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[2009] VSCA 148
Court of Appeal (Vic)
2009-06-19
MAXWELL P, ASHLEY JA and LASRY AJA
Original judgment source is linked above.
The Queen v Kiam Fah Teng [2005] VSC 33 (Kellam J)
The Queen v Yau Kim Lam [2005] VSC 98 (Kellam J)
The Queen v Wee Quay Tan [2005] VSC 177 (Kellam J)
The Queen v Ta Song Wong [2006] VSC 126 (Kellam J)
SENTENCE - Importing prohibited imports into Australia - Aiding and abetting the importation of prohibited imports into Australia - Largest known importation of heroin into Victoria - Pleas of guilty by four offenders - Whether head sentences of between 22 and 24 years imprisonment and/or non-parole periods of between 15 and 16 years imprisonment manifestly excessive - Whether parity principle infringed - Whether Judge erred in findings as to roles played by offenders, their backgrounds and other circumstances relied upon in mitigation - No sentence manifestly excessive - Parity principle infringed - Three offenders re-sentenced.
1 Each of the appellants[1] Kiam Fah Teng ('Teng'), Wee Quey Tan ('Tan') and Yau Kim Lam ('Lam') pleaded guilty to one count of aiding and abetting the importation of prohibited imports into Australia.[2] The appellant Ta Song Wong ('Wong') pleaded guilty to one count of importing prohibited imports into Australia.[3] As will appear, they were all participants in a sophisticated scheme to import a large quantity of heroin into Australia using the MV Pong Su, a ship owned by a North Korean shipping company. The operation involved 150 kilograms of heroin, of which 125 kilograms reached the shore. It was the largest known importation of heroin into Victoria.
2 The table below shows the respective sentences imposed on them.
3 The relevant facts about the importation scheme, so far as they are known, are set out comprehensively in his Honour's sentencing remarks. What follows is a summary.
4 Teng and Lam arrived in Australia on 27 March 2003. Some days later, they visited Geelong on three consecutive days, apparently looking at accommodation and car rental options. On 31 March 2003, on the third visit to Geelong, Teng rented a Toyota Tarago van ('the Tarago'). Teng also accompanied Lam to a photographic shop, where Lam purchased a pair of binoculars and a camera. The same day, Teng and Lam checked into rooms at a motel in Geelong for two nights. Their reservation was subsequently extended to 8 April 2003.
5 During the period when Teng and Lam were staying at the motel, a GPS device - later shown to be connected with the importation scheme - was used in the Geelong area, at the motel, in Torquay and at Boggaley Creek, the place on the Great Ocean Road where the heroin was ultimately brought ashore.
6 On 12 April 2003 Teng inspected a Mitsubishi Pajero, having earlier inquired about the availability of a four wheel drive vehicle. Having compared the boot space of the Pajero with that of the Tarago he had already rented, Teng said he wanted to continue renting the Tarago.
7 In Melbourne on 13 April 2003, Teng met Tan, who at that time was travelling on a false passport under the name Chin Kwang Lee. On 14 April 2003 Teng and Tan left Melbourne in the Tarago and made another trip to the Great Ocean Road. By this stage the Tarago had been fitted by police with a listening device. Over the next two days Teng and Tan visited Geelong, Anglesea, Lorne and Wye River and inquired in Geelong and Lorne about the availability of accommodation.
8 A number of conversations recorded via the listening device in the Tarago were in evidence before the sentencing judge. They are set out at length in his sentencing remarks. Excerpts of conversations recorded included the question: 'Do they have any evidence that you are an international drug trafficker?' The conversations include references to 'six bags' and a number of references to 'picking up the girlfriend'. Recorded conversations on 15 April 2003 included further discussions about picking up the 'girlfriend' and the fact that she would be arriving by boat. Tan said:
They should stop along the shore and get the speedboat to carry it to on shore. Once they get there, from where [they] are, the speedboat will fly over to your girlfriend's house.
9 On the afternoon of 15 April 2003, Teng and Tan were in Melbourne, but set off in the early evening and were in Geelong shortly before 8.00 pm. At 9.47 pm Teng dropped Tan at the Grand Pacific Hotel in Lorne. The Tarago was seen at a road side car park at Boggaley Creek, adjacent to a blue Ford Focus that had been rented earlier that day by Lam. Teng was observed once again at the Grand Pacific Hotel at 10.48 pm, and Teng and Tan were seen leaving the Grand Pacific Hotel in the Tarago at 12.24 am.
10 At around 12.30 am Teng, Tan and a third man were recorded having a discussion in the Tarago. The conversation indicated that someone from the other party had died; that five packages had been loaded into two vehicles; that a police car may have been sighted; and that 'the stuff' was too heavy to pull up the hill.
11 The Tarago returned to the Grand Pacific Hotel and was observed in the car park to have in its luggage compartment two packages wrapped in blue coloured plastic and netting. At 6.55 am on the morning of 16 April 2003, Teng and Tan departed the hotel in the Tarago and were intercepted shortly afterwards by police. The two packages in the Tarago were found to contain a total of approximately 50 kilograms of heroin.
