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[2019] VSCA 147
General information, not legal advice.
Court of Appeal (Vic)
2019-06-26
Mr P, Kaye JA, Forrest JA
Original judgment source is linked above.
DPP v Qui [2018] VCC 692; DPP v Ng [2018] VCC 1270 (Judge Hampel)
CRIMINAL LAW - Sentencing - Applicant Qui charged with importing a border controlled drug in a commercial quantity - Guilty plea - Sentenced to 11 years' imprisonment with a non-parole period of seven years - Whether sentence imposed demonstrates disparity with co-offender - Whether sentencing judge erred in sentencing on basis that applicant Qui knew that he was part of a larger operation and that his co-offender was also a courier - Application for leave to appeal granted - Appeal allowed - Appellant Qui resentenced to nine years' imprisonment with a non-parole period of six years.
CRIMINAL LAW - Sentencing - Applicant Ng convicted of importing a border controlled drug in a commercial quantity - Sentenced to 13 years' imprisonment with a non-parole period of nine years - Whether sentencing judge erred in rejecting evidence as to applicant Ng's impaired mental functioning - Whether sentencing judge erred in failing to give weight to applicant Ng's intellectual impairment - Whether sentencing judge erred in application of parity principle - Whether sentence manifestly excessive - Application for leave to appeal granted - Appeal allowed - Appellant Ng resentenced to ten years' and six months' imprisonment with a non-parole period of seven years - R v Verdins [2007] VSCA 102; (2007) 16 VR 269 considered.
Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
1 On 12 February 2017, the applicants, Wei Hong Qui ('Qui') and Boon Teck Ng ('Ng') each brought into Australia from Malaysia a suitcase which contained a commercial quantity of a border controlled drug, namely heroin, contrary to s 307.1 of the Criminal Code (Cth) ('the Code'). After their arrival at Melbourne Airport, Qui and Ng passed through the Customs arrival area without collecting their suitcases. Their co-offender, Nicholas Kavvadas, who was already in Melbourne, collected the two suitcases from the luggage collection carousel. When he attended at the Customs section, the contents of the suitcases were detected.
2 Qui, Ng and Kavvadas were each charged on indictment with importing a border controlled drug, namely heroin, in a commercial quantity, contrary to s 307.1(1) of the Code. Pursuant to s 307.1(2), they were charged on the basis that they were reckless as to whether the contents of the relevant suitcase contained a border controlled drug.
3 After his arrest, Kavvadas readily made admissions as to his guilt, and he pleaded guilty to the charge at an early stage. He was sentenced by Judge Montgomery of the County Court to nine years' imprisonment, with a non-parole period of five years and nine months. His Honour declared, pursuant to s 6AAA of the Sentencing Act 1991, that if not for Kavvadas' plea of guilty, he would have been sentenced to a term of 13 years' imprisonment, with a non-parole period of 10 years.[1]
4 After their arrest, Qui and Ng both denied that they had any connection with the suitcases which they had in fact brought into Melbourne. At an early stage they both indicated that they intended to plead not guilty. They were remanded in custody, and in due course were committed for trial on a hand up brief. On the morning that the trial was due to commence, Qui entered a plea of guilty to the charge. Ng maintained his plea of not guilty, but he was ultimately convicted by the jury that was empanelled on his trial.
5 After hearing a plea in mitigation of sentence, the judge sentenced Qui to eleven years' imprisonment, with a non-parole period of seven years. The judge indicated, pursuant to s 6AAA of the Sentencing Act, that if not for Qui's guilty plea, he would have been sentenced to thirteen years' imprisonment with a non-parole period of nine years.[2]
6 Subsequently, after a plea in mitigation of sentence made on his behalf, Ng was sentenced by the same judge to thirteen years' imprisonment, with a non-parole period of nine years.[3]
7 The applicant Qui seeks leave to appeal the sentence on two grounds, namely:
Ground 1 - That the sentence imposed on Charge 1 demonstrates disparity with the sentence imposed on a co-Applicant, namely Nicholas Kavvadas.
Ground 2 - The learned sentencing judge erred in finding that the accused knew he was part of a larger operation and that he was aware that his co-offender was also a courier.
8 The applicant Ng seeks leave to appeal against sentence on three grounds, namely:
Ground 1 - The learned sentencing judge erred in rejecting the evidence of Mr Cummins as to the applicant's intellectual impairment and in failing to give any weight to the applicant's impaired intellectual functioning.
Ground 2 - The learned sentencing judge erred in the application of the principle of parity. In particular:
(a) Her Honour erred in failing to distinguish between the applicant and Kavvadas having regard to:
(i) The quantity of heroin imported by Kavvadas compared to the applicant;
(ii) Their respective roles in the importation operation; and
(iii) The evidence of enrichment by Kavvadas.
(b) Her Honour erred in failing to distinguish between the applicant and Qui having regard to the applicant's intellectual impairment.
Ground 3: - The sentence imposed was manifestly excessive having regard to:
(a) The applicant's role and state of mind;
(b) The quantity of drugs he imported;
(c) The applicant's lack of prior convictions; and
(d) The applicant's personal circumstances including his impaired intellectual functioning.
9 In the course of his oral submissions, counsel for Ng was given leave to add a ground, similar to that contained in ground 2(a)(ii), to allege specific error in the following form:
2A. The trial judge erred in finding that there was no distinction between the offending by Ng and that of Kavvadas that justified an assessment in the reduction of the moral culpability of Ng.
10 During oral submissions before the Court, counsel for the respondent conceded, as specific errors, those specified in ground 2 of the Qui application for leave to appeal, and those specified in grounds 1, 2 and the added ground 2A of the Ng application for leave to appeal. That concession, by counsel for the respondent, was properly made and was consistent with the role of counsel acting on behalf of the Director of Public Prosecutions. The concession does not, however, relieve the Court from considering for itself those grounds of appeal. For the reasons that follow, we would grant leave to appeal, and allow the appeal, in each case.
11 In early February 2017, Qui and Ng were each granted a tourist visa to visit Australia. On 4 February, Kavvadas flew to Malaysia, arriving in Kuala Lumpur in the evening. In the following days, tickets were purchased for Qui, Ng and Kavvadas to travel from Malaysia to Melbourne on 12 February 2017 on the same flight. Qui and Ng were booked to return to Malaysia on 16 February.
