Qin v R

[2022] NSWCCA 137

Court of Criminal Appeal (NSW)|2022-04-13|Before: Brereton JA, Garling J, Hamill J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2022-04-13

Before

Brereton JA, Garling J, Hamill J

Catchwords

[1988] HCA 70 Postiglione v The Queen (1997) 189 CLR 295

Source

Original judgment source is linked above.

Catchwords

[1988] HCA 70 Postiglione v The Queen (1997) 189 CLR 295

Judgment (10 paragraphs)

[1]

Judgment

BRERETON JA: I agree with Garling J.
GARLING J: Yuchao Qin (the applicant) applies for leave to appeal against an aggregate sentence imposed upon him for the commission of two serious drug offences.
On 25 March 2020, the applicant was sentenced by her Honour Culver DCJ in respect of two offences, namely: 1. supply a commercial quantity of a prohibited drug, namely methylamphetamine, on 28 April 2015 contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 ("the DMT Act") ("the supply offence"); and 2. manufacture a large commercial quantity of a prohibited drug, namely methylamphetamine, on 14 May 2015 contrary to s 24(2) of the DMT Act ("the manufacture offence").
In respect of the manufacture offence, the applicant asked Culver DCJ to take into account on a Form 1, an offence contrary to s 93T(1) of the Crimes Act 1900 of participating in a criminal group.
The maximum penalty for the supply offence is 20 years imprisonment. A standard non-parole period of 10 years imprisonment applies. The maximum penalty for the manufacture offence is life imprisonment, and a standard non-parole period of 15 years applies. The maximum penalty for an offence against s 93T(1) of the Crimes Act is 5 years imprisonment.
Her Honour imposed an aggregate sentence of 16 years with a non-parole period of 10 years and 8 months to date from 20 February 2020. Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999, her Honour specified an indicative sentence of 9 years imprisonment with a non-parole period of 6 years for the supply offence. She indicated a sentence of 14 years and 4 months imprisonment with a non-parole period of 9 years and 7 months for the manufacture offence, taking into account the Form 1 offence.

[2]

Factual Background

On 28 April 2015, as part of an investigation, a police surveillance team monitored a controlled drug supply transaction. A co‑offender, Wang, attended a shopping centre and adjoining residential building complex in Ryde where the applicant and another co-offender, Wu, lived together. The co-offender Wang met with the applicant and Wu. During that meeting, the applicant supplied Wang with 497gms of methylamphetamine of 81% purity. In exchange, Wang gave the applicant $66,800 in cash.
Wang was engaged in an on-supply of those drugs to an undercover police officer.
Considerable physical and electronic surveillance, as well as CCTV footage from the residential complex, recorded the movements of the applicant and each of his two co-offenders within the precincts of the shopping centre and the residential building. Those facts were relevant to the role of the applicant as compared with his co-offenders. This supply constituted the offending in Count 1 on the Indictment.
A few weeks later, on 14 May 2015, the applicant and his co-offender Wang were arrested. On that date, the police executed search warrants at the residential complex. A unit on the eighth floor of the complex where the applicant and his co-offender, Wu, lived was searched. As well, a unit on the fifth floor of the complex was searched. In it, police discovered a clandestine laboratory for the manufacture of methylamphetamine. Police discovered an unattended chemical process underway and a large quantity of methylamphetamine in crystal and liquid form within the unit. It was this discovery, constituting a total of 11.58kgs of methylamphetamine, which led to Count 2 - being the charge of manufacturing a large commercial quantity of methylamphetamine.
The unit contained an extensive range of specialised glassware and equipment for the manufacture of prohibited drugs and numerous containers of chemicals and precursors. The smoke alarms had been removed from the ceiling of the unit. The applicant's DNA was detected on a number of items found in the clandestine laboratory area. He was found to be in possession of a key which accessed the door to the unit which housed the laboratory. Analysis of the clothing that the applicant was wearing at the time of his arrest confirmed traces of methylamphetamine. As well, when an iPad and two mobile phones belonging to the applicant were examined, it was found that searches had been undertaken on those devices to research information relating to the manufacture of methylamphetamine.
All of these facts constituted Count 2 on the Indictment.

