R v Qi

A separate aspect

1. Before this Court, there was a dispute between the parties as to whether the learned sentencing judge had also sentenced the respondent for a related offence of resisting arrest, which had been placed before her Honour by way of a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (the CPA). The Crown submitted that sentence had only been imposed for the one serious drug offence. The issue is important for the following reason.
2. As at the date of imposition of the sentence, pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSPA), her Honour would have been entitled to impose an ICO of three years' duration, if sentences were being imposed for two or more offences. If only one offence was being dealt with, however, the maximum length of time for which an ICO could extend was two years: see generally s 68 of the CSPA as it had then become. And it is to be recalled that the learned sentencing judge imposed an ICO of two years six months.
3. In other words, the contention of the Crown was that, quite apart from any question of manifest inadequacy, if the sentencing judge was indeed imposing a sentence for only one offence, then the imposition of an ICO of more than two years was beyond jurisdiction, and for that reason alone the sentence imposed at first instance must be quashed.
4. The respondent submitted that it is tolerably clear that her Honour was purporting to impose an aggregate sentence for two offences: the serious drug offence, and the certificate offence. In the alternative, the position of the respondent was that, if some confusion developed that was superficially advantageous to the respondent at first instance (in the sense of him not being sentenced for the certificate offence when he should have been), that could hardly now be disadvantageous to him on this Crown appeal.

Grounds

1. In accordance with the introductory analysis that I have provided above, the Crown notified and pressed the following two grounds of appeal.

Ground 1: The sentence pronounced was manifestly inadequate.

Ground 2: The learned sentencing Judge erred by imposing an intensive correctional order in excess of the statutory limit of two years.

1. In order to assess both grounds, it is necessary to consider the salient objective features of the offending, the subjective features of the respondent, and some procedural aspects of the matter.

Objective features

1. I turn first to recount the objective features of the matter, in accordance with the findings made in the remarks on sentence, themselves based upon agreed facts tendered at first instance.
2. At about 7.25 pm on Saturday 13 May 2017, the respondent was driving a motor car in the Sydney suburb of Yagoona. Police were driving directly behind him.
3. Police intended to perform a roadside breath test on the respondent. However, after they activated the siren and lights of the police vehicle, the respondent attempted to accelerate away. His vehicle became blocked by another car in front.
4. The respondent turned left into a side street, and police witnessed him lean over to the passenger side of the vehicle. As the respondent made another turn, he threw a black garbage bag out of the driver's window.
5. Police followed the respondent until he eventually pulled over. While police were asking him to alight from the vehicle, the respondent appeared to reach towards the centre console of the car.
6. Police opened the driver's door, removed the respondent, and attempted to handcuff him. The respondent resisted by tucking his hands under his chest. Police eventually restrained and handcuffed him. This interaction led to the certificate offence of resisting arrest.
7. Police then drove back to retrieve the black garbage bag that the respondent had thrown out of the car window. The bag was inspected, and it was found to contain 1,983.1 grams of methylamphetamine, which had been divided into smaller bags. It had a purity of approximately 57.5%. This led to the substantive count.
8. When asked about the black garbage bag, the respondent denied knowledge of it, and then exercised his right to silence.
9. The respondent was conveyed to a police station where, following a search, a further 1.13 grams of methylamphetamine was found on his person. The respondent denied any knowledge of that substance, and declined to be interviewed about it. That small quantity of prohibited drug led to an offence of possession, which was placed on a Form 1 pursuant to s 32 of the CSPA, and was to be taken into account on sentence for the major drug offence.
10. The black garbage bag was later shown to have the fingerprints of the respondent on it, but the smaller bags inside it did not.

