Ping He v R

Court of Criminal Appeal (NSW)|2018-06-15|Before: Leeming JA, Bellew J, Fagan J

Judgment

THE COURT: The applicant seeks leave to appeal against an aggregate sentence passed on 2 December 2016 by her Honour Judge Sweeney in the District Court at Sydney. The counts to which she pleaded guilty and the indicative sentences nominated by her Honour are as follows: 1. Count 2, between 24 and 29 August 2014 dealing with proceeds of crime knowing that they were proceeds, contrary to s 193B(2) of the Crimes Act 1900 (NSW), with four further offences taken into account on a Form 1: 4 years (maximum 15 years). 2. Count 4, a second offence of the same kind against s 193B(2), committed between 24 and 29 August 2014: 3 years and 4 months. 3. Count 7, a third offence against s 193B(2), committed on 22 October 2014: 3 years and 4 months.
The aggregate sentence imposed was 5 years with a non-parole period of 3 years. Commencement of the term was backdated to 26 November 2016 to allow for some days of pre-sentence custody. The aggregate sentence made allowance for a discount of 17% for the pleas of guilty entered in the District Court. Two co-offenders, James Zhu and his wife, Xia Liu, were sentenced at the same time. James Zhu pleaded guilty to charges identical with those to which the applicant pleaded and arising out of the same facts.
In the notice of appeal filed on 30 April 2018 the first ground was that "her Honour failed to take into account the applicant's subjective case". That was patently unsustainable because her Honour's Remarks on Sentence contain a number of findings favourable to the applicant concerning her subjective circumstances. In the course of oral argument counsel for the applicant said this ground should be understood as a complaint that her Honour failed to give effect to those findings.
The Crown indicated there was no difficulty in responding to this. The grounds for which leave to appeal is sought are, therefore: i. her Honour failed to give effect to findings made on the applicant's subjective case; or ii. alternatively, the applicant has a justifiable sense of grievance, in the light of the sentence imposed upon the co-offender James Zhu.

Objective facts of the offences

Evidence of the applicant's commission of the three offences of dealing with proceeds of crime was collected by police through interception of her phone calls and text messages and by electronic surveillance of her apartment in Neutral Bay. Concerning count 2, on 25 August 2014 the applicant arranged to meet with Zhu and Liu at a casino in Sydney and then accompanied them back to her apartment, arriving shortly after 11:00 pm. Zhu carried a large brown paper bag which evidently contained $300,000 in cash. In the apartment the money was weighed and counted. Zhu said he would take $6,000 as commission. The applicant said she would take $9,000 and transfer the balance of $285,000.
Zhu provided the applicant with an account number. The next morning she packed the money into smaller parcels. One parcel of $100,000 was given to a person who attended the apartment to collect it. The applicant had a phone conversation with another person concerning the transfer of $60,000.
With respect to count 4, on 27 August 2014 shortly after midnight Zhu and Liu again attended the applicant's apartment, Zhu carrying a shopping bag which contained another $300,000. Inside the apartment this money was counted using an electronic cash counting machine. The applicant and Zhu discussed ongoing deliveries of cash from Zhu to the applicant of $200,000 per day. Zhu left the apartment after about one and a half hours and the applicant then packed and wrapped separate bundles of cash.
The offence charged in count 7 was committed on 22 October 2014 in the early afternoon. Zhu arrived at the applicant's apartment alone carrying a blue bag which, as subsequent events showed, contained about $260,000. They discussed commission for this transaction and agreed upon $9,900 for the applicant. The applicant said she would transfer $100,000 of the remainder that day and they left the unit, apparently to go to the city to effect a delivery of some of the money. They were stopped by police. The applicant was carrying one bag containing $175,000 and another containing $72,600. She had $9,900 in her wallet.
Three of the Form 1 offences which were taken into account in the applicant's sentence for count 2 were based upon evidence seized when police executed a search warrant at the applicant's apartment following her arrest. A resealable plastic bag containing 11.7 g of methamphetamine was found, resulting in a charge of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Additional small quantities of prohibited drugs were located and gave rise to two counts of possession contrary to s 10(1) of that Act. The fourth charge on the Form 1 was of knowingly participating in a criminal group contrary to s 93T(1A) of the Crimes Act. This was based upon the facts of counts 2, 4 and 7 involving Zhu, Liu and the applicant.
Her Honour assessed counts 2, 4 and 7 as "moderately serious offences of their kind". In nominating an indicative sentence for count 2 her Honour applied an additional level of severity taking into account the applicant's drug supply and possession charges on the Form 1. The length of the indicative sentence was not increased on account of the offence of participating in a criminal group because in her Honour's view that involved essentially the same conduct as count 2 itself.

