R (Cth) v Cheung; R [2010] NSWCCA 244 | Case summary

R (Cth) v Cheung; R [2010] NSWCCA 244 | Case summary | Zoe

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28 October 2010 R (Cth) v Kwok Wai CHEUNG; R (Cth) v Kam Wing CHOI Judgment 1 McCLELLAN CJ at CL: I agree with Simpson J. 2 SIMPSON J: On 7 November 2008 each respondent was sentenced in the District Court on a charge of manufacturing, for a commercial purpose, a commercial quantity of a controlled drug contrary to s 305.3(1) of the Criminal Code Act 1995 (Cth) ("the Code") to which each had previously entered a plea of guilty. That section prescribes for the offence a maximum penalty of imprisonment for life. Sweeney DCJ sentenced each respondent to imprisonment for 6 years with a non-parole period of 4 years, commencing on 10 May 2007 (the date of their arrest). The non-parole periods will expire on 9 May 2011. 3 The Director of Public Prosecutions (Cth) ("the DPP") appeals against the leniency of each sentence, asserting that it is manifestly inadequate. 4 These appeals were heard on 31 March 2009. Judgment is to be delivered in late 2010. That circumstance calls for an explanation. 5 As will be seen below, in the course of preparing judgment the Court came to the view that it was in possession of inadequate information as to sentencing practices in respect of relevant federal offences. On 24 July 2009 it sought further assistance from the parties. Further submissions were received, those of the DPP dated 3 August 2009. The Court considered that these inadequately advanced the issues raised and, by letter dated 12 August, afforded a further opportunity to the parties to furnish submissions. These were provided by the DPP on 17 August. 6 On 24 September 2009 s 68A of the Crimes (Appeal and Review) Act 2001 ("the Appeal and Review Act") came into force, with retrospective effect (see Schedule 1 of that Act). Section 68A significantly altered the manner in which this Court is directed to deal with Crown appeals. It did so by removing from consideration what had come to be known as "the principle of double jeopardy". 7 Issues arose as to the construction of s 68A. The parties were afforded the opportunity of making further submissions with respect to the effect of that section on the present appeals. 8 Some of the issues were resolved by publication of the judgment in R v JW [2010] NSWCCA 49. 9 There remained, however, a live issue as to the applicability of s 68A to appeals brought by the (Commonwealth) DPP. The Court received yet further written submissions in that regard. In the meantime, however, a bench of five was convened to determine that question. That judgment was delivered on 17 September 2010: R v De La Rosa [2010] NSWCCA 208. By majority, the Court decided that s 68A does apply to Commonwealth Crown appeals. In the determination of these appeals, this Court is therefore precluded from taking into account any element of double jeopardy. Publication of that judgment cleared the way for the Court to proceed to judgment in these matters.

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The facts 10 The Crown alleged that each offence was committed on 10 May 2007, at Hurstville, NSW. An agreed statement of facts was before the Court that disclosed the following. 11 Cheung travelled to Australia on a UK passport, arriving on 26 April 2007. Choi travelled to Australia on a Hong Kong passport, arriving on 12 February 2007 and departing on 15 March 2007. He re-entered Australia on 23 April 2007, travelling on the same passport. Thereafter, both men were under surveillance, and their telephone conversations were intercepted and recorded. 12 The recorded conversations suggested that Cheung was acting on the instructions of a male in Hong Kong, and passing on instructions to Choi. 13 The men took up residence in adjoining rooms at a hotel in Hurstville. Cheung had access to a home unit at Hurstville, and rented a storage unit, also at Hurstville. 14 The Crown case was that the two offenders used these facilities for the purpose of processing liquid amphetamine into crystalline form amphetamine. By their pleas the two respondents acknowledged that they did so. Cheung showed Choi how to process the drug. 15 On 10 May 2007, the two men (at times separately and at times together) carried packages and boxes to and from the storage unit, and to and from the hotel. Each purchased items that he carried to the hotel. These were items to be used in the processing of the drug and included a portable gas stove and butane cartridges. 16 They did in fact embark upon the processing of the drug in one of the hotel rooms, using the gas stove. 17 Late in the afternoon, Australian Federal Police officers entered the two rooms in the hotel, and executed search warrants. Both respondents were present in one of the rooms. They were engaged in processing the liquid amphetamine. From this room the officers seized 15.37 kilograms of methamphetamine, together with various items used in the manufacturing process, and seven mobile telephones. Other items were seized from the second room. Later, the officers executed a search warrant on the storage unit, which was found to be empty, and another at the home unit. There, another 30.22 kilograms of methamphetamine was seized, together with gas stoves and other paraphernalia to be used for the processing of the drug. The methamphetamine seized at the hotel was found to have a pure weight of 6.445 kilograms, with a street value of between $2,589,800 and $5,827,050. The methamphetamine seized from the home unit was found to have a pure weight of 143.8 grams, with a street value between $59,680 and $134,280. (By s 314 of the Code a commercial quantity of amphetamine is 0.75 of a kilogram. The quantity involved here was, therefore, about nine times the minimum quantity that exposed the respondents to life imprisonment.) 18 The two men were arrested and charged. Choi declined to be interviewed. Cheung was interviewed and the interview was recorded. In short, he told police that he had been requested to come to Australia to register a locker and told that somebody would put something in the locker for him, that a third party had paid for his airline ticket and had given him $5,000; that he had rented the storage space and provided the PIN for the lock to a third party; that he had removed two boxes from the storage space; that he had given those boxes to Choi; and that he was diluting the liquid, boiling it and experimenting with it.

