R (Cth) v Yuan [2015] NSWCCA 198 | Case summary

Judgment

HOEBEN CJ at CL: Offences and sentence On 18 February 2014 the respondent was convicted after a trial in the Sydney District Court of one charge pursuant to s 307.1(1) of the Criminal Code (Cth) - import commercial quantity of border controlled drug, namely methamphetamine. The maximum penalty for this offence is life imprisonment and/or a fine of $825,000.
The amount of methamphetamine involved in the importation was 68.845 kilograms with a purity of 79.9%. The pure weight of the methamphetamine was 54.961 kilograms. The potential wholesale value of the methamphetamine was between $13,768,920 and $17,211,150. Its retail value was between $48,191,220 and $55,075,680.
On 21 November 2014 McClintock SC DCJ sentenced the respondent to imprisonment with a non-parole period of 6 years, commencing 20 September 2012 and expiring 19 September 2018, with a balance of term of 4 years expiring 19 September 2022.
The Crown brings this appeal pursuant to s5D of the Criminal Appeal Act 1912 (NSW). The Crown relies upon a single ground of appeal. That the sentence imposed was manifestly inadequate. Factual background
Although the matter ran to trial, an Agreed Statement of Facts was provided by the Crown at the sentencing hearing. His Honour also had available to him a schedule of comparative cases, a pre-sentence report, Crown submissions on sentence and the remarks on sentence of Flannery SC DCJ in relation to a co-offender, Vin H Doan ("Doan").
The respondent was born in July 1983 in Hong Kong and his parents still reside there. He came to Australia in 2000 on a student visa and completed a diploma in business and marketing in 2004. Thereafter, he began working as a migration consultant for a few years, before working in a friend's furniture business. The respondent established his own furniture importing business in 2010 and was operating this business until he was arrested.
On 8 May 2012 the respondent departed Australia for Hong Kong. On 27 May 2012 another co-offender, Tin Chu Gary Hui ("Hui"), arrived in Sydney from Hong Kong. On 18 June 2012 the respondent arrived back in Australia from Hong Kong and on 25 June 2012 signed Hui into the Star Casino as his guest. Later that day, Hui departed for Hong Kong. On 17 July 2012 the respondent used a mobile phone with a number ending in 188, which had been acquired in the name of "Greg Turner".
On 16 August 2012 Hui returned to Sydney from Hong Kong. On about 28 August 2012 a container with a number ending in 225 left China. RH Freight, based in Botany, was engaged as a freight forwarder for the consignment by a Chinese company. RH Freight's job was to arrange customs and AQIS clearances. Paperwork for the consignment listed the consignee as "Jack Goden" with a mobile telephone number ending in 188 (i.e. the phone mentioned earlier). The contents of the container were listed as 47 cartons "outdoor dining set, leather sofa, fabric sofa".
On 1 September 2012 a man calling himself "Jack" attended the premises of Storage King at Princes Highway Rockdale. "Jack" was the respondent. He inquired about renting a storage unit that would fit the contents of a 20 foot shipping container and was told that such a unit was available. He reserved a suitable unit (AA03) and subsequently rang to ask about security. On 11 September 2012 the container arrived at Port Botany. The consignment note identified the contact person as "Jack Goden" and the point of delivery as Storage King Rockdale.
On 12 September 2012 the container was examined by Customs officers. The consignment consisted of furniture, including five high-backed sofas inside which Customs officers located packages containing a substance which when tested, was positive for methamphetamine. The Australian Federal Police (AFP) were contacted and the consignment was seized. The sofas contained 69 packages, 68 wrapped in carbon paper and one in clear plastic. When the content of these packages was analysed, it was found to contain 68.845 kgs of methamphetamine, the pure weight of which was 54.961 kgs, i.e. there was an average purity of 79.9%.
On 13 September 2012 the AFP substituted the consignment with an inert substance and the container was repacked. On that same day, the respondent called a male in China who identified himself as "Sam". Sam advised the respondent that the container could not be delivered the next day because it had only just passed Customs. Sam said the truck could not be arranged until the container passed the Customs "scan". The respondent suggested that once the delivery was finalised, they should improve the process for next time. There was also a discussion in which the respondent agreed to transfer money to Sam in China.
On 14 September 2012 the respondent contacted the freight forwarder regarding the delivery of the consignment at 9am on Tuesday 18 September 2012. He asked whether there had been any problems with the clearance of the container. On the same day, the AFP were authorised to perform a controlled delivery of the container and a surveillance device was installed in unit AA03 at Storage King Rockdale.
On Saturday 15 September the respondent attended Storage King Rockdale and informed staff that the container would arrive at 9am on Tuesday 18 September 2012. At 9.30am on that day, the substituted consignment was delivered to Storage King. An Asian man accepted delivery of the consignment, signing the delivery receipt as "Jack Goden Yuan". At about 9.47am the respondent arrived at Storage King and assisted with unloading the contents of the container into storage unit AA03. While unloading the consignment, the respondent directed that the five high-backed sofas containing the substituted packages be separated from the rest of the consignment and placed outside unit AA03 because they were going to be collected immediately. The respondent signed the delivery paperwork as "Jack Goden Yuan". The respondent then made two calls to an unknown male about him coming to Storage King.
