R v Yiu; R v Yau

Court of Criminal Appeal (NSW)|2018-04-06|Before: Meagher JA, Rothman J, Garling J

Solicitors: Director of Public Prosecutions (NSW) (Appellant) LN Legal (Respondent)

2016/114621 Counsel: B Baker (Appellant) D Stewart (Respondent)

Solicitors: Director of Public Prosecutions (NSW) (Appellant) Tsambas & Co Solicitors (Respondent) File Number(s): 2016/50553; 2016/115507; 2016/114621 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 12 March 2018 Before: Maiden DCJ File Number(s): 2016/50553; 2016/115507; 2016/114621

Judgment

MEAGHER JA: I joined in the orders made on 6 April for the reasons given by Rothman J.
ROTHMAN J: The Crown appeals against the sentences imposed upon Cheuk Hang Yiu and Mung Yi Yau by the District Court of New South Wales (Judge Maiden) at Sydney on 12 March 2018. The sole ground of appeal is that each of the sentences imposed is manifestly inadequate, although the Crown provides particulars of identifiable error that may explain what it says is the manifest inadequacy.
Essentially, the sentences were imposed for the role that each respondent played in the supply of approximately 1 kg of methylamphetamine. Each respondent pleaded guilty to the charges preferred.
The appeal was heard on 6 April 2018, on which date orders were made by the Court in the form repeated with these reasons. The Court reserved its reasons. These are the reasons that I join in the orders made.

Background Facts

Mr Yiu was charged with and pleaded guilty to knowingly taking part in the supply of not less than a large commercial quantity of a prohibited drug, namely, 999.1 g of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ("DMT Act"). He requested that the offences of supply of a prohibited drug, namely 20.62 g of methylamphetamine, contrary to s 25(1) of the DMT Act and participate in a criminal group contrary to s 93T(1) of the Crimes Act 1900 (NSW), notified on a Form 1, be taken into account in the sentence to be imposed. .
Mr Yiu was sentenced to a head sentence of 3 years' imprisonment, commencing 14 April 2016 and concluding 13 April 2019, with a non-parole period of 2 years' imprisonment, which was to have expired on 13 April 2018. He entered his plea of guilty in the Local Court and was provided a discount at the maximum 25% for an early plea of guilty.
The maximum penalty for the offence contrary to s 25(2) of the DMT Act is life imprisonment. The standard non-parole period is 15 years.
Ms Yau was also charged and pleaded guilty to the offence of "knowingly take part in the supply of not less than a large commercial quantity of a prohibited drug", namely 999.1 g of methylamphetamine, contrary to s 25(2) of the DMT Act. In Ms Yau's case, she requested, on the Form 1, that the sentencing judge take into account the offence of participation in a criminal group, contrary to s 93T of the Crimes Act.
Ms Yau was sentenced to a head sentence of 3 years' imprisonment, commencing 13 April 2016 and concluding 12 April 2019. The non-parole period was 2 years' imprisonment, which was to have expired on 12 April 2018. Ms Yau too was given a 25% discount for the early plea of guilty.
There were other co-offenders involved in the criminal enterprise. Mr Piao was sentenced to a head sentence of 9 years' imprisonment, with a 6 year non-parole period, also taking into account a 25% discount for the earliest plea of guilty. Mr Piao's role was said to be "more than a mere courier". His apartment was used as a halfway house for the counting of money; he was responsible for communicating with purchasers; and he was responsible for the handover of drugs.
The sentencing judge found that the amount of money received by Mr Piao (or more accurately the amount of money for which there was evidence) was not particularly relevant, given Mr Piao's activity within the gang. The sentencing judge found that Mr Piao was more senior in the operation than either of the respondents in these appeals.
The other co-offender was Ms Chung, who pleaded guilty to an offence under s 25(2) of the DMT Act and obtained a discount of 25% on the sentence. Ms Chung was sentenced to a head sentence of 3 years' imprisonment with a non-parole period of 20 months' imprisonment. The sentencing judge found that the objective seriousness of Ms Chung's offending was "at the very bottom of the range". The sentencing judge took into account two Form 1 offences: dealing with the proceeds of crime (an amount of $14,417) and participating in a criminal group, contrary to s 95T(1).
As earlier stated, it is unnecessary to repeat the evidence that was assembled by the Police against each of the respondents. It is sufficient for present purposes to describe each respondent's role in the supply chain. It is important to understand that the conduct of supply was discovered because of the involvement of an undercover operative attached to the Police.
On 12 April 2016, arrangements were made with the respondents for the supply of methylamphetamine. Mr Yiu told the undercover operative to contact Ms Yau, pick her up, and meet Mr Yiu's friend at Zetland. The reference to the friend was a reference to Mr Piao. The undercover operative arranged to meet with Ms Yau on 13 April 2016 and to pick her up from Chippendale at or about 2.00 pm.
On 13 April 2016, the undercover operative received a phone call from Mr Yiu telling him to pick up Ms Yau and see his friend at a Coles' car park. Ms Yau telephoned Ms Chung, who directed the undercover operative and Ms Yau to Ultimo.
An initial exchange, for the supply of 500 g of methylamphetamine organised between Ms Yau and Ms Chung did not occur, for reasons which are currently irrelevant. At that time, Ms Chung made it clear that "they" would not allow the money and drugs to be in the same location at the same time and that the drugs were ready. She asked the undercover operative to enter a unit block to complete the transaction and the undercover operative requested that it take place in his vehicle. Ms Chung refused. The transaction was ultimately not proceeded with.
At 4:20 pm on 13 April 2016, Ms Yau directed the undercover operative to drive to Moore Park during which time Ms Yau made a number of further calls. Ms Yau handed the telephone to the undercover operative who spoke to Mr Yiu who directed him to drive to Zetland.
At about 5.10 pm, Mr Piao, in possession of a bag provided to him by another co-offender, entered the shopping centre at Zetland, together with the co-offender who had provided the bag. Mr Piao approached the undercover operative's vehicle, while the other co-offender seemed to be a lookout.
Mr Piao entered the vehicle being driven by the undercover operative and introduced himself as Phong. On Mr Piao's direction, the undercover operative drove around the block, while Mr Piao counted the money ($110,000). Mr Piao then directed the undercover operative to attend the Coles' car park where the transaction would occur.
The undercover operative refused and said that the drugs could be brought to him at Zetland, where he would remain with Ms Yau.
Mr Piao left the vehicle, and went to his unit where he collected, with the other co-offender, the kilogram of drugs.
At about 5:19 pm, Mr Yau and the additional co-offender returned to the undercover operative's vehicle, with the drugs in the bag. The co-offender stood lookout.
Mr Piao spoke with Ms Yau in Chinese and then told the undercover operative that "he had it" and showed the undercover operative the drugs. Police then arrested Mr Piao and Ms Yau in the undercover operative's vehicle. The two other co-offenders were arrested in another car. The drugs that were seized totalled 999.1 g with a 78.5% purity.