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Cheung 20 Cheung was born in March 1973 in Hong Kong of Chinese parents. He was 34 years of age at the time of the offence. He is the youngest of three siblings, having an older brother and sister. His early life was unremarkable, except that his parents had heavy work commitments that limited the attention they gave to the children. 21 Cheung was close to his brother. In 1995 his brother committed suicide while the two were on holiday together in Thailand. Cheung is unaware of the reason for the suicide, and recalls no warning signs. The psychologist thought that (as at August 2008) Cheung had not recovered from this event. 22 Eight years later, in 2003, his father suffered a paralysing stroke, as a result of which Cheung and his mother had to provide physical care for him, and Cheung assumed additional family financial responsibility. 23 Cheung had only moderate formal education, leaving school at age 14 or 15. Although he then entered the workforce, his employment has been irregular, predominantly in construction and renovation. He has worked as a casual/on-call delivery truck driver. 24 He has never married and has no children, but was in a relationship for 20 years. This came to an end three years before the offence. 25 He has no prior convictions. 26 Although the pre-sentence report recorded that he had used ecstasy and methamphetamines, there was neither in that nor the psychologist's report any suggestion of serious addiction to drugs. However, after the death of his brother, he began gambling and this intensified after his father's stroke. He lost heavily, but could not contain his gambling. The psychologist, Dr John Jacmon, considered him to have been heavily addicted. He borrowed, hoping to recoup his losses. Predators began applying pressure to his parents to repay his debts. 27 It was in these circumstances, he told the authors of the pre-sentence and psychological reports, that he became involved in the present offence. 28 In his evidence, Cheung said that his creditors had threatened and assaulted him, had threatened to do likewise to his family, and had then told him that if he came to Australia "to fix up something", the debt (then between $40,000 and $50,000 Hong Kong, roughly $8,000 to $10,000 Australian) would be forgiven and they might also give him "a few thousand dollars". He was in fact paid $5,000. 29 He said he agreed to, and did in fact, travel to Australia, collected a parcel from storage, and took it to the hotel where he became involved in the processing of the drug. He was in regular telephone contact with others who gave him instructions as to the processing, because he was ignorant of how to do it. 30 In his evidence, he confirmed his drug use and said that he has, in prison, sought treatment both for his gambling addiction and his drug use, but, because of his poor English language skills, the relevant courses are not available to him. He has learned English and is studying Fine Arts. 31 He expressed remorse for his involvement in the offence, saying this: "When I was in gaol and I spoke to the pastor he told me about the harm that these sorts of things will do to society and I have also seen lots of people getting foul with the law because of involvement with drugs so I realised that I am also involved and therefore I have done things wrong which may harm society therefore I feel very sorry." 32 Dr Jacmon diagnosed Major Depressive Disorder, Generalised Anxiety Disorder, and pathological gambling, all of which he considered were present at the time of the offence, markedly impaired Cheung's daily functioning, and impaired his judgment. He thought the disorders were likely to worsen with time, and that Cheung would need treatment from a Chinese-speaking psychologist. He appended a proposed treatment plan to his report. 33 A number of references attesting to Cheung's good character were before the Court. 34 Dr Jacmon assessed Cheung's intelligence level as "low to very low".

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Choi 35 Choi was also born in Hong Kong, in December 1975, and was 31 years of age at the time of offending. He had had employment, principally in the restaurant industry in Hong Kong, but this came to an end with the outbreak of the SARS epidemic. He has two sisters both of whom live in Hong Kong. Until his arrest, he lived with his parents, who are pensioners, in Hong Kong. 36 He is the oldest of three children, of a poor family. His father was a drug addict, and was violent, and had been in prison. 37 Choi is single, and has had one de-facto relationship, without children, that ended on his imprisonment. 38 He has some criminal record in Hong Kong, for burglary, for possession of a small amount of heroin, and for gambling. He was dealt with by way of fines and probation and has not previously served a prison term. He was assessed as of about average intellectual ability, and having a low to moderate risk of recidivism, and good prospects for rehabilitation if his drug taking and gambling were brought under control. 39 The pre-sentence report and the psychological report give different accounts of Choi's drug use. According to the author of the pre-sentence report, he had used amphetamines for 4 to 5 years, but did not consider himself to be addicted and had not sought treatment. 40 Mr Taylor, the psychologist, reported that he had used cannabis and a drug he called "K", and, by the age of 28, was using the drugs daily, as a result of which he had accumulated a considerable debt. 41 Choi, too, had a gambling addiction, which he had had since the age of 19, and had accumulated large debts. He took part in the offence for the purpose of acquiring money to pay off his debts and make some money for himself. He was aware of the risks involved. He was to receive $15,000 for his participation. 42 Mr Taylor thought that he had some anti-social personality problems. He detected no emotional disorder. Mr Taylor thought that Choi would encounter more than usual difficulty in serving a prison term because he has, in Australia, no emotional, social, or family support. 43 Choi also provided a number of references.

