MI v R

Court of Criminal Appeal (NSW)|2017-08-14|Before: Basten JA, Button J, Hamill J

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/00046859 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 16 September 2016 Before: Hunt DCJ File Number(s): 2015/00046865; 2015/00046859

Judgment

BASTEN JA: The applicant seeks leave to appeal against a sentence imposed on him for conspiracy to import a commercial quantity of a border controlled substance. The first ground of the proposed appeal was that the applicant and his co-offender obtained identical sentences, in circumstances where the disparity in their offending and subjective circumstances warranted a lesser sentence being imposed on the applicant. The second proposed ground was that the sentence was manifestly excessive.
For the reasons given by Button J, I agree that there should be a grant of leave to appeal with respect to each ground, but that the appeal should be dismissed.

Background

On 16 September 2016 in the District Court at Campbelltown, Judge Hunt sentenced two men for the offence of conspiring to import a commercial quantity of the border-controlled precursor pseudoephedrine. The maximum penalty for that Commonwealth offence, pursuant to ss 11.5 and 307.11 of the Commonwealth Criminal Code 1995 (Cth), is imprisonment for 25 years and a fine of $850,000.
One of those men was the applicant MI. The other was the co-offender AN (with regard to both of them, I shall maintain the anonymity adopted in the District Court).

Objective features

Each man had admitted in the Local Court that he had agreed to the importation from Iran of more than the commercial quantity of the well-known precursor to the manufacture of amphetamines, and that the criminal agreement had extended for over a year, from February 2014 until February 2015.
Each of them also accepted that he had conspired with regard to six consignments that had taken place between September 2014 and January 2015, and that those shipments in total contained about 13 kg gross of the prohibited precursor, and a little over 6 kg pure.
An immediate point of distinction between the two men was that the applicant also accepted that he had been involved in an earlier cargo shipment of over 59 kg gross, and over 17 kg pure, of pseudoephedrine. Involvement in that importation formed no part of the Crown case against the co-offender.
Separately, placed before his Honour by way of a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) were two related summary offences committed by the applicant. The first was the possession of a prohibited weapon without a permit, in the form of an extendable baton and a pair of handcuffs (the duplicity was not objected to). That was an offence against s 7 (1) of the Weapons Prohibition Act 1998 (NSW), and, when dealt with in the Local Court, carried a maximum penalty of imprisonment for two years. The other offence was one of possessing ammunition without a licence or permit, contrary to s 65 (3) of the Firearms Act 1996 (NSW). That was a summary offence that carried a maximum penalty of a fine of $5,500.
As I have said, the conspiracy extended for over a year. The overt acts establishing it were repeated, and occurred over a period of some months. The criminal enterprise had a degree of planning to it, but was hardly sophisticated. It seems that it was reasonably readily detected by the authorities, who intercepted all but one of the consignments, and replaced the precursor with an anodyne substance. The motivation was financial gain; in the event, none was realised by either offender.
An undoubted further point of distinction between the two men was their respective roles in the fulfilment of the conspiracy. In short, the role of the applicant was to be little more than the person to whom the contraband was delivered. On the other hand, the co-offender played a significantly greater role in the enterprise. That is evidenced by the following findings of his Honour: the co-offender adopted the role of a "supervisor"; he travelled to Iran to source and pay for the precursor; he arranged for the precursor to be concealed in tea; he arranged for deliveries of the consignments; and he expected to receive a greater financial reward than the applicant.