Mr Yiu's Subjective Features and Relevant Remarks on Sentence

Mr Yiu was 28 at the time of the offending and had no prior criminal history. He had been raised in Hong Kong in a stable, supportive and loving family environment.
Mr Yiu came to Australia in 2007 on a student Visa and had obtained a Bachelor of Applied Finance and Master of Professional Accounting.
Mr Yiu was introduced to "ice" at the age of 25 through his girlfriend and was, by the age of 26, addicted and a daily user.
A forensic psychologist, Bradley Jones, diagnosed him as suffering "Amphetamine-Type Substance Abuse Disorder, moderate severity, in sustained remission in a controlled environment".
The sentencing judge noted that the forensic psychologist had assessed that Mr Yiu had a low risk of reoffending and that he was well educated but had become involved in substance abuse, which led to his methylamphetamine dependency. The judge also noted that Mr Yiu would receive $5,000 for his conduct in this offence and summarised his involvement as being directly involved in negotiation with the undercover operative. This involved conversations with Ms Yau about the supply of drugs and his engagement with her as to how an amount of $10,000 would be divided between the two of them.
His Honour assessed the objective seriousness of the offending as, in his mind, putting Mr Yiu "at the bottom of the … batting order in this matter and, of course, the objective seriousness of his offending is at the lower end of seriousness. However, that has to be borne in mind in relation to the seriousness of the offence to which he has pleaded guilty."
The sentencing judge noted his substance abuse disorder diagnosis; his likely deportation at the conclusion of any sentence of imprisonment; made a finding of special circumstances on the basis that "there are prospects and because of his improved state"; and referred to character references, including that of the prison chaplain, who described Mr Yiu as a trusted inmate, who had not breached prison regulations.
The judge also referred to defence submissions as to Mr Yiu's involvement and the minor role he played in the offending. The judge noted that general deterrence was called for, even in the case of drug addicted offenders, and that these kinds of offences should be considered seriously. There was, according to the sentencing judge, a need for specific deterrence.
The sentencing judge concluded that there were good prospects of rehabilitation and good prospects for Mr Yiu to remain drug-free. However, he qualified that approach by noting that rehabilitation will depend, very much, on factors beyond the control of those who are presently assisting Mr Yiu.
The sentencing judge noted Mr Yiu's age, his tertiary studies and the adoption of what seemed to be an immature and hedonistic lifestyle after the completion of his studies. The sentencing judge also found that Mr Yiu had expressed remorse and, as already stated, provided the maximum discount for the earliest plea of guilty.