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The Remarks on Sentence 44 Sweeney DCJ began her sentencing remarks by making specific reference to the matters to which she was required by s 16A of the Crimes Act 1914 (Cth) to have regard, and to general deterrence. She recounted in some detail the circumstances of the offences, and the physical participation of each respondent. She said that the "manufacturing" consisted of refining liquid methamphetamine into crystalline form. The evidence did not permit her to nominate the source of the methamphetamine, although some of the telephone intercepts suggested that it had been imported. If that were so, there was no evidence that either respondent was involved in the importation. 45 Her Honour found that the role of both offenders was: "… to refine the drug and deliver it to others on behalf of some other person or others, not on their own account." 46 She was satisfied that Cheung showed Choi the refining process and assisted him to do it in accordance with the telephone instructions (which were, when the men were under surveillance, intercepted). She accepted that Choi was to receive $15,000, Cheung $5,000, some of which at least was spent on expenses. Cheung was also to have his gambling debt forgiven. 47 In outlining the role of the respondents her Honour said: "The refining tasks they performed could have been performed by anyone who learned the process. It seems to have been conducted in a fairly primitive way. Of course these two offenders did come to Australia and perform that process, but there was nothing particular about them which made them essential to the task except a preparedness to do it in their circumstances. All of those factors place the offenders' roles in the lower range of offences of this kind, although the quantity of drug was not at the lowest range. There were other people, overseas and here, it seems on the evidence, involved in the enterprise in a more commercial and professional way, but these offenders were not such." 48 She held that the two had "generally equivalent" roles, and noted that each committed the offence to pay debts. She said: "While not a matter of mitigation it places their conduct and role in context …

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(8) Liaised with and were to be involved in the delivery of the refined drug to the people who were to on sell it." 56 She pointed out that, at the time of their arrest, the respondents were actually in the process of manufacturing large amounts of the drug into a form that was readily marketable on the streets, and submitted that the amount of drug involved indicated "a large scale commercial operation"; that the motivation of each respondent was financial, to earn money to pay gambling debts; that, while acting on instructions, they were unsupervised, and were entrusted not only with the task of manufacturing, but also with the drug itself; that the success of the enterprise depended on them; and that their role was critical. 57 She therefore submitted that the sentences failed to reflect the criminality so exposed. In particular, she argued, her Honour's characterisation of the process of manufacture as "fairly primitive", and her observation that it could have been performed by anybody who learned the process (see para [47] above), signalled a failure on her Honour's part to recognise the significant nature of the respondents' roles in the success of the enterprise. She argued that whether or not others could have learned the process and undertaken the tasks was not to the point; it was in fact the respondents who did so. 58 No issue was taken on behalf of either respondent as to the factual description of what he did. At issue was whether their level of involvement could properly be characterised as "in the lower range of offences of this kind". I outline below the responses made on behalf of the respondents. 59 It is, of course, correct that the role of an offender is not primarily dependent upon whether some other person could have fulfilled the role - almost invariably (except, for example, in functions requiring specific technical expertise) the role of an offender could be undertaken by somebody else. It will be seldom that an enterprise will fail because one person, and only one person, is able to perform a particular task. 60 But I do not understand her Honour to have been suggesting that the gravity of what the respondents did was diminished because others could equally have done it. Rather, she was pointing out that they brought no particular expertise or special skills to the enterprise, and performed a relatively low level, mechanical (on instructions) function. In this respect (although she did not spell this out) I think she was drawing an analogy between the role of the respondents, and the role, familiar in importation and other cases, of couriers. Such individuals are critical to the importation, and those at a more senior level in the organisation depend heavily upon them, and must place their trust in them - but they are, nevertheless, regarded as being at a low level in the hierarchy, and fixed with lesser criminality. Often, one indication of their criminality will be the financial reward they receive or expect to receive. 61 One hallmark of the "courier or person low in the hierarchy" is exposure to the danger of apprehension. 62 Here, there was no evidence that either respondent had any decision-making role other than, for example, the location of and arrangements for the venues for the processing, and the purchase of basic equipment. 63 The respondents were functionaries, operating on instructions, and exposing themselves (or being exposed) to the danger of apprehension, while those more integrally involved (and, no doubt, standing to gain substantially more) remained concealed and protected. I accept that the role of the respondents was properly seen as comparable to that of couriers. 64 I do not think that error can be found by reason of the way in which her Honour expressed herself in the passage extracted, nor in her general conclusion or to the significance of the role played by the respondents. If error is to be found in respect of the assessment of the respondents' criminality, it will have to be by reference to the sentences themselves.

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(iv) Song Lin v R [2007] NSWCCA 368 70 Song Lin was a co-offender of Lo. He pleaded guilty to knowingly taking part in the manufacture of not less than the commercial quantity (not, as was the case of Lo, the large commercial quantity) of methamphetamine, the maximum penalty for which was imprisonment for 20 years. At first instance, he was sentenced to imprisonment for 8 years with a non-parole period of 6 years. He sought leave to appeal against the sentence on the grounds that the sentence was manifestly excessive, and invoked principles of parity. The appeal was successful, and his sentence was reduced to one of imprisonment for 6 years with a non-parole period of 4 years. It appears that the principal reason was the disparity between the sentence imposed on him and that imposed on Lo, particularly bearing in mind that the offence to which he pleaded guilty was one carrying a maximum penalty of 20 years as distinct from that to which Lo pleaded guilty, which carried a maximum penalty of imprisonment for life (although both were involved in the same enterprise). 71 This aspect of the approach on the part of the respondents gave rise to a discrete argument advanced on behalf of the DPP which, it seems to me, was ultimately founded upon an illusion, or, at least, a factual foundation that has not been established. That factual foundation is that there exists an observable discrepancy in sentencing patterns under comparable state and federal laws. The argument, however, raises a significant issue of principle in relation to sentencing under s 305.3 of the Code. 72 It is only since the enactment of the Code (which, despite its date, came into effect on 1 January 1997) that there has been, under Commonwealth legislation, an offence of manufacturing drugs. Prior to that time, manufacturing lay within the exclusive province of the states. A pattern of sentencing developed, and it was sentences following this pattern that were cited, on behalf of Choi, as precedents providing an applicable pattern for sentencing as guidance in the determination of the present appeals. 