12 Police conducted searches of the area around Boggaley Creek over the following days. They found the dead body of an Asian man on the beach, concealed under a covering of kelp and stones. Three blocks of heroin similar to those found in the Tarago were also located in the area. Police also located Wong hiding in nearby bushland. Wong was part of the landing party which brought the heroin packages ashore in an inflatable dinghy. The deceased man is thought to have been the other member of that party. Wong was linked to the Pong Su by paint from the ship's deck identified in the tread of his shoes and by his fingerprints, which were found inside the packaging of the parcels of heroin. When apprehended, Wong was carrying no identifying documents or personal items consistent with an intention to remain in Australia. He also had in his possession the GPS device known to have been used in the area earlier that month and a pair of binoculars identical to those purchased by Lam in Geelong on 31 March 2003.
13 As will appear, each of the appellants contended that the sentence imposed on him did not sufficiently reflect the differences between himself and one or more of the others, being differences which (it was contended) ought reasonably to have led to a (relatively) lower sentence. In each case, the argument based on parity was accompanied by contentions of specific error and/or a contention that the sentence was manifestly excessive.
14 For the reasons which follow, we would uphold the parity ground in the case of Teng, Wong and Lam, but would dismiss all other grounds of appeal. The appeal of Tan fails on all grounds.
15 Teng pressed a single ground of appeal: 'The sentence imposed upon the applicant, in comparison to the sentences imposed upon the co-accused, offends the principle of parity'. Counsel for Teng relied on the following matters as differentiating him from his co-offenders:
16 The contention for Teng was that, because of these distinguishing features, there should have been a greater difference between his sentence and those imposed on the co-offenders. In the circumstances, so it was submitted, the lack of differentiation in the respective sentences engendered 'a justifiable sense of grievance in [Teng] and an appearance of injustice to that impassive representative of the community, the objective bystander.'[4]
[T]he question which according to the authorities must be addressed when dealing with a parity ground is whether the appellant could be said to have a "justifiable sense of grievance" about the relativity between the appellant's sentence and the sentence of the co-offender. I do not understand the test thus formulated to require any departure from the conventional approach to appellate review of sentences. That is, the question whether the appellant's sense of grievance is justifiable is to be determined by asking whether there were reasonable grounds for the differentiation - or lack of differentiation, as the case may be - between the appellant and the co-offender. If it was reasonably open to the sentencing judge, on the material before the court, to differentiate - or fail to differentiate - between the co-offenders in the way he/she did, then there is no warrant for appellate intervention, and the appellant's grievance about the sentencing relativity cannot be said to be justifiable.
18 There was dispute during argument on the plea about how Teng's role was to be viewed. His counsel argued that his role was 'in essence, to receive the heroin from the boat and to pass it on to a third person.' It was submitted that he operated at a 'relatively low level in the criminal hierarchy', and this was said to be illustrated by the following matters:
19 For its part, the prosecution submitted that Teng was to be viewed neither as a mere courier nor as a principal financier of the operation, but rather as someone whose role was 'highly important to the success of the operation'. The Crown contended that Teng acted with 'a high degree of authority and responsibility'. He was
in a position of sufficient credibility to be entrusted to be in possession of what could only be described as an immensely valuable importation of narcotics.
He should be viewed as a person who had 'a degree of authority in the process' and had the ability to make decisions about practical aspects of the operation.
20 In his sentencing remarks, the judge set out at some length the competing characterisations and the various matters relied on in support of each. He accepted the Crown's contention that Teng was neither a mere courier nor the 'mastermind' or financier of the operation. His Honour was satisfied, nevertheless, that the part played by Teng was a significant one. His offence was 'serious indeed':[6]
It is apparent that in the period of time leading up to the delivery of the heroin to the shore at Boggaley Creek you played an active part in the preparation for the landing. There is no doubt that you knew a considerable amount about the nature of the operation. You knew that the heroin was to arrive by ship. You knew that it required to be transported from the shore and passed on to a third party. You knew that six packages required to be transported. You were active in facilitating the arrangements to hire and appropriate a vehicle, and in arranging for storage of the heroin pending its transfer to others at places which you played a part in identifying as safe.
21 His Honour rejected the Crown's contention that Teng was in a higher position in the hierarchy of the operation than was Tan. He was nevertheless satisfied that Teng was
entrusted to play an important role in preparation for the landing of heroin into Australia and for the transfer of the heroin to the third party. Whilst I accept that what you state to be the proposed remuneration of approximately US$80,000 is, as [your counsel] contends, not significant in the scale of the overall project, on any view it must be seen as a substantial reward for your services. I am satisfied beyond reasonable doubt that you may be seen as a "middleman", who although not a principal, nevertheless was entrusted with significant responsibility for the success of the importation of an extremely valuable illicit narcotic. Beyond that I am unable to be satisfied by the evidence of any other position occupied by you in the hierarchy.[7]
22 What we have said sets the parameters for consideration of the parity argument in Teng's case. We leave resolution of the matter until later in these reasons.