Ms Yau's Subjective Features and Relevant Remarks on Sentence

Ms Yau was 22 at the time of the offending and 24 when sentenced. She too was raised in Hong Kong and had used methylamphetamine since the age of 13. She was addicted, at that point, to "ice" and had left school at the age of 15. Ms Yau had undertaken rehabilitation for a period of 12 months, when she was 18. The rehabilitation was completed successfully, but she relapsed.
Her early childhood was violent and the evidence suggested that Ms Yau had been beaten by her father, who was an alcoholic, when Ms Yau was a child. Her father passed away before Ms Yau arrived in Australia. Notwithstanding his abuse, when her father became ill, Ms Yau realised that her relationship with him was precious. Ms Yau was married and has since separated.
Ms Yau came to Australia in 2015 on a Visitor's Visa, returned to Hong Kong and subsequently immigrated to Australia. She has no prior Australian convictions.
Ms Yau states that she felt "lost" when she moved to Sydney and after 6 to 8 months met some drug users and resumed using drugs again.
In order to pay for drugs, she commenced work in a massage parlour. At that time, according to Ms Yau, she was using 3 g of "ice" a day and was depressed.
She entered into a relationship with Mr Huang, who, according to the findings of a Mr Machlin, a clinical psychologist, supported her addiction.
Ms Yau's evidence (consistent with the agreed facts) was that she was to receive $5,000 for her part in the offence, which, according to her, was to be put to paying off a $6,000 debt on her credit card.
During her current incarceration, Ms Yau has become religious and expressed remorse. She says she feels very apologetic and guilty for what she has done.
Mr Machlin, the clinical psychologist who examined Ms Yau, was of the opinion that, at the time of the offences, Ms Yau would have met the DSM-V criteria for Substance Abuse Disorder, which was in remission at the time of sentence. Ms Yau had a history of intermittent depressive episodes as a consequence of her life circumstances and the clinical psychologist diagnosed Ms Yau with Adjustment Disorder with Depressed Mood.
The sentencing judge accepted that Ms Yau was to have received only $5,000 payment for her role in the criminal enterprise and commented that "she sought to assist those persons who had control of [her], that is, with the provision of her supplier, and that as an addict … and being in a position without income was required to live off her wits". The sentencing judge noted her difficult upbringing and her feelings of "genetic disposition" to addiction. The sentencing judge also accepted the Machlin Report that, at the time of the offending, Ms Yau was likely suffering depressive illness.
The sentencing judge referred to character references, including one from the prison chaplain. The references referred to Ms Yau in the highest terms.
The objective seriousness was described by the sentencing judge as at the bottom end of the seriousness of the range for an offence of this kind and the sentencing judge remarked that while Ms Yau could not be described as a courier, she was, effectively, "because of her personality, vulnerable".
Again, the sentencing judge noted that this respondent was likely to be deported after serving any sentence and the sentencing judge thought it unlikely that Ms Yau would reoffend. He found that she had displayed remorse; had gained insight into her offending; and had reflected on her involvement and earlier life. His Honour expressed the hope that she would not return to drug use.
The sentencing judge also noted that Ms Yau put the undercover operative in contact with Mr Yiu; that Ms Yau spoke directly to the purchasers; and was able to be involved to effect the supply. Further, her involvement was more comprehensive because, when the supply of 500 g was thought appropriate, Ms Yau attempted to source the drugs from a different person. Ms Yau was present at the time that the drugs and money were exchanged.
The sentencing judge noted the need for parity and commented that Mr Piao was higher in the chain than Ms Yau and that Ms Yau was not involved with Mr Piao. He noted, however, that Ms Yau was related to Ms Chung and her significant involvement commenced the arrangements for the transactions.
The sentencing judge discounted the sentence by 25% for a plea of guilty at the earliest time and made a finding of special circumstances on the basis of Ms Yau's remorse, understanding and assistance to others in custody. The sentencing judge took into account the Form 1 matter.

