172 Section 61(5) of the Act is in the following terms:-
"Nothing in subsection (2) limits or derogates from the discretion of a court to impose a sentence of imprisonment for life on a person who is convicted of a serious heroin or cocaine trafficking offence".
173 The offences for which the appellant was sentenced were within the definition of "serious heroin or cocaine trafficking offence" in subs (7) of s 61 of the Act.
174 The effect of the statutory provisions I have referred to is that a sentencing judge is obliged to impose a sentence of imprisonment for life on a person who has been convicted of a serious heroin or cocaine trafficking offence, if all the conditions in s 61(2) are satisfied but, even if all of those conditions are not satisfied, a judge in the exercise of his or her sentencing discretion may still impose a life sentence. A judge would be justified in imposing a life sentence, notwithstanding that all of the conditions in s 61(2) were not satisfied, only if the judge found that the offence for which the offender was being sentenced fell within the worst category of cases of that offence.
175 Her Honour Judge Backhouse imposed a life sentence for each offence as a result of finding that all of the conditions in s 61(2) of the Crimes (Sentencing Procedure) Act were satisfied and, consequently, she was required to impose a life sentence for each offence and also, it would appear from her Honour's remarks on sentence, as a result of finding that the offences committed by the appellant fell within the worst class of cases and that, accordingly, she should, independently of s 61(2), impose a life sentence for each offence.
176 Her Honour delivered lengthy remarks on sentence and I will summarise those remarks.
177 At pp 1-2 of the remarks on sentence her Honour stated the offences of which the appellant and Sabbagh had been convicted. At pp 2-6 of her remarks her Honour summarised the Crown case against the appellant and at pp 5-9 she summarised the Crown case against Sabbagh.
178 At pp 9-10 of her remarks her Honour referred to sentences which had already been imposed on a man named Malek who had worked in the brothel and who had pleaded guilty to a charge of knowingly taking part in the supply of not less than a commercial quantity of heroin and a charge of knowingly taking part in the supply of an indictable quantity of cocaine, and to the sentences already imposed on Joseph Elkhoury ("Old Joe"), who had pleaded guilty to charges of supplying not less than a commercial quantity of heroin and not less than a commercial quantity of cocaine.
179 At pages 10-12 of her remarks her Honour found that the quantities of drugs which had been supplied had been greater than the quantities calculated by Detective Griffin. Her Honour referred to the calculations by Detective Griffin, based on the evidence given by the witness Rebecca that the total sales of heroin during the period covered in the indictment had been 3.086 kilograms and that the total sales of cocaine during the period covered in the indictment had been 8.6408 kilograms.
180 At pages 12-13 of her remarks her Honour referred to the appellant's previous criminal history. The appellant had previous convictions for an offence of possession of heroin in 1983, for which he had been fined; offences of supplying heroin in 1985 for which in 1986 he had been imprisoned for eight years with a non-parole period of five years; and offences of supplying heroin in 1990, for which he was sentenced to terms of imprisonment totalling five years four months with a minimum term of four years.
181 At pp 13-22 of her remarks her Honour summarised the submissions made by the Crown in the proceedings on sentence. The Crown submitted that a life sentence should be imposed for each offence as falling within the worst class of cases and also as falling within s 61(2) of the Crimes (Sentencing Procedure) Act.
182 The Crown referred to the decision of the Court of Criminal Appeal in R v Chung [1999] NSWCCA 330, in which the Court of Criminal Appeal dismissed an appeal against the sentence of life imprisonment for an offence of supplying not less than a large commercial quantity of heroin. The Crown referred particularly to some remarks made by Sully J in his Honour's judgment in Chung. The Crown also referred to Veen v The Queen (No 2) (1998) 164 CLR 465 at 477 about the significance of an offender's previous criminal history.
183 The Crown submitted that the appellant's offences exhibited objective criminality of the highest order. The appellant had been motivated solely by the desire for profit. He had preyed on the addictions of the prostitutes, who had formed a captive market. He had "pushed" sales of cocaine to the prostitutes, who, although they had previously used heroin, had had little or no previous experience of using cocaine, because the appellant's profit margin was higher for cocaine than heroin. The organisation which the appellant had conducted had been well organised. The appellant had supplied drugs not only to the prostitutes working at the brothel but to other purchasers as well. The drugs had been supplied over a lengthy period.