About 10.54am a white Mitsubishi pantechnicon (the white truck) arrived at Storage King. In the truck were the co-accused Doan and an unknown male. The respondent, Doan and the unknown male loaded the five high-backed sofas containing the substituted packages into the back of the truck. At 11.03am the white truck departed Storage King with Doan and the unknown male on board.
The respondent, using the name "Jack", then paid Storage King for the hire of storage unit AA03.
Doan and the unknown male drove the white truck to Coventry Road Cabramatta where they parked. Doan and the unknown male then walked around the corner to John Street Cabramatta from where they departed in a taxi. The white truck, with the five sofas inside, was left unattended in Cabramatta and remained under police observation.
At 2pm on 18 September 2012 the respondent received a call from Sam in China asking about the container. The respondent told Sam that it was "done and completed and there was no problem". At 9.43pm on Wednesday 19 September the respondent met with two males at Yennora, one of whom was Wai-To Chan ("Chan") who was an associate of Doan and Hui. The respondent had previously signed Chan into the Star City Casino as his guest. They then drove to Bass Hill McDonalds on the Hume Highway where a discussion took place. The respondent left at approximately 10.58pm.
On the morning of 20 September there were various meetings at which the respondent was present when the sofas were discussed. Doan and another male drove the white truck from Cabramatta to Fairfield West. A short time later Doan, Hui and other males approached the white truck and unloaded the five sofas into the garage at 40 Quiros Avenue Fairfield West. Hui then made a number of calls in Mandarin in which he discussed the consignment and its unpacking.
At 12.12pm on 20 September AFP officers entered the garage. Doan and Hui were the only persons present. The AFP officers observed the five sofas in the garage. The base of one of the sofas had been removed. Doan and Hui were in the garage wearing gloves and in the process of removing the substitute packages from their concealment inside the open sofa. A number of the substituted packages had already been removed.
In total 67 packages were located, of which 62 were able to be positively identified as the substitute packages. The others were not able to be so identified because they were either covered with blue fabric or were without markings. Both Doan and Hui were arrested and a search warrant executed. The respondent was arrested at his home at 9.02pm on 20 September 2012. He declined to participate in an interview.
The respondent's case at trial was that he admitted each of the physical elements of the offence, but denied any knowledge of the presence of the methamphetamine within the five sofas. The sentence proceedings
Having reviewed the facts, his Honour set out the respondent's subjective case. The respondent did not give evidence, but his wife did. His Honour also had available a pre-sentence report. The respondent's wife said that they had been married since 2005 and had one daughter, although the respondent was not the biological father. She said that the respondent was not a drug user and that he had been a very good stepfather to her daughter. She remained supportive of him and attested to his previous good character.
His Honour noted that the respondent had not received any institutional charges since his incarceration on 20 September 2012. The pre-sentence report assessed him as being at low risk of re-offending. He had no previous criminal history.
His Honour then turned to the respondent's role in the offending. He assessed the offence as a serious and significant criminal enterprise and that the offender had been involved in the process of the importation at a fairly early stage. His Honour noted the use of phones in a false name. His Honour found as a fact that the respondent was the point of contact for the container in Australia and rejected the proposition that the respondent had a late and peripheral involvement in the matter.
His Honour set out a number of the activities which the respondent had carried out in order to facilitate the importation, i.e. arranging the facilities at Storage King, directing the contents of the container to that location, discussions with Sam in China concerning the dispatching of the container and the transfers of money to China. His Honour noted that the respondent was physically present when the sofas were taken away by Doan and the unknown male and that he signed the paperwork.
His Honour found: "The facts suggest that the offender had involvement in the importation over a period of time and he had liaised, as I have indicated, with the exporters from China. He appeared to have familiarity and authority in his discussions with them. His immediate role was to accept delivery of the container and act as the authorised recipient of it." (ROS 8.7)
His Honour was not able to quantify the amount of the reward which the respondent was to receive, but found that because of the respondent's role it would have been substantial. His Honour characterised the offender's role as that of a "supervisor or executor in the enterprise".
