Regina v Shi

Court of Criminal Appeal (NSW)|2004-05-11|Before: Spigelman CJ, Wood CJ, Simpson J

CITATION : Regina v Shi [2004] NSWCCA 135 revised - 21/05/2004 HEARING DATE(S) : 15/4/04 JUDGMENT DATE : 11 May 2004

JUDGMENT OF : Spigelman CJ at 1; Wood CJ at CL at 2; Simpson J at 45 DECISION : 1.Appeal allowed; 2.Sentence below quashed, and in lieu thereof the respondent be sentenced for the offence to which he pleaded guilty (taking into account the Form 1 offence) to a term of imprisonment which is to consist of a total term of 6 years, with a non-parole period of 3 years, to date from 15 May 2003; 3.Direct that the non-parole period is to expire on 14 May 2006, and specify that date as the earliest date on which the respondent will be eligible to be released on parole.

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0806 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

14 - IN THE COURT OF CRIMINAL APPEAL 60511/03

CHIEF JUSTICE WOOD CJ at CL SIMPSON J

Tuesday 11 May 2004 Regina v Zi Pei Shi Judgment 1 SPIGELMAN CJ: I agree with Wood CJ at CL. 2 WOOD CJ at CL: The Crown appeals against the sentence imposed on the respondent by his Honour Judge Dodd, in the District Court, on 12 November 2003, following his plea of guilty to one count of supplying not less than the commercial quantity of the prohibited drug methylamphetamine. One matter was taken into account on a Form 1, being an offence of having in his custody a NSW driver's license, which he knew to be false, with the intention of using it to induce another person to accept that it was genuine. The respondent was sentenced to a term of imprisonment for 4 years, with a non-parole period of 2 years.

Facts 3 On 15 May 2003 police carried out observations on premises situated at 3 Westbourne Lane Petersham, as a result of information received as to the possible presence of drugs at that location. The respondent and another man were seen to leave those premises and to enter a taxi. That vehicle was followed and stopped. The respondent, who was carrying a shoulder bag, ran away but was detained after a short chase. The shoulder bag, which he was endeavouring to conceal under a parked car, was recovered and searched. Inside it were found the drugs the subject of the charge, which were analysed and found to be 992.2 g of methylamphetamine of an 84.5% purity. 4 The respondent made no admissions at the time of his arrest, and he declined to participate in a recorded interview. He entered a plea of guilty in the Local Court and adhered to that plea in the District Court. 5 The respondent, however, gave evidence before Judge Dodd to the effect that he had been carrying the drugs as a favour for an older friend, in return for the supply of a lesser quantity for his personal use. He had earlier informed Dr Roberts that by the time of the offence he owed his supplier $2000-$3000. Although he acknowledged that he did not commit the offence under any form of threat, he added that he had been informed that the debt would be cleared if he did "a favour" for the dealer. It was his account that, at the time, he had been overwhelmed and affected by his drug habit, and that it was only after a considerable period in prison that his mind cleared, leaving him able to consider his conduct.

The Respondent's Subjective Circumstances 6 The respondent was born in China on 22 December 1984, and was aged 19 years at the time that he appeared for sentence. His mother emigrated to Australia when he was 5 years old. In 1999, at the age of 14 years, he also came to Australia, together with his father. 7 He commenced schooling at the International English College before moving on to Randwick Boys High School. He dropped out of school in the year 2000, at which time he became associated with older Mandarin speaking men who introduced him to the use of illicit drugs. His habit increased to the point where he was spending up to $500 per week on ice, ecstasy and marijuana, using money that was provided by his parents. They did not become aware of his use of drugs until his arrest. 8 A Probation and Parole Services report, which was tendered, recorded that the respondent's parents had separated within two months of his arrival in Australia and that this had created turmoil in his life, which had led to his use of drugs. 9 The author of this report observed: "Mr Shi presents as a young man who had difficulty assimilating into the western culture on arrival into Australia and at the same time was damaged emotionally by learning of his parents' pending separation. Mr Shi was remorseful for his actions and he realized how the consequence of his behaviour could affect his residency status here in Australia."