1. The total effective sentence of 24 years' imprisonment and the non-parole period of 16 years' imprisonment are each manifestly excessive.
...
3. The learned sentencing judge erred in the application of the parity principle by imposing on the appellant a higher head sentence than Yau Kim Lam and Ta Song Wong.
4. The learned sentencing judge erred by finding that there was little evidence of remorse on the part of the appellant.
5. The learned sentencing judge erred by finding that he could not be satisfied as to the appellant's background.
24 Tan's role in the importation was described by the sentencing judge in the following terms. These findings were not challenged on the appeal.[8] His Honour said:
In relation to your part in the hierarchy of people involved in the commission of this offence, it is submitted by the prosecution that you are neither at the lowest end of the hierarchy nor were you involved as a principal or financier of the operation. In particular, the prosecution concedes that there is no evidence that you played a more significant role than did Teng or Lam. Your role was similarly important to that of Teng and Lam. Lam's role was to effect delivery of the heroin from Wong to you and Teng. Teng's role was the risky transfer to the Australian connection.
Nevertheless, the prosecution contends that the evidence is that you acted with a high degree of authority and responsibility. You were present at the beach to receive the heroin and your recorded conversations revealed detailed knowledge of what was about to take place.
I accept that the evidence does not permit a conclusion that you were a principal in the drug-importing operation. Your role, nevertheless, was one that was important to the success of the operation. You arrived into Australia later than Teng and Lam, but brought with you a false driver's licence in the name of Lam thus enabling him to participate in the commission of the offence by hiring and driving the Ford Focus motor vehicle.
Clearly, you had a good knowledge of the manner in which the importation was to take place. Your role spanned various parts of the importing process. You spent time in Geelong with Teng. You gave advice to Teng that Geelong was better than Melbourne for transferring "stuff". It is apparent that Lam had the responsibility to meet Wong and the deceased, but you and Teng were to be involved in the transportation of the heroin and its delivery into the hands of Charlie and whoever else was the Australian connection. You were aware of the arrival of the heroin by ship and of the quantity to be imported. Clearly you had means of communication with overseas organisers of the importation. As is argued by the prosecution, you were trusted to receive and be in possession of and then to deliver an immensely valuable consignment of narcotics. A consideration of the whole of the listening device material makes it apparent that your task was that of ensuring that the delivery operation was successful. Indeed, Mr Shwartz of counsel who appears for you, concedes that your role was to ensure that what was delivered to Australia was delivered to the right person. However, that said and as the prosecution concedes, the evidence does not permit a conclusion beyond reasonable doubt that your level in the hierarchy was more significant than that of either Teng or Lam.
However, on any view, your contribution to the importation of the heroin into Australia was, like that of Lam and Teng, vital to the success of the operation. Your part in the commission of a very serious offence was a significant one and warrants severe punishment.[9]
25 In the course of the plea on behalf of Tan, counsel outlined his background in some detail. Tan was a person without parents that he knew. He was adopted and given the name Wee Kway Tan. His life was conducted under the supervision of four beneficent uncles ('the uncles'), to whom he felt 'grossly indebted'. During his early twenties, after he had completed his education and national service in Singapore, the uncles informed him that their real activities involved significant international drug trafficking.
26 As a result of the obligation Tan felt towards the uncles, so counsel said, he became involved at their instigation in criminal activity which culminated in a significant drug transaction in Copenhagen, Denmark. Tan was to supervise the delivery of the drugs to the appropriate person. He was arrested in relation to those activities in Denmark. Around February 2001, Tan escaped from custody, as the result of the assistance of other organisers, and was taken back to Bangkok where he remained. The experience of his arrest in Denmark motivated him to leave the organisation, and he informed the uncles that he wanted nothing more to do with their activities. To demonstrate to Tan that he was not free to withdraw, however, the uncles shot him in the leg. He was hospitalised in Bangkok and later threatened with death. Subsequently, Tan was contacted by the group and assigned a role in the heroin importation which is the subject of these applications. He was told by the uncles that his function was to ensure that the ultimate recipient was in receipt of the drugs at an appropriate time.
27 Against that background, counsel for Tan made the following submission to the sentencing judge:
[T]hat background, if it is uncontested, in my respectful submission, really establishes a person in a category of moral culpability quite different, if not unique. He is not the sort of person that your Honour can look at, even within the context of Australian society, let alone Asian society, and say that this person is deserving of a punishment which necessarily will single him out, be a lesson to others. It doesn't come within those concepts. He really doesn't fit within the sentencing provisions of the Crimes Act or the provisions equivalent to the Crimes Act of the Commonwealth. He moves in a slightly different direction. When one looks at that background and what he has gone through and the hermetically sealed background of his lifestyle, he doesn't qualify, in the strict sense, to be dealt with and viewed - to be punished as the ordinary citizen might. That is not to suggest of course that this is not serious; it is a most serious offence and it is readily accepted. It is for that reason your Honour could take the view that because he didn't plead guilty at the very outset - your Honour could see and might see the forces that play on his mind. It doesn't take, with respect, very much imagination or, indeed, reasonable thinking to conclude that his reason for withholding his position was one of personal security and emotional and moral perhaps underdevelopment.