Crown Submissions

As is clear from the foregoing, the Crown submits that the sentence imposed on Mr Yiu is manifestly inadequate and reflects latent error. The Crown further submits that the reasons for sentence are infected by four patent errors: 1. the finding that the criminality was "towards the lower end"; 2. the finding that the respondent's role was "at the bottom of the batting order" (if that be different from (1)); 3. failing to find, as an aggravating feature on sentence, that the sentence was committed while the respondent was on conditional liberty, being the grant of bail on the offence taken into account on the Form 1; and 4. failing to take into account the Form 1 offences.
The Crown submits that each of the head sentence and non-parole period is manifestly inadequate, in all of the circumstances of the offence and respondent. The error is manifest in the failure to reflect adequately: the objective criminality of the offending behaviour; the need for general and specific deterrence; protection of the community; and the need for denunciation of the offence.
The offence carries a maximum sentence of life imprisonment and a standard non-parole period of 15 years' imprisonment. The Crown submits that the relation between the sentence and non-parole period to the maximum sentence and standard non-parole period, in the circumstances of Mr Yiu, reflects a manifest error and a manifest inadequacy. The sentence is not consistent with the maximum sentence and standard non-parole period, each of which are important guideposts in the fixing of an appropriate sentence: see Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.
The Crown points to the arithmetic relationship between the sentences (the head sentence being 20% of the standard non-parole period and the non-parole period reflecting only 13.3% of the standard non-parole period). However, sentences cannot be justified (or criticised) merely by reference to such arithmetic relationships.
The Crown takes issue with the description of the criminality as "towards the lower end". The Crown submits that, if that be a reference to objective seriousness, it was an error as the offending represented serious criminality. That criminality is reflected in the following aspects: 1. the quantity of drugs involved is almost twice the threshold for large commercial quantity: see Koh v R [2013] NSWCCA 287; 2. the drug purity was high, and so indicative of high street value and high potential harm to the community: see Lam v R [2014] NSWCCA 50; and 3. the offence committed was not an isolated incident as indicated by the Form 1 matter, which is an offence of supply. Nor was it out of character for the respondent and the criminal conduct was prolonged over a number of weeks.
To the extent that the description by the sentencing judge that concluded Mr Yiu was "at the bottom of the batting order" was different from the statement that criminality was "towards the lower end", that too was in error, for the following reasons: 1. Mr Yiu was directly involved in negotiations with the undercover operative and involved in conversations with Ms Yau as to the supply and division of the proceeds; 2. the offending was prolonged, with Mr Yiu giving directions to the undercover operative in order to effect the supply; 3. in light of his Honour's description about the co-offenders, in particular Mr Piao, as "more than a mere courier", and that Ms Yau was assisting those who had control of her, it was not open to his Honour to find Mr Yiu's criminality was the lowest of the three offenders. Mr Yiu's criminality was, at least, as high as his two previously named co-offenders; and 4. in the alternative, even if Mr Yiu's criminality was at the lowest level of the three co-offenders, it was not significantly so. None of the co-offenders were mere couriers and none of them were principals.
Further, the Crown submits that nothing in the subjective circumstances pertaining to Mr Yiu justified the leniency extended by his Honour. The Crown points out that Mr Yiu was not particularly young; he was not disadvantaged; and he was well educated. While Mr Yiu had an addiction, it was the result of a voluntary decision to take drugs as an adult. His Honour's findings as to rehabilitation were appropriately guarded, as a result.
In sentencing Mr Yiu, his Honour was obliged to have regard to the objectives of sentencing prescribed by s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and, in particular, consider the issues of general deterrence, specific deterrence, protection of the community and the need for denunciation of the offence.
The Crown submits that the head sentence imposed by his Honour failed to reflect adequately the principles of general and specific deterrence, as emphasised by the Court in Parente v R [2017] NSWCCA 284 and the need for denunciation of the respondent's offending.
Further, the finding of special circumstances, which results in a non-parole period that represents two thirds of the total term, compounds the manifest inadequacy in the sentence as a whole. The Crown submits that, even if it were accepted that there was a basis for the finding of special circumstances, the proper exercise of the discretion to vary the statutorily prescribed ratio, contained in s 44 of the Crimes (Sentencing Procedure) Act, is confined by the need to ensure that an offender spends the time in prison that reflects the offence and offender.
The non-parole period is required to reflect the minimum time necessary, in all of the circumstances, for the offence and the offender, including the gravity of the offence and the need for general deterrence: see R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534; R v GWM [2012] NSWCCA 240; R v AB [2018] NSWCCA 113. The Crown submits that, in the present case, the two-year non-parole period fails to reflect adequately the seriousness of the offence, even on a minimum period of imprisonment basis.
The Crown submits that the sentence is at the very bottom end of sentences imposed for offences of this nature, if one were to examine the sentencing statistics. Reference was made to the comparable sentencing information that was available in Hill v R [2012] NSWCCA 265. A comparison with the circumstances in Hill, according to the Crown, revealed that in Hill: the drug purity was much lower; the subjective case was extremely strong; the involvement had been precipitated by coercion; the offender had been placed on suicide watch after arrest; the offender was found to have good prospects of rehabilitation; there was no Form 1; and the offender provided assistance to authorities and received a further discount of 25% for such assistance.
The Crown submits that, similarly, in R v Medd (a Pseudonym) [2016] NSWCCA 216, the Court imposed an undiscounted indicative sentence of 7 to 8 years' imprisonment, with a non-parole period of 6 to 7 years' imprisonment in respect of the same offence, where the offender held an intermediary role. Reliance on either one of those two judgments by the respondents is misplaced.
Next, the Crown expanded on the submission that the sentencing judge erred in failing to find aggravation or an aggravating feature, as a result of the offence having been committed while the respondent was subject to conditional liberty, being bail.
As earlier stated, Mr Yiu was subject to conditional liberty on bail at the time of the offence. Mr Yiu's bail had been granted for the supply offence which, in these proceedings, was notified as the Form 1 offence and taken into account in sentencing for the principal offence.
The Crown submits that this is an aggravating factor in accordance with the provisions of s 21A(2)(j) of the Crimes (Sentencing Procedure) Act. The matter showed earlier criminality of a similar kind and consequently required that the sentence for the principal offence reflect both the need for personal deterrence and retribution at a greater level than would otherwise be the case: Tuvunivono v R [2013] NSWCCA 176; Porter v R [2008] NSWCCA 145.
The fact of conditional liberty on bail gives rise to additional aggravation, irrespective of the circumstance of the conduct to which the bail relates and/or the conduct involved in the principal offending: Frigiani v R [2007] NSWCCA 81. His Honour failed to make reference in his remarks to the fact that Mr Yiu was on bail and therefore, it can be assumed, failed to take that aspect into account.
Next, the Crown submits that the sentencing judge erred in failing to have proper regard to the Form 1 offences. Relying on the guideline judgment (Attorney General's Application Under S 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146), the Crown submits that greater weight needed to be given to personal deterrence and denunciation of the offence in sentencing for the principal offence, because of the inclusion of the Form 1 and the criminality associated with more extended criminal conduct and also a greater need for specific deterrence.
Mr Yiu's Form 1 offence, as earlier stated, included a supply of drugs charge, which differentiated Mr Yiu's Form 1 offences from his co-offenders. The Crown submitted, by examination of the transcript, that his Honour may have been in error in assuming that the Form 1 supply charge was a charge connected with the principal offence, when it was a separate and unconnected supply of drugs. As a consequence, his Honour found that the Form 1 did not merit additional punishment, which, in the submission of the Crown, was an error.
The Crown's submissions relating to Ms Yau were substantially the same as those made concerning Mr Yiu, allowing for the differences in their roles and subjective features. It is unnecessary to summarise them.