Disposition of charges arising from above facts

1. Because of the issue that underpins ground 2 and that I have discussed briefly above, I set out a conspectus of which offences were before the District Court, and exactly how they were disposed of.
2. Before the District Court at the stage of the first proceedings on sentence were: one count of supplying the large commercial quantity of methylamphetamine, founded on possession for supply; what I shall call a "wholly included alternative" backup charge on a certificate of possessing the same quantity of the same drug; an offence of possessing the small amount of the prohibited drug that was on the Form 1; and the further related offence on a certificate of resisting arrest.
3. In an orthodox manner, the backup possession charge pertaining to the quantity of drug that the respondent had admitted he had possessed for supply was dismissed by consent.
4. The offence on the Form 1 did not, of course, require the imposition of a separate sentence.
5. In contrast, however, the related offence of resisting arrest was not dismissed, nor taken into account, and accordingly it was necessary for the sentencing judge to impose a sentence on it. I interpolate that the gravity of the resist arrest obviously paled into insignificance when compared to the gravity of the serious drug offence.
6. Due, with respect, to a degree of confusion that developed at first instance, however, that imposition of sentence for that lesser offence did not occur. Despite the fact that the respondent had pleaded guilty to the resist arrest, we were provided with evidence on the appeal that Justicelink records show that the resist arrest charge has (mistakenly) been dismissed.

Assessment of objective seriousness at first instance

1. Returning now to the remarks on sentence, the sentencing judge made the following findings about, and assessments of, what her Honour described as objective features.
2. Her Honour stated that whilst the respondent's role was to perform the "valuable" task of transporting drugs, his role was limited to that task. Therefore, her Honour found that the respondent's role was "minimal", and could have been performed by anyone entrusted to fulfil it.
3. Her Honour further observed that the respondent's task of transportation was to be performed on only the one occasion.
4. In addition, the respondent was trusted to only a certain extent; for example, he was not given the actual delivery address.
5. Her Honour viewed the quantity of the drugs involved as a "less important feature", given that the respondent did not have any real control over the quantity of the drug that he was tasked to transport.
6. The sentencing judge also noted that the offences were committed for financial gain, in the sense of clearing a substantial debt owed by the respondent. The offences were also committed in the context of the respondent suffering from his own serious problems with prohibited drugs, and with gambling.
7. Her Honour concluded that the respondent's offending fell towards the lower end of the range of seriousness for offences of this kind.

Subjective features

1. The sentencing judge found the following subjective features established on the balance of probabilities.
2. The respondent was born in China in 1994, and was almost 24 years of age on the date of sentence. He had emigrated to Australia as a child in 2003. He has a step-father and two brothers. The respondent's initial education in this country was compromised by his language difficulties.
3. As for the respondent's employment history, her Honour recounted that after leaving school he worked in sales between 2010 and 2014. The respondent also studied business management and real estate, and from 2015 he worked for a pest control company. After having been refused bail for a time on the matters under appeal, the respondent worked at his cousin's furniture store, and at the time of sentencing was managing a gym.
4. Relatedly, her Honour regarded the support of the respondent's cousin towards his rehabilitation as protective against further offending.
5. The sentencing judge remarked that the respondent had longstanding issues to do with depression, anxiety, and low self-esteem.
6. Concerning the respondent's history of drug use, her Honour stated that at the age of 21 he was using cannabis and occasionally MDMA (ecstasy). It was further observed that the respondent's primary drug use had been cocaine and that he was using it almost daily, several grams at a time, by the time of the offending. The sentencing judge detailed various symptoms, such as high levels of paranoia and sleep deprivation, which her Honour found to be consistent with his regular drug use.
7. Her Honour took into account the respondent's bingeing on alcohol, as well as his cycle of drug use, gambling and absence from work - a cycle which compounded his financial problems and his depression.
8. It was noted that the respondent had come to associate with criminals.
9. Her Honour further stated that since having been in custody, the respondent had reflected upon his actions and their impact on the community and his family. He had also realised that he did not want to be in custody, had ceased drug use, and had "got himself together".
10. In relation to the rehabilitation of the respondent, her Honour remarked that the respondent had undertaken courses directed to it, and drug and gambling counselling. Her Honour also noted that the respondent had been under the supervision of Community Corrections, and had not returned a positive drug test.
11. The sentencing judge also noted that the respondent had a girlfriend of five years, which her Honour stated provides the type of bond that is protective against further offending.
12. Finally, the sentencing judge took into account the respondent's youth and lack of relevant criminal history (the respondent only had previous convictions for two driving offences), as well as the good character references provided by the family and friends of the respondent.

