R v Liang [2009] VSCA 18

Circumstances of the offence and of the offender

2 The appellant and his co-offender, Donghai Hu, were identified as a result of an optical surveillance and telephone interception operation undertaken by the Australian Crime Commission.

3 The facts on which the Crown relied were as follows. In August 2006, the appellant and Mr Hu travelled separately to Hong Kong and China. While overseas, they met with each other and a man known as 'Mr Ding'. Following their return to Melbourne, the appellant, Mr Hu and Mr Ding discussed purchasing cocaine and then re-selling it for a profit to be divided equally between them. Under the plan, Mr Hu and Mr Ding would liaise with narcotics suppliers, including a supplier known as 'Bald Head', to secure supply. It was intended that the appellant would liaise with prospective wholesale purchasers to secure the capital to buy the drug.

4 A quantity of cocaine was sourced from a supplier and it was arranged that the handover of the drugs would take place on 6 October 2006 at a car wash in Spencer Street, West Melbourne. Mr Hu received the cocaine as planned and took it to the appellant's Southbank apartment, where the two men weighed and re-bagged it. They informed Mr Ding of the successful collection of the drug. The appellant retained a sample of the cocaine to provide to prospective customers, and Mr Hu took the balance of the drug to his home in Kensington.

5 In the following days, the appellant unsuccessfully attempted to find a buyer for the cocaine. On 12 October 2006, Mr Hu's house was searched and the cocaine was found. It weighed 349.4 grams, 264.2 grams of which were pure. Both the appellant and Mr Hu were arrested on the same day and later pleaded guilty to the offence.

6 The appellant was 25 years of age at the time of sentencing. He is the only child of Chinese parents, who sent him to Australia to further his education. He completed his VCE in 2002, and has since undertaken courses at RMIT and at the Australian College of Tourism and Hospitality, the latter of which has been completed. The appellant's parents gave him $20,000 to start an import business in Australia. The business failed and, to avoid disappointing his family, the appellant began working in the hospitality industry to pay his debts. He has used various drugs, including cocaine, but is not an addict.

7 The mitigating factors relied on by the appellant's counsel at the plea included:

• his youth, guilty plea, absence of any prior convictions and remorse;

• the fact that no money had changed hands, and only a small portion of the cocaine was released into the community; and

• the extra burden that imprisonment would place on the appellant, as he did not have any relatives in Melbourne, and his parents lived in China.

8 Her Honour referred to these matters, and particularly to the appellant's early guilty plea, his relative youth and good prospects of rehabilitation.[3] Although the quantity of cocaine was at the lower end of the range that constitutes a 'marketable quantity', and the anticipated profit was $3,000 to $5,000,[4] her Honour accepted the Crown submission that 'this was not a naïve enterprise. It involved a considerable amount of planning and perseverance and the motive was financial gain'.[5] She said that '[d]rugs such as cocaine cause great harm to the community and [the appellant] must receive cogent (sic) punishment for [his] selfish actions in putting [his] financial gain ahead of the welfare of members of the community.[6] On that basis, her Honour was satisfied that a period of imprisonment should be imposed.

9 Her Honour took account of the roles played by the appellant and Mr Hu, and found that there was no reason to impose different sentences upon them.[7] Accordingly, both the appellant and Mr Hu received identical sentences.[8]

10 The appellant contended that the sentencing discretion miscarried because of a factual error made by the sentencing judge (ground 1) and because the sentence imposed was manifestly excessive (ground 2). We deal with each of these grounds in turn.

11 The appellant's counsel contended that the sentencing discretion miscarried because the learned judge incorrectly said that the appellant was involved in the sourcing of cocaine from Bald Head.

12 During the plea, the Crown relied on a 41-page document entitled 'Summary of Facts' and a four-page synopsis document. In the summary document, the appellant's role in the trafficking venture was described as follows:

Liang is apparently not revealed as having any direct contact with either prospective supplier. However he certainly had continuing and significant input regarding the selection of the preferred supplier, and the approval of any proffered purchase price and in nominating the quantity to be ordered.

Liang is revealed in conversations as having the greatest involvement in attempting to secure, in advance, a prospective wholesale buyer at a satisfactory resale price.

13 The synopsis says that Mr Hu and Mr Ding were to liaise with prospective suppliers, Ah V[9] and Bald Head (respectively), and describes the appellant's role as being 'to liaise with potential wholesale purchasers so as to secure capital in advance to enable the acquisition of the cocaine and resale to such persons'.

14 Consistently with the summary and the synopsis, the Crown submitted at the plea hearing that the conversations between Mr Hu, the appellant and Mr Ding showed that 'each of the accused was to play a separate but complementary role'. It was not suggested that the appellant's role was to source the drug, but rather that he was 'to deal downstream in terms of the marketing ... and the raising of capital in respect of the cocaine'.

