R v Tin Yu Ng & Anor [2009] VSCA 218

1 The appellants, Ng Tin Yu and Siu Yik Lu, each pleaded guilty to one count of trafficking in a commercial quantity of dimethylamphetamine, which is an analogue of methylamphetamine or ice. The appellant Siu was arrested on his return to Melbourne from Sydney after had collected the drugs and was intending to deliver them to Ng and another man. The quantity involved was 799.5 grams pure. The dimethylamphetaime was contained in a mix, weighing just over one kilogram. This quantity is almost 50 grams over the minimum quantity which constitutes a commercial quantity of methylamphetamine.[1] It was accepted that Ng had arranged for the collection of the drugs and their delivery to the person at the head of the distribution chain in Melbourne. He was also involved in discussions relating to the marketing and distribution of the drugs upon their delivery in Melbourne. Following the plea Siu was sentenced to five years' imprisonment with a non-parole period of three years. Ng, found to have been involved more heavily in the planning and instigation of the offence, was sentenced to six years' imprisonment with a non-parole period of four years.

2 On the appeal each offender was individually represented by Counsel and relied upon separate, and in some cases, opposing grounds.

3 The appellants were described by the learned sentencing judge as involved at the top level of the supply and distribution chain in Australia. Ng submitted that the sentencing judge erred by rejecting his claim that his motive for his offending was in part motivated by a desire to secure funds to assist in the release of his father who was being held in custody in China. This was said to be a mitigating circumstance. Siu submitted that the sentencing judge erred in characterising his role as more significant and sophisticated than was justified by the evidence. Siu further submitted that the sentencing judge erred in finding that Ng was entitled to a greater sentencing discount for his guilty plea than Siu because it was made earlier in time. Both appellants, submitted that the sentences they received were manifestly excessive. Each relied upon mitigatory factors in support of his submission that principles of parity required that he receive a lower sentence than the other.

4 The offences relate to the movement of the drug within Australia following its importation, apparently from Malaysia.

5 Telephone intercepts and surveillance devices recorded the planning leading up the offence. These were described by the learned sentencing judge as showing a great degree of sophistication and professionalism. As her Honour found, it was clear from those conversations that both appellants, but in particular Ng, were in communication with the people who were responsible for the sourcing of the drugs from overseas, their importation to Australia and with their delivery to the collection point in Sydney. These communications also reveal that Siu was in contact with those from whom he was to collect the drugs and proposed steps, including changing mobile phone sim cards, in order to avoid detection.

6 It was not challenged that Ng, as the sentencing judge found, was the dominant offender who was principally involved with arranging the movement of the drugs. It was accepted by the sentencing judge that Ng was to receive $5000 for his part in the commission of the offence. The involvement of Siu occurred after he was asked to participate by Ng. Siu was then living with Ng. On the plea, it was said that Siu considered Ng akin to an older brother, that he had strong feelings of loyalty towards him and that this was the cause of his involvement in the offending.

7 Ng arranged for Siu to travel to Sydney. Siu went to the arranged collection point for the drugs. It was submitted by the Crown on the plea that he was used as a 'mule with a brain', but one who was not mute and who engaged in some limited planning of the commission of the offence. Upon his arrival in Sydney, Siu made a number of errors, including missing his flight, forgetting key details and apparently losing the address at which he was to collect the drugs. Ultimately, however, he came to collect the drugs and took them with him on an overnight bus to Melbourne.

8 Siu was arrested in the possession of the drugs upon the arrival of the bus at Southern Cross Station. Ng was arrested near his home shortly afterwards, waiting with a third person for Siu to arrive.

9 The learned sentencing judge found both Siu and Ng to have good prospects for rehabilitation. Ng was aged 33 at the time of sentencing, and was described as a talented graphic artist and former professional skateboarder. He has been a successful business owner in both New Zealand and Australia and has lived independently for many years.

10 Siu was aged 25 at the time of sentencing. He was born in the new territories in Hong Kong and his parents separated when he was very young. He was raised by his grandmother from the age of 8. His grandmother was later to suffer from a debilitating stroke. Siu was sent to Australia (Queensland) for the last part of his secondary schooling. Siu successfully completed a Bachelor of Multimedia Studies. Like Ng, Siu has run his own business and worked in a variety of jobs. He was described as having considerable talent in design and multi-media work.