Submissions of the Respondents

Similarly, the submissions made on behalf of each respondent are, making similar allowances, substantially the same. I will summarise those that relate to Ms Yau so the essential similarity is more obvious.
The submissions of counsel on behalf of Ms Yau emphasised her acceptance of the responsibility in offending and stressed that Ms Yau was truthful and transparent regarding her involvement in the criminal enterprise. Her role, according to the submissions, was essentially to put the undercover operative in contact with persons who could supply the requested drugs and, according to the submission, to a limited extent only, facilitate the supply. Ms Yau was in a position to do this, because of contacts made as a result of her need to supply her own addiction.
Ms Yau was present at the handover, but, in accordance with the submission, her role was limited. Ms Yau at no time had custody or control of either the drugs or the money. While she facilitated the supply by making the introductions, Ms Yau was unable to supply any drugs herself.
The submissions on her behalf also emphasised that her motive for involvement was paying an escalating credit card debt and she understood that she would receive $10,000 (to be split between her and Mr Yiu). The submission suggested that Ms Yau was "at the bottom of the organisation hierarchy".
While counsel conceded the amount of the drugs involved is an important consideration, it was submitted that the quantity was substantial but falls towards the lower end of the scale compared with the very substantial quantities covered by the offence and compared with other like offences that come before the Court.
Further, while purity (in this case 78.5%) is considered relevant, there is no indication that Ms Yau had any knowledge of the level of purity. Her objective criminality is not to be determined by the selection of a label but by the consideration of the respondent's involvement and the steps taken in the commission of the offence: Koh, supra.
The submission emphasised his Honour's findings that Ms Yau was "at the bottom. Although she was not said to be a courier, she was vulnerable … first because of her intelligence and secondly, because of her perceived needs and addiction at the time".
The submissions on behalf of Ms Yau emphasised that the classification of objective seriousness is a matter for the evaluation of the primary judge: Mulato v R [2006] NSWCCA 282 and requires an assessment of a range of factors and may be susceptible to differing views: Baines v R [2016] NSWCCA 132.
The assessment of objective seriousness is an evaluation that is reviewable only on the basis of House v The King (1936) 55 CLR 499; [1936] HCA 40 principles. The question, therefore, is whether the finding by the primary judge was open to him, having regard to all the evidence before the Court.
The submissions on behalf of Ms Yau also referred to the remarks of his Honour on sentencing which, it was said, properly and correctly took into account all of the circumstances of the offence, the appropriate level of punishment and the subjective circumstances of Ms Yau, which included drug addiction and depressive illness.
The submissions also stress that the sentencing judge was best placed to make assessments of the relative roles of each of the co-offenders and, in particular, the relative seriousness of the conduct of Ms Yau as against the co-offender Mr Piao. Further, although Mr Piao was not the principal, he had access to the drugs and was in a position to supply them, which differentiated his role in comparison with that of Ms Yau.
In seeking to deal with the allegation of manifest inadequacy, the submissions on behalf of Ms Yau point to the fact that the sentencing judge took into account, as one would expect, Ms Yau's genuine remorse; her good prospects of rehabilitation; the depression said to have been suffered by her; her close and positive engagement with Chaplain Weisman in custody; the lack of a likelihood that Ms Yau would reoffend in the future; her possession of insight; and, to the extent that it be different from the last mentioned factor, that she had reflected on her crimes and childhood.
Further, the submissions point to the fact that his Honour took into account considerations of general and specific deterrence; the objective seriousness of Ms Yau's offending; and all other relevant subjective considerations. Ms Yau submits that, while the sentence imposed was "lenient", it was within the range available and within the discretion (or evaluation) performed by the sentencing judge.
The difficulty with these submissions on manifest inadequacy is that, to some extent similarly to the Crown's submissions, they seek to deal with manifest inadequacy on the basis of the existence or otherwise of identifiable error. I return to this subject later in these reasons.