His Honour described this as 'a quite extraordinary story' and asked the prosecutor whether 'in the interests of justice' some aspects of what counsel for Tan has said might be corroborated.
28 Senior counsel for the Crown, who appeared both at trial and before us, indicated to his Honour that he was able to confirm that Tan - or at least a person of that name - had been arrested in Denmark at the relevant time. That person, he said, had been apprehended and remanded in relation to smuggling some 5.5 kgs of heroin, contrary to the Danish Criminal Code. Senior counsel confirmed that the person had escaped. He added that the Danish police had expressed no interest in seeking to have Tan extradited at the end of his sentence for the present offence.
29 Hospital records showed Tan to have sustained a bullet wound to his leg, but the Crown did not accept that the wound had been inflicted in the circumstances outlined by Tan's counsel. The Crown disputed the contention that Tan had been coerced into participating in the Victorian importation:
There is nothing in that material[10] that tends to support the idea that Mr [Tan] was acting under coercion; indeed somewhat the opposite - he was an advisor, he was someone that demonstrated enthusiasm for the commission of the offence ...
That is the gamble he takes by putting this material before the Court and we are constrained to say to your Honour in all the circumstances of the material and the lack of support for the proposition that he was compelled to commit this offence in some way, that your Honour should be quite sceptical of the proposition that he was in any way forced into the commission of this offence.
The Crown's submission thus drew attention to the lack of evidentiary support for the key defence argument that Tan had not participated of his own free choice.
30 This portion of the plea was conducted on 19 May 2005. There was then a long delay in the proceedings, due primarily to the conduct of the trial of the ship's company. The plea resumed on 8 May 2006, almost a year later. No additional material had been filed on Tan's behalf.
31 Counsel for Tan urged the judge to act on the statements made from the Bar table during the earlier hearing:
Not by criticism in any way of my learned friend or the prosecution they have not in the 12 months sought to prepare anything which gainsays that which was put to your Honour on the last occasion. I made that comment on the last occasion. Notice was given - and to this day as I understand it the prosecution doesn't come forward with any lambrid (sic) body of evidence to suggest anything other than what I put to your Honour. That's not a criticism of my friend. It's as a matter of respect that I put the proposition to your Honour, to my friend and to the prosecution.
The Crown relied upon the submissions which had been made on the first occasion.
32 The judge dealt with the submission regarding Tan's background in these terms:
It is submitted by your counsel that you are a person in a unique category of moral culpability. It may be that you were, as you say, under pressure to come to Australia but it must be said that even allowing for a degree of bravado on your part that the conversations secretly recorded by police, parts of which are referred to by me above, reveal no reluctance on your part for the activities in hand. Rather, they reveal an independence of mind about the activities in which you engaged. You stated specifically that you could withdraw and you said: "If I want to do it I'll go ahead doing it, if I don't want to continue, I can simply get out. He will not blame me because I decide whether I want to do it or not".
...
Counsel pointed out that the possibility that you may be extradited by Singaporean authorities in due course cannot be excluded. Whether or not that is so, it is highly likely that Australian authorities will seek to deport you at the end of your sentence if they can establish that you belong to a State to which you could be deported. Certainly, if the history of the background which has been put before me is true or indeed only partially true, I accept the possibility that you will be at serious risk upon such deportation particularly if you are deported to Singapore. That risk may be at the hands of authorities, or indeed of others. I accept as a mitigatory matter of some weight that throughout your sentence you may well suffer great uncertainty as to your eventual fate.
...
[A]lthough I accept that you have had past involvement in international drug trafficking at a high level, and indeed, I suspect a considerable part of your story has a factual basis, the real detail of your background is not established satisfactorily before me. You have not provided any sufficient detail for your story to be verified in great detail. Obviously your lack of co-operation in this regard might be very well understood and cannot be used in any way against you. But at the same time the mitigatory aspects of your story are thus somewhat limited. Nevertheless, it is true, as submitted by [your counsel] to me this morning that in the year since your plea, the prosecution has not produced any evidence to disprove any part of your story. I take that into account, although, of course, much of your story would not be capable of being proved or disproved one way or the other at least by prosecutorial services.[11]
33 As his Honour correctly observed, the prosecution could not have verified, or disproved, the claim of coercion. Tan alone could have made good that claim. He could have given evidence on oath, but chose not to do so. In the circumstances, the assertion that the prosecution had chosen not to adduce evidence to disprove what had been said from the Bar table did nothing to enhance the credibility of those statements.
The test is not what tag can or should be applied to any particular fact but what use the judge proposes to make of the fact in relation to the offender. If it is a use adverse to the interests of the offender then proof beyond reasonable doubt is required; if it is a use in favour of the offender then proof on the balance of probabilities will suffice.