12 On 12 February 2017, Kavvadas checked in at Kuala Lumpur Airport, two hard sided suitcases weighing a total of 20 kilograms each. On the same morning, Qui and Ng each checked in at the airport a hard sided suitcase with a baggage tag bearing their respective names. Each suitcase weighed slightly under 28 kilograms, which was just below the maximum baggage allowance for passengers travelling on economy tickets. Qui and Ng also had each with them vouchers in their own names for the same two day tour to Phillip Island and the Great Ocean Road.
13 The three men were seated apart from each other on the flight. When the aircraft landed at Melbourne International Airport, Qui and Ng joined up after they had disembarked, and they walked together through the concourse to the Customs and Immigration check in. Neither of them went to the baggage carousel to collect the suitcases that they had checked in. Instead, each of them walked straight through the check in centre, with only their carry-on luggage. Each of them was directed to submit to inspection of their travel documents and luggage by Australian Border Force officials. Although those inspections took place at separate benches, CCTV footage depicted Qui and Ng, at times, gesturing to each other. Nothing of interest was found on either of them, and after the inspections had concluded, they waited for each other, and went out into the public arrivals area together.
14 The suitcases, that Kavvadas had checked into the flight, were identical to the suitcase checked in by Qui and the suitcase checked in by Ng, except that Kavvadas' suitcases did not have padlocks affixed to them, whereas there were padlocks on the suitcases checked in by each of Qui and Ng. Kavvadas did not collect the suitcases that he himself had booked in at Malaysia Airport. Instead, he collected each of the suitcases that had been checked in by Qui and Ng. After he collected those suitcases, he was directed to submit to travel documentation and baggage inspection. Australian Border officials soon detected that the two suitcases which he collected from the carousel contained the border controlled drug heroin.
15 The suitcase, that had been checked in by Qui, had 64 packages, containing 22.6 kilograms of bulk powder and 16.3 kilograms of pure heroin. The suitcase, that was checked in by Ng, contained 60 packages, weighing 21.9 kilograms of bulk powder and 13.4 kilograms of pure heroin. Thus, the two suitcases contained 124 packages, with 48.68 kilograms of bulk powder, and 29.695 kilograms of pure heroin. The wholesale value of that quantity was estimated to be between $11.43 million and $15.24 million. Its street value was between $79.4 million and $117.59 million.
16 At the time of sentence, Qui was 39 years of age. He was born and raised in Kuala Lumpur. After leaving school, he had regular employment, as a motor mechanic, in building construction, and, during the last three or four years, as a cook at a restaurant. After he commenced to work as a cook, he started a small business in which he sold food and drinks in various markets around Kuala Lumpur. He did not have any previous convictions in Malaysia (or elsewhere).
17 On the plea made on his behalf, Qui relied, first, on his plea of guilty, which, it was contended, demonstrated a willingness to facilitate the course of justice, and which had utilitarian benefit. It was also submitted that the plea was an expression of contrition by Qui for his offending. Counsel pointed to the fact that Qui was 'simply' a courier whose role was to do no more than check the relevant suitcase into the luggage department at Kuala Lumpur Airport. It was emphasised that the state of mind, alleged by the prosecution, and to which Qui pleaded guilty, was that of recklessness, and not of specific knowledge as to the nature of the contents of the suitcase. Counsel contended that Qui did not receive any enrichment from the trip itself apart from being provided with spending money and a tour of the Great Ocean Road and Phillip Island.
18 On the plea, counsel emphasised the principle of parity. He submitted that, objectively, Qui's offending was less serious than that of Kavvadas, so that the sentence of imprisonment imposed on him should be less, or at least no more, than that imposed on Kavvadas. In the course of the plea, the sentencing judge observed that Qui and Ng had clearly worked together in importing the two suitcases into Australia, so that Qui was 'part of an overall bigger arrangement and knowingly part of an overall bigger arrangement' than that which involved the importation of one suitcase only. In response, counsel submitted that Qui did not plead guilty to, nor was he to be sentenced for, being part of a joint criminal enterprise with Ng, but rather his criminality was confined to the importation by him of the one suitcase that he had checked in at Kuala Lumpur Airport.
19 The applicant Ng was 33 years of age at the time of the offending. He, too, did not have any previous convictions in Malaysia or elsewhere. After leaving school at the age of 14 years, he had a number of labouring jobs, working in a supermarket, in food factories, in a car manufacturing plant, and at an automotive service factory.
20 The submissions made on behalf of Ng, in mitigation of sentence, focused on evidence relating to his low intellectual capacity.
21 Ng was examined by the clinical and forensic psychologist, Mr Jeffrey Cummins, at Port Phillip Prison in July 2018. The examination was conducted with the assistance of a Mandarin speaking interpreter, since Ng had little facility with the English language. Mr Cummins prepared a report, and gave extensive evidence on the plea. During the examination, he attempted to administer the Wechsler Intelligence Scale-IV Intellectual test to Ng. As a result of his comprehension difficulties and his very slow speed of information processing, Ng was not able to complete the sub-test. Mr Cummins prorated the scores to produce a full scale intellectual quotient of 49, which, if valid, placed him on the border between a mild and a moderate intellectual disability. However, Mr Cummins considered that Ng did not present as being intellectually disabled, and his life history was not consistent of a person with an intellectual quotient as low as that found on testing. Mr Cummins' clinical opinion was that Ng's practical level of intellectual functioning was within the Borderline range, reflecting an IQ score between 70 and 79. Mr Cummins stated:
Any patient assessed with a level of intellectual functioning within the Borderline range or below typically experiences difficulties with decision making and is vulnerable to adverse influence from others and therefore has a tendency to be relatively easily persuaded.
22 In evidence on the plea, Mr Cummins effectively confirmed the contents of his report. In particular, he stated that, in general, it would be more difficult for Ng to think about the likely consequences of his actions, and he was someone who was likely to be more vulnerable to be persuaded or pressured into doing things. Mr Cummins also expressed the view that, in light of his low intellectual functioning, Ng would be more vulnerable to being exploited in prison, because he was a passive person who was easily led.