Subjective features

Subjectively, as I have said, each offender pleaded guilty in the Local Court, and received an uncontroversial discount on his putative head sentence of 25%.
Separately, because of other actions that facilitated the administration of justice, each offender received a further discount of 25%, leading to a total discount of 50% for each of them. Because there was no dispute before this Court about the extent of that further discount, or any of the facts underpinning it, it need not be discussed further.
The applicant was 29 years of age when he committed the offence, and 31 when he stood for sentence. He did not give evidence before the learned sentencing judge, but his Honour gave weight to written references that spoke very highly of his general character. Despite the fact that he had been convicted of two offences many years ago, his Honour was prepared to sentence him on the basis that he had no relevant convictions. Judge Hunt also described the evidence from the mother of the applicant as being "very impressive", referring as it did to the efforts of the applicant to be a good husband and father, and to care for his own ageing father.
His Honour further accepted that, at the time of the commission of the offences, the applicant had a significant debt, and that problem played a role in the applicant deciding to involve himself in this serious criminality.
Finally, his Honour accepted that the applicant was remorseful for all that he had done.
Although the subjective case of the applicant was impressive, his Honour found that the subjective case of the co-offender was more powerful.
His Honour accepted that the co-offender, a boxer who had enjoyed success at the international level, had suffered brain damage. That finding was based not only on the evidence of a highly experienced forensic psychiatrist, but also upon the presentation of the co-offender in the witness box.
As well as that, his Honour accepted that the life of the co-offender had been marred by tragedy. When the co-offender was in his early teenage years, his elder brother was executed by the government of Iran because of his membership of an "anti-government resistance group". Three years later, the father of the co-offender died of a heart attack. Two further siblings died of treatable diseases, simply because of their poverty.
His Honour adopted the same approach with regard to the co-offender as with the applicant: despite the fact that the co-offender did have some entries on his criminal record, his Honour gave them no weight.
Yet again, his Honour found that the co-offender was remorseful, although he had been somewhat slower to admit his guilt than the applicant.
With regard to parity of sentencing between these two offenders - who presented similar but by no means identical objective and subjective cases - his Honour said the following, at 20-21 of the remarks on sentence: I want to say something very briefly about parity before I have the offenders stand to receive their sentences. The cases of the two offenders in terms of objective seriousness creates some challenge in terms of a decent comparison one to the other, that is because it is inevitable that AN's role was higher and more executive but involved in the conspiracy that for his purposes involved active participation in the importation of 6.2 kilograms (pure) of a precursor as opposed to a trusted but much lesser role in MI but across a much greater amount of the precursor. Each of them present a powerful subjective case but AN's subjective case is even more powerful than MI's. MI has lived in this country, having come from Fiji at a relatively early age, with some straightened [scil straitened] financial circumstances, but been in ready employment and has a large supportive family around him. AN's background is littered with tragedy and even though he has had some personal triumphs, his boxing career has left him a damaged individual. Ultimately when one weighs the subjective cases and the differing roles in their offending, I am ultimately persuaded it is principled to impose the same penalty on each offender.

Sentences imposed

In accordance with the extract above, each offender was sentenced to a head sentence of six years and six months to commence on 14 February 2015 with a non-parole period of four years, the latter to expire on 13 February 2019. As a matter of simple arithmetic by way of removal of the 50% discounts, the starting point for each offender was therefore a head sentence of 13 years.
With regard to the offences of the applicant placed before his Honour pursuant to the s 166 certificate, two sentences of three months, concurrent not only with each other but also wholly concurrent with the substantive sentence, were also imposed.

Erroneous disparity?