73 Such sentences were, and are, of course, imposed and structured in accordance with the relevant State legislative regime - in this state, the Drug Misuse and Trafficking Act 1985 ("the DMT Act"). 74 By s 24(2) and s 33(2) of the DMT Act, a person who manufactures not less than the commercial quantity of a prohibited drug is liable to imprisonment for 20 years. A person who manufactures not less than the large commercial quantity of a prohibited drug is liable to imprisonment for life. By Sch 1, a commercial quantity of amphetamine is 250.0 grams; a large commercial quantity is 1.0 kilogram. (As noted above, by s 314.1 of the Code, for the purposes thereof, a commercial quantity of amphetamine is 0.75 of a kilogram.) 75 And it was reliance upon sentencing under state law as providing guidance, and the DPP's response to that reliance, that gave rise to the significant issue of principle to which I have alluded. 76 That issue of principle concerns the base to which this Court (and sentencing courts) ought to look for guidance in determining the appropriate range of sentences for any offence against s 305.3, and in determining whether a sentence imposed lies outside the permissible range. 77 On behalf of the DPP it was submitted that the appropriate base for comparison in sentencing under s 305.3 of the Code is to be found, not in parallel or comparable offences under state legislation, but, rather, in sentences imposed under Commonwealth legislation where the prescribed maximum sentences are identical to those prescribed for the current offence. On this basis, a judge sentencing under s 305.3 of the Code, carrying a maximum penalty of life imprisonment, would look for precedent to sentences imposed in respect of offences of importing controlled drugs (as they are now called) that carry maximum sentences of imprisonment for life, and to sentences imposed under the predecessor to the Code (the Customs Act 1901 (Cth)), of importing prohibited imports, for which the maximum applicable sentence was imprisonment for life. Being knowingly concerned in the importation of not less than the commercial quantity of heroin was such an offence. Under the Customs Act, a commercial quantity of heroin commenced at 1.5 kilograms. 78 Senior counsel turned to the decision of this Court in R v Wong; R v Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340. The issues for determination in that case arose in the context of Crown appeals against sentences imposed on the two respondents, following their conviction on charges of being knowingly concerned in the importation of heroin. Wong and Leung were both "major participants" in the enterprise. This Court upheld the Crown appeals, set aside the sentences, and re-sentenced the respondents. The judgment was, however, also published as a guideline judgment in respect of sentencing for offences of the importation of prohibited drugs, specifically heroin and cocaine, by offenders whose roles were as couriers, or who were otherwise low in the hierarchy of the importing organisation. The Court published a table (at [142]) promulgating ranges of sentences based upon the quantity of the drug imported. Where the quantity was a "substantial commercial quantity" - quantified as 3.5 to 10 kilograms - the proposed range of sentences (head sentences) was 10 - 15 years. It is not entirely clear, but there is an indication that the proposed sentences were intended to apply in cases where the offenders were convicted after trial. Wong and Leung were decided (in this Court) before the publication of the guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 and also before the later decision in Cameron, concerning sentencing of federal offenders. Each of these cases dealt with the manner in which sentencing judges ought to allow credit in respect of a plea of guilty. Little attention was therefore paid in Wong and Leung to whether the purported guideline incorporated any reduction for a plea of guilty, or was subject to such a reduction. That uncertainty creates a not insignificant obstacle to the application of the guideline promulgated. There are other obstacles. 79 On appeal to the High Court, by majority, the orders (that is, the orders of this Court upholding the Crown appeals, setting aside the sentences imposed at first instance, and re-sentencing the respondents) were set aside. Since the promulgated guideline of itself involved no order or declaration, it produced no order or ruling that was subject to appeal to the High Court, or that could be set aside by that Court. The High Court unanimously held, however, that the promulgation of guideline sentences was not available with respect to sentencing under federal law: Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584. 80 Notwithstanding that, it has since been held that the sentencing guidelines promulgated by this Court in that case continue to operate as "a useful guide": R v Rivadavia; R v El Akkaoui; R v Aksu [2004] NSWCCA 284; (2004) 61 NSWLR 63. In Tyler v R; R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458 I acknowledged, without endorsing, that proposition. Contrary to the submission made by the DPP, the proposition was not endorsed in R v To [2007] NSWCCA 200; (2007) 172 A Crim R 121; Hulme J considered the decision to be "instructive" for the summary it provided of the results of previous decisions: at [21]. 81 It was on this basis - that is, on the basis of the range of sentences proposed in relation to offences for the importation of commercial quantities of heroin in Wong and Leung - that senior counsel for the DPP contended that the sentence imposed on each of the present respondents was manifestly inadequate. Having regard to the quantity of the drug involved, if the Wong and Leung proposed sentences were to be taken to be "a useful guide", the sentencing starting point for the present respondents would be 10 to 15 years and, given the quantity involved, towards the upper, rather than the lower, end of that range. That may be reduced by up to (about) 25 percent in recognition of the pleas of guilty, giving a range of (head) sentences of 7½ years to 11 years and 3 months, with non-parole periods of (again, applying federal sentencing practice) of 4½ years to 5 years, and 6 years and 9 months to 12 years. 82 These are somewhat higher sentences than those here imposed. If the fundamental premise of the DPP were correct, that would go some way to establishing error. 83 However, the DPP's submission went further. Application of Wong and Leung sentences is complicated by the repeal of s 16G of the Crimes Act 1914 (Cth). Wong and Leung were decided before the repeal. 84 Section 16G required a court sentencing federal offenders in jurisdictions where sentences were not subject to remissions to take that fact into account. NSW was such a jurisdiction. Effect was given to s 16G by sentencing judges by reducing sentences, generally by about one-third. Section 16G was repealed with effect from 16 January 2003. After the repeal, obviously, it would be expected that sentences would increase commensurately (that is, by about one-third): R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1; R v Kevenaar [2004] NSWCCA 210; (2004) 148 A Crim R 155; R v Rivadavia, [72]. Accordingly, on the Crown's argument, the Wong and Leung range of sentences ought to be increased by about one-third. Thus, post s 16G repeal (and before reduction in respect of a plea of guilty), head sentences for the offences committed by the respondents, if in accordance with Wong and Leung, would be between something over 13 years and 20 years. After deduction in recognition of the pleas of guilty, the range would be 9 years and 9 months to 15 years. If the fundamental premise of the DPP (that is, that the proposed sentences in Wong and Leung should stand as "a useful guide") is correct, the case that the sentences here under consideration are manifestly inadequate would be strong indeed. 