We have spoken of "proof". Ordinarily, much of what is relied on in sentencing is not the subject of evidence given on the plea. Judges have always relied heavily on what is asserted from the bar table and we see no reason why that practice should not continue. We are not to be taken as suggesting any departure from current practices on sentencing hearings. As we have said, judges can, and commonly do, act in such hearings on matters that are not proved by evidence that would be admissible at trial. There will, however, be cases, we venture to suggest relatively few cases, in which there will be significant disputes of fact that can be resolved only by the calling of appropriate evidence.
35 The present was just such a case. There was a significant dispute of fact. The onus was on the defence to establish the mitigatory facts on the balance of probabilities. Where alleged sentencing facts are asserted by the defence and not conceded by the Crown, it does not become the role of the prosecutor to disprove that which has been asserted. As the High Court pointed out in The Queen v Olbrich:[13]
[W]e reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if the submission were accepted are well illustrated in the present case. The respondents swore that he was a courier but the judge disbelieved him. To acquire that judge to sentence the respondent on the basis that he was a courier is incongruous.
Similarly it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion).
37 It was contended that the sentencing judge 'erred in the application of the parity principle' by imposing on Tan a higher head sentence than on any of the other three. So far as this ground concerned the sentencing differential between Tan and Teng, the submission in support relied heavily on the matters the subject of ground 5, which we have rejected.
38 Counsel also challenged the judge's analysis of the applicable parity considerations. The relevant part of his Honour's sentencing remarks was as follows:
I must also take into account matters of parity with others who have pleaded guilty. I have already sentenced Teng and Lam as well as Wong, who pleaded guilty to importation. First, I accept that there are no significant differences between you and Teng and Lam in relation to the part played by each of you in the commission of the offence. In my view in terms of culpability your conduct is comparable with and equal to theirs. That is a factor in support of general parity with their sentences. Secondly, however, in other regards there are some distinctions. The first is the fact of the plea of guilty and the degree of remorse which was associated with the plea of Teng. As stated above, you pleaded guilty well after Teng and well after his sentence was handed down. He pleaded guilty on 27 January 2005; he was sentenced on 21 February 2005. You pleaded guilty on 9 March 2005, the same day as Lam. Furthermore, unlike Teng, you waited until a number of rulings relevant to your defence were handed down. Your plea of guilty, deserving as it is of transparent discount, did not come about by reason of remorse or contrition; it came about by reason of the clear recognition on your part of the inevitability of your conviction and the likely sentence which would follow such conviction after trial. Unlike Teng there is little evidence of remorse before me, save for what might be called statutory remorse and of course the matters raised this morning by Mr Shwartz and the demonstration of good behaviour in the period you have been in prison. Furthermore, whereas I was positively satisfied of the background of Teng and thus able to form some views about the possibility of reformation, I am unable to be so positively satisfied in your case. Finally, there is the fact of age. Teng will not have a significant period of useful life available to him upon release, even at the minimum term of his sentence. He will suffer additional hardship by reason of his age and absence from his family. You are, of course, considerably younger and, it would appear that you have no family.
Thus, in terms of parity, there are a number of good reasons why your sentence should not be identical with that of Teng. Your circumstances are much more like those of Lam, although in his case there were different factors of mitigatory relevance. In particular, it is apparent that in your circumstances the issue of specific deterrence and the protection for the public from you are of heightened significance. These matters need to be weighed in the balance with the mitigating factors referred to above.[15]
39 Counsel for Tan contended that the judge here over-emphasised the lapse of time between Teng's plea (27 January) and Tan's plea (9 March). He drew attention to what was said to be the 'much later' plea of Wong (11 July). As Ashley JA pointed out in argument, however, what mattered was not the precise length of time but what had occurred in the interval. The judge identified the critical point of distinction:
[U]nlike Teng, you [Tan] waited until a number of rulings relevant to your defence were handed down. Your plea of guilty ... did not come about by reason of remorse or contrition; it came about by reason of the clear recognition on your part of the inevitability of your conviction ...
40 Reliance was also placed on submissions made by the Crown at the plea hearing for Teng, which attributed to Teng a greater role than that of either Lam or Tan. But, as Lasry AJA pointed out, the Crown's position regarding Tan was made clear during his plea hearing, when the prosecutor submitted that all three - Teng, Lam and Tan - were 'in a similar band of ranking', even though each had had a different part to play. As appears from the passage set out in paragraph [38] above, the judge concluded that there were 'no significant differences' between them in relation to the parts they had respectively played in the importation. Counsel for Tan ultimately conceded that this finding could not be challenged.