23 On the plea, counsel relied on Mr Cummins' evidence in support of the proposition that, by reason of Ng's low level of intelligence, he had a limited capacity to weigh the risks involved in his offending, and accordingly his moral culpability was lower than it would otherwise have been. Counsel submitted that, in particular, the principles, summarised as points 1 and 2 in R v Verdins,[4] were relevant, because his low IQ affected his capacity to exercise a proper judgment, and to make calm and rational choices. It was also submitted that by reason of Ng's low intelligence, the principles of general deterrence should be moderated. Finally, counsel contended that as a result of his low level of functioning, and his isolation in prison, Ng would find a term of imprisonment more burdensome.
Sentencing judge's finding as to the role and culpability of Kavvadas as compared with the role and culpability of Qui and Ng
24 In separate reasons for sentence, in respect of Qui and Ng, the judge noted that the role of each of them was that of a courier, which she described as an 'important, trusted, facilitative role'.[5] In sentencing Qui, the judge described the roles and culpability of each of Qui, Kavvadas and Ng in the following terms, which were repeated, verbatim, in her Honour's reasons for sentence of Ng:
The role and culpability of all three of you, Kavvadas, Ng and yourself, must be assessed in the context of the larger operation. True it is, Mr Kavvadas collected two suitcases full of heroin, being the two suitcases that you and Mr Ng individually checked in. You and Ng checked in together, or a minute apart, one after another at the same Malaysian Airlines check-in counter in Kuala Lumpur. On disembarkation at Tullamarine, you paired up and walked into the arrivals hall together. You waited for each other after the original baggage inspection and went into the public arrivals area of Melbourne international airport together. You were together in the Optus shop when approached by Australian Border Force officials shortly after that. You gave the same hotel address as your address in Melbourne on your arriving passenger card. You were booked to take the two-day tour together and to return to Kuala Lumpur on the same flight on 16 February 2017. In my view again, the inference is inescapable that you knew that you were part of a larger operation and that your co-traveller and co-offender, Mr Ng, was also a courier.[6]
25 In the Qui reasons for sentence, the judge further stated in that respect:
Mr Kavvadas' role was to collect the suitcases from the carousel, take them through Customs and then deliver them, or retain possession of them until they were collected from him. Your role was to check your suitcase in, so it could be collected from the carousel by the next person in the chain. You came to Australia for that purpose. Mr Kavvadas went to Kuala Lumpur and returned to Australia for his purpose. I see no material difference in roles that would place you lower in the hierarchy, or indicate a lesser culpability, justifying a lesser sentence for you. You received the suitcase from somebody else, checked it into the flight as your luggage so it could be collected by somebody else. Mr Kavvadas was, it turns out, that somebody else. His role was to collect the suitcase, to facilitate its collection by or delivery to the next person in the chain. In that sense, you were each both a collector and a deliverer.[7]
26 Her Honour also noted that although the quantity of heroin contained in the two suitcases collected by Kavvadas (29.6 kilograms pure heroin) was almost double of the quantity contained in Qui's suitcase (16.3 kilograms pure heroin), given the amount of heroin involved, the 'bare arithmetical comparison' mattered little.[8]
27 In similar terms, in sentencing Ng, the judge saw no basis to distinguish his role with that of Kavvadas. Her Honour stated that the difference in quantity was of little moment, because the weight of the heroin in Ng's suitcase alone exceeded the commercial quantity by such a large amount.[9]
28 In her reasons for sentence, the judge considered that Qui's plea of guilty was of utilitarian value, and that he had, albeit belatedly, demonstrated a willingness to facilitate the course of justice. However, her Honour did not accept the submission made on behalf of Qui that his plea could be taken as an expression of contrition for the offending.[10] The judge noted that during his term of imprisonment, Qui would be more isolated because of his limited command of the English language and his absence from family and friends, and accordingly the hardship that he would experience was a mitigating factor in his favour.
29 In comparing the circumstances of Kavvadas with those of Qui, the judge expressed the following views:
(1) Both Kavvadas and Qui were first offenders. However, that factor did not carry as much weight as it otherwise might, because it was the absence of previous convictions that enabled both of them to commit the crime.
(2) Kavvadas had made full admissions from the outset and pleaded guilty at the first opportunity. By contrast, Qui initially denied complicity, and he maintained that denial until the first day of his trial.
(3) Kavvadas was 20 years of age and was entitled to be sentenced as a young offender, so that, as a matter of law, his prospects for rehabilitation carried greater weight in sentencing. By contrast, Qui was of mature age, being 39 years of age at the time of sentencing.
(4) Kavvadas has family in Australia, with prospects of visits in custody and an expectation of family support on release. Qui would suffer isolation while in custody.
(5) Kavvadas had been promised $50,000 to perform the role he did. His offending was motivated by his history of gambling and drug use, neither of which were mitigating factors. Qui had offered no explanation for his offending. The inescapable inference was that he undertook his role for gain, the amount of which was more substantial than the free four day trip to Australia with some spending money and a two day tour.
(6) Since he was arrested, Kavvadas had acknowledged, and sought to address, his substance abuse and gambling issues. Accordingly, he was entitled to a positive finding about his prospects of rehabilitation. On the other hand, there was no evidence that would enable the judge to structure a sentence to foster the rehabilitation for Qui.
(7) There was no material difference in the roles respectively performed by Kavvadas and Qui, that would place Qui at a lower level in the hierarchy, or indicate a lesser culpability on his behalf. Both Kavvadas and Qui were, in a sense, a collector of the drugs and a deliverer of them. Although Kavvadas had almost double the amount of drugs because he took possession of the two suitcases, that comparison mattered little in the context of the large amounts of drugs involved. Kavvadas went to Kuala Lumpur to play his role in bringing the heroin into Australia; similarly, Qui came to Australia to perform his role in bringing the heroin into this country.[11]
30 In sentencing Ng, the judge considered, in detail, the nature and effect of the evidence given by Mr Cummins as to Ng's intellectual functioning.[12] The judge noted that Ng had not given to Mr Cummins, or anyone else, an explanation for his participation in the drug importation. In the absence of that explanation, no meaningful conclusions could be drawn as to his level of functioning when he attended at the check in desk at the airport.[13] The judge further considered that, if anything, the exercise by Ng of a conscious effort not to give any account to Mr Cummins, or to the Court, as to how he came to be involved in the importation, indicated a capacity to make a considered decision inconsistent with an IQ in the intellectually disabled range, and, perhaps even, in the Borderline range.[14]
I am not satisfied, on the basis of Mr Cummins' report and opinion that you, as opposed to persons with an intellectual impairment or assessed as having a borderline intellectual functioning, experience difficulties in decision-making, that you are vulnerable to adverse influence from others or have a tendency to be relatively easily persuaded. Even if there were evidence of those matters, there is no evidence to establish any connection between those characteristics and the offending of which the jury has found you guilty.