10 A report from an Alcohol and Other Drug Health Promotion Worker at the Parramatta Correctional Centre confirmed that, while on remand, the respondent had completed a Relapse Prevention Program, and noted that he presented "as having the motivation to address his drug use and offending behaviour", although adding that it was "difficult to assess his needs and progress due to his language barrier." 11 The respondent's father gave evidence to the effect that he had indeed been having trouble with his new life in Australia, and that he had expressed remorse for his offence and for the shame that had been brought on the family. A cousin gave evidence as to his strict upbringing in China, and as to the support from his family that would continue to be available for him in this country. It was the respondent's case that he had the support of his parents and of a girlfriend whom he wished to marry in due course. 12 A psychiatric report from Dr Roberts was tendered on sentence that recorded the respondent's expressions of remorse, the extent of his physical dependence on drugs at the time of his arrest, and his desire to study information technology and to rehabilitate himself in the future. It was Dr Roberts' opinion that, at the time of the offence, he had been depressed and exceedingly vulnerable to the approach of a person offering drugs to him. 13 While in custody the respondent had acquired a number of certificates of achievement for a variety of courses, which were primarily directed to information technology applications. 14 He has had no history of employment in this country or elsewhere. His record is clear of any conviction, other than that for the present offence. 15 Before turning to the grounds of appeal relied upon by the Crown, it is convenient to note the circumstances which led his Honour to impose the sentence that was passed, so far as they involved findings in relation to the objective seriousness of the offence, and the subjective circumstances of the applicant. 16 In summary, his Honour found, in relation to the objective seriousness of the offence, that:

(a) his role was as a runner or courier, and not as a principal in the supply network, and that as such, he occupied a position at the bottom of the supply hierarchy in that network; (b) he had been vulnerable because of his age, background and drug addiction; (c) he had been used and, to a certain extent, preyed upon, because of that vulnerability by older men; (d) his offence was not in the middle range or above for the offence, on an objective basis; (e) he had not been a mere dupe, as he had been obtaining drugs for his own use by carrying out the delivery role; (f) the amount of the drug was towards the high end, almost at the highest end, for a commercial quantity and was of an unusually high level of purity; (g) since it could have been cut to a substantial extent, the amount of the drug that he was delivering was of a considerable value, and of considerable potential destructive force to people who would have been able to use it; accordingly the offence was one that was committed without regard for public safety; (h) the offence was part of a planned or organised criminal activity, although he was not part of its actual planning or organisation, and was not profiting except by being able to feed his own addictive habit. 17 In these various respects his Honour noted there were present the factors listed in s 21A(2)(i) and (n) of the Crimes (Sentencing Procedure) Act 1999. 18 Subjectively his Honour found that the respondent:

(a) had no prior convictions; (b) was otherwise a person of good character who was a disciplined member of a loving and law abiding family; (c) was unlikely to reoffend and had good prospects of rehabilitation both for that reason, and on account of his age; (d) had pleaded guilty at the earliest possible opportunity, entitling him to a discount of 25% for the utilitarian value of the plea; (e) had shown genuine remorse; (f) had not fully analysed his position at the time of the offence, by reason of his age, personal drug addiction, and cultural dislocation; (g) had on his side the benefit of his youth, his drug addiction and his cultural dislocation. 19 As his Honour noted, the subjective circumstances included factors which fall within 21A(3)(e), (f), (g), (h), (i), (j) and (k) of the Crimes (Sentencing Procedure) Act 1999. 20 Special circumstances, within s 44(2) of the Act were found by reason of:

(a) the respondent's relative youth; (b) the fact that this would be his first encounter with the criminal law; (c) the fact that this would be his first time in prison; and (d) the fact that he would need a longer than usual period of supervision upon his release from prison so as to assist in his rehabilitation. 21 As a consequence, a sentence was set in which the non-parole period represented 50% of the entire term. 22 In sentencing the respondent his Honour made express reference to the provisions of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act, as well as to the provisions of sections 21A and 44 of that Act, noting in the course thereof, that the present case was one where the standard non-parole period for an offence in the middle range of objective seriousness, was one of imprisonment for ten years. 23 His Honour's approach to the sentencing exercise, as a matter of principle, is encapsulated in the following passages of the reasons for sentence: "It might be thought therefore that the starting point in the sentencing exercise for such an offence would be to determine where in the range of objective seriousness the offence falls, and in particular whether it falls in the middle of that range…However, s 54B which applies to sentencing for such an offence provides in part: (2) when determining the sentence for the offence the court is to set the standard non parole period as the non parole period for the offence, unless the court determines that there are reasons for setting a non parole period that is longer or shorter than the standard non parole period. This means therefore that irrespective of where the offence falls in the range of objective seriousness the standard non parole period is to be set unless there are reasons to do otherwise. Is its position away from the middle of the range of objective seriousness a reason to do otherwise?"