85 The argument advanced on behalf of the DPP calls, in my opinion, for re-examination of the notion that the Wong and Leung sentencing range stands as "a useful guide" to sentencing federal drug offences. 86 Analysis of the High Court judgments in Wong and Leung reveals two strands in the reasoning that led to the disapproval of the guideline sentences. I say disapproval because the High Court acknowledged that, since the pronunciation of the proposed sentences as guidelines itself involved no order or judgment, that Court had no power to quash them, or set them aside. The Court did, however, by majority, set aside the orders that resulted from their application, and made manifest its unanimous disapproval of the process that led to the promulgation of the guidelines, and of the reasoning that resulted in the selection of the specific sentencing ranges. 87 One of the strands in the High Court's reasoning concerned the power of this Court to promulgate sentencing guidelines in respect of federal offenders. To do so was inconsistent with the dictates of s 16A of the Crimes Act 1914 (Cth), and liable to constrain the exercise of the sentencing discretion (Gleeson CJ at [31], Gaudron, Gummow and Hayne JJ in a joint judgment at [72]). That is not a matter that impacts upon whether the promulgated sentences continue to operate as "a useful guide" and I need say no more about it. 88 But the Court also held that the principles that underlay the selection of the promulgated guideline sentences were flawed, as was the process by which they were selected. 89 Notwithstanding that, in Tyler and Chalmers, I recognised (without adopting or dissenting from) the proposition that the Wong and Leung sentences are available as "a useful guide" and in TYN v R [2009] NSWCCA 146; (2009) 195 A Crim R 345, I distinguished the sentences there in question from those specified in Wong and Leung (again without questioning their relevance), the time has now come to confront the proposition. 90 In the light of the criticisms made by the High Court, I am unable to see how the selected sentences can stand as "a useful guide". With respect to those who have thought otherwise, I have come to the view that the proposition that the Wong and Leung guideline sentences continue to operate as "a useful guide" cannot withstand scrutiny. 91 I would therefore reject the Crown's submissions that the sentences propounded in Wong and Leung provide, even with appropriate modifications, in recognition of pleas of guilty, and the repeal of s 16G, any guidance in sentencing under s 305.3. 92 That leaves open the important question. In sentencing under s 305.3, does the Court look to sentencing patterns for comparable federal offences, carrying life sentences - for example, importation of commercial quantities of heroin? Or does it look to sentencing patterns in respect of comparable state offences - for example, manufacturing commercial quantities of the same drug as is here in issue, amphetamine? 93 There is something to be said for either approach. The quest is for consistency - a desirable goal in sentencing: Wong and Leung [6], per Gleeson CJ. Consistency in sentencing is conducive to respect for, and acceptance of, the administration of criminal justice. Inconsistency undermines that respect and acceptance. But this case raises the question: consistency with what? 94 On the one hand, it may be said, those who commit offences against federal law ought, so far as can be achieved, to be sentenced consistently with one another, whether the offence is committed in NSW, WA or any of the other Australian jurisdictions. No doubt federal authorities would perceive that as the primary goal. 95 On the other hand, it may equally be said, offenders who commit essentially the same offence (for example, manufacturing amphetamines) ought to be sentenced consistently with one another, whether the offence is charged under state or federal law. 96 In oral submissions, senior counsel for the DPP urged adoption of sentencing patterns in respect of federal offenders, to the exclusion of sentencing patterns (if they are different) in respect of state offenders. Consistency in sentencing between the various jurisdictions in which the Code applies is, she argued, a primary goal. It would be wrong for offenders guilty of offences that are comparable to be sentenced differently from one another merely because of the sentencing patterns of the state or territory in which they are sentenced. 97 The argument assumes that there is a difference in sentencing patterns under federal and state law. If that assumption is correct, then it is not difficult to imagine that an offender charged and sentenced under the harsher regime, in a prison cell adjoining that of an offender charged with and sentenced for exactly the same type of offence under the more lenient regime, might experience a sense of injustice. 98 Of course, the argument evaporates if the assumed difference in sentencing patterns is not shown to exist. 99 As I have indicated, senior counsel for the DPP put all her eggs in the Wong and Leung basket. This Court was not referred to sentencing patterns, or statistics, in relation to federal offences other than as propounded in Wong and Leung. 100 The limitations on the use of statistics are well known. Statistics do not reveal the wealth of differences in the facts and circumstances of individual cases that go into the sentencing decision. With that in mind, I have had recourse to some statistics provided by the Judicial Commission of NSW. A further limitation is that, because of the way the matter was presented, the Court has not heard argument on what ought to be made of the statistics, and has not had the assistance of counsel in the selection and provision of such statistics as are available. The only purpose of this exercise is to attempt to determine whether relevant differentiation exists. 101 After surveying such material as I was able to extract, I came to the conclusion that it had not been demonstrated that the relevant discrepancy in sentencing patterns exists. That is not a conclusion that it does not exist: merely that the information put before this Court and supplemented by those statistics provided by the Judicial Commission does not establish the divergence. 102 The statistical material from the Judicial Commission discloses only a very small - surprisingly small - sample of offences charged under the DMT Act of manufacturing amphetamine; the usefulness of that small sample is complicated by the circumstance that, from 2003, pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"), a standard non-parole period of 10 years is prescribed for a mid-range offence against s 24(2) of the DMT Act. That is anticipated to have the consequence that sentences will increase, but the statistics are inadequate to show that that has so far happened. In any event, care ought to be taken to ensure that a state sentencing regime such as that prescribed by Pt 4 Div 1A is not applied, by transference, to federal offenders. Part 4 Div 1A is a particular regime that operates by its own statutory force in sentencing NSW offenders: it is of no relevance or applicability to federal offenders. That is, in fact, a powerful argument in support of the DPP's general contention. 103 The statistics provided by the Judicial Commission in relation to offences against s 24 of the DMT Act (which appear to include offences against sub-s (1), involving less than the commercial quantity) are divided into those imposed under the pre-Pt 4 Div 1A regime (July 2001 to June 2008) and those to which the standard non-parole period applied (February 2003 to June 2008). In each category only five sentences appear. That is, in my opinion, too small a sample to provide any reliable base for a conclusion about sentencing patterns. 