You have advanced no explanation for your role or involvement, and said nothing to provide any evidentiary foundation which would enliven any of the six limbs of Verdins, or the principles in Muldrock.[17]
32 In mitigation of sentence, the judge took into account that, during his term of imprisonment, Ng would be isolated from family and friends, and that he had very little facility with the English language. However, Ng must have come to Australia knowing that if he was caught he would face a lengthy term of imprisonment 'without family support and without language'.[18]
33 Having discussed the comparison of the role performed by Ng with that of Kavvadas (as set out earlier), the judge further noted that while Kavvadas, who was 20 years of age at the time of offending, was entitled to rely on his youth as a mitigating factor, that factor was not available to Ng at the time of sentencing.[19] The judge was not able to make any findings as to Ng's prospects for rehabilitation, other than that which might be inferred from the fact that he had no previous convictions.[20]
34 Finally, the judge noted that whereas both Kavvadas and Qui pleaded guilty, and were entitled to mitigation of sentence on that account, Ng had contested his guilt at trial. Her Honour concluded that, in the absence of the 'considerable discount' to which Kavvadas and Qui were entitled by reason of their pleas of guilty, the sentence to be imposed on Ng should exceed the 'yardstick of the sentence imposed on Mr Kavvadas'. Her Honour considered that there was nothing to distinguish the personal circumstances of Ng with those of Qui, to justify any different treatment between them on sentence, apart from the fact that Qui had pleaded guilty.[21]
35 In support of the first ground of the application for leave to appeal (the parity ground), counsel for Qui contended that there were no reasonable grounds for the sentencing judge to differentiate between the sentences imposed on Kavvadas and Qui in a way that resulted in Qui receiving a higher sentence than Kavvadas. Indeed, it was submitted that, properly considered, there were reasonable grounds on which Qui should have received a lesser sentence than that imposed on Kavvadas.
36 In support of that proposition, it was submitted that the judge erred in failing to give adequate weight to the fact that while Qui imported approximately ten times the commercial quantity of heroin, Kavvadas imported almost twice that amount, namely, nineteen times the commercial quantity. Counsel noted that in determining the objective seriousness of offences of this kind, the weight of the drug that was imported is particularly relevant.
37 Further, it was submitted, the judge erred in concluding that the roles performed by Qui and Kavvadas were 'identical'. Qui's role was confined to checking in the suitcase containing heroin in the Kuala Lumpur Airport, and not collecting it when he arrived in Melbourne. By contrast, Kavvadas had left the country with the sole intention of importing drugs of dependence on his return. His role was to import two suitcases of heroin, and he was responsible for retrieving them from the airport and delivering them to the next link in the distribution chain. In addition, while there was evidence that Kavvadas was to be paid $50,000 for his role in the importation, there was no evidence as to the benefit, if any, to be received by Qui. Finally, it was contended that the judge erred in comparing the prospects of rehabilitation of Kavvadas with those of Qui. In particular, in light of Qui's work history, lack of previous convictions and plea of guilty, the judge ought to have concluded that, like Kavvadas, he had positive prospects for rehabilitation.
38 In those circumstances, it was submitted that the judge erred in imposing on Qui a sentence that was more substantial than that imposed on Kavvadas.
39 In support of ground 2, counsel noted that the judge found, as a matter of aggravation, that Qui knew that he was involved in a large operation, involving his 'co-offender' Ng. It was submitted that the judge erred in proceeding on that basis, because it involved impermissibly taking into account, as a matter of aggravation, the commission by Qui of an offence to which he did not plead guilty, namely being involved in a joint criminal enterprise with Ng to import heroin. Such a finding was contradictory to the agreed facts on the basis of which Qui pleaded guilty. Further, it was submitted, such a finding was inconsistent with the fact that, while Kavvadas was sentenced on the basis that he had actual knowledge of the contents of the two suitcases, on the other hand, it was not open, on the evidence, to find that Qui knew that he himself was a drug courier. Accordingly, he pleaded guilty, and was sentenced, on the basis that he was reckless as to the nature of the contents of his bag.
40 Accordingly, it was submitted that the judge erred in finding, and acting on the basis, that Qui knew that he was part of a larger operation and that he was aware that his co-offender (Ng) was also a courier.
41 In response to the submissions on ground 1, counsel for the respondent submitted that the sentencing judge gave thorough consideration to all the matters that were relevant to the issue of parity of sentence between Qui and Kavvadas. In particular, Kavvadas pleaded guilty at the earliest opportunity, which carried more weight than Qui's subsequent plea of guilty. In addition, Kavvadas made admissions at the outset. He was entitled to be treated as a young offender, and he was also entitled to a discount under s 16A(2)(g) of the Crimes Act 1914 (Cth) for providing assistance to the authorities, albeit that that assistance was assessed as having a low value.
42 Further, it was submitted, while the amount of heroin for which Kavvadas fell to be sentenced was twice the amount imported by the applicant, the weight of the drug imported is not the sole determinative factor in assessing the roles or culpability of the respective offenders. Counsel accepted that Kavvadas' specific knowledge that the substance he was collecting was heroin may be treated as an aggravating factor, but, given the high degree of recklessness on behalf of Qui, that distinction alone was not such as to justify the imposition of a lesser sentence on Qui. Accordingly, it was submitted, Qui was not entitled to feel a 'justifiable sense of grievance' by reason of the fact that he was sentenced to a term of imprisonment that was two years longer than that imposed on Kavvadas.
43 As we have stated, in oral argument, counsel for the respondent conceded the error specified in ground 2 of the application by Qui for leave to appeal.