Procedural aspects leading to imposition of ICO

1. I turn now to set out briefly the course of the proceedings, including the position of the prosecutor at various stages.
2. The proceedings first came before her Honour on 4 June 2018. The evidence of both parties was placed before the court in the usual fashion. In the final address on sentence for the Crown on that occasion, it was said that "[t]he Crown does not assert that the facts here give rise to him being substantially involved in drug trafficking 'cause it's simply just not available on the facts for us to make that submission." (there are no page numbers on the transcript of the proceedings on sentence with which we have been provided; accordingly, AB 102.39).
3. Having said that, the Crown made it clear that "we say that the s 5 threshold has definitely been reached" (AB 103.18), and proceeded to give reasons for that position. I interpolate that that is a reference to s 5 of the CSPA, and is to be interpreted as being a submission that no sentence other than imprisonment was open to the sentencing judge.
4. On the other hand, in later discussion on that day between the sentencing judge and the prosecutor about the possible imposition of an ICO, it was said that "I can't really speak to that … [t]he Crown would have concerns but I'm also mindful given Parente [[2017] NSWCCA 284] and Robertson [[2017] NSWCCA 205]" and "[s]o I feel my hands are slightly tied because of those cases" (AB 108.30 and following).
5. Later on the same day, however, the prosecutor said, "I would be concerned and if your Honour was to order an ICO assessment perhaps when we come back I can seek some internal guidance and present your Honour with the Crown's position about that ICO" (AB 109.11).
6. In the event, on the same date, her Honour referred the respondent for an ICO assessment, and gave brief reasons for doing so.
7. The matter returned to her Honour on 21 August 2018. The ICO assessment was favourable. The respondent gave evidence on oath, as did a forensic psychologist who had examined the respondent.
8. In further oral submissions, the prosecutor said that "the Crown's main concern here is that your Honour could fall into appealable error" (AB 143.08). Later it was said that "the Crown has real concerns that your Honour would be falling into appealable error by ordering anything other than a fulltime custodial sentence" (AB 146.14). The Crown went on to refer to the maximum penalty, the standard non-parole period, and statistics pertaining to sentences imposed for this offence.
9. After having heard from senior counsel for the respondent, the sentencing judge continued the bail of the respondent, and stood the proceedings over for sentence on 12 October 2018. It was on that date that the sentence now under appeal was imposed.

Ground 1 - The sentence pronounced was manifestly inadequate

Submissions of the respondent resisting ground 1

1. In written and oral submissions, senior counsel for the respondent made four main points in resistance to the simple submission of the Crown that, in all the circumstances, this sentence was so lenient as to be unavailable and erroneous.
2. First, it was submitted that the various findings about subjective and objective features made by the sentencing judge indicated that the sentence was not manifestly inadequate. These findings included: the utilitarian discount for the early plea, the reward for the offending being forgiveness for a debt as opposed to payment of an actual sum of money, and the respondent's "minimal" role in the supply of the quantity of prohibited drugs.
3. In oral submissions, senior counsel for the respondent emphasised that the reward provided did not amount to any cash payment. That was said to be because the debt was to the value of $30,000, which was in fact "valueless" because the respondent simply could not repay it. The submission was that the reward therefore could not be equated with a payment of $30,000.
4. Secondly, it was submitted that the sentencing judge was well aware of, and appropriately took into account, the maximum sentence and the standard non-parole period.
5. Thirdly, senior counsel submitted that the sentence was not outside the range of available outcomes, considering that the sentencing judge had advisedly applied s 66 of the CSPA. The section is as follows: (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.
6. Senior counsel submitted that the section applied on the date on which the respondent was sentenced and that, in accordance with the section, her Honour had made community safety a paramount consideration when considering whether to make an intensive correction order. Senior counsel made reference to the second reading speech of the relevant statute, which, he submitted, made clear that that community safety referred to in s 66 could be protected through rehabilitation and supervision in the community of an offender.
7. Fourthly and finally, senior counsel emphasised the less prescriptive approach to sentencing in drug matters, including serious drug matters, recently elucidated by this Court in the well-known decision of Parente [2017] NSWCCA 284.
8. Senior counsel for the respondent separately submitted that, even if error was found, this Court should not exercise its residual discretion, because the respondent was sentenced in the context of the "confusing application of new legislation" that had come into effect immediately, but did not have transitional or saving provisions attached to it. (I understood this submission to be directed towards any success by the Crown on ground 2.)
9. He also submitted that, inevitably, any sentence of full-time imprisonment would run the risk of interfering with the rehabilitation already achieved.
10. Senior counsel separately submitted that, if the Court were to reject both his submissions about manifest inadequacy and about the residual discretion, and re-sentence the respondent, the respondent's rehabilitation prospects and efforts between sentence and the date of the appeal hearing must be taken into account. In that regard, he referred particularly to the respondent's lack of further offending and his youth.