184 The Crown prosecutor then proceeded to submit that all of the conditions in s 61(2) of the Crimes (Sentencing Procedure) Act were satisfied.
185 At pp 22-31 of the remarks on sentence her Honour summarised the submissions which had been made on behalf of the appellant in the proceedings on sentence.
186 Counsel for the appellant submitted that the court would not be satisfied that it was appropriate to impose a sentence of imprisonment for life.
187 Counsel for the appellant referred to the well known passage in the judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 at 624 (45), where their Honours said that a judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. It was submitted that her Honour should fix an appropriate sentence for each offence, before considering the totality of the criminality.
188 Counsel for the appellant submitted that there were a number of grounds of distinction between Chung and the present case, including the quantity of the drug supplied by Chung (63 kilograms), that Chung had occupied a senior position in an international network of organised criminals, that Chung and his associates were wholesalers at the top end of the distribution of drugs, that the potential street value of the drugs supplied by Chung would have been approximately $150m and that the drugs would be used by a large number of users.
189 Counsel for the appellant also submitted that the present case was unusual in that the drugs had been supplied, in the main, to a small, closed group of individuals, several of whom had given evidence at the trial, and because of the graphic nature of this evidence from users of the drugs there was a danger of over-estimating the culpability of the appellant, in comparison with the culpability of drug dealers higher in the distribution system, who will be distant from the human misery caused by the supply of drugs and against whom the evidence may be "relatively impersonal and forensically sanitised".
190 Counsel for the appellant disputed that there had been a "high" degree of planning and organisation (s 61(2)(a)(i)) and that the heroin and cocaine had been of a "high" degree of purity (s 61(2)(c)).
191 Counsel for the appellant submitted that the drugs which had been supplied by the appellant had been supplied in a local, retail operation with relatively unsophisticated planning and organisation.
192 At pp 31-36 of her remarks her Honour considered what sentences should be imposed on the appellant. Her Honour accepted that the quantity of drugs supplied by the appellant was small compared with the quantity of drugs which had been supplied by Chung but said that "the human misery cannot be measured by reference to the sheer bulk of the drug which may have been involved".
193 Her Honour said that she accepted the Crown submission that the appellant's conduct in the commission of the offences involved wickedness of the highest order. Her Honour said that she was not persuaded that "one can make a true comparison (semble distinction) between a wholesaler and a retailer. Her Honour referred to the comments made by Sully J in Chung to which she had been directed by the Crown prosecutor. Her Honour proceeded to find that all of the conditions set out in s 61(2) of the Crimes (Sentencing Procedure) Act were satisfied.
194 Her Honour took into account that there were two offences for which the appellant was being sentenced and took into account, in accordance with Veen (No 2), the appellant's previous criminal history of convictions for drug offences.
195 There was little evidence before her Honour about the appellant's subjective circumstances, except that at the time of sentencing he was fifty years old and was married with several children and that for a time in the year 2000 he had himself been addicted to cocaine.
196 Her Honour concluded that she should impose a sentence of imprisonment for life for each offence.
197 On this appeal the principal submissions made by counsel for the appellant can be summarised as follows. It was submitted that the sentences were manifestly excessive, that the facts of the offences did not require the imposition of a life sentence for either offence and that a substantial determinate sentence of imprisonment would have been sufficient punishment for each offence. It was submitted that Chung's case was distinguishable from the present case on a number of grounds. It was contended that the sentencing judge should not have been satisfied that all of the conditions in s 61(2) of the Crimes (Sentencing Procedure) Act, and particularly the conditions in s 61(2)(a)(i) and s 61(2)(c), had been satisfied.
198 Counsel referred to a passage in the judgment of Hunt CJ at CL in R v Hamzy (1994) 74 A Crim R 341 at 351-352 where his Honour said:-
"The maximum sentence of imprisonment for life for the supply of a large commercial quantity was introduced by the insertion of the new s 33 of the Drug Misuse and Trafficking Act in 1988. The intention of the legislature was obviously to provide a savage punishment for the large-scale supplier. Nevertheless, I think that the fact that the large commercial quantity has in the particular case been reached only by accumulating the amounts individually supplied on different occasions to different persons is a matter which may when appropriate be taken into account when imposing sentence for the single offence charged" .