[3]

Remarks on Sentence

In her Remarks on Sentence, Culver DCJ addressed and resolved what was described as a disputed issue of fact, namely, whether the applicant could be described as the principal in respect of either of the offences or, put in another way, what was the applicant's role in the group which was undoubtedly undertaking the illegal activities.
With respect to the role of the applicant, her Honour was not satisfied beyond reasonable doubt that the applicant was the sole principal in the enterprise. However, she was persuaded that the role of the applicant was more than a mere labourer and that in respect of the supply offence, the applicant was controlling the movement of the money and the drugs. In respect of the manufacturing offence, whilst the applicant did not have possession of the key to an internally locked door in the laboratory unit, he was in the position of having conducted significant and sophisticated research concerning the manufacturing process. And, as was clearly the case, he had visited the unit to which he had a key and had participated in the manufacture. These findings are not challenged.
Her Honour found that the applicant's offending for the supply offence fell at the top of the mid-range and his offending in in the manufacture offence fell above the mid-range - somewhere between the mid-range and the high-range.
In reaching those conclusions, which are not challenged, her Honour had regard to the quantity of the prohibited drug which, as she found, was almost double the threshold quantity in the supply offence, and over 11 times the threshold quantity in the manufacture offence. Her Honour took into account the purity of the drug, the degree of sophistication of the undertaking and the scale of the manufacturing, having regard to the significant nature of the equipment.
Her Honour found that the manufacture offence was aggravated because it was committed without regard to public safety on the basis that the manufacture was being conducted in a very busy residential area, namely a unit block proximate to other residential unit blocks above a busy shopping centre, and that the scale of the manufacturing and the deactivation of the smoke alarms elevated the risk to the public beyond the inherent risk to the public in any offence of that kind.

[4]

Previous Sentences

In sentencing the applicant, Culver DCJ had to have regard to the previous sentence of the applicant for similar, although entirely separate, offences.
On 2 March 2012, in the course of the execution of search warrants by the police, the applicant was arrested in an apartment at Burwood. In another apartment, on a different floor of the same block, the police found a large scale active, clandestine drug laboratory in which there was an unattended chemical process underway - the aims of which were to manufacture methylamphetamine and to carry on an extraction process of pseudoephedrine.
On 1 October 2015, after seven days of trial before Conlon DCJ, the applicant pleaded guilty to one count of manufacturing not less than the commercial quantity of a prohibited drug contrary to s 24(2) of the DMT Act (which carried a maximum penalty of 20 years), and to a second count of importing a substance being a border controlled precursor intending it to be used in the manufacture of a controlled drug in circumstances where the quantity imported was a marketable quantity contrary to s 307.12(1) of the Criminal Code (Cth) (which offence carried a maximum of 15 years).
The applicant was sentenced by Conlon DCJ on 2 March 2017. In respect of the first offence of manufacturing, the applicant was sentenced to a non-parole period of 4 years dating from 20 February 2015, with an additional term of 2 years which was to expire on 19 February 2021.
In respect of the Commonwealth importation offence, the applicant was sentenced to a non‑parole period of 5 years commencing on 20 February 2016 and expiring on 19 February 2021, with an additional term of 3 years. The applicant was first eligible for release on parole on 19 February 2021. His full sentence for the matter will expire on 19 February 2024.
The total effective sentence for these offences was 9 years with a 6 year non‑parole period. It can be seen that there was a significant degree of concurrence between the sentence for each offence. The sentence for the more serious Commonwealth offence commenced one year after the sentence for the less serious State offence.
The applicant was arrested for the charges with which this Court is presently concerned whilst he was on bail for the charges for which he was sentenced by Conlon DCJ in March 2017. The applicant was serving the terms of imprisonment imposed by Conlon DCJ when he came to be sentenced by Culver DCJ.