24 After referring to s 54B and to s 21A, his Honour continued: "It seems strange as a matter of drafting, but as I read the legislation it is only through s 21A(1)(c) that the position of the objective seriousness of the offence away from the middle of the range can be used as a reason not to set the standard non parole period." 25 It was contended by the Crown in substance, that error is shown in that:

(a) the factors concerning the applicant's vulnerability, the fact that he had been used by older men, and his contrition were inappropriately taken into account by his Honour in determining the objective seriousness of the offence; (b) too much weight was given to the finding that the respondent was at the bottom of the relevant supply hierarchy, without sufficient attention being given to the weight of the drugs and to their purity; (c) his Honour appeared to have approached the exercise upon the basis that once the matter was found to have been outside the middle range of objective seriousness, then the standard non-parole period had no further relevance, and in particular was not taken into account as a reference point when setting a non-parole period; and in that (d) the imposition of a non-parole period, representing 20% of the standard non-parole period, for an offence involving an amount of a drug that was just within the upper limit for a commercial quantity, was manifestly inadequate. 26 It was also submitted, as a general proposition, that the determination of the relevance of the standard non-parole period, for any particular sentencing exercise, "is a function of the extent to which section 21A results in a categorisation of the matter as equal to, above, or below, the middle range of objective seriousness". It was further submitted that the "determination of whether the standard non-parole period applies cannot derive from consideration of factors extraneous to those recorded in section 21A". 27 The approach which is to be taken in applying Division 1A of Part 4 was determined by this Court in Regina v Way [2004] NSWCCA 131. In that decision, it was observed: "117. In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: "are there reasons for not imposing the standard non-parole period?"

That question will be answered by considering:

(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;

(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1).

Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply.

Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period.

If the question, which we consider should be posed, is answered in the affirmative, then it seems to us that the Court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in sections 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act .

In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount.

The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range.

The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at para 45), cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect." " 28 It was noted (at para 68) that the standard non-parole period is to be regarded as one that was intended to be applicable to mid range cases determined at trial, rather than by plea. 29 Additionally it was observed: "85. The multiplicity of purposes of sentencing set out in s 3A of the Act, quoted above, do not suggest a narrow perspective as to the range of facts and matters that are to be regarded as "objective" facts and matters which may affect the judgment involved in assessing "seriousness". It is too narrow a perspective to confine attention to the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander. The inquiry which we consider to have been intended is one that would take into account the actus reus, the consequences of the conduct, and those factors that might properly have been said to have impinged on the mens rea of the offender (see for example Fox and Freiberg, Sentencing , 2nd Edition at paras 3.506 to 3.510).

Some of the relevant circumstances which can be said "objectively" to affect the "seriousness" of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 20 ALR 1 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence.

Questions of degree and remoteness arise which will need to be developed in the case law. There are potential areas of overlap. For example, impaired mental or intellectual functioning can go to either, or both, the seriousness of the offence and punishment, so far as deterrence is concerned.

In an assessment of the objective seriousness of the subject offence it seems to us that attention must accordingly be given to the factors mentioned above. Some of these relevant factors will be elements of the offence itself. Others will fall within the list of aggravating and mitigating factors referred to in s 21A (2) and (3) of the Act, so far as they relate to purely objective considerations. .

That there is a comparison which can properly be made, and which has always been made, in the course of sentencing, between an offence in the abstract, and an individual offence, when assessing the relative seriousness of the latter is inescapable as a matter of logic, and it was something which was adverted to in Walden v Hensler (1987) 163 CLR 561 at 577 per Brennan J and at 595 per Dawson J.

In that comparison, it is necessary to reflect the distinction between circumstances which go to the seriousness of the offence considered in a general way, and matters that are more appropriately directed to the objectives of punishment.