41 Counsel also referred to what he said was the 'extraordinary material' provided to the sentencing judge about Tan's 'exemplary conduct ... in custody, which demonstrated the commencement of his rehabilitation.' On the plea, Tan was described by his counsel as 'a model prisoner', who showed 'a genuine sense of morality and commitment to a decent way of behaviour.' As counsel acknowledged, the sentencing judge addressed these matters in considerable detail.[16] His Honour accepted the submission that Tan's behaviour in custody did demonstrate the commencement of his rehabilitation.[17]
42 On the other hand, the judge had also to take into account the fact that Tan had been in custody in Denmark following his admitted involvement in a heroin importation into that country. In our view, his Honour was fully justified when he said:
Nevertheless, in all the circumstances of your background, the issue of specific deterrence and the issue of the protection of the public from you is not without importance in your case. Furthermore, as well as matters personal to you such as the possibility of rehabilitation, I must, amongst other things take into account the issue of general deterrence. It is a matter of paramount significance in this case.[18]
43 Again, having set the scene for analysis of the arguments raised by Tan with respect to parity, we leave the resolution of the matter until later in these reasons.
44 The passage about which complaint is made was in these terms:
Unlike Teng there is little evidence of remorse before me, save for what might be called statutory remorse and of course the matters raised this morning by [your counsel] and the demonstration of good behaviour in the period you have been in prison. furthermore, whereas I was positively satisfied of the background of Teng and thus able to form some views about the possibility of reformation, I am unable to be so positively satisfied in your case.[19]
45 As the judge noted, counsel on the plea had relied on Tan's conduct while in prison as 'demonstrative of positive practical remorse and of the commencement of your rehabilitation'.[20] The judge, however, only accepted the second part of that submission. In our view, there was no error in his Honour's conclusion. There is, as counsel for Tan conceded, a clear conceptual distinction between remorse (which relates to past offending behaviour) and rehabilitation (which concerns the avoidance of future criminal behaviour). While the presence of remorse will usually be conducive to rehabilitation, rehabilitation can occur in the absence of remorse. Thus, the affirmative finding that Tan's rehabilitation had commenced did not entail an affirmative finding that he was remorseful. Given his record, rather more would have been required to warrant such a finding.
46 It was submitted that both the head sentence and the non-parole period were manifestly excessive. In addition to the matters the subject of the specific grounds, the written submission relied on the following matters:
(b) the fact that Tan was not a principal in or financier of the operation;
(d) the uncertainty Tan will experience throughout his sentence as to his eventual fate; and
47 In the course of argument, however, counsel conceded that the complaint of manifest excess would fail if ground 5 failed. That concession was properly made, in our view. Ground 5 having been rejected, it follows that ground 1 must fail.
1. The sentence is manifestly excessive.
2. The sentence imposed offends the sentencing principle of parity in all the circumstances of the case.
49 Wong was the last to plead guilty, but the third to be sentenced (after Teng and Lam). Wong was sentenced on the basis that his role, although different, was of comparable culpability with the role played by those other men.[21] The judge accepted that Wong was not a principal in the importation, but said that he had played 'a significant part in a serious crime'.[22]
50 Wong's role was operationally quite different from that of the others. He was on board the Pong Su when it anchored a short distance from the shore. Together with the unnamed accomplice who subsequently drowned, Wong left the ship in an inflatable dinghy. The dinghy contained the six packages of heroin, for delivery to the shore party. When the dinghy suffered problems with its fuel supply, it overturned in the surf near Boggaley Creek.
51 The Crown case was that Wong had boarded the ship in North Korea, for the purposes of participating in the heroin importation. Counsel for Wong stated on instructions, however, that Wong had boarded the vessel in China, shortly before its visit to North Korea, and had no knowledge of the heroin at that time. His Honour was unable to resolve that disputed question of fact but said that he was satisfied beyond reasonable doubt of the following matters, namely that Wong:
(a) travelled with the ship at least from the time it departed North Korea;
(b) knew then that the activity in which he was engaging was highly illegal;
(c) engaged in the packing of the heroin (his fingerprints were found on the internal wrapping of some of the packages);
(d) was well aware by that time of the nature of the importation; and
(e) played an active part in the vital activity of transporting the heroin from the ship to the shore.[23]
52 None of these findings was challenged on the appeal. Counsel maintained, however, that
the judge's findings did not warrant rejection of the contention (a) that [Wong] boarded the Pong Su in China, and (b) that he did not know, specifically, of any plan to import heroin to Australia until only a short time prior to when the rubber dinghy left the Pong Su.[24]
These matters were said to go in mitigation of the offence and, when taken together with other mitigating factors, to demonstrate that the head sentence of 23 years was manifestly excessive.
53 We disagree. In the circumstances, the assessment of Wong's culpability did not depend either on his state of knowledge when he boarded the ship or on the precise time at which he was engaged in the packing of the heroin for the trip to shore. What mattered, as the judge rightly pointed out, was that Wong was an active participant in the importation, knowing full well what he was doing. Not only did he assist in preparing the heroin for delivery, but he was entrusted with the vitally important, and particularly difficult, task of transferring the heroin by dinghy to the shore party. Plainly enough, the entire endeavour would fail unless that transfer were effected successfully.
54 The submission of manifest excess also relied on the following mitigating factors, namely:
(b) the delay of almost nine months between plea and sentence;
(c) Wong's diligence in prison and consequent prospects of rehabilitation; and
(d) the relative isolation in which Wong would serve his sentence.