Applicant's subjective circumstances

The applicant did not give evidence in the sentence proceedings but tendered a psychologist's report containing background information which had been provided to the psychologist as a history. The applicant was 49 years old at the time of the offences. She was born in China and had lived there until 2002. She had worked in China as a primary school teacher after qualifying in that capacity in 1985. She migrated to Australia in 2002 under sponsorship of her second husband. In Australia the applicant had worked as a masseuse and she later operated a convenience store. She had not acquired a strong command of English. She was unemployed at the date of the sentence hearing and was in receipt of a disability pension from Centrelink on the basis of a spinal disorder from which she has suffered since her late teens. This apparently causes her considerable pain.
The applicant told the psychologist that she had commenced using drugs in 2010 "initially motivated by her need for social acceptance and the need to connect (and become more intimate with) her husband (who also used illicit substances on occasions)". She told the psychologist that her use of drugs was later for the purpose of reducing pain from her back condition and in response to emotional distress following her second husband ending their marriage in 2012. The applicant reported to the psychologist that she had not used drugs since her arrest in late 2014 but nor had she received any treatment for substance abuse. The applicant asserted that the drugs in her possession on arrest were for her own use.
Her Honour accepted all of the above information as well as the psychologist's diagnosis that the applicant was suffering from depression and anxiety. The learned judge also accepted the psychologist's assessment that the applicant's expressions of remorse were genuine and that she was at a low risk of reoffending, although she would require treatment for anxiety, depression and prior drug use.
There was a good deal more detail in the psychologist's report to which her Honour did not expressly refer. But that additional detail was unremarkable and did not materially alter the outline which has been summarised above from the Remarks on Sentence. Her Honour's acceptance that the applicant was genuinely remorseful and at a low risk of reoffending was generous in view of the fact that the applicant had not given evidence in person to substantiate her attitude to the charges. She had chosen instead to advance these matters second-hand through her self-report to the psychologist, upon which she could not be cross-examined, denying the learned judge any opportunity to observe her in the witness box and thereby to form an impression of her sincerity.
The applicant had one significant prior conviction, for an offence of having goods in custody suspected of being stolen, committed on 14 July 2011. A two year bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) had been imposed for this on 9 November 2011. Her Honour sentenced on the basis that "she has no prior criminal convictions" which, again, was generous as the prior offence of dishonesty was not immaterial to the offending for which she was before the Court.
For the purposes of s 44 of the Crimes (Sentencing Procedure) Act her Honour found special circumstances which warranted reducing the non-parole period to 60% of the total term. For this her Honour accepted that the applicant's depression and anxiety would make her time in custody more difficult, especially as she would be in prison for the first time at the age of 51 years. Other factors upon which special circumstances were found were that she would experience a degree of isolation because of her lack of fluency in English and that she would need treatment for prior drug use and her gambling problem.