[5]

Grounds of Appeal

The applicant raises two grounds of appeal. They are: 1. the sentence imposed on the applicant failed to properly take into account questions of totality and accumulation upon the applicant's previous sentence; and 2. the sentence imposed was manifestly excessive.
It is convenient to deal with these grounds together as they are interconnected.
As is apparent by reference to the indicative sentences for the two offences, the subject of this application, there was a significant degree of notional concurrence (about 30%) in the aggregate sentence imposed by Culver DCJ. The applicant makes no complaint in his submissions about that notional concurrence.
The grounds of appeal are addressed to the issue of the principle of totality as it is to be applied to the sentences which were imposed by Culver DCJ and their intersection and overlap with the sentences imposed by Conlon DCJ in 2017 .
In Mill v The Queen (1988) 166 CLR 59 at 62, 66; [1988] HCA 70, the High Court in a unanimous judgment (Wilson, Deane, Dawson, Toohey and Gaudron JJ) said this: "The totality principle is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. … In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time."
McHugh J said in Postiglione v The Queen (1997) 189 CLR 295 at pp 307-308; [1997] HCA 26: "The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved."
The same "just and appropriate measure" must be taken when sentencing an offender for multiple offences involving different victims or in circumstances where the offender is already serving a sentence after conviction for other offences.

[6]

Applicant's Submissions

The applicant's submissions noted the dates of offending. In March 2020, Culver DCJ was sentencing the applicant for the offence of supplying a prohibited drug which took place on 28 April 2015 and the offence of manufacturing a prohibited drug which took place on 14 May 2015.
Conlon DCJ was sentencing the applicant for offences which occurred in February and March 2012, i.e., for offences that were significantly separated from the later offending by about three years or so. The addresses at which the manufacturing offences were said to have taken place were different, and it is clear that the applicant was living in different locations when each of these offences were committed.
The applicant submits that the single year of concurrence allowed by Culver DCJ with the non-parole period for the 2012 offences, having regard to the potential overlap of the type of criminality associated with the later offences, fails to appropriately deal with the total effect of the incarceration of the applicant.
The applicant further submits that given he was already serving a sentence for drug-related offending, the aggregate sentence imposed by Culver DCJ had a crushing effect upon him because that sentence was to be served in conjunction with the existing sentences imposed by Conlon DCJ. It follows from this, the applicant submits, that had he been sentenced by a single judge for all four offences, he would not have had an effective term of 21 years with a non‑parole period of 15 years and 8 months.
Finally, the applicant submitted that although Culver DCJ found, and in the aggregate sentence gave effect to, special circumstances by reducing the statutory ratio to 66% as opposed to 75%, by reason of the fixing of the starting date for that sentence at 20 February 2020, the overall effective period of the sentences of Conlon DCJ and her aggregate sentence, was to remove any allowance for special circumstances by way of a reduction in the non-parole period because the ultimate effective sentence imposed meant that the ratio between the non‑parole period and the parole was at the statutory figure of 75%.
In support of that submission, the applicant noted that Culver DCJ in her sentencing remarks identified a number of features personal to the applicant which warranted a reduction in the statutory ratio for special circumstances. The applicant pointed to this paragraph in Culver DCJ's sentencing remarks as being a consideration of the question of a reduction of special circumstances to take account of the accumulation of the sentence she was imposing upon the existing sentences: "In terms of special circumstances, there is a need to structure a sentence which accommodates multiple sentences, and that might see an adjustment to the usual statutory ratio to provide an appropriate parole period to meet rehabilitation purposes. That cannot lose sight of the minimum, appropriate outcome by way of an overall non-parole period to reflect the gravity of the offences and sentencing purposes."
Later in her sentencing remarks, Culver DCJ said: "In light of the overall sentence for all matters before the Court and the previous sentence which commenced in 2015, I recognise that the overall sentence has a disruption to the ordinary statutory ratio for the overall parole period, however I have considered that the parole period structured in this sentence is appropriate to the purposes of sentence, and has taken into account all of the matters to which I have referred."