55 Each of these matters was addressed by the sentencing judge. His Honour pointed out that, unlike Teng, Wong had waited until a number of rulings relevant to his defence were handed down, before he pleaded guilty.[25] His Honour took into account the delay between plea and sentence and the consequent uncertainty experienced by Wong during that period.[26]
56 In relation to his rehabilitation, and isolation in jail, his Honour said this:
I accept as submitted by your counsel that imprisonment for you will be more difficult and isolating than for other prisoners. You are from a foreign country and speak a foreign language and although you have commenced to learn English whilst in custody, no doubt you will be isolated from your culture. However, this must be a matter of limited weight. The fact is that you came onto Australian soil in the course of committing an extremely serious crime. In return for what was to you a substantial sum of money, you were prepared to take the risk of apprehension. The inevitable consequence of that is that you, as you must have anticipated, will now be incarcerated in circumstances which will cause you some isolation.
Your counsel submits that your prospects of rehabilitation are good. It is difficult to give great weight to his issue since so little is really known about your background, but I accept that taking into account the consequences which will flow from your conduct on this occasion, the prospects of your not re-offending may well be increased. Nevertheless as well as matters personal to you such as the chances of your rehabilitation I must, amongst other things, take into account the issue of general deterrence. It is a matter of paramount significance in this case.
This is a most serious example of a grave crime. To have been involved as an active participant in the largest importation of heroin ever detected in this State, and one of the largest ever detected in Australia, calls for severe punishment. [27]
57 The analysis was, with respect, exemplary. In the circumstances, the sentence imposed on Wong was well within the range reasonably available.
58 Counsel for Wong submitted that his client's state of knowledge of the importation differentiated him from the members of the receiving party, 'in respect of whom the conclusion was open that they had travelled to Australia with the intention to collect the heroin'.[28] In the case of Wong, on the other hand, no finding was made that he had had knowledge of the heroin importation when he entered Australia's territorial waters. It was also said that Wong's role 'insofar as could reliably be proved was objectively less culpable than the roles undertaken by Tan, Teng and Lam.'
59 We reject these arguments. As we have already said, the assessment of Wong's culpability did not depend on the precise time at which he became aware that he was involved in a massive heroin importation. What mattered with Wong, as with each of the other appellants, was that he was a willing, knowing, participant in the importation. The judge drew no distinction between them on the basis of culpability, and we agree with that conclusion. It remains for later consideration, however, whether Wong's sentence nonetheless revealed a want of parity which requires this court to intervene.
60 Lam relied upon the following grounds of appeal:
1. The total effective sentence of 23 years imprisonment and the non-parole period of 16 years are each manifestly excessive.
2. The learned sentencing judge erred in the application of the parity principle by imposing on the applicant a higher head sentence than Kiam Fah Teng.
3. The learned sentencing judge erred in failing to proceed on the basis that the applicant was a person of previous good character.
4. The learned sentencing judge erred by finding that there was no evidence of remorse on the part of the applicant.
61 The first ground argued on Lam's behalf alleged specific error. It was contended that the judge 'erred in failing to proceed on the basis that [Lam] was a person of previous good character.'
62 The part of the sentencing remarks complained of is in these terms:
The prosecution alleges no prior conviction against you. However, in the circumstances of this case this matter is not of significant mitigatory weight. The fact is that you are known as Yau Kim Lam by reason of documents which have been produced in evidence as being palpably false. Whether or not that is your real name is entirely unclear on the evidence before me. I am not satisfied on the balance of probabilities that it is.[29]
Lam had entered Australia using a false Malaysian passport. Although the passport contained his photograph, the application for the passport was supported by a Malaysian identity card in the name of Yau Kim Lam but which contained a photograph of another person altogether.
63 In our view, there was no error in his Honour's approach to this issue. As the appeal submissions for Lam acknowledged, the fact that a person has no prior conviction is not, by itself, a mitigating factor. The position may be different if there is 'positive evidence of good character and past contribution to the community.' But his counsel acknowledged that was not Lam's situation. As Lasry AJA pointed out in the hearing, the only course open to the sentencing judge was to proceed on the basis that this was Lam's first offence. There was no evidence to support a submission that Lam was of previous good character.
Ground 1: manifest excess; Ground 2: parity; Ground 4: remorse
64 These grounds were in substance argued together. Counsel for Lam submitted that there should have been a 'tangible disparity' between the sentence imposed on his client and that imposed on Tan. Lam's background was 'neutral', since nothing could be said positively or negatively about it. By contrast, Tan had - by his own admission - a prior involvement in serious criminal activity of the same kind. He had escaped from jail while on remand, before becoming involved in the present importation.
65 Counsel drew attention to the fact (noted earlier)[30] that the sentencing judge identified specific deterrence as a factor of importance in Tan's case. He pointed out that the judge made no such comment in relation to any of the other three. Tan's prior trafficking activity was inevitably relevant also to his prospects of rehabilitation, notwithstanding his impressive record while in custody for this offence. In those circumstances, so it was argued, there could be no reasonable explanation for the fixing of the same non-parole period for Lam as for Tan.