199 Counsel for the appellant attempted to construct a parity or proportionality argument based on the sentences which had been imposed on the co-offenders Sabbagh, Malek and Elkhoury.
200 On this appeal the Crown referred to and defended passages in her Honour's remarks on sentence. It was submitted that her Honour had been entitled to take into account the appellant's previous criminal history. It was submitted that in considering the sentence which should be imposed for each offence the sentencing judge had been entitled to take into account that there had been two offences. The Crown referred to R v Harris (2000) 50 NSWLR 409.
201 Certain issues which arose in the application for leave to appeal against sentence can, in my opinion, be disposed of fairly succinctly.
202 The sentencing judge was entitled, in accordance with the well known passage in the joint judgment in Veen (No 2) at p 477, to take into account the appellant's previous criminal history of drug offences as showing that the present offences were not an uncharacteristic aberration and that the appellant in his commission of the present offences had manifested a continuing attitude of disobedience to the law, so that the purposes of sentencing of retribution, deterrence and the protection of society indicated that more severe penalties were warranted.
203 In my opinion, the differences between the objective criminality and the subjective features of the appellant, on the one hand, and the co-offenders Sabbagh, Malek and Elkhoury on the other hand, were of such a magnitude as to exclude, or at least to render tenuous, any attempted argument based on parity or proportionality in sentencing. Although the Crown case against Sabbagh, which the jury must have accepted, was that he had been a party to a joint venture with the appellant, he had clearly had a much lesser role than the appellant, he had been involved in the criminal venture for a shorter period, he had been found guilty of supplying only a commercial quantity of each of the drugs and not a large commercial quantity and he had no previous criminal history. Malek and Elkhoury had been merely employees of the appellant and each had pleaded guilty at an early stage to less serious charges than those for which the appellant was sentenced.
204 I would reject the submission made on behalf of the appellant, at least in the proceedings on sentence, that the statement of sentencing principle in the joint judgment in Pearce at 624 (45) required the sentencing judge to fix an appropriate sentence for each offence, before considering the question of totality. In my opinion, the principle applied in R v Harris in the case of multiple murders, that a sentencing judge is entitled to take into account the fact that multiple murders were committed in considering the penalty for any one of the offences, should be applied in a case such as the present, where the offender committed closely connected offences of supplying a large commercial quantity of more than one drug.
205 A matter which requires fuller consideration is the decision of this Court in Chung, which was frequently referred to by both parties in both the proceedings on sentence and in the appeal to this Court.
206 I accept that this Court has said on a number of occasions that on an appeal against sentence there is no, or only limited, utility in seeking to compare the case under appeal with some other individual case. See for example R v Morgan (1993) 70 A Crim R 368. I also accept that a maximum sentence can be a proper sentence for an offence, even though it is possible to envisage a worse case or even though it can be demonstrated that the only other case or cases in which a maximum sentence has been imposed for the same kind of offence were worse cases than the instant case.
207 However, in the present appeal, I consider that there is utility in seeking to compare the present case with Chung. According to the researches of counsel, Chung is the only other case in which a sentence of life imprisonment has been imposed for an offence under s 25(2) and s 33(3)(a) of the Drug Misuse and Trafficking Act of supplying not less than a large commercial quantity of a prohibited drug. Both in the proceedings on sentence and before this Court many submissions were made about what were contended to be points of similarity or points of dissimilarity between the present case and Chung. Furthermore, in reaching her conclusion that life sentences should be imposed, her Honour placed reliance on statements made by Sully J in his judgment in Chung.
208 In Chung the sentencing judge had imposed a sentence of imprisonment for life on Chung after he had been found guilty of an offence of supplying not less than a large commercial quantity of heroin. The Court of Criminal Appeal constituted by Sully J, Ireland J and Hidden J unanimously dismissed an appeal against the sentence.