104 The statistics in relation to Customs Act prosecutions are similarly divided into two categories - those imposed before the repeal of s 16G of the Crimes Act, and those imposed after that repeal. In the former category 16 cases appear; in the latter 28. The latter shows a range of head sentences of between 8 years and life. There are three sentences of 16 years, one each of 18 and 20 years, and three of more than 20 years. 105 Although that latter set of figures certainly suggests a higher range of sentencing for those offences, the material simply does not permit reliance to be placed upon what might not be a legitimate inference. It would be dangerous, in my opinion, to reach conclusions based upon such scanty statistical material. 106 The statistics do not reveal whether any sentence in question was reduced by reason of assistance to authorities; the age or personal circumstances of any offender including prior criminal activity; the objective circumstances of the offence; the quantity of drug involved; the level of involvement of the offender; or any mitigating or aggravating factors. 107 It is, therefore, not clear to me that the divergence in sentencing patterns that underlies the DPP's submissions exists. 108 Nevertheless, the question posed earlier remains: in sentencing under s 305.3 of the Code, does the Court have regard to comparable state, or comparable federal, sentencing? 109 I have concluded that it is unnecessary to opt for one to the exclusion of the other. The argument highlights the difficulty with using statistics. Sentencing judges are entitled to have regard to both lines of sentencing; the true comparator will be offences having sufficient parallels with the offence for which a sentence is to be passed. To opt for one sentencing regime against another has, potentially, another consequence that is both unexpected and undesirable. Where, as here, state and federal legislation creates offences that are, relevantly, identical, a prosecutor would be given the option of prosecuting under the regime perceived to be the harsher. 110 The essential question for determination in this case is: were the sentences too low to reflect the gravity of the crimes, taking into account such mitigating factors as existed (and these were relatively few)? 111 I accept that the sentences appear to have been markedly lenient. But it must be remembered that each sentence was reduced by 25 percent to take account of the plea of guilty. That means that the starting point of sentencing was a head sentence of 7½ years and a non-parole period of 5 years. That is not significantly out of step with the range of sentences for Customs Act offences thrown up by the Judicial Commission statistics, nor sentences for DMT Act offences. 112 Having considered the written and oral submissions made by all parties, and I having reached, tentatively, the conclusions set out above, the Court on 24 July 2009 called for further submissions. It identified a series of sentencing decisions, with specific reference to charges of manufacturing, having been concerned in manufacturing, or aiding and abetting manufacturing. It re quested further submissions on the significance, if any, of those, identified, decisions, together with any other decisions of which the parties were aware and submitted to be relevant. The Court attached a schedule of 14 cases, identifying the offence(s), the sentence(s) imposed, the quantum and nature of the drug, and the plea. All were sentences under the NSW legislation. The Court drew attention also to the decision of this Court in Maldonado v R [2009] NSWCCA 189, a decision of this Court given after judgment in this case had been reserved in respect of an offence under s 305.1 of the Code. 113 The response on the part of the DPP was inadequate and disappointing. It reiterated the submission put previously, that the only applicable guidance lies in sentences imposed in relation to Commonwealth offences. In support of that proposition, the DPP relied upon Maldonado. In that case, the DPP pointed out, regard was had only to sentencing under Commonwealth law, as being of precedent value. 114 Maldonado involved an offence of aiding and abetting the manufacture of a commercial quantity of cocaine, together with an offence of trafficking a commercial quantity of cocaine, and two counts of dealing with the proceeds of crime. Although it is not explicit in the judgment, it is plain from sentencing and re-sentencing that all charges were prosecuted under the Code. 115 The first two offences each carried a maximum penalty of life imprisonment. The first (aid and abet manufacture) involved the production of 30 kilograms of the drug. The second (trafficking) arose from the sale of 6 kilograms (according to the sentencing judge's Remarks on Sentence). At first instance Maldonado was sentenced, on those offences, respectively, to imprisonment for 22 years and 15 years. Accumulation of those sentences, and those imposed in respect of the money-laundering offences, resulted in an aggregate sentence of 36 years, with (in accordance with the Commonwealth sentencing regime) a non-parole period of 22 years. 116 On an application for leave to appeal against the asserted severity of the sentences, this Court (Latham J, with whom Campbell JA and Harrison J agreed), held that the individual sentences imposed were not manifestly excessive, but that the aggregate sentence that resulted from the accumulation was. The Court did not interfere with the individual sentences, but restructured them so as to impose an overall head sentence of 28 years with a non-parole period of 17 years. 117 Even the actual individual sentences imposed in respect of the two drug offences are of limited present value. That is, in part, because of the quantity of the drug involved, but more particularly because of the scale of Maldonado's criminality and the mosaic of offences in which he was involved. 118 It is true, as was pointed out on behalf of the DPP, that, in considering and ultimately rejecting the submission that the sentences imposed were individually manifestly excessive, Latham J referred to a series of decisions of this Court. All can be seen to be decisions with respect to Commonwealth offences, generally involving importing, being knowingly concerned in importing, or conspiring to import, border controlled drugs. 119 The further submissions of the DPP then made some general observations concerning the schedule provided to it by this Court. They pointed out, correctly, that the cases involved "significantly varying amounts of drugs, role [of the offender] and personal circumstances"; that, in some cases, parity with co-offenders was an issue; that some were Crown appeals with the consequence that the ultimate disposition was a sentence reflecting the bottom of the available range. The DPP pointed out one significant difference between state and Commonwealth approaches to sentencing for drug offences: the Commonwealth regime requires the quantity of the drug to be established by reference to the pure quantity involved; state law looks at the admixture (although purity may often be a relevant consideration); accordingly, the bare statement of quantity in decisions in relation to state offences might present a misleading picture. The DPP also pointed out that the state position has been complicated by the introduction, in 2003, of Pt 4, Div 1A of the Sentencing Procedure Act, prescribing standard non-parole periods in relation to some offences (including an offence of manufacturing a commercial quantity of a relevant drug, for which the prescribed standard non-parole period is 10 years). Finally, the DPP referred to differing sentencing regimes with respect to the relationship between the head sentence and the non-parole period. Under NSW law, the non-parole period is first fixed, followed by the balance of term. The default position (although more notable by the frequency of departure than its adherence) is a non-parole period of 75 percent of the total sentence (Sentencing Procedure Act, s 44(2)). Commonwealth law requires sentencing for each individual offence, and the fixing of a single non-parole period. There is no specified proportion between the head sentence and the non-parole period. 