Second ground of appeal
20 In Sik's case, Ipp JA said:
"8 In dealing with the respondent's role in the dealings with the heroin, Taylor DCJ found that the respondent was a principal. Apart from Chung, the respondent's son was involved in the supply of the drugs and others may have been involved as well. Taylor DCJ said that the respondent was the person who organised the supply of drugs to Chung, presumably for their distribution. The respondent was the highest in the hierarchy of those involved in the particular transactions and the person most responsible for the relevant arrangements.
9 This was not the only serious offence involving narcotic drugs that the respondent, in his lifetime, has committed. In 1991 he was convicted of contravening s233B of the Customs Act (being in possession of a trafficable quantity of heroin). He was sentenced for this offence by Sully J who also sentenced him for certain firearm offences. Sully J imposed an overall sentence of 11 years imprisonment with a non-parole period of seven years. Effectively, his Honour imposed a head sentence of nine years imprisonment and a non-parole period of six years in respect of the heroin charges.
10 When the respondent was released on parole in respect of the s233B offence, he very soon committed breaches of parole conditions relating to notification of residence, approval of employment and failing to obtain permission before leaving New South Wales. The latter breach was particularly relevant as it involved visits by him to the Crown Casino in Melbourne. There he gambled and lost large sums of money. These losses caused him once again to embark on a course of drug dealing that in turn led to the sentence imposed by Taylor DCJ. The fact is that the respondent committed the offences less than six months after he was released on parole on 15 March 2000.
11 Prior to Taylor DCJ sentencing the respondent, Chi Luong Chung was sentenced by Coorey DCJ to nine years imprisonment as from 6 September 2000 with a non-parole period of six years. Chung was also sentenced on two proceeds of crime charges to six months imprisonment, to be served concurrently with the principal charge.
12 Taylor DCJ considered that there were two factors that particularly mitigated the criminality of the offence. These were the plea of guilty and the co-operation the respondent had afforded the authorities.
13 Taylor DCJ considered that the respondent should be treated as if he pleaded guilty at the earliest practical opportunity. His Honour noted however that the Crown case was very strong. Nevertheless, he considered that the plea had a utilitarian benefit. He said that the discount for the plea of guilty should be at the lower end of the range.
14 The level of the respondent's co-operation with the authorities was described by the latter as moderate. Nevertheless, his Honour held that the assistance had been to real effect and the respondent was entitled to a significant discount accordingly. The learned judge observed that the respondent, in co-operating with the authorities, had been motivated partly by self-interest and partly because of despair. He had been frank to the police."
21 Later in his judgment, Ipp AJA said:
"40 I also accept that, generally, principals involved in the narcotics trade should be given condign punishment: R v Hamzy (2000) NSWCCA 539. This rule must be seen, however, against the observations of the High Court in The Queen v Olbrich (1999) 199 CLR 270 where the majority said (at 279):
'Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did'.
41 Counsel for the Crown pointed out that the respondent was responsible for the organised movement of drugs around Sydney, he involved his son in the criminal transaction, he also involved Chung and perhaps others as well. He deliberately flouted his parole conditions, and demonstrated a continued disobedience to the law in the sense said to be relevant in Veen (No 2) . These matters, however, were all mentioned by Taylor DCJ in the course of his sentencing remarks and it cannot be said that he erred in not taking them into account.
42 I agree with the Crown's submissions that the overall effect of the respondent's conduct demonstrated a degree of criminality that called for a far higher starting point than that adopted by the sentencing judge. I come to this conclusion particularly because of the dominant role the respondent played in the transactions and the fact that he committed the offence so soon after leaving prison. But again, it does not necessarily follow from these matters that the appeal should succeed.
43 Where error in the sentencing process has not been demonstrated the Crown faces a difficult task in attempting to overturn a sentence on the ground that it was manifestly inadequate. See the comments of Spigelman CJ in Baker v R (2000) NSWCCA 85. In Wong & Leung [2001] HCA 64 the High Court said (at 58) that:
'Appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.'
44 In an effort to demonstrate that there had been appealable error, counsel for the Crown referred to cases where the sentences imposed were arguably far more substantial than those in the present instance. I am, however, not persuaded that the sentence imposed by Taylor DCJ, in the particular circumstances, was below the range.
45 I have said that in my view his Honour's starting point of 15 years imprisonment was too low. But the fundamental question before this court is whether the ultimate sentence passed was too low. It is not whether the starting point was too low.
46 In my view the starting point should have been between 21 and 23 years. I do not accept that it should have been significantly higher. Although the respondent bore paramount responsibility for the transactions, and although he was high up on the chain of supply, he was not the importer of the heroin, nor could he be described as a person responsible for the storage or distribution or control of large quantities of heroin. Rather, the heroin the subject of the charge must have been acquired by the respondent from such a person. Moreover, while the amount of heroin possessed by the respondent was a commercial quantity, and its value was substantial, the quantity, in relative terms, was not at the upper end of the scale."
22 In the result this Court, despite indications that the sentencing Judge's starting point in Sik of fifteen years imprisonment was too low and that Sik's degree of criminality called for a far higher point than that adopted by the sentencing Judge, concluded that the overall sentence imposed was within discretion, that is to say ten years imprisonment with a non-parole period of seven and a half years.
23 As I have said, appropriately adjusted to take account of the plea and subjective matters referred to the sentences imposed for the first offence should have been nine years and ten months imprisonment and for the second seven years and four months imprisonment.