In relation to the seriousness of the offending, his Honour said: " … the offender participated for a much longer time than that of Mr Doan. I note that the quantity of the drug was a very significant quantity. It is 73 times the commercial quantity threshold. The value of the drug is also very large. In my view this is a significant and serious example of the offence contemplated by the legislature and I have already indicated the role which I attributed to the offender." (ROS 9.1)
His Honour considered that the sentence to be imposed should include a very significant element of general deterrence and that specific deterrence was also a consideration. While finding that the respondent had reasonable prospects of rehabilitation, his Honour could find no evidence that the respondent was remorseful. Crown submissions
The Crown acknowledged the limitations which govern a Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 (NSW). Nevertheless, the Crown submitted that the sentence imposed in this case fell within the category of cases where this Court should intervene. The Crown submitted that the sentence imposed on the respondent was manifestly inadequate and created an inconsistency in sentencing standards to the extent that this Court should intervene in order to maintain adequate standards of punishment for offences of this kind. The Crown noted that no aspect of double jeopardy applied to such re-sentencing with respect to Commonwealth offences (Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638 at [28] - [29]).
The Crown relied upon the principles applicable to a Crown appeal against sentence set out by Refshauge J (with whom Penfold and Lander JJ agreed) in R v TW [2011] ACTCA 25; 6 ACT LR 18 at 20 - 21 [6] which was subsequently followed in R v Craig Meyboom [2012] ACTCA 48 (Refshauge Penfold and North JJ) at [6] - [9]. By reference to those decisions, the Crown identified the following as occasions which would give rise to the bringing of a Crown appeal: 1. When a sentence revealed such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle. 2. Where it was necessary for a Court of Criminal Appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person. 3. To enable the courts to establish and maintain adequate standards of punishment for crime. 4. To enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected. 5. To correct a sentence which was so disproportionate to the seriousness of the crime as to shock the public conscience; and 6. To ensure, as far as the subject matter permits, that there would be uniformity of sentencing.
The Crown submitted that the statement of principle in those cases was consistent with what the plurality (French CJ Crennan and Kiefel JJ) said in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1]: "The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions ("Crown appeals") under s 5D of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act") is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the "residual discretion"."
The Crown submitted that this Court should intervene in the circumstances of this case because: "(a) There is a need to establish matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons": Griffiths v R [1977] HCA 44; 137 CLR 293. (b) Taking into account all the relevant matters, the sentence does not reflect the circumstances of the particular offence committed by the respondent and "constitutes an affront to community standards" (R v Gallagher [1991] 23 NSWLR 220 at 232)."
The Crown noted that in the sentencing hearing a schedule of cases and sentencing statistics were provided to the sentencing judge. While acknowledging the limitations of such material, the Crown submitted that by reference to it, in particular the schedule of cases and the maximum sentence available for the offence, and his Honour's own findings as to the objective seriousness of the respondent's role in the importation, it was clear that the sentence imposed was manifestly inadequate. The Crown submitted that it was readily apparent that the sentence imposed was not within the proper range for this kind of offence.
The Crown submitted that not only did his Honour make significant findings as to the role of the respondent and the seriousness of the offending, i.e. that his role was that of a "supervisor or executor in the enterprise" and that this was a "significant and very serious example of the offence contemplated by the legislature" but the respondent's subjective case was weak. The Crown submitted that there was nothing put before his Honour which would have had the effect of significantly mitigating the respondent's sentence in the light of those findings made by his Honour. The Crown submitted that in addition to those findings there was the purely financial motivation and that the criminality was sustained over 3-4 months and involved the telling of many lies. The Crown submitted that it was implicit in his Honour's findings that the respondent's criminality was carefully planned.
The schedule of cases said by the Crown to be comparable and which were relied upon before the sentencing judge and in this Court were: R v Tam [2013] WASCSR 226; Thi Kim Phung Nguyen v R [2012] VSCA 119; Phuong Bich Nguyen v R; Phommalysack v R [2011] VSCA 32; 31 VR 673; R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 and Chan, Lo and Nguyen v Regina [2010] NSWCCA 153.
The Crown submitted that these cases were comparable because the role of the accused was similar and the quantity of drugs imported was large, although in no case was the quantity as large as the quantity of drugs here. The Crown noted that in each of those cases, there was a plea of guilty so that the sentences imposed in each case needed to be increased appropriately in order to assess their comparability with the sentence in this case. The Crown submitted that when the sentences were thus increased, they were all significantly higher than the sentence imposed here.
The Crown made particular reference to the decision in R v Nguyen; R v Pham. Two offenders were charged with the importation of 27.153 kgs of pure cocaine and 13.04 kgs of pure methamphetamine concealed inside foot spas. The offender Nguyen was aged 42, had registered a business name and had organised with an overseas company for the consignment of goods by sea. Police intercepted the consignment, found the drugs and replaced them with inert substances. The offender assisted in unloading the consignment and returned later with Pham to access the drugs from the goods. Pham was aged 32 and her role was to liaise with the overseas end of the operation about various matters, including payment for the deconstruction of the foot spas and the destination of the packages. She took the packages to the purchaser believing that they contained drugs.
