R v Peng GAO; R v Benjamin LIM; Benjamin LIM v R

Court of Criminal Appeal (NSW)|2007-08-30|Before: Basten JA, Latham J, Rothman J

CITATION: R v Peng GAO; R v Benjamin LIM; Benjamin LIM v R [2007] NSWCCA 343

JUDGMENT OF: Basten JA at 1; Latham J at 2; Rothman J at 46

DECISION: Peng Gao - 1. Dismiss the Crown appeal against sentence ; Benjamin Lim - 1. The prisoner's application for leave to appeal against sentence allowed; 2. The prisoner's appeal against sentence dismissed; 3. The Crown appeal allowed and the sentence imposed on the respondent Lim set aside ; 4. On the charge of Supply Large Commercial Quantity of a Prohibited Drug, impose a non parole period of 6 years, to date from 6 August 2006, expiring 5 August 2012, with a balance of term of 3 years and 10 months, expiring 5 June 2016. Mr. Lim is eligible for release on parole from 6 August 2012.

CATCHWORDS: CROWN APPEAL - supply commercial quantity and large commercial of ecstasy - supply to undercover police offer - objective gravity of agreement to supply - delay in lodging Crown appeal

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

R v Chan [1999] NSWCCA 103 Fahs v Regina [2007] NSWCCA 26 R v Truong (2006] NSWCCA 318 CASES CITED: R v Sciberras (2006) 165 A Crim R 532 ; [2006] NSWCCA 268 Vu v R [2006] NSWCCA 188 McKibben v R [2007] NSWCCA 89 R v Y [2002] NSWCCA 191

PARTIES: Regina - Crown Respondent (1) Pen GAO Respondent (2) Benjamin LIM

FILE NUMBER(S): CCA 2007/3306; 2007/3269; 2007/2952

Regina - G Rowling COUNSEL: Respondent (Gao) - H Dhanji Respondent (Lim) - A Radojev

Regina - S Kavanagh SOLICITORS: Respondent (Gao) - S O'Connor Respondent (Lim) - S O'Connor

LOWER COURT FILE NUMBER(S): 06/11/0462; 2007/3269; 2007/2952

LOWER COURT DATE OF DECISION: 15 December 2006 29 March 2007

IN THE COURT OF CRIMINAL APPEAL 2007/3306 2007/3269 2007/2952

BASTEN JA LATHAM J ROTHMAN J

14 DECEMBER 2007 REGINA v Peng GAO REGINA v Benjamin LIM Benjamin LIM v REGINA Judgment 1 BASTEN JA : In each of these matters, I agree with the orders proposed by Latham J and with her Honour's reasons. 2 LATHAM J : The Crown appeals against sentences imposed by Berman SC DCJ (the Judge) upon the respondents Gao and Lim in respect of one count of Supply a Large Commercial Quantity of a Prohibited Drug. That offence carries a maximum penalty of life imprisonment and a standard non parole period of 15 years. The Crown also appeals against the sentence imposed by the Judge on the respondent Gao in respect of one count of Supply a Commercial Quantity of a Prohibited Drug. That offence carries a maximum penalty of 20 years imprisonment and a standard non parole period of 10 years imprisonment. 3 Benjamin Lim appeals against the severity of the sentence imposed upon him, principally upon the ground that the Judge failed to give sufficient weight to certain mitigating factors. 4 Gao received a sentence of imprisonment on the Supply Commercial Quantity charge, comprising a non parole period of 5 years, to date from 11 February 2006, expiring 10 February 2011, with a balance of term of 2 years, expiring 10 February 2013. On the Supply Large Commercial Quantity charge, a non parole period of 7 years was imposed, to date from 11 February 2007, expiring 10 February 2014, with a balance of term of 4 years, expiring 10 February 2018. Three further counts of supply were taken into account on a Form One when the latter sentence was imposed. The aggregate non parole period was 8 years with a balance of term of 4 years. 5 Lim received a non parole period of 5 years, to date from 6 August 2006, expiring 5 August 2011, with a balance of term of 3 years, expiring 5 August 2014. Two further counts of supply were taken into account on a Form One when that sentence was imposed.