66 Having outlined the parity submissions advanced for the appellants, and having already expressed conclusions about particular aspects of the arguments which counsel pursued, we are now able to express our conclusions about parity generally. In our view, each of the sentences imposed on Teng, Wong and Lam did offend against the principle of parity. In the case of Teng, the strong mitigating factors in his favour required that he be more clearly differentiated (by sentence) from all of the others. The factor which most clearly set him apart was his early plea of guilty. Unlike his co-accused, Teng did not wait until 'the writing was on the wall' as a result of adverse rulings by the trial judge. Unlike them, he pleaded guilty having no idea of how the judge would approach the task of sentencing for this offence. Teng's plea of guilty was of great public utility, coming as it did at an early stage in what was inevitably going to be a long and complicated trial, involving many defendants. The sentence relativities must reflect that.
67 As to Lam and Wong, we think that the differences between each of them and Tan required a greater degree of differentiation in sentence. The fact that Tan had admittedly taken part in a previous heroin importation - albeit that he had escaped before he was tried - necessarily attracted sentencing considerations which did not apply to any of the others. The trial judge imposed on Lam and Wong a head sentence which was only one year less than that imposed on Tan, and fixed the same non-parole period for all three. With great respect, we do not consider that these conclusions were reasonably open in the circumstances.
68 In the result, we would allow the appeals of Teng, Wong and Lam and resentence them as set out below. (We will grant the applications by Teng, Wong and Lam for leave to appeal, and Teng's application for an extension of time). The table also shows the sentencing relativities between those three and Tan, whose appeal must be dismissed.
69 Two things need to be said by way of explanation of the resentencing. The first is that, parity apart, each of the sentences which his Honour imposed was unimpeachable. The sentence in each case was within the range reasonably open in the circumstances. None of the individual sentences was manifestly excessive nor in any way affected by specific error. Tan's challenge to his sentence has failed altogether.
70 There having been no appeal by the Crown against Tan's sentence, that is the sentence against which the requirement of parity - that is, appropriate relativity of sentence - must be tested. The principle of parity is fundamental to the community's sense of justice, for the reasons which Mason J gave in Lowe v The Queen:[31]
Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.
Such is the importance of ensuring appropriate differentiation in sentence, as a fundamental matter of fairness, that a court of criminal appeal can interfere with an otherwise appropriate sentence in order to ensure that the sentencing differentials are just.[32]
71 Secondly, even on resentencing, the sentence differentials are relatively modest. There are two reasons for this. First, we agree with senior counsel for the Crown that the sentences imposed by the judge were at the lower end of the range reasonably open in the circumstances. This was a massive importation, planned and executed with considerable sophistication and at great expense. The maximum penalty in each case was life imprisonment and it is not surprising, in our view, that the prosecution had urged upon the sentencing judge that he should sentence each of these individuals to life imprisonment. The second - and related - reason is that the seriousness of the crime, and the resultant paramount importance of general deterrence as a sentencing consideration, necessarily means that matters of individual difference carry relatively less weight in the sentencing analysis.
[1] Teng sought an extension of time within which to file an application for leave to appeal. We indicated to counsel that, in the interests of the efficient disposition of the matter, we would hear the substantive arguments on the grounds of appeal in Teng's notice of appeal and decide the ancillary applications in the light of those arguments.
[2] Contrary to para 233B(1)(b) of the Customs Act 1901 (Cth) ('Customs Act') and by operation of s 11 2(1) of the Criminal Code 1995 (Cth).
[3] Contrary to para 233B(1)(b) of the Customs Act.
[4] Reliance was placed on Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 613 (Mason J); and Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.
[5] [2008] VSCA 284, [9].
[6] The Queen v Kiam Fah Teng [2005] VSC 33, [50].
[8] A ground of appeal contending that this description was erroneous was abandoned before the appeal hearing.
[9] The Queen v Wee Quay Tan [2005] VSC 177, [27]-[31].
[11] The Queen v Wee Quay Tan [2005] VSC 177, [46], [47] , [55].
[12] [1998] 1 VR 359, 371 (Winneke P, Brooking and Hayne JJA and Southwell AJA).
[13] [1999] HCA 54; (1999) 199 CLR 270, 280-1 (Gleeson CJ, Gaudron, Hayne and Callinan JJ) (emphasis in the original).
[15] The Queen v Wee Quay Tan [2005] VSC 177, [66]-[67].
[21] The Queen v Ta Song Wong [2006] VSC 126, [42].
[25] The Queen v Ta Song Wong [2006] VSC 126, [42].
[29] The Queen v Yau Kim Lam [2005] VSC 98, [43].
[31] [1984] HCA 46; (1984) 154 CLR 606, 610-11.
[32] Ibid 612; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ).
# R
Teng, Lam, Tan & Wong \[2009\] VSCA 148
(1984) 154 CLR 606
(1997) 189 CLR 295
(1999) 199 CLR 270