44 In support of ground 1, counsel for Ng referred to the evidence of Mr Cummins that, as a result of his low intellectual functioning, Ng's capacity to perceive and make judgments about the consequences of his actions, was limited. The evidence at Ng's trial was that he had not travelled outside Malaysia previously. Thus, on the occasion of the offending, he was engaged in a novel activity which was not part of his ordinary routine. Counsel contended that it was not open to the judge to reject the views expressed by Mr Cummins. The fact that Ng had engaged in employment, and held a driver's licence, did not detract from Mr Cummins' assessment of Ng's intellectual impairment. Counsel contended that although Ng chose not to give an account to Mr Cummins as to his offending, that did not detract from Mr Cummins' view that, while Ng possessed some ability to rationalise and reason, it was at a primitive level.
45 In those circumstances, it was contended that the judge erred in failing to take into account Ng's limited intellectual capacity as affecting his moral culpability, and as a factor that required moderation of general deterrence. Further, it had the effect that a term of imprisonment would weigh more heavily on Ng than on a person with normal health.
46 In support of the added ground 2A, counsel for Ng noted that Kavvadas was sentenced on the basis that he imported 29.695 kilograms of heroin, he was knowingly involved in that importation, and that he received a considerable financial reward of $50,000 for his role. By contrast, Ng's role was limited to the importation of 13.4 kilograms, he was reckless as to the nature of the substance in the suitcase, and there was no evidence as to any reward that he would receive. It was submitted that, in those circumstances, the judge erred in sentencing Ng on the basis that the role of Ng was equivalent to that of Kavvadas in the offending. In particular, counsel noted that in cases of this kind, the law recognises that the amount of the drug involved in the importation is a highly relevant factor in determining the seriousness of the offending.
47 In support of ground 2 (the parity ground), counsel for Ng relied, principally, on the different roles in the drug importation undertaken by Kavvadas and Ng respectively, and also on the failure of the judge to take properly into account the evidence relating to Ng's intellectual impairment. Counsel submitted that, while Kavvadas had, in his favour, his young age, and his early plea of guilty, in the circumstances of the case, that did not justify the imposition on Ng of a sentence that was four years longer than that which was imposed on Kavvadas.
48 In support of ground 3, counsel for Ng submitted that the sentence of 13 years' imprisonment imposed on Ng was manifestly excessive, taking into account: the nature of his role in the importation; the lack of evidence of any enrichment; the fact that Ng had no previous convictions, that this was his first time in custody and that he was isolated by reason of his poor English and separation from family and friends; and the fact that he has impaired intellectual functioning.
49 As mentioned, counsel for the respondent conceded that the errors, specified in grounds 1 and 2 of the application for leave to appeal by Ng, were made out. In respect of ground 3, counsel for the respondent submitted that the head sentence and non-parole period imposed on the applicant are not manifestly excessive in view of the objectively serious nature and circumstances of the offending. In particular, counsel referred to the amount of heroin imported by Ng, which was almost nine times the applicable commercial quantity. The role performed by Ng as a courier was an important, trusted and facilitating role. It should be inferred that the offending was motivated by financial gain. In those circumstances, it was submitted that in light of the maximum penalty prescribed for the offence, and the importance of general deterrence, the sentences imposed on Ng were not manifestly excessive.
Analysis of grounds conceded by respondent - Qui ground 2: Ng ground 2A
50 It is convenient, first, to consider the proposed grounds of appeal, in each application, that are conceded by the respondent. We commence with ground 2 of the Qui application, and the amended ground 2A of the Ng application.
51 In our view, the respondent was clearly correct to concede that those grounds of each application for leave to appeal should succeed. Indeed, any argument to the contrary would be untenable.
52 Ground 2 of the Qui application, and ground 2A of the Ng application, are directed to the conclusion by the judge that there was no material difference between the role of Kavvadas on the one hand, and the roles of Qui and Ng on the other hand, in the importation that was the subject of the charges.[22] That conclusion was based on two propositions, namely:
(1) The role and culpability of each of Kavvadas Qui and Ng must be assessed in the context of the 'larger operation', and the inference was inescapable that both Qui and Ng knew that they were part of a 'larger operation' involving each of them and Kavvadas.[23]
(2) The fact that Kavvadas imported a greater quantity of heroin than Qui or Ng had limited significance, in view of the amount by which the weight of the heroin in the suitcase imported by each of Qui and Ng exceeded the commercial quantity.[24]
53 On analysis, both propositions, relied on by the judge, were materially flawed.
54 In particular, the first proposition is inconsistent with the fact that Qui and Ng were each only charged with the importation of the quantity of heroin contained in the suitcase that he personally checked into the Kuala Lumpur airport. It was on that basis that Qui pleaded guilty, and it was on that basis that Ng was convicted by the jury at his trial. The prosecution did not allege, in the case of either Qui or Ng, that they were liable, for the importation of the quantity of heroin contained in the other offender's suitcase, by being involved in the commission of a joint offence pursuant to s 11.2A of the Code. Thus, while Qui and Ng travelled together on the aeroplane, and met up with each other in Melbourne, it was not part of the prosecution case, and they were not convicted, on the basis that they were jointly involved in the importation of the heroin contained in the two suitcases. Accordingly, it was erroneous for the judge to equate the criminality and culpability, of each of Qui and Ng, with that of Kavvadas, who pleaded guilty, and was sentenced, on the basis that he was responsible for the importation of the quantity of heroin contained in the two suitcases that had been checked in by each of Qui and Ng.[25]
55 In effect, the judge sentenced each of Qui and Ng for offending that was substantially different, and more serious, than that on which they were each charged and convicted. It is an important principle of sentencing that while a judge should, ordinarily, take into account all the relevant circumstances concerning the commission of the offence for which the offender has been charged, that does not permit the judge to take into account, by aggravation, circumstances which would have warranted the conviction of the offender for a more serious offence, or for offending of a more serious nature, than that which was charged against the offender.[26] By evaluating the objective gravity and culpability of Qui and Ng on the basis that their roles and the culpability of each of them, were equivalent to that of Kavvadas, because they knew they were part of a 'larger operation', the judge sentenced them for a more serious level of offending than that on which they were charged and convicted. In that way, the judge's approach to the sentencing of both Qui and Ng, was in breach of the principle to which we have just referred.