Determination regarding ground 1

1. In my opinion, the sentence imposed did indeed fall outside the discretion available to the sentencing judge, and was manifestly inadequate. I say that for the following reasons, in general conformity with the submissions of the Crown before this Court.
2. First, the maximum penalty for this offence is imprisonment for life without possibility of parole. That maximum penalty speaks for itself in terms of the view of Parliament about the seriousness of supplying a large commercial quantity of a prohibited drug.
3. Without purporting to promulgate any sort of prescriptive rule, an inevitable function of that maximum penalty is that, as a matter of common sense, it would only be in very exceptional circumstances that a sentence other than full-time imprisonment would be imposed for this offence. And the position of the respondent, whilst persuasive and deserving of sympathy, cannot be characterised as exceptional, let alone very exceptional.
4. In my opinion, the above general proposition can be tested - again, without being mechanistic or prescriptive - by considering some other offences in which Parliament has provided a maximum penalty of imprisonment for life: murder (s 19A of the Crimes Act 1900 (NSW)); sexual intercourse with a child under 10 (s 66A of the same Act); and aggravated sexual intercourse without consent in company (s 61JA of the same Act). I accept, of course, that sentencing for different offences that share the same maximum penalty is not to be thought of as needing to proceed in "lockstep". But it is instructive, I think, that it is inconceivable that an ICO could be imposed for any of those other offences, other than in very exceptional circumstances.
5. Secondly, although less persuasive, the significant standard non-parole period of 15 years, applicable to an offence in the "middle of the range of seriousness" is to the same effect. And I say that without purporting to impugn the (with respect, generous) assessment of objective seriousness made in this matter.
6. Thirdly, it is true that the large commercial quantity of any drug, pursuant to Schedule 1 of the DMTA, extends to an infinite amount, in that there is no greater quantity captured by that Act. In that sense, almost 2 kg of methylamphetamine, at a purity of 57.5%, can be said to be theoretically infinitely smaller than the maximum quantity of the drug captured by the offence. But it remains the case that almost 2 kg is well beyond the "border line" between "commercial quantity" and "large commercial quantity" of 500 g set by Schedule 1 of the DMTA for methylamphetamine. In other words, this is not a case where the offending just "tipped over" into its more serious form.
7. Fourthly, it is important that, in September 2015, Parliament reduced that border line from 1 kg to 500 g, by way of the Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015. That was not just a direct alteration whereby a quantity of, for example, 750 g that had previously been a commercial quantity would thereafter become a large commercial quantity. It was also surely an indirect emphasis by Parliament on the gravity of this kind of offending.
8. Fifthly, the substantial amount of the drug, its purity, and its undoubted monetary value meant that the criminal act undertaken by the respondent had the potential to do significant harm. I consider that it is notorious to anyone working in the criminal justice system that methylamphetamine has the potential to do great damage to the lives of people who have the misfortune to become dependent upon it (quite apart from those who have the misfortune to be the victims of crimes committed by those dependent people).
9. Sixthly, it is true that the task undertaken by the respondent was unsophisticated, in that he was a mere deliveryman, and he was sentenced on the basis that his knowledge of precisely what he was transporting was limited. It is also no doubt true that others could and would have undertaken that task instead of him. But to be weighed against that is the obvious fact that someone has to undertake the essential task of transporting large and valuable amounts of prohibited drugs for criminal enterprises, and it was the respondent who chose to do so on this occasion.
10. Seventhly, contrary to the analysis of senior counsel for the respondent, I respectfully believe that the forgiveness of a debt of $30,000 - whether able to be repaid by the respondent or not - is to be generally equated with a payment in that sum. Indeed, in the criminal milieu, one might think that the consequences of not repaying one's debts can extend well beyond mere monetary orders such as are made by courts. In other words, in a sense, one might regard the forgiveness of such a debt as being more valuable than its simple monetary amount. In my opinion, in short, this matter must be approached on the basis that the respondent was to receive a significant financial benefit for his crime.
11. Eighthly, to expand upon the proposition that I have already expressed that this was not a very exceptional matter, sadly a young person of otherwise good character, who had experienced a challenging upbringing and developed a dependence upon gambling and prohibited drugs, had involved himself to a significant degree in the supply of the latter. Far from being exceptional, that is regrettably not an uncommon occurrence in Australian society.
12. Ninthly, it is true that, by way of the CSPA, an ICO is characterised as a form of imprisonment. I also accept that such an order can be a significant restriction on the liberty of an offender. Having said that, it has its own obvious inherent leniency, and must be seen as a much lesser sentence than full-time imprisonment.
13. In short, for all of those reasons, I respectfully cannot accept that an ICO - of whatever length - was an appropriate response of the criminal justice system to the offence committed by the respondent. In my opinion, a sentence of full-time imprisonment was required to be imposed.