Initially Nguyen was sentenced to a term of imprisonment of 14 years and 6 months with a non-parole period of 9 years and 6 months. This was increased on appeal to a term of imprisonment of 18 years with a non-parole period of 12 years. In the case of Pham, she was originally sentenced to a term of imprisonment of 11 years with a non-parole period of 7 years. After a Crown appeal, that sentence was increased to imprisonment for 15 years with a non-parole period of 10 years. Respondent's submissions
The respondent submitted that the limits on appellate review under s 5D of the Criminal Appeal Act 1912 (NSW) of the exercise of the sentencing discretion were set out in House v R [1936] HCA 40; 55 CLR 499 at 505. He submitted that the Crown must identify error of one of the kinds mentioned in House v R and must further identify some sentencing principle that arises (R v Tuala [2015] NSWCCA 8 at [99]).
The respondent submitted that of the two kinds of errors in House v R, the only one which could possibly be relevant here is "non-specific error". That arises when no specific error can be identified but nevertheless the exercise of discretion is "unreasonable or plainly unjust" so as to justify the conclusion that error has occurred. The respondent submitted that to establish that a sentence was "unreasonable or plainly unjust", the Crown must establish that it was so low as to be "definitely outside the appropriate range for the case in hand" (Everett v R [1994] HCA 49; 181 CLR 295 at 306 per McHugh J.) The respondent submitted that since no wrong principle requiring correction has been identified and the basis for the appeal is an asserted inconsistency with other sentences, the observations of Simpson J in Tuala are apposite: "99 In this case, as in DH; AH, no principle sought to be established was identified. It is not sufficient, in my opinion, to hypothesise that a sentence about which complaint is made might (or must) have come about as a result of the attribution of excessive weight to one consideration, or the attribution of inadequate weight to another. The Crown must identify error of one of the kinds mentioned in House v The King [1936] HCA 40; 55 CLR 499 and must, further, identify some sentencing principle that arises. That has not here been done."
The respondent submitted that the Crown's submissions are based on case law predating CMB v Attorney General (NSW) [2015] HCA 9; 89 ALJR 407. The respondent submitted that although a schedule of cases and sentencing statistics were provided to the sentencing judge, it was not suggested that his Honour did not have regard to them. The respondent submitted that the Crown was seeking to import a concept of legitimate range derived from statistics into a basis for a Crown appeal as though that would found a House v R error. The respondent submitted that such a process of reasoning was impermissible in this area of the law.
The respondent submitted that Crown appeals were meant to be exceptional and that there was a long line of authority to that effect and that they should be rare and should only be brought for the purpose of establishing principle not mere "correction of error" (Green v The Queen; Quinn v The Queen; R v DH; R v AH [2014] NSWCCA 326). The respondent submitted that it was not sufficient for the Crown to establish that the Court of Criminal Appeal would have imposed a more severe sentence.
The respondent submitted that where as here the case turned on its own particular facts, and no principle was sought to be established nor range provided, the appeal should not be upheld. He submitted that the discretion of the sentencing judge would only be liable to be interfered with in a compelling case. He submitted that even if the sentence were outside the range, or otherwise unreasonable, where the case turned upon its own facts the appeal should be dismissed in the exercise of the discretion.
The respondent submitted that although his Honour found that his role was not peripheral, he determined within the proper exercise of his function the nature of the role and its importance. The respondent submitted that his Honour did not find that there were comparable cases nor would it have been appropriate for him to do so. The respondent submitted that Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58] - [67] and [62] did not authorise or introduce a concept of comparable cases based on sentencing derived from statistics or summaries.
The respondent submitted that the suggested parallel with the schedule of cases provided by the Crown involved a false line of reasoning. The respondent submitted that in any event the sentences in the schedule of cases were not so inconsistent with that passed in this case as to point to a House v R error.
The respondent submitted that the discretion to entertain and uphold a Crown appeal was a most important matter. He submitted that although double jeopardy as a concept no longer regulated such appeals, the residual discretion, particularly having regard to the purpose of Crown appeals, was of great importance. He submitted that no submissions were made by the Crown as to why the discretion should be exercised in its favour. He submitted that there was no attempt in this case to expose and declare an error in principle or for the need to lay down a principle for the general governance and guidance of courts to make or establish a standard range or to correct an idiosyncratic view or to establish that the sentence was such as to shock the public conscience. He submitted that there was no principle in sentencing, even in Commonwealth offences, to ensure a "uniformity" of sentence. Consideration
As was submitted by the respondent, for the Crown to succeed in this appeal it needed to satisfy the second type of error identified in House v R. The nature of that exercise was succinctly stated by the High Court in Carroll v The Queen [2009] HCA 13; 254 CLR 259 (Gummow, Hayne, Crennan, Kiefel & Bell JJ): "6 Section 5D(1) of the Criminal Appeal Act 1912 (NSW) provides that: "The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper." 7 It has long been established that "[i]nadequacy of sentence, an expression not found in the Criminal Appeal Act ... is not satisfied by a mere disagreement by the Court of Appeal with the sentence actually imposed". Rather, as pointed out in Dinsdale v The Queen, error must first be identified by the appellate court. And as was held in House v The King, an appeal against an exercise of discretion, in this case a sentencing discretion, is governed by established principles. 8 The particular principle which the Director sought to invoke in his appeal to the Court of Criminal Appeal against the sentence passed upon the present appellant was the last category of case identified in the well-known classification stated in House v The King: "It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 9 The Director's allegation in his notice of appeal to the Court of Criminal Appeal, that the sentence passed was "manifestly inadequate", was an allegation of this kind of error. It was not an allegation that the primary judge had acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, had mistaken the facts or had not taken into account some material consideration. If a case of specific error of any of those kinds was to be made it would have been necessary to identify the asserted error in the grounds of appeal. But as indicated at the outset, no case of specific error was alleged; the sole ground of appeal was manifest inadequacy of sentence."