[8]

Discernment

It can be seen that all of the sentences, whether they be the individual and total effective sentence imposed by Conlon DCJ or the indicative sentence and the aggregate sentence imposed by Culver DCJ, were essentially in or closely proximate to the ratio of two-thirds non-parole and one-third parole. However, when one comes to consider the total effective term of imprisonment of the sentence of Conlon DCJ and the aggregate sentence of Culver DCJ, because of the date upon which Culver DCJ commenced the sentence which she imposed, the resultant ratio is about three quarters of the total effective sentence as a non-parole period and a little over one quarter as the parole period.
This total effective sentence does not exceed the statutory ratio provided for in s 44 of the Crimes (Sentencing Procedure) Act. However, it clearly adversely affects the allowance for special circumstances in each of the sentences imposed, which appropriately increased the parole period over the statutory norm.
Of course, as is clear from many authorities of this Court, including but not limited to Z v R [2014] NSWCCA 323, sentencing is not a mathematically precise exercise. Mathematical precision is not one of the purposes of sentencing fixed by s 3A of the Crimes (Sentencing Procedure) Act.
However, it is clear that by fixing the commencement date of the sentences which she imposed, as she did, Culver DCJ has created a circumstance where the total effective sentence of the applicant accords with the statutory ratio and does not give effect to the findings variously made of special circumstances.
Purely considered as a mathematical construct, in order to keep the same proportion for the aggregate sentence, it would have been necessary for Culver DCJ to commence the sentences which she imposed, on 20 February 2015, which was the date of commencement of the earliest of the two sentences imposed by Conlon DCJ. That, of course, would maintain the ratio of two‑thirds/one-third, but would have the effect that there was no period of time being served by the applicant referrable only to the offences for which he was sentenced by Culver DCJ because all sentences would be served concurrently.
Such an approach would be inappropriate to give proper effect to the aggregate sentence imposed by Culver DCJ because it does not recognise the separate and distinct criminality of the later offences and the need to impose an appropriate sentence with respect to them.
However, the effect of starting the aggregate sentence when she did, there is no allowance for any reduction for special circumstances, which the subjective case for the applicant warranted, in the total term of imprisonment that the applicant would serve for all of the offences including those dealt with by Conlon DCJ.
In my view, to that extent and that extent only, the effect of the sentence imposed by Culver DCJ was to result in a manifestly excessive sentence. I would grant leave and uphold the appeal to that extent and re-sentence the applicant to give effect to the existence of special circumstances in the total effective sentence.

[9]

Re-sentence

If the Court came to re-sentence, an affidavit of the applicant sworn 11 March 2022 was put before the Court to be taken into account.
That affidavit noted that the applicant made attempts whilst in prison to learn English, with some help from the Prison Education Program. The applicant noted that his status as a non-citizen meant that he could not do or take many formal courses available either inside the prison or external to the Prison Service.
He has endured significant lockdowns during the Covid pandemic - including one lockdown which lasted for two weeks. As well, whilst at the Macquarie Correctional Centre, there was a mouse plague which affected his comfort and general sense of security. The applicant has had only intermittent contact with his family by telephone and has not been able to see his family for more than two years via AVL because of difficulties with an AVL connection to China.
He has otherwise been largely well-behaved and, whilst he has suffered a reactive depression episode, he has managed to deal with that with the assistance of some medication.
It is necessary to take all of these matters into account on any re-sentence.
I am not persuaded that standing alone, without reference to the earlier sentences imposed by Conlon DCJ, that any lesser sentence than that imposed by Culver DCJ of 16 years with a 10 year 8 month non‑parole period is warranted. In my view, having regard to the criminality involved, the role of the applicant in that criminality, the fact that the offences were committed whilst he was on bail and that there was a need for specific deterrence because of his earlier offences, that sentence was an appropriate one and I would impose it again.
However, in order to give effect to the finding of special circumstances, when taken together with the earlier sentences which the applicant was serving, in my view it would be appropriate to commence the sentence from 20 February 2017 rather than 20 February 2020, as Culver DCJ did.
I propose the following orders: 1. Grant leave to appeal. 2. Appeal upheld. 3. Quash the sentence imposed by Culver DCJ on 25 March 2020. 4. In lieu of that sentence, impose an aggregate sentence with a non-parole period of 10 years and 8 months and an additional term of 5 years and 4 months to commence on 20 February 2017. 5. The non-parole period for that sentence will expire on 19 October 2027.
HAMILL J: I agree with Garling J.

Qin v R

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Judgment (10 paragraphs)

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