The Facts 6 In November 2005, a joint investigation including the New South Wales Crime Commission identified the respondent Gao as "Doggy" in the course of a number of legally intercepted telephone calls, wherein coded language was used by the respondent and his associates to refer to prohibited drugs and their supply. 7 On 22 December 2005, the respondent Gao met with an undercover police operative at Darling Harbour. Gao and the police officer discussed the supply of 1000 MDMA or ecstasy tablets. Gao agreed to supply that quantity for $15 per tablet. At a further meeting later that night, Gao supplied the police officer with that quantity of tablets and was given $15,000 cash in return. Analysis of these tablets revealed that they contained 26.5% 3,4-methylenedioxy-methylamphetamine. The weight of the tablets, being 284 g, was more than twice the commercial quantity applicable to that prohibited drug. This constituted the offence of Supply Commercial Quantity committed by Gao. 8 On 4 January 2006, Gao again met with the police officer at Darling Harbour. During this meeting Gao and the officer discussed the supply of 2000 ecstasy tablets. Once again, Gao agreed to supply the police with that quantity for $15 per tablet. Later that evening, Gao supplied the police officer with that quantity of tablets in return for the sum of $30,000 in cash. Analysis of those tablets revealed a 26% purity of MDMA. The weight of the tablets was 568.94 g, exceeding the large commercial quantity applicable to that drug by 68 g. This constituted the offence of Supply Large Commercial Quantity committed by Gao. 9 On 20 January 2006 the police officer again contacted Gao and commenced negotiations with him for the purchase of 10,000 ecstasy tablets. Gao informed the police officer that his usual supplier was unavailable and that he would have to source the tablets from another associate. The police officer requested a sample of between 50 and 100 tablets. 10 As a result of this negotiation, Gao contacted Lim, who informed Gao that the police officer would have to pay $30-$35 per tablet. The police officer rejected that price. There were further discussions between Gao and Lim. Later that day, Lim contacted Gao and indicated that he had 50 tablets for supply to the police officer. However, the supply did not proceed. This constituted one of the charges against Gao (Agree to Supply) on the Form One. 11 On 24 January 2006, Gao contacted the police officer to negotiate the supply of between 8,000 and 10,000 tablets for the following day. Gao then contacted Lim to arrange a meeting at Lim's residence to discuss the negotiated purchase. The following day, the police officer contacted Gao and confirmed that he wished to purchase 10,000 tablets. Arrangements were made to meet at 4 p.m. that day. Gao contacted Lim and confirmed that he wanted "ten" for 4 p.m. However, the meeting did not occur until 8 p.m. that evening. This constituted a further charge of Agree to Supply against Gao on the Form One. 12 At 8 p.m. the police officer met with Gao at Darling Harbour where Gao was shown the sum of $160,000 in cash. Gao then left Darling Harbour in order to meet with Lim at a hotel in the Sydney CBD. They separated and met later at a hotel on Broadway, Ultimo before walking to Lim's residence in Mountain St, Ultimo. Following further negotiations between the police officer and Gao by way of telephone, the transaction was ultimately terminated by the police officer. 13 On 26 January 2006, Lim contacted Gao and asked for an explanation for the failure of the transaction the previous evening. Gao indicated that the police officer had gone elsewhere. Lim urged Gao to contact the proposed purchaser with a view to supplying 5000 tablets. In the afternoon of that day, the police officer contacted Gao and negotiated for the purchase of 5000 tablets the following day. 14 On 27 January 2006, the police officer contacted Gao and confirmed that the transaction was to go ahead that evening. The police officer met with Gao in Darling Harbour, then both men walked to Quay St, Ultimo. The police officer left the area a short time later. Gao was seen to enter the premises occupied by Lim in Mountain St, Ultimo. The police officer cancelled the supply when Gao was unable to produce the tablets that day. This constituted the further charge of Agree to Supply against Gao on the Form One. 15 Lim was charged and pleaded guilty to the offence of Supply Large Commercial Quantity on the basis that he had agreed to supply not less than 500g of ecstasy (at least 5,000 tablets, weighing between 1kg and 2.5 kg) between 19 and 28 January 2006. On 9 February 2006, police executed search warrants on Lim's premises and found 3.8 g of MDMA and 7.76 g of methylamphetamine. These amounts founded two charges of deemed supply that were dealt with on the Form One.