The conclusion of the court in Carroll v R is also instructive: "24 In deciding whether the sentence passed by the primary judge was manifestly inadequate it was open to the Court of Criminal Appeal to consider how the appellant's offending was properly to be characterised. In particular, it was open to the Court of Criminal Appeal to form a view different from the primary judge about where, on an objective scale of offending, the appellant's conduct stood. But in the absence of any challenge to the primary judge's findings of fact, it was not open to the Court of Criminal Appeal to evaluate the adequacy of the sentence by discarding reference to why the appellant had acted as he had, or by attributing to him the ability to foresee that his conduct could cause not just serious injury, but severe injury or the possibility of death. …"
Statements to similar effect were made by the plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 where their Honours said: "24 … Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence. Plainly enough the Court of Criminal Appeal disagreed with the sentence imposed by Judge Lerve and favoured a more severe sentence. The difference between the Court of Criminal Appeal's assessment of the appropriate sentence and Judge Lerve's assessment may be explained by saying that Judge Lerve gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for Judge Lerve. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by Judge Lerve was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant's subjective case. The power could only be engaged if the Court was satisfied that Judge Lerve's discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards. In that event, the Court was required to consider whether the Director's appeal should nonetheless be dismissed in the exercise of the residual discretion. The Court of Criminal Appeal did not decide that the sentence for the s 33(1)(b) offence was manifestly inadequate. The Court of Criminal Appeal did not consider the exercise of the residual discretion. …"
In this case, there is no challenge to any of the findings of fact by the sentencing judge. The complaint by the Crown is that, having made findings which demonstrated not only the very serious nature of the offending but also the absence of mitigating factors, there was such a disconnect between those findings and the sentence imposed as to demonstrate that his Honour's sentencing discretion miscarried. That being so, it was the Crown's submission that the existence of such a sentence created an inconsistency in sentencing standards to the extent that this Court should intervene in order to maintain adequate standards of punishment for offences of this kind.
The Crown submitted that it was this latter consideration which gave rise to a "matter of principle". As was said in Everett v R at [300] (Brennan, Deane, Dawson and Gaudron JJ): "The reference to "matter of principle" in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting "error in point of principle". The reference is to the statement of Barwick CJ in Griffiths v R [1977[ HCA 44; 137 CLR 293 at [310].
One of the cases to which the sentencing judge was referred (R v Nguyen; R v Pham [2010] NSWCCA 238) (Johnson J with whom Macfarlan JA and R A Hulme J agreed) is of particular assistance because it sets out a number of general propositions relating to drug importation offences, which emerge from the authorities: "72 … (a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee at [27]; (b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]; R v Lee at [25]; (c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the "mastermind" does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26]; (d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen; Leung v The Queen at 607-608 [64]; R v Lee at [23]-[24]; (e) the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar v The Queen (No 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46]; (f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32]; (g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v the Queen; Leung v The Queen at 607-608 [64]; (h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552-553 [114]; (i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6]; (j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]- [57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20]- [25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49]; (k) where offenders are not young (Mr Nguyen was 42 years' old and Ms Pham was 32 years' old), the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 474 [98]; …"
Those propositions can be usefully applied to the facts of this case and the findings by the sentencing judge. When this is done, it is apparent that the sentence was manifestly inadequate and that the submission to that effect by the Crown should be accepted.
In his fact finding, his Honour recognised the objective seriousness of the offending. As set out above, while the quantity of drug involved is not decisive, it remains a very important consideration. Here the quantity of drug was 73 times the amount which constituted a commercial quantity (i.e. three-quarters kg). The maximum penalty for the importation of a commercial quantity of methamphetamine is imprisonment for life. That remains, as the High Court has made clear, an important guidepost for sentencing judges. The potential value of 54.961 kilograms of pure methamphetamine was also relevant, i.e. $13,768,920 - $17,211,150 wholesale and $48,191,220 - $55,075,680 retail.
The devastating effects of methamphetamine, not only on its users but those who come in contact with them, is notorious. The rapidity with which addiction occurs is well known. The sudden onset of irrational rage accompanied by acts of extreme violence are common to those who use this pernicious substance. The potential damage and misery which would have been wrought on the community had the respondent's importation been successful would have been enormous. Those matters are implicit in his Honour's fact finding and the nature of the offending.