209 The principal judgment in the Court of Criminal Appeal was given by Hidden J. At pars 12, 13 and 14 of his judgment Hidden J sketched the objective facts of the offence as found by the sentencing judge. His Honour said:-
"12 His Honour concluded that the applicant's place "in the hierarchy of drug distribution" was "very much at the upper end of the scale". He occupied a position of seniority in a network which was engaged in the sale of heroin at what might be termed the wholesale level. Heroin was received from overseas, sometimes brought here by members of the crew of international aircraft. It was stored at various locations in Sydney and sold at others. The distribution was on a large scale and was well organised. A system of coding was in place for communication with purchasers…..
13 The enterprise in Sydney was associated with an international criminal organisation known as Ah Kong, which had its headquarters in Thailand. It appears that the applicant was prepared to further his ends by the use of violence, if necessary. At an early stage of their association in Australia, the applicant ensured Huang's co-operation by threatening to kill or harm members of his family. On another occasion, he sought to protect his income from the sale of heroin by telling another dealer that he would kill him if he reduced his prices. Later in 1993 the applicant left Australia, but he continued to give Huang directions and advice about the enterprise by telephone from Singapore.
14 There was evidence before his Honour about the average purity and price of heroin sold on the street in 1993. His Honour concluded that the heroin the subject of the charge, which was of a high grade of purity, had a potential street value of roughly $150 million. From time to time, the applicant or his associates transported very large amounts of money out of Australia in a clandestine manner…."
210 Later in his judgment Hidden J said that Chung "was a ruthless profiteer from the widespread distribution of high grade heroin, occupying a position towards the pinnacle of a well organised criminal network".
211 In his judgment Hidden J observed that little was known of the subjective features of Chung, who had not given evidence either in the trial or in the proceedings on sentence.
212 In pars 25, 26 and 27 of his judgment Hidden J made some observations about the gravity of a life sentence in New South Wales, the prisoner being condemned to die in goal, without any prospect of release on parole, the possibility of an exercise of the royal prerogative of mercy being so remote that it should be discounted. Despite some subsequent legislative changes, Hidden J's observations about the gravity of a life sentence in New South Wales continue to be applicable.
213 The conclusion Hidden J reached was that, applying the principles governing appellate review of the exercise of a judicial discretion, he could not say that it was not open to the sentencing judge to conclude that Chung's culpability was such as to call for the imposition of the maximum sentence.
214 Sully J gave a judgment in which he agreed with the judgment of Hidden J. In his judgment Sully J referred to and repeated what he had said as a sentencing judge in R v Cheung Wai Man (unreported 22 March 1991), namely:-
"1. the importation of heroin into this country in any amount and at any time constitutes a deliberate threat to the well being of the Australian community. The same is to be said of any form of trafficking in heroin within this country.
2. the importation or the attempted importation of, and the trafficking or attempted trafficking in, a quantity of heroin of the amount here in question is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted.
3. in the face of such challenges each of the institutional supports of our society has a role to play. That of the courts is to punish and deter according to law. Obviously, the Courts alone cannot meet adequately, let alone defeat the challenge of which I have been speaking. What the Courts can do is to punish drug related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the Courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who, like the present prisoners, engage in drug related crime when they are themselves not drug dependent".
215 Ireland J, the third member of the Court, gave a short judgment in which he said that he agreed with Hidden J and with the additional comments of Sully J.
216 The sentence of life imprisonment which had been imposed on Chung did not in fact remain in effect. A later appeal by Chung against his conviction on the ground that the trial judge had given the jury directions about Chung's failure to give evidence at his trial which contravened what had been said in the decisions of the High Court in RPS v The Queen (2000) 199 CLR 620 and Azzopardi v The Queen (2001) 205 CLR 50 was allowed by the Court of Criminal Appeal (R v Chung [2001] NSWCCA 484). Subsequently Chung pleaded guilty to two charges of supplying not less than a large commercial quantity of heroin. However, the quantities of heroin he admitted supplying were 10.125 kilograms and 3.5 kilograms. A District Court judge imposed determinate sentences, to be served concurrently, of twenty years eight months with a non-parole period of fifteen years two months.
217 In my opinion, as was submitted by counsel for the appellant both in the proceedings on sentence and on this appeal, there are very considerable differences between the objective criminality of Chung, as found by the original sentencing judge, and the objective criminality of the appellant, such that Chung's objective criminality was much greater. These differences include:-