Two grounds of appeal were notified and pressed at the hearing. The first was that "his Honour erred in assessing the sentence for MI at the same level as AN."
The submission of counsel for the applicant focused on the greater role of the co-offender within the hierarchy; I have already provided the references from the remarks on sentence that show that such a finding was certainly made by his Honour. It was said by counsel that that greater role of the co-offender was not diminished by the greater quantity of the precursor with which the applicant involved himself.
Whilst it was accepted that the co-offender had a more powerful subjective case than the applicant, it was submitted that those subjective features simply could not counterbalance the greater objective role played by the co-offender.
In short, the submission was that the longstanding test for a ground asserting erroneous disparity in sentence is whether, in all of the objective and subjective circumstances, the applicant would experience a justifiable sense of grievance in having received a sentence identical to that of his or her co-offender, that test having been established by the High Court of Australia in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, and most recently reaffirmed by the same Court in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49. It was submitted that the question posed by that test must be answered in the affirmative, leading to a reduction in the sentence of the applicant by this Court, in order to address and remove that sense of grievance.
I do not accept that proposition, for the following reasons.
It is perfectly true that the co-offender played a more important and directorial role in the conspiracy. But the simple fact is that his subjective case was more compelling than that of the applicant, and his Honour was entitled to balance the one factor against the other.
More importantly, even if one limits one's analysis to objective features alone, the undeniable fact is that the applicant was involved in the separate importation of over 17 kg pure of the precursor in question, an importation in which the co-offender was not alleged to be involved at all.
Those countervailing objective and subjective features of the matter operated to make it perfectly open, in my opinion, for the sentencing judge to impose identical sentences on these two offenders.
Speaking more generally, this was not a case of different judges sentencing different offenders at different times. Nor was it a case that bore the complication of two or more offenders needing to be sentenced on two or more differing evidentiary bases (for a recent discussion of that problem see PG v R [2017] NSWCCA 179 at [23]). Nor was it a case in which the sentencing judge overlooked the need to consider the principle of parity and reflect it in the sentences ultimately imposed: as the extract that I have provided above demonstrates, his Honour reflected upon that explicit question at some length in the remarks on sentence.
In my respectful opinion, that analysis undertaken by his Honour is free from error.
Furthermore, I consider that the ultimate result of each offender being sentenced to the same period of imprisonment was a resolution that was perfectly open to the sentencing judge of the differing and competing objective and subjective features pertaining to each offender.
In short, I am not persuaded that the applicant is entitled to experience an objectively justifiable sense of grievance when he reflects upon the identical sentences imposed upon himself and his co-offender. That is because the differing objective and subjective features, which pointed in different directions with regard to each man, could ultimately be reconciled by arriving at an identical destination.
For that reason, I would not uphold ground one.

Manifestly excessive sentence?