56 The second proposition, relied on by the judge, in equating the roles and culpability of each of Qui and Ng with that of Kavvadas, was that the difference between the quantity of heroin imported by Kavvadas on the one hand, and the quantities imported respectively by Qui and Ng on the other hand, did not provide a basis for distinguishing between their roles. The judge's reasoning in that respect, is explicit in the sentence of Ng, where her Honour stated:
When sentencing Qui, I said I saw no basis for distinguishing between his role and that of Kavvadas. The same applies here. Again, so far as you are concerned, I am satisfied that the difference in quantity is of little moment, given the amount by which the weight of heroin in your suitcase alone exceeded the commercial quantity. I have already noted that for you, that was by a multiplier of eight and I note that for Mr Qui, it was by a multiplier of ten. For both of you, that amount is well in excess of the minimum weight required to constitute a commercial quantity and, in my view, the statements of principle about the commercial aspects of an importation of that size and of the need for deterrence and punishment, are as apposite for 16 kilograms of pure heroin as they are for 30 kilograms.[27]
57 It will be recalled that the amount of pure heroin contained in the suitcase imported by Qui was 16.3 kilograms, the amount contained in the suitcase imported by Ng was 13.4 kilograms, and the total amount thus imported by Kavvadas was 29.7 kilograms. In simple terms, Kavvadas imported more than twice the amount of heroin than was imported by Ng, and 1.8 times the amount of heroin imported by Qui.
58 It is a well-established principle of sentencing, in cases involving the importation of a border controlled substance, that the amount of drug involved in the importation is a particularly relevant factor in determining the objective seriousness of the offence and the culpability of the offender. In Phuong Bich Nguyen v The Queen,[28] Maxwell P stated the relevant principles, in that respect, in the following terms:
Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.
Ordinarily, the amount of the drug involved in an importation is a highly relevant factor in determining the relevant 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.[29]
59 The statutory proscription of the importation of border controlled substances, such as heroin, and the gradation of sentences for the offence according to the amount that was the subject of the importation, reflects the simple premise that the greater the amount of heroin or prohibited substances that are imported into this country, the greater the harm that is caused to its citizens. Conversely, the moral culpability of the offender must increase, ordinarily, as the amount that was the subject of the importation is larger, as a reflection of the degree of criminality involved in the offending, and the amount of financial gain that is expected to be derived from such an egregious activity.
60 In the present case, the judge was correct to observe that the amount imported by each of Qui and Ng exceeded the minimum weight, that is required to constitute a commercial quantity, by multiples. However, it does not follow, from that proposition, that the difference in the quantity of the substance between the importation undertaken by each of them, and the quantity of the substance imported by Kavvadas, was of little relevance. The fact that each of them imported a quantity that was well in excess of the minimum weight, that was required to constitute a commercial amount, is an appropriate measure of the objective gravity and culpability of each of Qui and Ng. However, the fact that the amount imported by Kavvadas was significantly more in excess of the minimum weight required to constitute a commercial quantity must, logically, mean that the objective gravity of his offending, and his moral culpability, was greater.
61 Thus, the two propositions relied on by the judge, in order to equate the role and culpability of Kavvadas with that of each of Qui and Ng, were flawed. So, too, was the conclusion that their roles were equal.
62 It is clear, on the evidence, that the role of Kavvadas was significantly more substantial than the roles of Qui and Ng. On the one hand, the role of Qui and Ng involved each of them checking in, at Kuala Lumpur airport, the suitcase that they each carried containing heroin. It also required them each to journey to Australia on the same aeroplane as that which transported that suitcase. That was the totality of the role undertaken by each of them.
63 By contrast, on 4 February 2017, Kavvadas travelled to Malaysia with the intention of participating in the importation by each of Qui and Ng of the prohibited border controlled drug. As part of that role, Kavvadas checked in two suitcases through Malaysian customs, which were identical to each of the suitcases checked in by Qui and Ng. Kavvadas then travelled by the same aircraft from Malaysia back to Australia. Having arrived in Australia, he collected, from the baggage carousel in Melbourne, the two suitcases that had been checked in by Qui and Ng respectively in Kuala Lumpur, and proceeded to take them through customs. If he had not been intercepted at that point, his role in the importation would have involved him delivering the two suitcases to the next link in the distribution chain in Australia.
64 Plainly, in that way, the role undertaken by Kavvadas in the importation of the two suitcases containing heroin (with a total of 29 kilograms of heroin in them) was significantly more substantial than the role undertaken respectively by Qui (who imported 16.3 kilograms of heroin) and Ng (who imported 13.4 kilograms of heroin).
65 It is for those reasons that the respondent was correct to concede the error defined in ground 2 of the Qui application, and ground 2A of the Ng application, namely, that the judge erred in concluding that there was no material difference between the roles and culpability of each of Qui and Ng, with that of Kavvadas, in the importation of the border controlled substance.
66 Accordingly, the specific error in the exercise of the sentencing discretion in each case has been made out. Ground 2 of the Qui application for leave to appeal, and ground 2A of the Ng application, must succeed.
Analysis - Ng grounds 1 and 2 (conceded by the respondent)
67 We turn, next, to grounds 1 and 2 of the application by Ng for leave to appeal, which are also conceded by the respondent.
68 Ground 1 is directed to the rejection by the judge of the evidence of Mr Cummins as to the applicant's intellectual impairment, and to the failure by the judge to give any weight (at all) to Ng's impaired intellectual functioning.
69 We have earlier, at paragraph 31 of these reasons, recited the passage from the reasons of the judge which is the subject of ground 1. As a consequence of the findings by the judge, her Honour did not take into account, as a mitigating factor, Ng's mental impairment in determining his culpability, the role of general deterrence, or the circumstances in which Ng would serve a lengthy term of imprisonment.
70 As we have earlier noted, Mr Cummins concluded that Ng's practical level of intellectual functioning was within the borderline range. In substance, in his report, and in his evidence before the sentencing judge, Mr Cummins made the following points about Ng's level of intellectual functioning:
71 The evidence given by Mr Cummins, to that effect, was not challenged to any substantial degree on the plea. There was no reason for the judge to reject it. That evidence clearly established that Ng had a significantly lower capacity than other persons in respect of his decision making, and in respect of his capacity to assess the risks of any novel activity on which he was to embark.