There was nothing in the respondent's subjective case which in any real way mitigated the seriousness of the offending. The fact that he had no previous offences was of only limited importance in offences of this kind because it was that very quality which enabled him to engage in the offending. His lack of previous convictions made it easier for him to avoid suspicion and arrange the importation. There were no extenuating circumstances, such as addiction or financial need. The respondent's motivation as found by his Honour was financial gain, or to put it bluntly, personal greed. His Honour found that there was no remorse for the offending.
The position occupied by the respondent in the importation of the methamphetamine into Australia was a pivotal one. He was the supervisor of what occurred at the Australian end. In that regard, his Honour rejected out of hand the suggestion that the respondent's connection with the importation was peripheral. As also found by his Honour, the respondent's involvement took place over a significant period of time, i.e. 3 - 4 months. Implicit in his Honour's findings is that a significant amount of preparation and planning must have occurred for an importation of this size to have taken place. Also implicit in his Honour's findings is the position of trust which the respondent must have held in the criminal group for him to have been entrusted with such a large quantity of methamphetamine.
Although his Honour did not make such an assessment, it is clear from the factual findings that the objective seriousness of this offending was at the upper end of seriousness for offences of this kind.
There was another basis for which the Crown relied on R v Nguyen; R v Pham. The Court not only reviewed sentencing standards in respect of large drug importations as set out in R v Lee [2007] NSWCCA 234 and Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 but reviewed for itself a schedule of national comparative drug importation cases for the period August 2007 to May 2010. That schedule updated the one referred to in R v Lee and extended beyond the class of cases referred to in R v Lee, which was restricted to intermediate appellate court and Supreme Court decisions, and included many District Court and County Court sentencing decisions as well. The updated schedule comprised 68 cases.
Johnson J set out his conclusion in relation to the updated schedule of cases as follows: "104 The gathering of sentencing decisions into a schedule, to assist both intermediate appellate courts and sentencing courts, has proved useful in a number of circumstances. The analysis contained in the decision of this Court in R v Lee identified sentences which had been imposed over a period of time for commercial drug importation offences, and has served to promote consistency where sentences for federal offences of that type are passed in a range of courts throughout the States and Territories of Australia. 105 Of course, R v Lee did not (and cannot) purport to be a guideline judgment. The fact that this Court has been provided with an updated schedule for the period 2007 to 2010, and has received submissions concerning that schedule for the purpose of determining these Crown appeals, does not translate the present judgment into a form of guideline judgment. 106 Comparable cases can be useful guides, but care remains necessary in the use of case schedules given the objective and subjective differences between cases and the need to render individual justice: R v Todoroski [2010] NSWCCA 75 at [26]. 107 The submissions to this Court by reference to the updated schedule have been made in relatively general terms and it is appropriate that the Court respond in similar terms. Having considered the cases referred to in the updated schedule, I am satisfied that the schedule continues to support the analysis contained in R v Lee. 108 Of course, there are differences between offences and offenders in the cases referred to in the schedule, including quantities of drugs involved, the offender's plea and the timing of the plea, the giving of discounts for assistance to authorities and the role of the particular offender in the various cases. 109 An examination of these cases, however, supports the Crown submission with respect to manifest inadequacy in this case, where the Respondents played senior roles, and were key organisers critical to the success of the enterprise, being large-scale importations of border controlled drugs. The position reached by reference to arguments advanced on the appeals is supported by the fact that the Respondents appear to fall within the second group of commercial quantity offenders identified by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa at [210]-[211], [224], being part of an analysis which Simpson J (at [291]-[305]) and Barr AJ (at [313]) regarded as helpful."
Applying that approach to this case, while it cannot be said that a small selection of cases which bear a strong similarity to the offending under consideration set a standard or range for sentencing, they are helpful. They provide some guide to sentencing patterns and indicate how sentencing principles have been applied in other cases where similar issues have arisen. As was said by the plurality in Hili v The Queen; Jones v The Queen concerning such cases: "54 … Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence"."
As stated by his Honour, for an offence of this seriousness, the sentence had to take into account a significant element of general deterrence as well as specific deterrence. The sentence needed to be such as to clearly denounce the respondent's conduct. The sentence needed to recognise the devastating effect which the offending would have had on very many victims and on the community as a whole. The sentence imposed for this offence needed to demonstrate in the clearest terms that persons who import large commercial quantities of methamphetamine can expect to receive a lengthy custodial sentence.
It follows that I am satisfied in this case that there was "a failure properly to exercise the discretion which the law reposes in the court of first instance" (House v R at 505). The result embodied in the sentencing judge's orders was "unreasonable or plainly unjust". I am satisfied that the sentence was manifestly inadequate. I am also satisfied that the existence of such a sentence creates an inconsistency in sentencing standards to the extent that this Court should intervene in order to maintain adequate standards of punishment for offences of this kind.