The Crown Appeals 16 The ground of manifest inadequacy in respect of both respondents is based upon the Judge's finding that the offences in each case fell below the mid-range of objective gravity. The Crown submits that the Judge failed to properly assess the objective gravity of the offences, particularly given the quantity of the prohibited drug in each case and the relative positions occupied by the respondents in the drug supply hierarchy. Had the offences been properly assessed as at least in the mid range of objective gravity, according to the Crown submissions, the standard non parole period would have exerted a greater influence on the sentences imposed. It was acknowledged that the standard non parole periods were not directly applicable, given that both respondents pleaded guilty. 17 It is relevant to refer to this aspect of the Judge's remarks on sentence in each case.

The Respondent Gao's Objective Criminality 18 The Judge found that this respondent was :- a relatively high level supplier of ecstasy [who] was able to supply at short notice large quantities of that drug for significant sums of money. …. I was told without objection from the Crown by Mr Bellanto that he was only to earn a small sum of money from his activities which have led to these charges. Mr Bellanto relied in particular on the circumstance that there was an undercover officer involved in these offences. I will take into account in the offender's favour that because of the undercover officer's involvement no drugs were actually supplied to any users. That is not due to anything done by the offender, but it is a relevant matter, when I assess the harm of the offender's conduct, that the drugs were taken by police and not supplied to a user. … There is nothing to suggest that - and there is everything to suggest that the offender was a capable and indeed enthusiastic supplier of drugs because he stood to make some profit out of it. Nor on the material before me is there any evidence of the officer talking up the quantities involved. On the material before me it is simply the case that the undercover officer asked for a particular quantity and the offender agreed to supply it, on two occasions actually doing so. This clearly was organised criminal activity which is rightfully regarded as very serious. Indeed both offences have standard non parole periods. They are, of course, not of direct application because the offender pleaded guilty to each offence but they do remain as guideposts to the sentence I should impose in the present case. When I assessed the objective criminality of the offences for the purposes of formulating the appropriate sentence I do find that they are both slightly below the mid-range of such offences for two reasons, firstly because as I have mentioned they were just over the relevant quantity, and secondly because, as I have also mentioned, the drugs did not actually reach any end users. 19 The Judge's reference to the quantity in each case being just over the relevant quantity was incorrect, in so far as the quantity actually supplied on 22 December 2006 was, as noted above, more than twice the applicable commercial quantity. The error appeared in the agreed statement of facts, where it was asserted that the relevant commercial quantity was 250 g, in lieu of 125 g. It was not corrected at any time during the sentencing proceedings by the Crown's representative or the respondent's representative. To the contrary, the respondent's counsel relied upon the submission that the quantity was barely above the threshold amount, and the Crown's representative agreed with that submission. This was a matter of considerable significance to the assessment of the objective gravity of this offence undertaken by the Judge. 20 Before returning to this feature of the appeal, two further comments should be made. Firstly, the uncontested submission made by the respondent's senior counsel that the respondent did not expect to receive more than a modest sum for his role in these transactions was of negligible weight. The Judge did no more than note the submission. It is unlikely that the submission had any impact on the Judge's findings, given that elsewhere the Judge expressed his refusal to accept that the respondent was of previous good character because of the absence of any evidence to that effect. 21 Secondly, the Judge was entitled to find that, because the supply to an undercover operative prevented the drugs from finding their way into the community, the objective gravity of the offences was diminished accordingly, albeit slightly. In R v Chan [1999] NSWCCA 103, Smart AJ (with whom Sheller JA and Studdert J agreed) said at [20] - [21] :- It is not useful in the sentencing context of the present case to isolate or separate the element of the supplier's profit from the supply. If there be a case where the supply was not for the purpose of profit by the supplier that fact would have to be taken into account. The prevention of the dissemination of drugs into the community is intimately allied with the stern punishment of offenders. Without that, the prevention of supply and dissemination would be impossible of even partial achievement. Stern punishments are necessary, inter alia, because of the substantial profits to be made in supplying prohibited drugs. Suppliers take significant risks and seek to compensate themselves accordingly Underlying the whole drug supply industry and drug supply transactions and the reason they continue so strongly are the large profits to be made. New South Wales has legislation designed to ensure the offenders forfeit the profits which they have made from crime. In assessing the sentence to be imposed it is relevant to take into account that the prohibited drugs supplied to undercover agents will not be disseminated into the community. Of itself this is usually unlikely to lead to other than a very minor diminution of culpability. The offender had the intention to supply and in supplying knew and believed that the drugs would be likely to find their way into the community. The fact that they did not do so was not due to the offender.