12 Under cover of ground 3 it was submitted that the sentencing judge erred in her treatment of Ng's reason for having offended. On the plea it was put in mitigation, that the appellant's offending was motivated by his desire to secure funds to secure his father's release in China. Rejecting this submission, the learned sentencing judge said:

I also consider that the instructions that were put to me that you thought that you would, through your involvement in this transaction, obtain $5000, and it was that amount that you needed for bail, to be realistic. In fact I consider it to be implausible, particularly having regard to the fact that on the evidence before me, you had considerable assets here, close to $100,000 in cash and bank deposits alone, and significant other assets which were readily convertible to cash, particularly motor cars, motor bikes and watches.[2] (emphasis added)

13 Accordingly, the sentencing judge found that Ng's sole motivation did not amount to an 'excuse' and that it was unlikely that the appellant wanted $5,000 to free his father. The appellant contended that the italicised portion of the above passage of her Honour's reasons was in error and that Ng was therefore wrongfully deprived of a finding as to motive that would have had significant mitigating force.

14 The appellant's mother had given evidence (through an interpreter) that what was required was 'a few thousand dollars, Renminbi, Chinese dollars.' Ng submitted that the learned sentencing judge had erred as she misunderstood his submission which was to the effect that he needed substantially more than that to free his father. On appeal it was submitted that it had never been suggested on the plea that the expected return from the offending would constitute the sole funds required to secure his father's release.

15 As the sentencing remarks indicate, Ng had considerable assets including in excess of $100,000 in cash and bank deposits. The submission, as now explained in this court, would have required acceptance by her Honour of the assertion, unsupported by evidence, that more than $100,000 was required for the bail of the applicant's father. It was open to the sentencing judge, in the absence of any other evidence, to accept the evidence of the mother that only a few thousand dollars was actually required. The Crown's cross-examination of the mother was undertaken with the purpose of contrasting the assets of Ng with the claim that he needed 'a few thousand' for his father's bail. No attempt was made on re-examination to clarify the amount required or suggest that the assets of Ng were insufficient to meet his father's bail. No further evidence was led to contradict the account of the mother.

16 Furthermore, the submission now clearly being made by Ng carries with it the implication that he was seeking to obtain a great deal more from his trafficking activities than the $5000 which counsel had been instructed was the amount he was to receive from this particular offending. To this extent it undermined the suggestion made on the plea that the offending conduct was an isolated incident or that he was only to gain $5000 (and some drugs for personal use) from the offending.

18 It was submitted by Siu that the learned sentencing judge erred in characterising Siu's role as being more significant and sophisticated than was justified by the evidence.

19 The role of an offender is, of course, of importance in determining an appropriate sentence.[3] Counsel for Siu drew attention to the following findings of her Honour:

'[the appellant] played a considerable part in the discussions about how to fulfil [his] role and in the discussions generally about the matter.'

The appellant had 'turned his talents and skills to participation in the drug trade' and was not 'naïve, unsophisticated or unversed in the ways of the world'.

20 It was said that these findings were inconsistent with the evidence. Counsel further emphasised that despite the extensive surveillance, the only reference to Siu on the intercepts arose on those two days before he was to fly to Sydney to collect the drugs. It was accepted that this involvement only arose after the preferred courier withdrew. Sui's position was contrasted with the accepted role of Ng as the person who made arrangements for the trafficking of the drugs while visiting accomplices in Hong Kong; that he arranged for Siu to be the courier; that he had the ultimate responsibility for all of the arrangements and that he expected to participate in the subsequent movement and distribution of the drugs.

21 Counsel for Siu further emphasised that there was no evidence that Siu was to benefit financially from the transaction. He pointed to his incompetence in the way he discharged his role. Siu's involvement in planning extended only to his suggestion that he use a bag with concealed compartments and his telephone conversations regarding taking a bus to Sydney. It was submitted that these suggestions were inconsequential, as the evidence shows that Ng and others had decided all details of Siu's role including how he would get to Sydney, what bag he was to carry and what clothes he would wear. The extent of this planning, in Siu's absence, was said to demonstrate his lack of contribution to the planning.

22 But the suggestion that Siu was involved in the limited way suggested or that he simply did it because he was asked, was rejected by the sentencing judge.[4] Her Honour said:

You, Mr Ng, are older. Your role was greater. I consider that you are higher in the hierarchy than Mr Siu, and it is also an aggravating feature that you involved your younger friend in this.

Having said that, it is clear, Mr Siu, that your role was more than that of an unthinking or perhaps manipulated mule. You went into this with your eyes wide open, knowing exactly what you were doing. You had a very clear choice as to whether to become involved or not. You were not, in any way, on the material before me, pressured or coerced, or had any particular vulnerability exploited.