Residual discretion?

1. Separately, contrary to the submissions of senior counsel, the Crown has satisfied me that the discretion not to intervene should not be exercised, for the following reasons.
2. First, I respectfully think that the gulf between the sentence imposed and the sentence that was required to be imposed is too wide to be permitted to stand.
3. Secondly, the position of the Crown at first instance was clear by the time sentence was imposed, and the erroneous sentence cannot be "sheeted home" to the prosecution in any sense.
4. Thirdly, no sufficiently compelling subjective factor has arisen since the time of the imposition of sentence for things to be permitted to stay as they are.

Resentence

1. For the purposes of resentence, I replicate all of the objective and subjective findings of the sentencing judge.
2. I also take into account the recent affidavit of the respondent of 4 February 2019. It speaks of the respondent then being employed on a full-time basis at a gym; his rehabilitation efforts at Odyssey House; his abstinence from prohibited drugs; his commitment to changing social circles and spending more time with his family and girlfriend; his future business aspirations; and his plans to get engaged and have a family. I accept that this man has made significant progress towards rehabilitation.
3. I separately take into account the inevitable stress and disappointment that the unfortunate curial history of this matter has imposed, and will impose, upon this particular respondent.
4. The sentence I propose also takes into account the admittedly short period of time that the respondent has spent subject to the strictures of the ICO (in that regard, we were informed from the Bar table that, although the compulsory work portion of the ICO has been stayed pending that Crown appeal, its other conditions have not).
5. My proposed sentence also reflects the period of time during which the respondent was subject to strict bail.
6. I think that special circumstances should readily be found that reduce the non-parole period from the "statutory ratio". I say that because of the age of the respondent, his prior good character, and the need for help over an extended period in ensuring that his rehabilitation, already begun, continues.
7. In my opinion, a head sentence of imprisonment for 3 years, with a non-parole period of 18 months, should be imposed. That should be backdated by a period of 61 days, in order to reflect the period during which the respondent was in custody whilst refused bail with regard to the matters under appeal.