See also R v Truong [2006] NSWCCA 318. 22 In Fahs v Regina [2007] NSWCCA 26, Howie J (with whom Simpson and Buddin JJ agreed) expressed the view at [29] that the fact that a commercial quantity of ecstasy did not reach the public, because of the supply of that quantity to an undercover police officer, reduced the objective gravity of the offence in that case below the mid-range. I do not understand his Honour to have been expressing any matter of principle. Clearly, there may be cases where a combination of factors, including a plea of guilty and supply to undercover operatives, will nonetheless justify a finding that the offence falls within the mid-range of objective gravity and warrants the imposition of a non parole period approaching the standard non parole period. That is, as I understand it, the Crown's argument in the instant case. 23 Returning then to the error in relation to the quantity comprising the commercial quantity, the actual quantity of the drug supplied may be an important indicator of objective gravity under the regime established by the Drug Misuse and Trafficking Act 1985 : R v Truong (supra) ; R v Sciberras (2006) 165 A Crim R 532 ; [2006] NSWCCA 268. Indeed, the Crown's submissions in this Court placed considerable reliance upon this error in the sentencing exercise at first instance. Accepting that the quantity was slightly more than twice the prescribed amount, was the finding that the offence was below the mid range of objective seriousness nevertheless open? 24 In my view, it was. The respondent's position on the drug supply hierarchy appeared to be below that of Lim. The respondent was obviously engaged in a commercial operation to supply ecstasy on a fairly regular basis. He had a number of contacts from whom to obtain the drug in large quantities, indicating that he was known and trusted by those who were closer to the point of manufacture and/or importation than he was. He was responsible for negotiating the price of the drug, but only up to a point. The respondent deferred to Lim when the price of the sample was set. These are all reasonably typical features of an offence of this type, in the sense that those who are capable of supplying such quantities have, of necessity, an acquaintance with other offenders who are nearer the source of the drug. However, an offence displaying typical characteristics does not necessarily equate with a mid-range offence. 25 I am of the opinion that, even had the identified error not been made, the offence could reasonably have been classified as one falling slightly below the mid-range of objective gravity, as the Judge found. The Supply Large Commercial Quantity offence also came within that description, particularly since the amount supplied was not significantly in excess of the threshold amount.

The Respondent Lim's Objective Criminality 26 The Judge began by noting that :- no actual drugs [were] supplied by the offender. He is to be sentenced on the basis that he entered into an agreement to supply 5000 tablets of that drug weighing between one and 2.5 kg. The purchase price was going to be $70,000. … One of the issues which has been the subject of discussion this afternoon concerns the significance or otherwise of the fact that the criminality here is an agreement to supply rather than actual supply. … The law sentences according not only to moral culpability but also according to consequences. … I note that in contrast to an actual supply, in this case the drugs never got into the hands of the offender. The drugs were never delivered to anyone and perhaps most importantly, the drugs did not get distributed to drug users because of police intervention. Even though the quantity involved is at least twice that which amounts to the large commercial quantity, I find in terms of the standard non parole period that the criminality involved is less than the mid-range. 27 Further, the Judge described this respondent as a middleman, albeit he was "a fair way up the supply process." That description arose out of evidence that the respondent contacted another supplier when Gao negotiated the sale of 10,000 tablets to the police officer. 28 The debate that occurred before the Judge concerning the relative criminality of an agreement to supply as opposed to an actual supply has arisen in this Court, most notably in Vu v R [2006] NSWCCA 188. After a comprehensive consideration of the authorities, Hall J (with whom James and Buddin JJ agreed) concluded that :- There will usually be a varying degree of objective seriousness between one or other of the activities that fall within the statutory definition of supply, but this … depends, not upon any general concept of a hierarchy of seriousness attaching to one or other of the activities that may constitute a "supply" as defined in s.3, but upon the facts and circumstances of each case. Plainly, agreements to supply or offers to supply prohibited drugs each constitute transactional activities that play an important and essential role in the chain of drug trafficking.