So although it is clear that I should distinguish between the roles of the two of you, in doing that I am not devaluing the significance of your role, because as the intercepts showed, you played a considerable part in the discussions about how you were to fulfil it, and in the discussions, generally, about the matter.

23 We are not persuaded that the learned sentencing judge erred in her characterisation of the role of Siu. We do, however, consider these findings relevant to the question of manifest excess, as we have set out below. This ground is not made out.

24 By ground 2, Counsel for Siu submitted that the sentencing judge erred in finding that Ng was entitled to a greater discount for his plea of guilty because it was entered at a much earlier stage than Siu and at the earliest possibility.

25 Under s 16A(2)(g) of the Crimes Act 1914 (C'th) a plea of guilty must be taken into account. Siu indicated a plea of guilty in March 2008 and was arraigned on 28 April 2008. Ng first indicated a plea of guilty in August 2007 but did not formally enter his plea until 1 November 2007. Both Ng and Siu did not proceed with a contested committal. Neither proceeded to trial. The Crown submitted that the discount for the plea of guilty may be slightly weighed in Ng's favour. While conceding that Siu's plea was first offered some time later than that of Ng, counsel for Siu submitted that it was still at the same stage of the proceedings and so should not have altered the sentencing judge's view of relative remorse The learned sentencing judge made a specific finding that both appellants exhibited remorse. As to utilitarian consequences of their respective positions, it was said that the timing of the offer from Siu afforded no lesser utilitarian benefit than that offered by Ng.[5] So it was said, that there was no basis for distinguishing between the discount to be offered for the guilty plea of either offender.

26 The timing of the respective guilty pleas was such as to permit some, albeit minor, discrimination between Ng and Siu. The earlier guilty plea may have provided a limited additional utilitarian benefit. The continued negotiations with Siu leading up to his guilty plea may have involved some additional use of resources. The offender who offers to plead guilty at the earliest possible time should received some benefit. This was recognised by the sentencing judge who gave the earlier plea 'greater weight'. This ground is not made out.

27 These grounds concern the gap between the head sentence and non-parole period. In her reasons for sentence the sentencing judge concluded that it was 'appropriate' to 'allow a considerable gap between the head sentence and the time that each of you must serve before being eligible for parole'. Her Honour said that such a period would reflect the appellants' prospects for rehabilitation that were described as 'good'. It was submitted that a non-parole period of 60% was only slightly less than the 'usual' non-parole period, and was certainly not 'considerable'. Thus both Ng and Siu submitted that the sentencing judge had erred, by failing to provide a 'considerable' gap between the head sentence and the date of eligibility for parole.

28 The appellant Siu referred to R v Hill,[6] where it was found that a non-parole period of 65% demonstrated error, as the sentencing judge had stated that she intended to impose a non-parole period that was shorter than usual.[7] But this court has made clear that there is no usual or standard non-parole period.[8] Looking at the typical non-parole period imposed, Callaway JA in R v Bolton & Barker observed:

As with the discount appropriate to a plea of guilty, there is no fixed ratio between a head sentence and a non-parole period. In the majority of cases the proportion is between two-thirds and three-quarters, but both shorter and longer periods are found.[9]

29 The submissions of the appellant seek to attribute to the sentencing judge an intention to impose a non-parole period considerably less than a usual non-parole period. Nothing appears in the sentencing remarks or on the plea that substantiates this contention. The ground is not made out as the sentencing judge did not fail to give effect to her stated intention.

Ground 2 (Ng), Ground 5 (Siu)- manifest excess; Ground 4 (Ng), Ground 5 (Siu)- parity

30 Counsel for both offenders submitted that the sentences imposed were manifestly excessive. Each asked the court to consider their guilty plea; remorse; relative youth; previous good character; and good prospects of rehabilitation. In addition Siu relied on the more limited role he played and the custodial hardship he will suffer as a result of his grandmother (family) being outside the jurisdiction. We also note that in his case it emerged that Siu was in Australia on a student visa at the time of the commission of the offence. Counsel for Siu informed the court on the plea that he was now on a criminal justice visa, that would expire at the end of his sentence, requiring him to be deported from Australia.[10] Counsel urged the Court to take this into account in considering the hardship that would be caused by his subsequent deportation.