Principles in Relation to the Determination of a Crown Appeal

The Crown possesses a right of appeal under s 5D of the Criminal Appeal Act 1912 (NSW), but, as has been emphasised on a number of occasions, successful Crown appeals should be rare, although no longer on the basis of "double jeopardy". The principles in relation to Crown appeals are of long-standing and, except for the legislative alteration that excluded "double jeopardy" as a basis for the refusal to intervene, remain relevant.
Those principles were summarised by Wood CJ at CL in R v Wall (2002) 71 NSWLR 692; [2002] NSWCCA 42 (with whom R Meagher JA and Bell J agreed). His Honour summarised the principles that then applied in the following manner: "[70] The Crown contends that not only was the sentence imposed inadequate on its face, but also that the sentencing judge made a number of errors of principle in determining that it was appropriate to proceed under s 19B of the Crimes Act (Cth). Before considering these submissions it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence: (a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown: R v Tait (1979) 24 ALR 473 at 476; 46 FLR 386 at 388; and Wong v The Queen (2001) 207 CLR 584 at 605 [58], 624 [109]. (b) Appeals by the Crown should generally be rare: Malvaso v The Queen (1989) 168 CLR 227 at 234. Unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 310, but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 321 at 340 [61]-[62], and Wong v The Queen (at 624 [109]). (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazisis (1991) 51 A Crim R 242 at 247, and Wong v The Queen (at 624 [110]). (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder (1983) 3 NSWLR 245 at 256. It will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen (at 341 [62])."
The foregoing principles must be qualified by the promulgation of s 68A of the Crimes (Appeal and Review) Act 2001 (Cth) which relevantly provided: "68A Double Jeopardy Not To Be Taken Into Account In Prosecution Appeals Against Sentence (1) An appeal court must not: (a) dismiss a prosecution appeal against sentence, or (b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate, because of any element of double jeopardy involved in the respondent being sentenced again. (2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal."
The effect of the provisions in s 68A of the Crimes (Appeal and Review) Act was discussed at length by a specially constituted bench of the Court of Criminal Appeal (Spigelman CJ, Allsop P (as his Honour then was), McClellan CJ at CL (as his Honour then was), Howie and Johnson JJ) in R v JW (2010) 77 NSWLR 7; (2010) 199 A Crim R 486; [2010] NSWCCA 49. Essentially, as can be seen from the terms of the foregoing provision, the legislature enjoined the Court from dismissing an appeal from the Crown, or even imposing a less severe sentence than would otherwise be considered appropriate, on account of the element of "double jeopardy".
In R v JW, the Court determined that the term "double jeopardy", where used in the foregoing provision, refers to the circumstance that an offender may be liable to be sentenced twice on account of the identification of error on the part of the sentencing judge. The Court may, previously, have dismissed an appeal on that basis or imposed a lighter sentence on that basis.
Further, the provision removed, from any part of the Court's consideration in a Crown appeal, any element of distress and anxiety caused by the uncertainty of outcome or the notion of being sentenced twice. Nor may the Court exercise the discretion not to intervene on the basis of such distress and anxiety.
The reasons for judgment in JW also qualify the approach taken to treating Crown appeals as "rare" or "infrequent".
Nevertheless, the Court made clear that the removal of "double jeopardy", as an element in the outcome of the appeal or the sentence to be imposed, did not preclude the exercise of a residual discretion to reject a Crown appeal against sentence. Such a discretion had then been, and still is, of long-standing and survives the requirement on the Court not to have regard to the principle of double jeopardy: see R v JW, per Spigelman CJ at [141], with whom Allsop P agreed (at [205]) and, relevantly, in the joint judgment of McClellan CJ at CL, and Howie and Johnson JJ at [206]).
The continuing application of the residual discretion was confirmed by the High Court in Green v the Queen; Quinn v the Queen [2011] HCA 49 (2011) 244 CLR 462; [2011] HCA 49 ("Green & Quinn") and other judgments. In the reasons for judgment of the plurality (French CJ, Crennan and Kiefel JJ) the High Court made it clear that in an appeal under s 5D of the Criminal Appeal Act, the Court of Criminal Appeal was required to answer two questions: whether, the Court should exercise its residual discretion and decline to allow the appeal and decline to interfere with the sentence from which the appeal has been taken; and if the appeal were to be allowed, to determine to what extent the sentence from which the appeal has been taken should be varied.
The High Court confirmed that the function of Crown appeals is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicting persons" and described that purpose as a "limiting purpose": see Green & Quinn at [35] and [36].
In the proceedings currently before this Court, much has been said on the question of parity between the co-offenders. Parity in sentencing is an expression of the norm of equal justice or equality before the law and an aspect of the rule of law. The creation of a disparity, by the variation of a sentence for one of a number of co-offenders, is one consideration on which the residual discretion not to intervene in a sentence ought to be exercised.
The parity principle is used to impose sentences that, between co-offenders and possibly others, do not create a sense of injustice. However, I reject the proposition that parity in sentencing can be used to increase a sentence beyond that which is thought to be appropriate. When faced with a co-offender's sentence that is, for example, manifestly excessive, it is inappropriate for a sentencing judge (including this Court on resentencing) to impose a sentence that is more severe than that which is thought to be appropriate, in order to overcome a perceived disparity between offenders.
I do not suggest by the foregoing that the Crown has suggested that the Court should impose a sentence that is inappropriate, on account of parity with Mr Piao. Nevertheless, the submission of the Crown has been so characterised, albeit heavily veiled, in the submissions of the respondents.
On the other hand, the Court ought not, when intervening in a sentence, to increase the sentence in such a way as to create a disparity against a sentence not otherwise challenged.
Other grounds for the exercise of the residual discretion may include delay in the hearing and determination of the appeal; delay in the notification to a respondent that an appeal was to be taken against the sentence imposed; the imminent or past release on parole of the respondent to the appeal; and the effect of resentencing on progress towards the respondent's rehabilitation, or any of the other purposes of sentencing.
It is open to the Court to grant a Crown appeal solely on the basis of manifest inadequacy: see Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 and, thereby, to achieve the wider purpose of consistency in sentencing and the establishment of sentencing ranges and principles: see R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [70] (per Howie J, with McClellan CJ at CL and Simpson J [as their Honours then were] agreeing), cited with approval in Green & Quinn, at [37].
Traditionally, the Crown in appeals under s 5D of the Criminal Appeal Act, raises one ground of appeal, being manifest inadequacy. However, the Crown is not so confined. Indeed, on one view, identifiable error may be a more appropriate basis upon which to increase a sentence. In these proceedings, the Crown raises manifest inadequacy, in accordance with the tradition, but then raises a number of identifiable errors, which, the Crown submits, explain the inadequacy.
The difficulty with such an approach is that manifest error (be it excess or inadequacy) may be of a nature which is not discoverable: House v The King. Ordinarily, the exercise by a sentencing judge imposing a sentence, of which the appeal in House v The King was an example, will be the subject of intervention only if the judge acts upon a wrong principle; if the judge allows extraneous or irrelevant matters to guide or affect the outcome; if the judge mistakes the facts; or if the judge does not take into account some material consideration, and not otherwise.
However, an error may not be able to be identified. If, upon the facts, the sentence imposed is "unreasonable or plainly unjust", it is open to an appellate court to conclude that there has been a failure properly to undertake the process by which the sentence was imposed, because a proper exercise of the sentencing regime could not have resulted in the unreasonable or plainly unjust outcome that has been imposed: see also Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54. If, on the other hand, identifiable error does not explain the degree to which a sentence imposed is manifestly inadequate or excessive, then the determination that the sentence is unreasonable or plainly unjust still requires examination.
Further, once error is established and the residual discretion is not exercised, the Court is required to re-sentence. In the re-sentencing exercise, the ordinary sentencing principles apply, including the necessity to have regard to parity between co-offenders.