This approach was confirmed in McKibben v R [2007] NSWCCA 89. 29 The Judge's reliance upon this aspect of the offence was, in my view, misplaced. A consideration of the facts and circumstances of the case may well have led to the same conclusion, but the Crown's submission that an agreement to supply was capable of equal objective criminality to an actual supply should not have been rejected. There was no evidence to suggest that the respondent did not intend to supply twice the large commercial quantity. In fact, the statement of facts suggests that the respondent was keen to salvage something from the failure to supply the 10,000 tablets that the police officer had agreed to purchase. 30 The fact that, had the drugs been supplied, they would not have found their way into the community was of some significance in the context of an agreement to supply such a large amount of ecstasy. Notwithstanding the emphasis placed upon the gravamen of the charge by the Judge, the assessment of the offence as falling below the mid-range of objective gravity was an available one.

31 Notwithstanding that the offences committed by both respondents could be classified in these terms, were the sentences manifestly inadequate? For the following reasons, I have concluded that the individual sentences imposed upon Gao are lenient ones, but not entirely out of the range available to the Judge in the exercise of a broad sentencing discretion. However, there is force in the Crown's submission that the totality of this respondent's criminality is not adequately reflected in an aggregate sentence of 11 years. 32 Ultimately, I would dismiss the Crown appeal against the sentences imposed upon Gao in the exercise of the discretion not to intervene. So far as the actual sentence imposed in relation to the charge of supply a commercial quantity is concerned, the fact that the sentencing proceeded upon a misapprehension as to the quantity constituting the commercial quantity, for which the Crown's representative was partly responsible, also militates against intervention in relation to that sentence.

33 As the submissions on behalf of the respondent Gao make clear, the starting point for the sentences imposed upon Gao were 14 years and 8 months for the large commercial quantity charge, and 9 years 4 months for the commercial quantity charge, before the application of the 25% discount for his pleas of guilty. Those sentences are consistent with a finding of slightly less than mid-range objective gravity when one has regard to the available maximum penalties. 34 Gao's subjective case was limited to the tender of a number of certificates evidencing his attendance at courses within the prison system and the contents of a Pre Sentence report. Gao was 25 years of age at the date of sentence. He had immigrated to Australia from China six years previously to undertake studies in management and computers, but did not complete them. He had in the past worked part-time for two years as a furniture deliverer. Gao commenced using crystal methamphetamine hydrochloride (ice) on a daily basis in 2001. In 2002 he began using heroin in addition to cocaine and ecstasy. He claimed to be addicted to gambling and to suffer from depression. He was not receiving medication or any therapeutic intervention. He claimed to have committed the offence to obtain money to support his gambling and drug addictions. Gao had no significant criminal history, having been convicted of a number of minor traffic matters in 2002 for which he received fines. 35 Accordingly, there was very little in the way of subjective features that would justify any further mitigation of the penalty appropriate to the objective gravity of the offences. That said, this respondent was a young man with no relevant prior criminal history, facing a lengthy custodial sentence for the first time. 36 The accumulation of the sentence for the supply of the large commercial quantity by one year upon the sentence imposed for the supply of the commercial quantity does not reflect the criminality inherent in two substantial supplies, two weeks apart. Were it not for the particular circumstances of this case, I would favour intervention to correct this aspect of the sentencing exercise. 37 There was a considerable lapse of time between the imposition of the sentences on Gao on 15 December 2006 and the filing of the Crown appeal on 17 May 2007. That represents a delay of 5 months since the imposition of the sentences and 17 months since the commission of the offences. The respondent Gao was not informed of the Crown appeal until May or June this year. Delays in the order of 2 to 3 months have been criticised in other cases before this Court : see R v Y [2002] NSWCCA 191 and the cases referred to at [32] - [33]. No explanation was given for the delay and none readily came to mind. 38 The gravity of the offences is a powerful consideration in determining whether the case is an appropriate one for the exercise of the residual discretion. Notwithstanding that the offences are serious, I have come to the conclusion that the Court should refrain from intervening where such a significant unexplained delay has occurred.

Manifest Inadequacy : Lim 39 The delay in relation to Gao is not evident in Lim's case, given that he was not sentenced until 29 March 2007 and the Crown appeal was filed on 17 May 2007. In the case of Lim, I regard the sentence as manifestly inadequate, calling for the intervention of this Court.