72 The evidence at the trial was that Ng had never previously travelled outside Malaysia. His decision to travel to Australia, and to engage in the importation of a border controlled substance while doing so, was clearly an activity that was well outside his ordinary sphere of functioning. The fact that he held a motor vehicle licence, and that he had engaged in employment in Malaysia, does not detract from the evidence given by Mr Cummins to that effect, nor does it detract from the relevance of that evidence in an appropriate evaluation of his level of culpability for the offending in which he engaged.
73 One of the reasons given by the judge, for declining to take into account the evidence given by Mr Cummins as to Ng's intellectual capacity, was that Ng did not give any explanation concerning the manner in which he became involved in the offending. Certainly, in order that evidence as to an offender's reduced intellectual functioning, or a psychological disorder, be relevant to sentencing in any of the respects discussed by this Court in Verdins, there must be demonstrated to be a relevant nexus between that reduced intellectual functioning, or psychological impairment, and the circumstances in which the person who was to be sentenced became involved in the offending.[30] However, in this case, the inference was inescapable, from the evidence given by Mr Cummins, that, regardless of how Ng became involved in the offending, his capacity to reason about the consequences of doing so, and to fully comprehend the nature and gravity of the conduct in which he was to engage, was inferior to that of a person of ordinary intellectual functioning. It would be entirely unrealistic to conclude that Ng's reduced functioning was not relevantly connected with the manner in which he became involved in the offending, by affecting his capacity to appreciate the gravity of what he was doing.
74 Notwithstanding the evidence given by Mr Cummins, the objective gravity, and moral culpability of Ng, for the offending, was nevertheless high. However, equally, by reason of the evidence of Mr Cummins, the moral culpability of Ng for the offending could not reasonably be assessed as being as serious as that of a person of ordinary intellect who engaged in the same offending. In that way, and to that extent, the evidence of Mr Cummins, as to Ng's reduced levels of intellectual functioning, was relevant to a proper assessment and moderation of his moral culpability.
75 The evidence given by Mr Cummins, as to that matter, was also relevant to an assessment of the difficulties which might be encountered by Ng in serving a lengthy term of custody in an Australian prison. When sentencing Ng, the judge took into account that a term of imprisonment would be more difficult for Ng, because he was isolated in prison, being a long distance from his family or friends, albeit that her Honour moderated the degree by which that factor mitigated sentence, on the basis that Ng must have come to Australia knowing that if he was apprehended he would face a lengthy term of imprisonment. However, in evaluating that matter, the judge failed to take into account the evidence of Mr Cummins that, by reason of his low intellect, and his vulnerability, Ng's capacity to cope with a term of imprisonment would be less than that of a prisoner who was of ordinary intellectual capacity. Further, by reason of Ng's lower intellectual functioning, his capacity to foresee the consequences which might ensue should he be apprehended in Australia, would have been reduced.
76 In submissions in support of ground 1, counsel for Ng did not seek to contend that, by reason of his lower level of intellectual functioning, Ng was not a proper medium for the application of the principle of general deterrence. Counsel was correct in not seeking to advance that proposition. However, he did submit that, by reason of his low intellect, the principle of general deterrence should, to some extent, be moderated. On balance, we do not accept that submission. Notwithstanding the reduced capacity of Ng to reason in relation to his offending, we do not consider that that capacity was so reduced that the full application of the principles of general deterrence would be repugnant to the values of our community.[31]
77 For those reasons, the respondent was correct to concede that the error, that is specified in ground 1 of the Ng application, is made out.
78 Ground 2(a) of the application by Ng for leave to appeal is that the judge failed to comply with the principle of parity in sentencing the applicant to a term of imprisonment that was four years longer than that which was imposed on Kavvadas. We consider that that ground is also well made out in the circumstances of this case.
79 The principle of parity of sentencing is based on the proposition that co-offenders should be treated equally, but subject to the qualification that relevant differences between the offending and culpability of the respective offenders, and the matters personal to them, be properly accommodated in the exercise of the sentencing discretion. Error, on the basis of disparity, may occur where, taking into account the differences between the roles of the offenders in the offence, their respective levels of culpability, and their personal circumstances, there nevertheless is such a marked disparity between the sentences passed on the co-offenders as to produce a justifiable sense of grievance in the objective bystander. In view of the discretionary nature of sentencing, involving the balancing and synthesis of a number of relevant considerations, it may only be concluded that sentencing error has occurred, on the basis of disparity, where the appellate court considers that it was not open to the sentencing judge to differentiate in the sentences of the co-offenders in the way in which the judge did.[32]
80 In the present case, the two principal mitigating circumstances relied on by Kavvadas, which were not available to Ng, were his young age at the time of the offending, and the fact that he had pleaded guilty and made admissions at a very early stage.
81 On the other hand, as we have discussed, the offending by Ng (and by Qui) was substantially less serious than the offending engaged in by Kavvadas. Without repeating what we have already discussed on that matter, Kavvadas imported almost twice the quantity of drugs that were imported by Ng (or Qui). Kavvadas' role was more extensive than that of Ng (or Qui). Further, by reason of Ng's lower intellectual functioning, his level of culpability was reduced. In addition, due to his low intellectual functioning, his vulnerability in prison, his isolation from family and friends, and his lack of facility with the English language, a term of imprisonment imposed on Ng will be substantially more burdensome than a like term of imprisonment imposed on Kavvadas.
82 In addition, Kavvadas pleaded guilty on the basis that he had actual knowledge of the contents of the two suitcases that he imported. On the other hand, the prosecution case against Ng (and Qui) was that he was reckless as to the contents of the suitcase. Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance, if he or she is aware of a substantial risk that the circumstance exists or will exist, and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk. Plainly, the degree of recklessness of Ng (and Qui) was high. Nevertheless, by reason of that circumstance alone, his culpability was less than that of Kavvadas.[33]
83 Taking those matters into account, it may readily be concluded that, by sentencing Ng to a term of imprisonment that was four years longer than the term of imprisonment imposed on Kavvadas (that is, a sentence of imprisonment that was 145 percent of that imposed on Kavvadas), the sentence imposed on Ng did not comply with the principle of parity. In short, from an objective viewpoint, the differential between the two sentences was so substantial as to readily give rise to a justifiable sense of grievance. For those reasons, ground 2(a) of the application by Ng for leave to appeal should also succeed.
