kilograms, with street value of hundreds of millions of dollars and the offender receiving substantial money rewards, in the tens if not hundreds of thousands of dollars. That was this case, the fourth largest ever detected importation of cocaine, with the applicant to receive $400,000 and $100,000 to assist with her defence, if she was caught. 50 What was different in this case was the applicant's role. In the first group the offenders were typically either the mastermind of the operation, or holding a senior post with a very high level of responsibility. That was not the applicant's situation. In the second group were offenders at a lower level in the drug organisation, with essential or vital roles, but not principal roles. Again, that was not the applicant's position. These offenders were to receive rewards in the tens of thousands of dollars. The applicant, however, was to receive very substantially more than this. 51 The third group involved drugs less than 7 kg. That was far removed from the circumstances of this offence. Here there were some 201 kg of cocaine involved. The offenders played a mid-range role in the operation, between that of principal and courier. There was assistance, sometimes significant assistance provided to the authorities, as was the applicant's situation. 52 In the fourth group drugs ranging from 1 to 30 kg and low level operatives, with good antecedents and no prior convictions were involved. The applicant was a low level operative, with good antecedents and no prior convictions, who had given assistance. Nevertheless, the amount of drugs involved and what she was to be paid for her role, took the applicant far away from this group of offenders. 53 It is apparent that the head sentence imposed on the applicant fell into McClellan CJ's second group. The difficulty with the analogy sought to be drawn for the applicant, however, is revealed by McClellan CJ's explanation of the exercise which he had undertaken: "198 I should make plain that I have not attempted to capture every possible decision. This would be a difficult task, particularly when the lower courts only infrequently report their judgments. What I have attempted to do is to generate a broader picture than is typically provided through comparative case tables and sentencing statistics. 199 The patterns of sentencing which I have identified reflect the sentencing information presently available. Many sentences may have been imposed by trial courts which, given the limited research capacity, cannot now be retrieved. It is of course in the trial courts where sentencing patterns are most evident, although they will be subject to any authoritative statement by an appellate court. 200 After analysis, I have placed the sentences into relevant groupings. I have taken this approach for ease of understanding by others. Of course the appropriate sentence for a particular offence will depend on all the circumstances of the offence and the offender. The groupings are merely an attempt to facilitate an understanding of the available information by reference to the common features of offenders and offences and the sentence imposed. There will inevitably be anomalies and others exercising their own judgement may have placed one or other of the decisions into a different group. 201 Any cases considered before the repeal of s 16G (where that section had application) may only be considered with an appropriate upward adjustment: R v Studenikin [2004] NSWCCA 164; R v Kevenaar & Ors [2004] NSWCCA 210. For this reason I have included pre-repeal cases only where an undiscounted starting point is mentioned in or capable of being deduced from the remarks on sentence or judgment. 202 Recognising the concerns expressed by Gaudron, Gummow and Hayne JJ in Wong v R, I have endeavoured to take a principled rather than "results-driven" approach to the analysis. Although the Schedule orders the cases by reference to the length of the sentence, this approach was adopted as a sensible starting point to understanding the available information. The identified cases were then analysed by reference to their particular features. In the process of analysing the relevant decisions, I have recorded all relevant objective and subjective features of the offence, where they appear in the judgment or remarks on sentence. These include the offence with which the offender was charged; the applicable maximum penalty; the plea; the identity, pure weight and value of the drug; the role played by the offender; any reward expected or received; and the many subjective features including the offender's age, nationality, personal and financial circumstances, mental and physical health, moral culpability, criminal history, character and antecedents, cooperation with or assistance to the authorities, remorse, prospects of rehabilitation and anticipated isolation or hardship."

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58 While it is well settled that the quantity of the drug involved in an offence does not alone dictate its seriousness and thus the sentence appropriate for the offence in question, it is an important factor to be taken into account (see Wong v The Queen). That is particularly so in a statutory scheme such as this, where a commercial quantity of drug is specified to be 2kg. Nor may it be overlooked that the maximum penalty for the offence is life imprisonment. It follows that if, in determining sentence, proper consideration is not given to how much above the specified commercial quantity of drug the offence is concerned with, the sentence imposed could not have the deterrent effect it is intended to have. It follows that the quantity, purity and value of the cocaine in question had to be considered by his Honour when the objective seriousness of the offence was assessed. Those factors were very material considerations in the conclusion reached that the offence was objectively a very serious one, which had to be reflected in a significant custodial penalty. 59 While the applicant's role in this operation was a relatively low level one, the extraordinary sum she was to be paid for her involvement, revealed its importance to the members of this drug operation. Not only was she to drive Ms Wang while she undertook her duties, the applicant assisted her in the work of unpacking the drug and making it ready for distribution. The applicant was well aware of the size and value of the drug operation which she was facilitating. Her role was far from that of a mere courier, as the agreed facts revealed. That this, too, threw light on the objective seriousness of the offence and the need for a very substantial penalty, cannot be doubted. 60 The applicant's evidence as to the reasons for her participation in this operation showed that she was to receive a financial reward overwhelmingly in excess of her financial circumstances and needs. That also clearly increased the objective gravity of her offence. That those needs mitigated the offence in any way is not apparent. Clearly the applicant was well aware of what she had agreed to participate in and was entirely motivated to do so by the prospect of making a very, very significant profit. Even so she came to be shocked by how little she was to be paid, given the incredible value of what she was involved in and still persisted with the commission of the offence. 61 In determining the sentence his Honour had to weigh up all of the relevant objective and subjective factors revealed by the evidence, as well as applying the relevant common law principles and applicable statutory provisions. In this case, specific deterrence, as well as general deterrence thus had a significant role to play in the sentence imposed. The applicant's subjective circumstances also had to be considered, but that they were such as to lead to the view that the sentence imposed was manifestly excessive, is not apparent. 62 Again, a consideration of the case advanced below, sheds some light on the outcome which the applicant achieved in this respect. There it was accepted that the sentencing exercise was difficult, but in light of the applicant's subjective circumstances, it was argued that the sentence imposed should give the applicant, who was then aged 27, the opportunity to rehabilitate herself and to fit back into the community at a reasonable age, so that she could continue with her studies. It was submitted that while it would not be appropriate to suggest a figure, but '[i]t's certainly one that leads to a figure on the bottom of single figures rather than double figures'. His Honour indicated that he was himself thinking along those lines, subject to hearing from the Crown. 63 A sentence of the kind for which the applicant argued was achieved. The starting point of 23 years, resulted, with a discount of 35%, in a sentence of 15 years imprisonment, with a non-parole period of 9 years. It is difficult to see any basis for complaint, in those circumstances. 64 By comparison Ms Wang received a similar total discount on a head sentence of 27 years, 8 months, which resulted in a final sentence of 18 years imprisonment and a non-parole period of 11 years and 6 months reflective, of her greater role in this operation. 65 In my view, that the trial judge imposed a sentence which was manifestly excessive in the face of the objective and subjective factors which here arose to be assessed in determining the applicant's sentence, is not apparent. The sentence had to reflect the criminality involved in this very serious offence and had to have regard to the purposes of sentencing, which includes matters such as punishment, deterrence, rehabilitation of the offender and the protection of the community. The punishment had to both fit the crime and have regard to the circumstances of the applicant. So understood, I cannot see that the sentence imposed was manifestly excessive.

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