Are the Sentences Manifestly Inadequate?

Each of the respondents pleaded guilty to the offence of knowingly taking part in the supply of a large commercial quantity of prohibited drugs, namely, "ice". The maximum sentence for that, as has already been stated, is life imprisonment and there is a standard non-parole period of 15 years' imprisonment. The sentence imposed on each was a head sentence of 3 years' imprisonment and a non-parole period of 2 years' imprisonment. The commencement date of the sentence on each respondent is different by one day, to take account of the date of arrest.
One of the co-offenders to each of the respondents was Ms Chung whose offending was, accurately, described as "at the very bottom of the range" of objective seriousness, and who had a number of significant subjective features. The sentence imposed upon her was a sentence of 3 years' imprisonment with a non-parole period of 20 months' imprisonment.
The other significant co-offender was Mr Piao, who was accurately described by the sentencing judge as "higher up in the chain"; whose motivation was money; and who had a significant role in the criminal activity. He was sentenced, as already stated, to a head sentence of 9 years' imprisonment, including a non-parole period of 6 years' imprisonment.
Each of the foregoing co-offenders, including the respondents, was provided a 25% discount for a plea of guilty at the earliest possible time, which is the highest discount to be afforded for the utilitarian value of the plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309.
Neither respondent was a "mere courier". Each, to slightly varying degrees, was involved in the introduction of purchaser to supplier and the negotiation of supply.
While, neither was involved to the extent of Mr Piao, their involvement in the criminal enterprise was far greater than that involved in the conduct of Ms Chung.
As a consequence, it is incorrect to describe their objective criminality as "towards the lower end" or "at the bottom of the batting order". It is, however, appropriate to impose sentences on Mr Yiu and Ms Yau that are similar, if not identical.
In my view, the sentence imposed does not adequately reflect the objective criminality of the offending behaviour and does not pay appropriate regard to the guideposts of the maximum sentence for the offence and the standard non-parole period that have been legislatively prescribed.
Further, the importance of general deterrence in drug supply cases is not limited by the judgment of the Court in Parente.
By the same token, I reject the Crown's part arithmetic approach to the determination of the appropriateness of a head sentence and the standard non-parole period. Ultimately, it matters not what the ratio is between the head sentence or the non-parole period that has been imposed and the maximum sentence or standard non-parole period. That which matters is the appropriate range of sentences for the offence in question and the circumstances of the offender, bearing in mind those two guideposts and any appropriate range.
Nevertheless, the quantity of drugs involved is twice the threshold for a large commercial quantity; the drug purity was very high; and the offence was not an isolated offence, given the existence, for each respondent, of an offence notified on the Form 1 of the same or similar kind.
In the case of Mr Yiu, he was directly involved in negotiations with the undercover operative, as explained earlier in these reasons. In the case of Ms Yau it was she that put the undercover operative in contact with Mr Yiu; spoke directly to the purchaser; and disclosed that she was able to be involved to effect the supply that was required. These considerations put each respondent above the lowest end of the scale, the assessment made by the sentencing judge.
It is fair to say that each of Mr Yiu and Ms Yau have subjective circumstances that were correctly recognised and considered by the sentencing judge. Nevertheless, I accept the Crown submission that neither subjective case warrants the degree of leniency that has been shown to these respondents who are involved, otherwise than as a mere couriers, in a significant drug supply, seemingly as part of ongoing criminal conduct.
In my view, the sentence imposed by the sentencing judge is not within the range of sentences available or appropriate for this offence and these respondents. The range at which the Court must look is the range appropriate for this conduct and these respondents. In my view, the sentence imposed is manifestly inadequate; plainly unjust; and unreasonable. In those circumstances, it is unnecessary to identify specific error and determine whether it accounts for the leniency involved in the sentence that was imposed.