40 The starting point for the sentence imposed upon Lim was 9 years, before the application of a discount for the plea of guilty entered on the day fixed for trial. The respondent Lim's subjective case was more detailed to the extent that a letter from the respondent, a Pre Sentence report and two reports from clinical psychologists were tendered on his behalf. The opinions of those psychologists were formed after assessments carried out in custody in early 2007. Lim was 22 at the date of sentence, but he had already acquired a criminal history of some note, including a conviction for aggravated robbery on 1 September 2006, for which the respondent received six months imprisonment, commencing on 7 February 2006. Lim was on bail for this offence when the instant offence was committed. 41 Lim was raised from the age of two in the south-western suburbs of Sydney. Following the separation of his parents, he lived with his father and attended a number of schools, ultimately leaving at the end of year 11. He commenced using cannabis at the age of 15 and methamphetamine at the age of 17. Based on an interview with the respondent, both psychologists were of the view that the respondent was addicted to ice and had been smoking that drug to dangerous levels in the days leading up to the commission of the offence. Given the respondent's history and presentation, the opinion of the psychologists was that his prognosis was guarded. 42 A starting point of 9 years for an offence involving twice the large commercial quantity and committed whilst on bail appears to me to be excessively lenient. It is difficult to reconcile that starting point with the approach taken in Gao's case, given that Gao's criminality for the Supply Large Commercial Quantity offence was assessed as warranting a further 5 years and 8 months, before the application of the discount, notwithstanding his lesser position in the supply hierarchy. Whilst the distinction between their respective offences, namely that Gao actually supplied whereas Lim did not, might be capable of explaining some minor variation, it must be remembered that Gao supplied only 68 gm more than the large commercial quantity. True it is that there was no real parity issue, but the Judge himself acknowledged that it was appropriate to have regard to Gao's sentence in arriving at Lim's sentence.

43 A starting point of 14 years in Lim's case was more than justified by all the objective and subjective circumstances, had the matter been properly assessed at first instance. It follows that I do not accept the submissions made in support of the respondent Lim's appeal against the severity of his sentence. Contrary to those submissions, the Judge did give particular weight to the fact that no drugs were supplied and an appropriate discount (10%) was given for the plea of guilty on the day of trial. Similarly, there is no force in the submission that the Judge failed to give appropriate weight to the respondent's prospects of rehabilitation, when the evidence in support of that factor was equivocal. The respondent was not entitled to leniency on account of his drug dependency, even accepting that it motivated the commission of the offence. Other factors, such as the respondent's youth and family circumstances, were all taken into account. A finding of special circumstances was made, resulting in a non parole period which was 62.5% of the head sentence. 44 Accordingly, the sentence to be imposed upon Lim following the success of this Crown appeal will be at the very bottom of the available range. A starting point of 11 years produces a sentence of 9 years and 10 months after the application of a 10% discount for the late plea of guilty. The Crown took no issue with the finding of special circumstances. I propose a non parole period of 6 years. 45 I propose the following orders :- Peng Gao 1. Dismiss the Crown appeal against sentence. Benjamin Lim 1. The prisoner's application for leave to appeal against sentence allowed. 2. The prisoner's appeal against sentence dismissed. 3. The Crown appeal allowed and the sentence imposed on the respondent Lim set aside. 4. On the charge of Supply Large Commercial Quantity of a Prohibited Drug, impose a non parole period of 6 years, to date from 6 August 2006, expiring 5 August 2012, with a balance of term of 3 years and 10 months, expiring 5 June 2016. Mr. Lim is eligible for release on parole from 6 August 2012. 46 ROTHMAN J : I agree with Latham J and the orders her Honour proposes. 47 No principle establishes as a general proposition that the fact, simpliciter, that the drugs are sold to undercover police and do not, therefore, reach the public, diminishes the culpability of the offending. 48 In such an undercover operation, it is beneficial to the community that the drugs are not able to be used. But that benefit is the result of the actions of law enforcement agencies, and not the result of any intention or action of the person charged. That there are no victims to such a sale may be a factor, like many others, that a sentencing judge takes into account, but for my own part, I would not generally consider it significant. **********

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Judgment (27 paragraphs)

Cases Cited (7)