31 Counsel for Ng referred to the following additional matters in mitigation. He had pleaded guilty at the earliest opportunity; he had a quite unique work history and strong work ethic; his motivation behind offending, at least in part was his desire to free his father; there would be hardship caused by separation from his family, and in particular his inability to care for them in light of his father's incarceration; and the confiscation of Ng's assets.

32 Much of Ng's submissions concerned the findings of the sentencing judge that Ng had agreed to the forfeiture of property that was neither tainted, nor otherwise, connected with the commission of the offence. Ng was sentenced on the basis that his forfeiture caused 'significant added punishment'.[11]

33 Following the hearing the Court received a series of written submissions from the parties relating to the manner in which the court might take into account extra curial punishment by way of forfeiture of assets. It was conceded by the Crown ( both on this appeal and below) that none of the property the subject of the forfeiture was connected with the crime for which Ng was to be sentenced. It was, however, submitted that the mandatory requirement of 320 (c) of the Proceeds of Crime Act 2002 (Cth) that the court 'must have regard to the forfeiture order to the extent that the order forfeits other property' (unconnected with the offending) does not apply to an automatic forfeiture of the kind suffered by Ng. So, it was said, the sentencing judge erroneously viewed the forfeiture as a mandatory requirement instead of a permissive one. It is unnecessary to stay to consider this matter further as the Crown does not seek to challenge the manner in which the sentencing judge took the forfeiture into account. Both parties accepted that the forfeiture should be considered relevant to the sentence imposed on Ng.

34 Both appellants complain that principles of parity were not properly applied. We do not consider that Ng could have any justifiable sense of grievance arising out of the difference between the sentences imposed on him and Siu. Notwithstanding those matters that were peculiarly in his favour of Ng, namely his loss of property through the forfeiture regime and the slight additional discount he was to receive on the basis of his early guilty plea, the role played by Ng required that there be a significant difference in the sentences imposed on him and Siu. Nor can it be said, taking the findings of the sentencing judge at their highest, that Ng suffered a loss of property unconnected with his criminal conduct and that this constituted a 'significant' added punishment, that the sentence imposed on Ng was manifestly excessive. At all stages Ng played a prominent role in the commission of the offence. He was the driving force behind the criminal endeavour and was to benefit financially from the operation. It was he that directed Siu throughout the operation ensuring Siu was exposed to more risk. He paid for Siu's travel to Sydney. He played an integral and sophisticated part in the planning and commission of the offence. He received a sentence that is within the range of sentences open for an offender who plays a significant role in the trafficking of a commercial quantity of a drug of dependence.

35 Having regard to the limited role played by Siu, it is our view that the sentence he received was manifestly excessive and that he would have a justifiable sense of grievance that there was no greater disparity between his sentence and that of Ng. Although other cases can only influence the instinctive synthesis in the most general way, reference to other cases may be of some assistance. In R v Do[12] a sentence of five years and six months' imprisonment was imposed on an offender for trafficking in a commercial quantity of MDA. He was sentenced on the basis that he was a principal rather than a courier. Similarly in Vu and Vu[13] two co-offenders conducted a business selling heroin. Each was sentenced to four years imprisonment with a non-parole period of two years and nine months on the count of trafficking in a commercial quantity of a drug of dependence. More moderate sentences have been imposed for those who play limited roles in the trafficking. It is well recognised that a courier will generally attract a lesser sentence than someone who is involved in the planning of the offence.[14]

36 In the case of Siu we would allow the appeal. We would sentence Siu to four years' imprisonment with a non-parole period of two years and six months' imprisonment. In the case of Ng we would dismiss the appeal.

[1] Section 11.2(1) and 302.2(1) of the Criminal Code (Cth).

[3] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, [14]-[20]; R v Nicholas [2000] VSCA 49; (2000) 1 VR 356, [162].

[5] R v Gray [1977] VicRp 27; [1977] VR 225, 232; R v Donnelly [1998] 1 VR 645, 649 (Charles JA).

[6] [2004] VSCA 116.

[8] R v Tran [2006] VSCA 222, [27]-[28].

[9] [1998] 1 VR 692, 699.

[10] Though see R v Shrestha [1991] HCA 26; (1991) 173 CLR 48 where the High Court rejected the submission that a non-parole period should not be fixed in the case of a foreign offender who has no ties to this country and who is liable to immediate deportation following release on parole. A majority of the court rejected the argument that there is no community interest in the rehabilitation of this class of offenders

[11] Reasons for sentence [33]-[34].

[12] [2008] VSCA 199.

[13] [2008] VSCA 64.

[14] See for example Tezer and Davis [2007] VSCA 123.