120 All of this is correct. The DPP did not respond to the invitation to identify any other decisions said to be relevant. Nor did it identify any of the individual cases referred to in the schedule which it would contend is not of precedent value. 121 Most importantly, counsel for the DPP did not produce any material to establish sentencing patterns for Commonwealth offences. Whilst maintaining, forcefully, the submission that the appropriate - and the only proper - comparator is to be found in sentencing decisions for Commonwealth offences carrying a maximum penalty of life imprisonment, and that, in sentencing for Commonwealth drug offences, consistency between states and territories is of fundamental importance, they produced no material upon which this Court could perceive such a pattern. 122 The Court considered the response of the DPP to be unsatisfactory. Accordingly, by letter dated 12 August 2009, it invited yet further submissions. It identified the issues of concern as the submissions made on behalf of the DPP to the effect that: "(1) The relevant basis for comparison of sentences lies in sentencing for Commonwealth offences carrying maximum penalties of life imprisonment;

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(3) In sentencing for Commonwealth offences, consistency between jurisdictions is important." 123 It added: "The DPP has however, not identified any individual sentences, or patterns of sentencing, that would enable the application of these principles, if they were to be accepted by the Court." (bold in original) 124 Counsel for the DPP responded with additional written submissions. They repeated their reference to Maldonado, and pointed out, again, that the Court in that case considered decisions in relation to other Commonwealth offences. They mentioned specifically three of the cases that had been the subject of consideration in Maldonado; (these were R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525; R v Anderson [2004] NSWCCA 317; R v Mascaro-Varillas [2002] NSWCCA 524); they repeated a reference previously made to R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524; and they referred to four additional decisions. These were R v Millerat [2005] NSWCCA 142; R v Studenikin; TYN v R; and El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208. 125 Curiously, in light of the earlier expressed concern for, and the Court's reference in its letter to, consistency in sentencing between various Australian jurisdictions in Commonwealth matters, all decisions referred to were decisions of this Court. No attempt was made to identify sentencing patterns, or even sentences, in other states or territories. Yet nobody would be better placed than the DPP to have access to the entire range of sentencing for Commonwealth drug offences. 126 Moreover, although glancing reference was made to Otto as one of the decisions taken into account in Maldonado, the case was cited only as an example of a sentence imposed. The submission was: "In R v Otto this Court substituted a sentence of 10 and 6 months [with a non-parole period of 7 years] imprisonment for an offender who has imported just over 2 kg of cocaine under his clothing. It was a plea of guilty and he had no prior convictions." 127 Included in the judgment in Otto is a very useful and comprehensive table of 13 sentences imposed in respect of offences against s 233B(1)(b) and (c) of the Customs Act. 128 A similar exercise was undertaken by McClellan CJ at CL in R v Lee [2007] NSWCCA 234. However, generally, the offences there identified involved drug activity on a much larger scale than was here the case, and the offenders, on the whole, were more involved and at a significantly higher level than were these respondents. 129 I do not perceive any significant difference in the criminality involved in the importation of a prohibited (or border controlled) drug, and the manufacture of such a drug. To that extent, I would accept the DPP's submission that sentences imposed in respect of the importation of drugs provide a relevant comparator. Further, I would accept that, in a jurisdictional regime in which the legislature has prescribed maximum penalties of life imprisonment for different offences, sentences imposed in respect of one such offence, and, more particularly, the reasoning that precedes the imposition of the sentence, may provide guidance (where other circumstances are comparable) for sentencing in respect of another such offence or other such offences. 130 In my opinion, it is open to and proper for a sentencing court, and this Court, to have regard, in sentencing under s 305.3(1) of the Code, to sentences imposed in respect of the much longer established federal offences of drug importation that carry a commensurate penalty. 131 Equally, it is open to the sentencing court and this Court to seek guidance from sentences imposed in respect of the much longer established offence, under state law, of manufacturing drugs. That is particularly so where the legislation creating the offence under consideration is as recent, and therefore as little examined jurisprudentially, as is s 305.3(1). To confine the exercise to one or the other would be to deprive the sentencing court of a valuable resource and to risk the very kind of inconsistency the DPP seeks to avoid. 132 The real difficulty I have with the DPP's position is the sparsity of relevant precedent provided by it. 133 In the most recent submissions, counsel for the DPP referred to a number of cases. Maldonado was one such. The submission of the DPP was: "In Maldonado this Court determined that for the offences of manufacturing and trafficking cocaine, sentences of 22 years and 15 years imprisonment respectively (after a plea of guilty) were not manifestly excessive. That offender there had a significant prior conviction and the manufacture involved a greater amount of drugs. However, the offence of trafficking involved approximately 6 kgs. The commercial quantity for cocaine is 2 kgs. Consequently, the offender had three times the commercial quantity. The sentencing judge described the offenders conduct for that offence as about the mid range of seriousness." 134 But when recourse is had to the decision in Maldonado, the following additional information emerges. As already mentioned, Maldonado was sentenced in respect of no less than four offences: one of manufacturing, and one of trafficking cocaine; and two of money laundering. Two further offences (money laundering and possession of a marketable quantity of cocaine) were taken into account. 135 To say that Maldonado had a "significant prior conviction" is to understate the reality. The sentencing judge observed (during sentencing proceedings), in a passage extracted in the judgment of this Court, that he had previously been sentenced to imprisonment for 12 years for drug importation. 136 To say that his manufacturing offence involved "a greater amount of drug" than in this case in an even greater understatement. Maldonado pleaded guilty to aiding and abetting the manufacture of 34 kilograms of cocaine - five times the quantity the subject of the respondents' offences. 137 The sentencing judge in Maldonado also took the view that the money the subject of the money laundering charges was remitted to an overseas person who must be regarded as a principal. He regarded Maldonado as "a reasonably significant player" in the manufacture. 138 On appeal, Latham J said: "55 The criminality of the applicant in the commission of this offence went well beyond the importation and possession of the cocaine. The Judge recorded in his sentencing remarks the circumstances surrounding the commission of this offence. In brief, once the cocaine had been extracted, it was stored in an apartment in Campsie, from which it was sold by the applicant via a network of dealers who were in regular contact with a co-offender. Moreover, the 5 kg of cocaine found in the apartment on 12 June 2006 was of a different origin to the cocaine extracted from the Lucuma powder.