Ground i: failure to give effect to findings on the applicant's subjective case

In England v R [2009] NSWCCA 274 it was said at [22] (Howie J, McClellan CJ at CL and Fullerton J agreeing) that where a complaint of disparity is raised together with other grounds of appeal against sentence, the other grounds should be dealt with first: It is appropriate to deal with the [other] grounds of appeal first as a ground concerned only with the issue of parity assumes that the sentence is otherwise appropriate. If the Court concludes that there is error, it will take into account the issue of parity in deciding whether some other sentence is warranted. This has been reiterated in Tuivaga v R [2015] NSWCCA 145 at [42] and in Zreika v R [2016] NSWCCA 177 at [76].
However, the applicant's written submissions commenced with the proposition that it was "convenient to deal with both grounds together" and proceeded to compare the subjective factors of the applicant and of Zhu. What is said to emerge from the comparison is that the applicant's subjective case was stronger than Zhu's and that, as each was given the same aggregate sentence, the applicant's greater claim to mitigation on subjective considerations was not given effect.
The sentences indicated for Zhu in respect of his part in the same three offences summarised at [1] of this judgment were as follows: 1. Between 24 and 29 August 2014 dealing with proceeds of crime knowing that they were proceeds, contrary to s 193B(2) of the Crimes Act with one further offence taken into account on a Form 1: 3 years and 4 months. 2. A second offence against s 193B(2), committed between 24 and 29 August 2014: 3 years and 4 months. 3. A second offence against s 193B(2), committed between 24 and 29 August 2014: 3 years and 4 months.
Her Honour's assessment of Zhu's criminality was incorporated in that of the applicant: "moderatley serious offences of their kind". Zhu was also sentenced to an aggregate term of 5 years with a non-parole period of 3 years, being identical with the aggregate term imposed upon the applicant. In respect of the offence identified at [19(1)] above, which corresponded with count 2 against the applicant, there was taken into account on a Form 1 a single offence of knowingly participating in a criminal group contrary to s 93T(1A) of the Crimes Act. As with the applicant, her Honour did not treat this as requiring any increase in severity of sentence because the additional offence arose out of entirely the same circumstances as the count on which it was taken into consideration.
Her Honour treated the criminal involvement of the applicant and Zhu in the three instances of dealing with the proceeds of crime as broadly equivalent. As mentioned at [10] her Honour indicated a sentence for the applicant on count 2 which was expressly greater than what she would otherwise have indicated, to take account of the three drug offences on the Form 1. This was explained in her Honour's Remarks on Sentence as follows: [The applicant's] drug supply offence on her Form 1, although committed in the context of her own drug abuse problem, must mean a greater sentence for her offence which has those matters to be taken into account than the equivalent offence for [Zhu] which has only the criminal group offence on the Form 1 to be taken into account. The quantity and purity of the drug in [the applicant's] supply charge are relevant though not determinative factors. The offence involved a not insignificant quantity of the drug, not the lowest level.
The applicant makes no specific complaint concerning the taking into account of the Form 1 offences pursuant to s 33 of the Crimes (Sentencing Procedure) Act. Given equivalent criminal conduct of the applicant and Zhu and their equal discounts for guilty pleas, her Honour's determination that the applicant should be more heavily sentenced for count 2 by reason of the Form 1 drug offences (for which there was no equivalent in Zhu's case) meant that the applicant's aggregate sentence had to be longer, but for one factor: the imposition of equal aggregate sentences shows that the applicant was allowed greater mitigation than Zhu for subjective factors.
This is not only apparent on the above analysis but is reflected, in a shorthand way, in her Honour's Remarks: Ultimately, the aggregate sentence I have reached for each of them will be the same though for different reasons. [The applicant] has the drug supply offence[s] to be taken into account in the sentence for her offence in count 2. Mr Zhu has the prior conviction for supplying drugs, which means he cannot receive the leniency afforded to [a] first offender.
The reference to Zhu's prior conviction was to the supply of a prohibited drug in November 2005, for which he had been imprisoned for 3 years with a non-parole period of 2 years. At the same time he had been sentenced to 9 months imprisonment, to be served concurrently, for goods in his custody suspected of being stolen.
It is the aggregate sentence which is under appeal. Contrary to the applicant's contentions on ground i, for the reasons given above we conclude that effect was in fact given to her Honour's findings of subjective circumstances in mitigation of that sentence. Further to this ground the applicant's counsel relied upon her Honour having indicated equal sentences (3 years and 4 months) for counts 4 and 7 against the applicant and for the equivalent counts against Zhu. On these counts there were no differential Form 1 charges to be considered. It was argued that equivalent indicative sentences for these counts revealed a failure to give effect to subjective findings favouring the applicant.
Counsel accepted that indicative sentences recorded in accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act are not themselves amenable to appeal: JM v R [2014] NSWCCA 297 at [40(11)] (RA Hulme J) and numerous earlier authorities cited by his Honour; Kerr v R [2016] NSWCCA 218 at [114] (Bathurst CJ, Hoeben CJ at CL and Price J agreeing). In an appropriate case identification of manifestly excessive or inadequate indicative sentences may support an inference of latent error in the aggregate. But this is not such a case. Here, the attack in ground i can be dismissed upon the above analysis, confined to the aggregate sentence itself. Her Honour's failure to differentiate the applicant's indicative sentences on counts 4 and 7 from Zhu's corresponding indicative sentences does not support an inference of failure to mitigate for the applicant's subjective circumstances in the aggregate sentence, because such mitigation plainly was implemented.
What counsel points to in relation to the indicative sentences shows that her Honour's more favourable view of the applicant's subjective case than of Zhu's was given effect in the fixing of the aggregates but not in nominating the indicatives. This is not the error alleged in the applicant's re-formulated ground i. But even if that were the ground and if this Court should accept that her Honour ought to have differentiated between the offenders on subjective considerations when nominating indicative sentences, in view of our conclusion about how the equivalent aggregate sentences were arrived at we would not consider that any less severe sentence was warranted in law, for the purposes of s 6(3) of the Criminal Appeal Act 1912 (NSW).