84 We now turn to the remaining proposed grounds of appeal in the case of each applicant, which were not conceded by the respondent. We shall commence with ground 1 of the application for leave to appeal by Qui. That ground is that the difference between the sentence imposed on Qui and the sentence imposed on Kavvadas contravened the principle of parity of sentences.
85 As in the case of Ng, Kavvadas was able to rely on two mitigating factors which weighed substantially in his favour, namely, his youth, and his early plea and admission of guilt, and which were not available to Qui. Qui was 39 years of age at the time of sentencing. He pleaded guilty at a late stage of the proceeding.
86 It may, perhaps, be observed that Kavvadas was, in a literal sense, caught red-handed, and he had little option than to confess his guilt and plead guilty. He had travelled to Kuala Lumpur, and returned on the same flight as Qui and Ng, bringing with him two suitcases. After his arrival, he did not collect those suitcases from the luggage department. Rather, he collected the two suitcases that had been checked in by Ng and Qui. He was caught, at the Customs section, with those two suitcases. Nevertheless, and notwithstanding the fact that he had little alternative, the fact that Kavvadas pleaded guilty at such an early stage was a mitigating factor of greater strength than the mitigation, to which Qui was entitled, by reason of his later plea of guilty.
87 On the other hand, as discussed, the objective gravity of the offending by Kavvadas was significantly more substantial than that of the offending by Qui. Likewise, his level of culpability for that offending was significantly more substantial than that of Qui. In addition, as discussed in the case of Ng, Kavvadas pleaded guilty on the basis that he had actual knowledge of the contents of the suitcases that he imported. Qui pleaded guilty on the basis that he was reckless as to the contents of the suitcase that he imported. Again, his level of recklessness was high. Nevertheless, by reason of that difference alone, there was a relevant difference in the level of culpability of Kavvadas and Qui respectively for the offending they engaged in.
88 In addition, a term of imprisonment would be more burdensome for Qui, and would weigh more heavily on him, than a term of imprisonment on Kavvadas, by reason of the separation of Qui from his family and friends during that period of his life.
89 Taking those matters into account, in our view the sentence of eleven years' imprisonment imposed on Qui, being approximately 25 percent higher than that imposed on Kavvadas, contravened the parity principle, in that, objectively viewed, it gives rise to a justifiable sense of grievance on the part of Qui. Accordingly, ground 1 of the application by Qui for leave to appeal must succeed.
90 By ground 3 of his application for leave to appeal, Ng has maintained that the sentence imposed on him was manifestly excessive. In order that that ground succeed, Ng must demonstrate that the sentence imposed on him was 'wholly outside the range of sentencing options' that were available to the sentencing judge. In other words, the sentence must be demonstrated to be so excessive as to bespeak sentencing error by the judge in the exercise of the discretion.[34]
91 As discussed, the offending engaged in by Ng was particularly serious. The proliferation of drugs of dependence, such as those imported by Ng, has wreaked significant harm throughout the community. The widespread misuse of those drugs has wreaked havoc on the lives of very many individuals and their families, and has lain at the heart of so much offending that comes before our courts. The amount of heroin, imported by Ng, was substantial, more than nine times the limit required to constitute a commercial quantity of that substance. The seriousness of the offending is demonstrated by the maximum sentence prescribed by the Code, namely, life imprisonment.
92 Nevertheless, as already discussed, there were a number of substantial mitigating factors which were relevant to the determination of the sentence to be imposed upon him. Ng's role in the importation was relatively limited. As discussed, his diminished intellectual functioning mitigated his subjective culpability by a measurable degree. He has no previous convictions. A term of imprisonment will be particularly burdensome for him, due to his separation from family and friends, his lack of facility with the English language, and the consequences of his intellectual impairment. At the conclusion of his term of imprisonment, he will be deported to Malaysia. While, in that way, he will be returned to family and friends, nevertheless, given the progress that is occurring in societies throughout South East Asia, the country that he returns to will be very different to that from which he came. Thus, the separation of Ng, from his society, will be an added burden upon him when he does complete his term of imprisonment.
93 Taking those matters into account, and bearing in mind the gravity of the offending, we are persuaded that the sentence of 13 years' imprisonment, imposed on Ng, was manifestly excessive in the circumstances. Accordingly ground 3 of the application by Ng for leave to appeal must succeed.
94 In discussing the proposed grounds of appeal relied on by each applicant, we have canvassed, in some detail, the nature of the offending engaged in by each of them, and the mitigating factors that are pertinent to each of them. It is not necessary for us to rehearse those factors, again, in determining the appropriate sentence to be imposed on each applicant.
95 Bearing in mind the matters to which we have referred, we consider that the applicant should be re-sentenced as follows:
[1] DPP v Kavvadas [2017] VCC 1432 ('Kavvadas').
[2] DPP v Qui [2018] VCC 692 ('Qui Reasons').
[3] DPP v Ng [2018] VCC 1270 ('Ng Reasons').
[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').
[5] Qui Reasons [23]; Ng Reasons [38].
[6] Qui Reasons [27]; Ng Reasons [41].
[22] Qui Reasons [29]; Ng Reasons [41], [44].
[23] Qui Reasons [27]; Ng Reasons [41].
[24] Qui Reasons [29]; Ng Reasons [39], [44].
[26] R v De Simoni (1981) 147 CLR 383, 389 (Gibbs CJ); R v Newman and Turnbull (1997) 1 VR 146, 150, 152 (Winneke P).
[30] DPP v O'Neill [2015] VSCA 325; (2015) 47 VR 395, 414 [74] ('O'Neill').
[31] R v Anderson [1981] VicRp 17; [1981] VR 155, 159-161 (Young CJ and Jenkinson J); O'Neill 410 [59].
[32] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ), 613-14 (Mason J), 623-4 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301-2 (Dawson and Gaudron JJ), 309 (McHugh J), 323 (Gummow J), 338 (Kirby J); Hilder v The Queen [2011] VSCA 192 [38]-[39] (Maxwell ACJ); Rougnikov v The Queen [2015] VSCA 97 [25].
[33] Lau v The Queen [2011] VSCA 324 [25]-[26].
[34] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89].
(1984) 154 CLR 606
(2007) 16 VR 269
(1981) 147 CLR 383
(1997) 1 VR 146
(1997) 189 CLR 295
(2011) 244 CLR 120
(2011) 31 VR 673
(2015) 47 VR 395
(2011) 32 VR 361