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56 There was evidence from telephone intercepts of the applicant's mobile phones indicating that between 10 April and 2 June 2006, the applicant was actively trading cocaine and accounting for the proceeds of sale to other offenders. During the applicant's interview on 12 June 2006 he admitted that between the middle of April and the beginning of May 2006, he sold 4 kg of cocaine to a Lebanese man and 1 kg to a Chinese man, each kilogram selling for $150,000, for which the applicant received a commission of $25,000. This offending called for a considerable term of imprisonment in its own right. For my part, I regard the Judge's finding that this offence fell in the middle of the range of objective seriousness as a generous one." 139 These circumstances show that the criminality involved in Maldonado was of a different order to and on a different plane from that the subject of the present appeal. 140 The sentences imposed in Maldonado itself afford no guidance to this Court. 141 The remaining cases, relied on by the DPP, however, if they stood alone, are capable of suggesting that the sentences imposed upon the respondents fall somewhat below existing sentencing patterns. Against those must be placed the cases cited on behalf of Choi, mentioned above. 142 In Otto, the offender was sentenced after pleading guilty to an offence of importing not less than the commercial quantity of cocaine, together with a (presently immaterial) offence of possessing a false passport. He pleaded guilty. The quantity of the (pure) drug involved was 2136.8 grams (just over 2 kilograms). At first instance he was sentenced to imprisonment for 14 years, with a non-parole period of 8½ years. On appeal, the sentence was reduced to a head sentence of 10½ years, with a non-parole period of 7 years. 143 In Mascaro-Varillas, the offender pleaded guilty to being knowingly concerned in the importation of not less than the commercial quantity of cocaine (just under 3 kilograms). At first instance he was sentenced to imprisonment for 15 years with a non-parole period of 11 years. This Court declined to interfere with the head sentence but reduced the non-parole period to 10 years. 144 In TYN, the offender pleaded guilty to importing not less than the marketable quantity of heroin (242.3 grams). He was sentenced to imprisonment for 6 years with a non-parole period of 3 years and 9 months. An appeal against severity was dismissed. 145 El-Ghourani involved a plea of guilty to the attempted possession of not less than the marketable quantity of heroin (the judgment does not disclose the actual quantity). He was sentenced to imprisonment for 9 years with a non-parole period of 6 years. An appeal against severity was dismissed. 146 Anderson involved sentencing after conviction by a jury, on a charge of being knowingly concerned in the importation of not less than the commercial quantity of cocaine (about 7½ kilograms). He was sentenced to imprisonment for 14 years with a non-parole period of 8 years. An appeal against severity was dismissed. 147 In Millerat, the offender imported just over 2 kilograms of MDMA (ecstasy). She entered a plea of guilty. At first instance she was sentenced to imprisonment for 5½ years, with a non-parole period of 2 years and 9 months. This Court concluded that excessive allowance had been made by way of reduction in sentence attributable to depression and anxiety suffered by the offender, resulting in a manifestly inadequate sentence. It allowed the Crown appeal and re-sentenced the offender to imprisonment for 9 years with a non-parole period of 4 years and 6 months. 148 Otto, Anderson, Mascaro-Varillas, TYN and El-Ghourani were all appeals against severity. Mascaro-Varillas was held to be a principal in the importing enterprise, and that fact alone provides an important point of distinction. Both Anderson and Mascaro-Varillas concerned sentences imposed before the repeal of s 16G of the Crimes Act. Comparison with those sentences involves the notional factoring in of the reduction which was made pursuant to that section suggesting sentences higher than were imposed. However, as Anderson concerned a sentence imposed after trial, requiring, for comparison purposes, a factoring in of the 25 percent discount allowed in respect of the pleas of guilty in these cases, these two points of difference effectively cancel each other out. 149 A collection of comparable cases involving severity appeals is capable of establishing a level at which sentencing is not manifestly excessive; such a collection is not capable of establishing a level at or below which sentencing is manifestly inadequate. Certainly, Otto, Anderson, TYN and El-Ghourani would suggest that significantly higher sentences would not have been appealably erroneous. Millerat, Otto, Anderson, TYN and El-Ghourani all point in that direction. 150 I am left with the uncomfortable feeling that the sentences here imposed were inadequate. But to allow a Crown appeal and increase a sentence involves a very serious step, and one which this Court does not undertake lightly. Having regard to the conclusion I am about to state, it is unnecessary finally to decide that. 151 Notwithstanding the enactment of s 68A of the Appeal and Review Act, this Court retains a discretion to dismiss a Crown appeal, even where error, whether by manifest inadequacy or otherwise, is established: JW, [95]. Relevant circumstances are those I have recounted above in outlining the unusual history of this case (see [4]-[9]). The respondents, through no fault of their own, have suffered an inordinate delay in the resolution of these appeals. Their potential release date is a few months away. This is, in my opinion, a case in which the residual discretion to decline to intervene ought to be exercised. 152 Further, it is because of the disappointing response on behalf of the DPP to repeated invitations to provide data, that the respondents have been deprived of the principles formerly applicable to Crown appeals, stated in Wall. 153 For these reasons, I would dismiss the Crown appeal. 154 BUDDIN J: I agree with Simpson J. **********

R (Cth) v Cheung; R

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