Ground ii: parity with the sentence for James Zhu

Essentially the complaint of disparity has come down to the proposition that the applicant's subjective case (for no complaint is made based on the assessment of objective criminality) was so much more favourable than that of Zhu that the applicant's aggregate sentence should have been still further mitigated, to something less than Zhu's. The applicant thereby invokes the aspect of the parity principle that requires "different outcomes in cases that are different in some relevant respect": Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 608 (Gaudron, Gummow and Hayne JJ).
In support of her complaint of disparity the applicant submits, first, that she had no criminal antecedents (which is not correct: see [15] above) whereas Zhu's record included the convictions referred to at [24] above. Secondly, whereas the applicant's risk of reoffending was assessed as "low", a psychologist who provided a report on Zhu classified his risk as "moderate". This view took account of Zhu's gambling addiction and the likelihood of his consequent association with antisocial elements. Her Honour accepted that he was unlikely to cease gambling without psychological intervention, to which he had been resistant.
Thirdly, the applicant relied upon her Honour's findings of special circumstances (as referred to at [16] above), for which there was no direct equivalent in Zhu's case. However, her Honour found special circumstances in respect of Zhu, based on his longstanding gambling problem and the needs of his elderly family members, resulting in a reduction of the statutory ratio to 60%, the same reduction accorded to the applicant. Fourthly, it was pointed out that the learned sentencing judge had accepted the genuineness of the applicant's expressions of remorse but made no finding in that regard concerning Zhu.
The applicant argues that by reason of these factors in combination "the applicant had presented a significantly more favourable [subjective] case than Zhu". It can be accepted that the applicant's subjective factors were to a degree more favourable than Zhu's. But apart from those factors, the applicant's aggregate sentence would have been higher than Zhu's because of the significant drug offences on her Form 1: see [22] above.
The following statement of the approach to be taken in such a case, from the judgment of the Court (Bathurst CJ, Fullerton and Davies JJ) in DS v R [2014] NSWCCA 267 at [39], is directly applicable here: The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders [are] disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and [/or] in an offender's subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be "gross", "marked" or "glaring"…..
The applicant invited the Court to treat the three indicative sentences as if they were actual sentences and to evaluate the issue of parity in that light, such that if error were disclosed, then there would be error in the aggregate sentence. There are at least two difficulties with accepting that submission. One difficulty is that the indicative sentences are opaque, in the sense that the absence of a start date and end date and non-parole period means that it is unclear how those sentences contributed to the actual aggregate sentence which was imposed. In the present case, where submissions were directed to the indicative sentences for the offences committed by Zhu, the opacity is material. The three indicative sentences specified in relation to the applicant (four years, three years and four months and three years and four months) differed materially from those imposed in respect of Mr Zhu (three years and four months for each offence) yet the same aggregate sentence was imposed. The Court is not in a position to analyse issues of concurrence and accumulation: see JM v R [2014] NSWCCA 297; 246 A Crim R 528 at 40; Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [164]. That makes a comparison for the purposes of parity inevitably incomplete.
A further difficulty is that it is well settled that the indicative sentences are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence: see for example Kelly v R [2017] NSWCCA 82 at [70]. Indeed, even if the indicative sentences are excessive, it does not follow that the aggregate sentence is excessive: JM at 40; Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 at [323].
The correct approach, contrary to the applicant's submission, is to compare the actual sentences imposed upon the applicant and Zhu. The comparison may have regard to the indicative sentences, as a guide to the approach taken by her Honour. Applying that approach, we see no basis for concluding that the moderation of the applicant's penalty on account of subjective considerations should have been still greater than that to which her Honour gave effect. There is no basis upon which the applicant could legitimately feel any sense of grievance by comparison of the outcomes for herself and Zhu. The equivalence of their aggregate sentences, notwithstanding some more favourable subjective considerations in the applicant's case, is "reasonably explained" (to use the language of DS v R) by the greater level of punishment called for by the offences on the applicant's Form 1. Ground ii is not established.

Orders

For these reasons the orders of the Court are: 1. Leave to appeal is granted. 2. The appeal is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 June 2018

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