Turning to ground two, it was expressed in orthodox terms: "His Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to be discerned) and the sentences are manifestly excessive."
In support of the contention that the sentence actually imposed upon the applicant was manifestly excessive, his counsel focused upon the starting point of the head sentence, which, as I have said, mathematically must have been 13 years. She invited attention to other sentences imposed for the same offence - and in particular their starting points - in support of the proposition that the discounted head sentence, derived from that starting point and ultimately imposed, is unreasonable or plainly unjust. I shall discuss the other cases relied upon by counsel in chronological order.
In R v Popovic (District Court (NSW), 7 September 2011, unrep), at a reasonably early stage in the Local Court the offender pleaded guilty to conspiring (together with four other co-conspirators) to import a commercial quantity of pseudoephedrine (which in fact was later found to be a related but different substance). At the time, the offender was aged in his late fifties. He had no prior criminal record, having come to Australia in the mid-2000s following the war in former Yugoslavia. He had suffered depression for several years after his mother's death and the failure of his café business. He was extensively involved at a medium to high level within a criminal international operation, although there was no evidence of him obtaining a particular financial reward. The offender provided valuable assistance and information to the authorities investigating the conspiracy.
A head sentence of imprisonment for 7 years and 6 months was imposed, with a non-parole period of 4 years and 6 months; taking into account a combined discount of "forty-five per cent approximately". Removing that discount, the starting point of the head sentence mathematically was approximately 14 years (and that is the starting point explicitly identified by the sentencing judge in that matter).
In XY v R [2013] VSCA 261, the applicant was charged with importing the precursor pseudoephedrine (that is how the count is expressed in the opening paragraph of the first judgment, but it is apparent that a commercial quantity was involved). The importation was a highly organised commercial undertaking that was conducted in a businesslike manner for profit. However, the amount of the precursor was less than three times the commercial quantity of the substance; the applicant pleaded guilty to the offence; and he was aged 25 with no prior criminal record. Furthermore, the Court noted the fact that the applicant would be separated from his dependent family, and the difficulties he faced in custody due to his limited ability to speak English, he having arrived in Australia and become a permanent resident three years earlier.
At the conclusion of a successful appeal against severity of sentence, on re-sentence a head sentence of imprisonment for 6 years was imposed, with a non-parole period of four years; taking into account a discount of one-third. Removing the discount, the starting point of the head sentence mathematically was therefore 9 years.
In R v Harb (District Court (NSW), 30 January 2015, unrep), Mr Harb was one of three co-offenders. He was charged with conspiracy to import a commercial quantity of pseudoephedrine. He pleaded guilty and provided assistance whilst his matter was still in the Local Court. He played a greater role than the others in the conspiracy (in view of his employment as a baggage handler at Sydney International Airport) and obtained a more significant financial reward than his co-conspirators.
He had no prior criminal record. He was aged 28 at the time he joined the conspiracy, and was suffering from a depressive illness and a substance use disorder. He had, however, embarked upon a drug rehabilitation program, and had obtained employment as a sweeper in prison. His prospects of rehabilitation were assessed as being very good.
A head sentence of imprisonment for 5 years and 6 months was imposed, with a non-parole period of 3 years and 9 months, taking into account a discount of 50%. Removing the discount, the starting point of the head sentence was therefore 11 years.
In R v Spadina [2015] NSWSC 933, the offender was convicted, following a trial by jury, of conspiring to import a commercial quantity of the border controlled precursor pseudoephedrine. He was the leader of the Australian branch of an international drug syndicate that operated chiefly out of the Netherlands. He obtained very significant financial rewards (in the order of millions of dollars) from his involvement.
At the time of the offending, he was aged 50, and living with his wife and two school-aged children. He was suffering from a heart condition and had a pacemaker, requiring regular medical check-ups. He also suffered from depressive and anxiety disorders.
The offender had prior convictions involving possession of the precursor sassafras oil, and being an accessory before the fact to the manufacture of a prohibited drug; he had previously served a period on a good behaviour bond; and he had committed driving offences and one offence of destroying property. On the other hand, he had demonstrated a willingness to cooperate with the Crown, with the result that the trial was shortened.
A head sentence of imprisonment for 10 years and 6 months was imposed, with a non-parole period of 6 years and 6 months; taking into account a discount of 12.5% for the assistance the offender provided to the Crown and in recognition of the delay on sentence (not attributable to the offender) as well as the offender's health issues. Removing that discount, the starting point of the head sentence mathematically was 12 years.
In short, the submission of counsel for the applicant was that analysis of a number of sentences imposed for this Commonwealth offence, both at first instance and on appeal, in New South Wales and elsewhere, and with particular focus upon their starting points, demonstrates that the sentence imposed upon the applicant was unreasonable or plainly unjust in terms of its length.
Turning to my determination of this ground, whilst it is true that the final analysis of whether a sentence is manifestly excessive or inadequate must always be of the sentence actually imposed (apart from anything else, statute permits an application for leave to appeal only against the sentence imposed), I do not consider it inappropriate to analyse the starting point as part of considering a ground of manifest excess (for a recent example of that approach in the context of an assertion of manifest inadequacy, see R v Nakash [2017] NSWCCA 196). Indeed, I consider that one of the purposes of the introduction of a system of explicit discounts for various factors relevant to sentence was to provide sufficient transparency for that kind of analysis to occur.
Adopting the approach for which counsel for the applicant contended, one can see that the starting points adopted in those other cases were: 14 years, 9 years, 11 years, and 12 years. To repeat: the starting point of the head sentence under consideration in this case was 13 years.
Taken as a whole, the other sentences to which counsel invited attention suggest, perhaps, that the starting point was a significant one, bearing in mind the favourable subjective findings made by his Honour about the applicant. But in my opinion they do not establish that the sentence ultimately imposed, or the starting point upon which it was founded, was beyond the discretion of the sentencing judge.
And in any event, it is to be recalled that the offence carried a maximum penalty of imprisonment for 25 years; that the conspiracy extended over a period of a year; that it was evidenced by repeated discrete acts of importation; that the amount of the precursor actually imported by the applicant was in the order of 23 kg pure; that the motivation of the applicant was financial gain; and that the role played by the applicant was, whilst not sophisticated, certainly necessary to the criminal enterprise.
In all of those circumstances, I do not consider that it has been established that the sentence actually imposed of imprisonment for six years and six months with a non-parole period of 4 years is manifestly excessive. For that reason, I would dismiss ground two.

Conclusion

In short, I would uphold neither ground.
Each ground was arguable, and fully argued. In my opinion, leave to appeal should be granted, but the appeal dismissed.

Orders

I propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed.
HAMILL J: I agree with Button J.

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