Ground 2: The learned sentencing Judge erred by imposing an intensive correctional order in excess of the statutory limit of two years.

1. Because of my firm opinion about ground 1, in my opinion ground 2 is not dispositive, and strictly speaking does not require resolution. Nevertheless, I think it should be the subject of brief discussion by me.
2. As I have said, the position of the Crown was simply that the sentence actually imposed was beyond the jurisdiction created by statute, and accordingly it would be incumbent upon this Court to correct it. And I understood the submission to be that any corrected penalty - that is, an ICO of two years or less - could not be countenanced.
3. The position of the respondent may be summarised as being that, even assuming that the sentence was beyond jurisdiction, it could not be that an error of this nature could on its own lead to an outcome adverse to the respondent.
4. Turning to my own view, I have already provided my analysis of what became of each of the charges that was placed before the District Court.
5. As for the remarks on sentence, they are, with respect, something of an amalgam, whereby the sentencing judge at their commencement speaks of the need to impose a sentence for the resist arrest, but ultimately does not do so.
6. Nor can one say that an aggregate sentence was implicitly imposed that encompassed both the serious drug offence and the resist arrest, because her Honour provided no indicative sentence for either.
7. To conclude my analysis of the remarks on sentence: regrettably, no lawyer in court picked up on the slip that had occurred, and brought it to the attention of her Honour.
8. Leaving aside the determinative question of manifest inadequacy, what should the response of this Court be to this outcome? One can see the force in the simple submission of the Crown that on its face a sentence has been imposed that was simply beyond jurisdiction. But could it be that this minor slip, in fact advantageous to the respondent when it occurred, with regard to a comparatively less serious offence, could itself be seriously disadvantageous, by way of the outcome in this Court?
9. I do not accept that it could be that this error, superficially advantageous to the respondent in the sense of an unmeritorious acquittal on a Local Court matter on a certificate, could of itself form the basis of a successful Crown appeal.
10. If it were necessary, and in the absence of the success of ground 1, I would perhaps suggest that this Court should uphold ground 2 on the basis that the sentence imposed for the single offence was indeed beyond jurisdiction; but thereafter find a way to correct the wrongly entered acquittal on the resist arrest; and then re-impose the ICO of more than two years which would, by then, be within the jurisdiction of this Court.
11. In other words, I would not uphold the Crown appeal and impose any greater sentence on the single basis that a slip had been made with regard to a relatively trivial offence, that slip not having been brought to the attention of the sentencing judge by anybody, including the prosecutor, and that slip actually having been advantageous to the respondent in the sense of it being an unmeritorious acquittal. In my opinion, such an outcome could not be said to be consonant with the interests of justice.
12. All of that analysis however, is contingent, in light of my opinion with regard to the success of the primary ground of appeal, and the established need for intervention. And in light of the outcome I propose, I see no need to correct the disposition of the certificate offence.

Proposed Orders

1. I propose the following orders: 1. Crown appeal against sentence allowed. 2. The sentence imposed upon the respondent, Hongli Qi, on 12 October 2018 is quashed. 3. In substitution for that sentence, the respondent is sentenced to a non-parole period of 18 months, to commence 3 February 2019, to be followed by a parole period of 18 months, to expire on 2 February 2022. (To express that order another way, I have imposed a head sentence of imprisonment for three years with a non-parole period of eighteen months, with a backdate to reflect the time in custody.) 4. The date upon which it appears the respondent is to be released to parole is 2 August 2020.
2. LONERGAN J: I have read the judgment of Button J in draft. I agree with his Honour's reasons with respect to disposal of the appeal on the basis of ground 1.
3. I agree with the additional comments of Payne JA regarding ground 2 and express no view about that ground, other than to agree that there was a jurisdictional issue that appeared not to have been identified by counsel and thus no submissions were provided on that issue to assist the sentencing judge in her task.
4. I am satisfied that the residual discretion should not be exercised and I agree with the re-sentencing and orders proposed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2019