15 When describing the circumstances of the offending, the learned judge made the following comments concerning the roles of the appellant and Mr Hu:

Your role, Mr Hu, was to liaise with a known supplier of narcotics referred to as RV to secure supplies. Mr Liang, you were to liaise with another supplier known as Bald Head and also with potential wholesale purchasers so as to secure capital [in] advance to enable the acquisition of cocaine and to re-sell to such persons.

Mr Hu, you were unsuccessful in concluding a deal for the supply of cocaine from 'RV'. Mr Liang was more successful as he managed to source a smaller amount of cocaine from the man to whom I have referred as Bald Head.[10]

16 Later in the sentence transcript the following exchange took place between sentencing judge and counsel for the Crown:

Counsel: The other matter, your Honour, your Honour on several occasions characterised the role of Mr Liang as involving the sourcing by him of the cocaine from the person named Bald Head. That is not the prosecution case, with respect, Your Honour. It was Mr Ding, not Mr Liang, who had, in fact, liaised with Bald Head. As we submitted in the course of the plea, Mr Liang's role was one of marketer, [and] Mr Ding and Mr Hu were responsible for the sourcing, the sourcing having been ultimately by Ding.

Her Honour: Yes. It appears to me that what I have done, I have got Mr Liang instead of Mr Ding, so it is a typo I haven't corrected. I haven't sentenced on the basis of anything other than the prosecution opening and I stress that. It is simply that Mr Liang's name has appeared here instead of Mr Ding and I should have picked that up.[11]

17 The appellant's counsel submitted that her Honour's reference in her sentencing remarks to the appellant liaising with, and eventually sourcing cocaine from, Bald Head was 'not typographical but of great significance to the sentencing discretion'. The error appeared in two separate (but consecutive) paragraphs of her reasons,[12] and in the case of the first reference it could not be corrected by replacing the appellant's name with that of Mr Ding, as to do so would incorrectly describe Mr Ding as having been involved in liaising with prospective purchasers. The appellant's counsel argued that the mistake was material to the assessment of the appellant's objective criminality, moral culpability and role in the criminal venture, and had resulted in the sentencing discretion miscarrying, requiring this Court to re-sentence the appellant. During oral submissions, counsel for the appellant submitted that contact with suppliers should be regarded as more significant than contact with wholesale purchasers, and that was the role of the appellant. It was also submitted that the appellant had not in fact found a purchaser.

18 In his written submissions, counsel for the Crown first said that her Honour's error had not affected her exercise of the sentencing discretion. However, he later said that the appeal raised a question about whether the error was one of exposition only or one of deliberation which had infected the exercise of the sentencing discretion. In these circumstances, counsel invited the Court to consider whether a different sentence ought to be imposed on the appellant.

19 Where a judge makes a material factual error in sentencing an offender, it will ordinarily result in the re-opening of the sentencing discretion. In R v Fox,[13] Chernov JA said that 'the question whether an error is material depends primarily on whether, had the judge known of the true situation, it is reasonable to suppose that a lower sentence would or might have been imposed'.[14]

20 Having regard to her Honour's statement following imposition of the sentence that the reference to the appellant should have referred to Mr Ding, we doubt whether her Honour was mistaken as to the basis on which the appellant was to be sentenced. However, even if her Honour did err, we do not consider that the error was material in the circumstances of this case. At the plea hearing, counsel submitted that the position in relation to both accused was essentially indistinguishable. Importantly, counsel for the appellant did not challenge that assertion.[15]

21 Both men were involved in the planning of the operation, although the appellant was involved in liaising with prospective wholesale purchasers and Mr Hu with sourcing the drug. Having regard to the fact that it was a joint operation, with each offender playing a different role, the description of the appellant as having liaised with Bald Head cannot have affected her Honour's assessment of his moral culpability. Nor could it have led her Honour to take a different view as to the relevance of the principles of general and specific deterrence.

22 We note, moreover, that the circumstances of the appellant and Mr Hu were broadly similar, and that her Honour imposed the same sentence on each of them. The appellant's counsel did not argue that the imposition of the same sentences on the co-accused gave insufficient weight to parity principles.

24 Counsel for the appellant submitted that the sentence was manifestly excessive, having regard to the appellant's plea of guilty at the earliest available opportunity, the fact that he was a first offender, his exposure to drugs, his voluntary efforts at rehabilitation in custody, his good prospects of rehabilitation and the fact that the offence was at the lower end of the scale of seriousness for this type of offence. Similar submissions were made to the sentencing judge.

25 We would also reject this ground of appeal. The maximum penalty for the offence is 25 years. Her Honour made specific reference to the factors relied on by counsel. The term of imprisonment was well within the range of sentences that could be imposed for this offence.

26 We would therefore dismiss the appeal against sentence.

[1] Criminal Code Act 1995 (Cth) s 302.3(1)

[8] See [1] above.

[9] Ah V sometimes referred to as 'RV' in the proceedings below.

[10] Reasons [3]-[4] (emphasis added).

[13] [2003] VSCA 138.

[15] Counsel for Mr Hu initially contended that he was not the instigator of the offence and did not act competently in liasing with suppliers, but ultimately conceded that this did not require a distinction to be drawn between the two offenders.