If that distinction is respected then the spectrum of offences, and the identification of those which fall in the mid range of seriousness can be confined to matters which are directly or causally related to its commission. " 30 In my view his Honour fell into error in four respects. 31 First, there seems to have been an erroneous assumption that the standard non-parole period for a Table offence applied equally whether the case was determined at trial or after a plea. 32 Secondly, the considerations which are relevant for an assessment of the objective seriousness of the offence are not confined, as his Honour appears to have assumed, to those that fall within s 21A(1)(c) of the Act. Rather, they embrace the full range of circumstances which, upon a common sense basis and, in accordance with the principles established in R v Way are relevant for such assessment. 33 Thirdly, his Honour seems not to have regarded the standard non-parole period as having had any further role, whether as a reference point, or otherwise, once the conclusion was reached that the offence was not one falling within the middle range of objective seriousness. 34 Fourthly, insufficient consideration was given to the weight and purity of the drug involved in this instance; or to the well recognised principle that the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentio and Becheru (1962) 63 A Crim R 402. 35 As was decided in Regina v Way the determination of the objective seriousness of the offence before the Court is not confined to a consideration of the circumstances which are specifically listed in s 21A(2) and (3). The motive of an offender, or any condition which affects the offender's state of mind which impinges upon the elements comprised within the mens rea is of relevance, although less so in the case of any condition which is self induced through abuse of alcohol or drugs. 36 If, upon their proper reading, the Crown submission amounts to a submission to the contrary, then I would disagree with that submission. I would add that the approach suggested by the Crown seemed to require an unduly rigid two-step process in the sentencing exercise, in which the existence of the standard non-parole period was elevated beyond its true role as a reference point. 37 I am satisfied, applying the approach that was found to be appropriate in Regina v Way that error was shown. The offence involved in this case was a serious offence, having regard to the weight and the purity of the drugs involved, and also to the fact that the respondent knowingly, and with his eyes open, lent his aid to those who directed the supply network, in order to feed his habit, and in order to clear a debt. 38 Clearly the case fell well below the middle range of seriousness, since the respondent was not a principal, and was not shown to have been engaged in the work of a courier on more than one occasion. There is also the fact that his supplier had taken advantage of him. 39 Subjectively his circumstances were particularly favourable, and there were accordingly good and sufficient reasons for a sentence to be set that involved a non-parole period below the standard non-parole period. The non-parole period which was in fact fixed, which gave the respondent the full benefit of the subjective circumstances, was, however, in my view inadequate, to the point of establishing appellable error, when it is set against the reference point provided by the standard non-parole period. 40 In this respect it is noted that the Crown did not press any argument to the effect that the special circumstances, within the meaning of s 44(2) of the Act, should not have been found, or applied so as to vary the statutory ratio. As was pointed out in Regina v Way, s 44(2) can still have an application for Table offences, subject to there being no double counting. 41 There would, in my view, have been a compelling argument in this case that the factors which were identified, save for the finding that the respondent needed an additional period of supervision post release to readjust to the community, did involve double counting. Notwithstanding, in the absence of a specific submission by the Crown, I would not be minded to alter the ratio between the non-parole period and the term of the sentence. 42 I am, however, of the view that there should be some increase in the sentence. In accordance with the recognised principles of double jeopardy and the discretion which applies to Crown appeals, the resulting sentence should be the least that could properly have been imposed at first instance. 43 I propose the following orders:

Appeal allowed; 2. Sentence below quashed, and in lieu thereof the respondent be sentenced for the offence to which he pleaded guilty (taking into account the Form 1 offence) to a term of imprisonment which is to consist of a total term of 6 years, with a non-parole period of 3 years, to date from 15 May 2003. 3. Direct that the non-parole period is to expire on 14 May 2006, and specify that date as the earliest date on which the respondent will be eligible to be released on parole. 44 The non-parole period which I propose is still less than the standard non-parole period for a s 25 offence, by reason of the circumstances that:

(a) notwithstanding the substantial quantity and level of purity of the drug involved, the fact that it was committed without regard to public safety, and the additional fact that it was part of an organised criminal activity, the respondent's role was that of a runner or courier, who became involved in a circumstance where he had been preyed upon by older men, and at a time when he had been vulnerable (by reason of his age and background), with the consequence that the offence fell below the mid level of seriousness. (b) he had pleaded guilty at the first available opportunity;

(g) he was relatively young and would be experiencing a first term of imprisonment. 45 SIMPSON J: I agree with Wood CJ at CL.

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