(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;