Resentencing

Having come to that conclusion, it was necessary for the Court to determine the sentence that now should be imposed. I have already set out the facts and the conduct of each respondent in the criminal enterprise, and their subjective circumstances.
The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act, which, generally, mirror the common law principles and include, general and specific deterrence; punishment; protection of the community; reform; and rehabilitation: see Veen v R (No 2), supra. I refer, without repeating, to the discussion on the pluperfect subjunctive phrase in s 6(3) of the Criminal Appeal Act. The Court is required to determine whether a more severe sentence is warranted in law and "should have been passed": Baxter v R [2007] NSWCCA 237.
It is necessary to keep in mind as statutory guideposts to which regard is to be had during sentencing, the maximum penalty for the offence and any standard non-parole period which in light of the plea of guilty is not directly applicable.
As to the objective circumstances of the offending, the amount of drugs involved was twice the threshold for the offence in question, but significantly less than the maximum weight of drugs that is governed by this offence. As has been pointed out a number of times, the process of sentencing is one of intuitive or instinctive synthesis in which each of the purposes of sentencing is, together with the objective seriousness and subjective circumstances of the offender, considered and an outcome sought to be achieved that satisfies each of those objects.
Apart from the weight of the drug to which this offence, in relation to each of the respondents, relates, as earlier stated, the purity of the drug evidences the commercial nature of the entire undertaking. Further, the Form 1 offences for each respondent, disclosed the ongoing nature of the operation in which they were involved.
As earlier stated, the involvement of each of the respondents is not at the lowest level, but the objective seriousness of the offence in question is lower than mid-range in objective seriousness. Each respondent is acting in a manner which is akin to a broker and is at a higher level than a mere courier.
Further, there are subjective circumstances which have also been highlighted earlier in these reasons. One matter needs comment.
I do not see that the fact that each will, after serving a term of imprisonment, be deported as a factor that should weigh heavily in the determination of the sentence. The Court is unaware (as was the sentencing judge) of the circumstances and environment that the respective respondent will enjoy and/or suffer in China.
The sentencing judge was correct in asserting that the only appropriate sentence is full-time custodial sentence. Nothing in Parente would ameliorate the need, in the circumstances of each of these respondents, for a full-time custodial sentence.
Neither respondent has a long or significant criminal record. Each pleaded guilty and was granted a discount at the highest level, namely, 25%. I would continue that assessment and that discount.
Ms Yau was an addict and her circumstances must be understood in light of that fact. She had a difficult upbringing to which the clinical psychologist, John Machlin attests. He suggests that she suffers from depressive episodes and is, as the sentencing judge recorded, a vulnerable person. Each of the foregoing is a strong subjective circumstance that ameliorates the sentence that might otherwise need to be imposed.
Ms Yau also tendered a number of references, particularly the reference of Chaplain Wiseman and the sentencing judge concluded, as do I, that Ms Yau, if her addiction is properly resolved, is unlikely to re-offend. She has shown insight into her offending and each of those factors was a matter that should be brought to bear in assessing the subjective circumstances and they were.
In the case of Mr Yiu, there are two offences on the Form 1 and the Court notes the report of Mr Bradley Jones, clinical psychologist. Mr Yiu was and is well-educated, but is methylamphetamine dependent.
Like Ms Yau, he is an addict and that fact explains his involvement in the drug trade. His involvement however must be understood on the basis that there are two Form 1 offences which show, even more markedly, his involvement in an ongoing operation.
Further, he was found in possession of three mobile phones. He, too, has good prospects for rehabilitation and has good references, particularly from Reverend Peter Baines.
Each of the respondents' behaviour in gaol is to their credit and shows evidence of their insight and prospects at rehabilitation. In the case of Mr Yiu, the offending was, according to the psychologists report, both immature and his behaviour "hedonistic".
It seemed to me that, given their dependence, and the need to continue supervision and treatment in the community for a significantly longer period than would be provided if the statutory ratio applied, it was appropriate to find special circumstances and I did so find.
Having found special circumstances and after providing the 25% discount, the question arises as to how one can impose a sentence that gives appropriate weight to the important guideposts, being the maximum sentence of life imprisonment and the standard non-parole period of 15 years' imprisonment. The offences are serious. As already stated, the objective seriousness of the offence is lower than mid-range, but not at the lowest level.
The significant subjective circumstances of each respondent satisfied me that the sentences, imposed by the Court at the conclusion of the hearing of the appeal, were appropriate. Those sentences also do not create any disparity in relation to any co-offender.
For the foregoing reasons I joined in the orders made by the Court and did not regard this as an appropriate occasion on which to exercise the residual discretion reposed in the Court in relation to Crown appeals. I bear in mind the fact that it is for the Crown to prove that the residual discretion ought not be exercised. In my view, they have satisfied the Court in relation to that aspect.
GARLING J: The reasons of Rothman J, with which I entirely agree, encapsulate my reasons for joining in the making of the orders of the Court on 6 April 2018.

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: 27 July 2018

Crimes (Appeal and Review) Act 2001(Cth)

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