That, however, does not end the matter. There remains the question of whether, as a matter of discretion, this Court should intervene and re-sentence the respondent.
While being mindful that the Crown carries the onus of establishing that the discretion should not be exercised in favour of the respondent (CMB v Attorney General (NSW)) there is no discretionary consideration before the Court in this matter which would cause the Court not to proceed to re-sentence. On the contrary, the very basis for the intervention of this Court is to maintain adequate standards of punishment for offences of this kind. The sentencing process at first instance led to the imposition of an unreasonable or plainly unjust sentence. The interests of justice require the imposition of an appropriate sentence for this serious offence (R v Dinh [2010] NSWCCA 74; 199 A Crim R 573 at [79]). The sentence is so inadequate that it cannot be allowed to stand.
In those circumstances, the orders which I propose are: 1. The Crown appeal is allowed. 2. The sentence imposed by the District Court on 21 November 2014 is quashed. 3. In lieu thereof, the respondent is sentenced to imprisonment with a non-parole period of 10 years, commencing 20 September 2012 and expiring 19 September 2022, with a balance of term of 5 years, expiring 19 September 2027.
DAVIES J: I agree with Hoeben CJ at CL.
HAMILL J: I have had the great advantage of reading the judgment of Hoeben CJ at CL in draft. I agree that this prosecution appeal should be upheld and that the respondent must be re-sentenced. I agree generally with the Chief Judge's reasons and adopt his Honour's analysis of the relevant facts, circumstances and statement of the issues. In re-exercising the sentencing discretion, I have come to a different conclusion as to the appropriate sentence largely because I take a different approach to one aspect of the respondent's subjective case, namely the weight to be afforded to the evidence of his lack of criminal history and previous good character. I am also concerned to ensure that there is an appropriate proportion between the respondent's sentence and that imposed on the co-offender (Doan). The appeal against inadequacy must be upheld
The role of the respondent in the present case was well above that of a mere courier or recipient of the drugs and the sentencing Judge so found. However, he was not a principal in the operation and his involvement, in the sense of the things that he actually did to advance the importation, were relatively confined: R v Olbrich [1999] HCA 54; 199 CLR 270 at [19]. The fact that he was involved in the actual collection of the drugs suggests that he was not operating at a high level. Those at the top of such organisations do not generally expose themselves to detection in such a way. There was a massive amount of drugs involved and nothing to suggest that the respondent was not aware of that fact: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [64] and [69]. The sentencing Judge inferred that he was likely to receive substantial financial reward for his involvement.
A comparison between the sentence imposed on the respondent and sentences imposed in other cases must be undertaken with considerable caution: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [53]-[55]. However, in comparing his sentence with those other sentencing outcomes, it must be remembered that the respondent was not entitled to a reduction in his sentence in consequence of any willingness on his part to facilitate the course of justice, by way of a plea of guilty, assistance to law enforcement authorities or otherwise. When the comparison is made with those considerations in mind, it is impossible to avoid the conclusion that the sentence imposed on the respondent was outside of an appropriate sentencing range and that "there must have been some misapplication of principle [by the sentencing judge], even though where and how is not apparent from the statement of reasons": Wong v the Queen at [58] Hili v The Queen at [59], [67].
Accordingly, I agree with Hoeben CJ at CL that the sentence imposed was manifestly inadequate and plainly wrong. I also agree that the appellant has established, by reference to the extent of the inadequacy and the necessity to ensure some reasonable degree of consistency in sentencing for such grave offences, that the Court ought not to exercise its discretion not to intervene. Apart from onus (as to which see CMB v The Queen [2015] HCA 9; 89 ALJR 407), Queens Counsel for the applicant did not point to any feature of the case that would bear upon that decision. Indeed, unlike many inadequacy appeals, the respondent did not adduce any evidence as to his progress in custody, or the degree of actual (as opposed to presumed) anxiety occasioned by the initiation of the appeal: Bui v The Queen at 28; and, cf, R v JW [2010] NSWCCA 49; 77 NSWLR 7 at [141] in relation to New South Wales offences after the introduction of s 68A of the Crimes (Appeal and Review) Act 2001.
Bui v The Queen held that the Court is not to take into account "double jeopardy", in the sense of the "presumed anxiety and distress on re-sentencing" that accompanies a Crown appeal. What is required is the imposition of a sentence that is "of a severity appropriate in all of the circumstances of the offence": s 16A(1) Crimes Act 1914 (Cth). Re-sentencing
In re-exercising the sentencing discretion, a matter in relation to which I adopt a different approach to that of Hoeben CJ at CL concerns the relevance of the respondent's lack of criminal history and the evidence of his previous good character. There was no dispute that he was a person with no prior convictions and there was evidence that supported the finding that he was a person of good character apart from his involvement in the present offence. His wife gave evidence of his background, studies and work history. Section 16A(1)(m) requires that those matter are to be taken into account.
There is a body of authority that shows prior good character may be of less significance or weight where the fact of the offender's good character and lack of antecedents enabled the person to commit the offences or made it less likely that the offending will be discovered. An example is a person whose good standing in the community facilitates their commission of sexual offences against children: Ryan v R [2001] HCA 21; 206 CLR 267 at [275] (McHugh J); R v PGM [2008] NSWCCA 172; 187 A Crim R 152 at [43]-[44]. In many of the child sexual assault cases, another factor which diminishes the role of good character is the fact the offending occurred over a number of years or involved a number of victims.
In New South Wales, s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 prevents the court from taking into account an offender's good character or lack of previous convictions as a mitigating factor for a child sexual offence if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.
A similar approach has been applied to drug couriers who, it is said, are chosen because their lack of criminal history will make it less likely that they will be detected: see, for example, R v Leroy (1984) 2 NSWLR 441 at 446-447. In R v Brown [1999] NSWCCA 323, it was said: "40. It is timely to draw attention to the following remarks of Wood CJ at CL in Smith, which remarks his Honour reaffirmed in Budiman, both those judgments of Wood CJ at CL being referred to with approval by Spigelman CJ in Behar: 'It is time that this court reminded those who would seek to establish chains for the importation of substances such as cocaine and heroin into this country, and their potential recruits, of those remarks. [Wood CJ at CL is there referring to the remarks of Wells J in Le Cerf at 8 ALR, 351 and following.] Too often has it been the case that recruits have been selected to act as couriers and the like, upon the basis either that they are free of conviction and possess apparent attributes of respectability such that they are likely to escape detection or alternatively upon the basis that they possess personal circumstances relating to family or otherwise such that they can press a powerful argument for leniency upon subjective grounds.'"
In R v Barrientos [1999] NSWCCA 1 Abadee J (with whom Sheller JA agreed) said: "55 Further in Behar the Chief Justice also referred to Wood CJ at CL's views in R v Budiman (CCA 8 September 1998, unreported): 'Couriers and others involved in the drug trade additionally have no entitlement to expect that they will be able to rely upon their prior good character for a significant discount on sentence if they happen to be arrested'. (at 9) 56 There is a difference between a "significant discount" on the one hand, and on the other hand non allowance of any discount at all."
The authorities establish that an offender's good character and/or lack of criminal antecedents may have less weight in a case where the fact of those qualities has been used to facilitate the commission of the offence or to avoid detection. However, I am unable to accept that this is an approach that commends itself generally to drug offences or to drug importation offences. The weight to be given to prior good character will vary, depending on the circumstances of the case. Further, in the absence of a provision such as 21A(5A) of the NSW Crimes (Sentencing Procedure) Act, the fact of an offender's prior good character and lack of criminal record remains a matter to be taken into account. To state the obvious, such an offender must generally be entitled to expect a less severe sentence than an offender with an extensive criminal history.
In the present case, I am unable to conclude that the respondent used his prior good character to facilitate the importation. The consignee was listed as "Jack Godden". The respondent signed for the consignment using the name "Jack Golden Yuan". His lack of criminal record (in his name) did not impact on the ease or otherwise of detecting the importation. The drugs were imported inside furniture and the respondent had a furniture business but this did not depend on a lack of prior convictions or on the respondent's general good character as attested to, for example, by his wife. The prosecutor acknowledged at first instance that there was "no evidence that he'd previously imported anything at all".
The respondent's good character also influenced the finding in the pre-sentence report that the offender represented a low risk of re-offending. Since arriving in Australia on a student visa in the year 2000, he has achieved a Diploma in Business and worked as a migration consultant. These achievements did not make it easier for him to commit the offence or harder for the authorities to detect it.
It may be that the different approach that I have taken to the weight to be afforded to the respondent's good character is the reason that I would impose a less severe sentence than that favoured by Hoeben CJ at CL and Davies J.
I have also considered it appropriate to moderate the penalty to a degree in view of the sentence imposed on the co-offender Doan. Doan was operating at a much lower level than the applicant, did not know the amount of drugs involved and received a reduction in his sentence of 25% for his plea of guilty. He received a sentence of seven years with recognizance release order of three and a half years. In spite of the manifest differences between the cases and the expectation that Doan would receive a much less severe sentence than that imposed on the respondent, it remains important to consider that sentence in determining the just sentence to be imposed on the respondent. As Dawson and Gaudron JJ said in Postiglione v The Queen [1997] HCA 26;189 CLR 295 at 301: "Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."
Synthesising all of those considerations, and keeping in mind the maximum penalty and enormous quantity of drugs involved in the present case, the sentence that I would impose on the respondent is one of 13 years with a non-parole period of 8½ years. That is a minority view and I otherwise agree with the orders proposed by Hoeben CJ at CL.

R (Cth) v Yuan

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