The applicant applies under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an enquiry into the sentence imposed upon him by Acting Judge Hosking SC on 16 October 2015. The applicant was one of four co-offenders in relation to an offence of knowingly taking part in the supply of a large commercial quantity of a prohibited drug, namely methylamphetamine in a quantity of 2,545 grams.
The basis for the application is said to be the justifiable sense of grievance the applicant has because of a sentence subsequently imposed on a co-offender San Sang Chan.
[2]
Legal principles
Sections 78 and 79 of the Act provide:
78 Applications to Supreme Court
(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.
(2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.
79 Consideration of applications
(1) After considering an application under section 78 or on its own motion:
(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or
(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.
(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.
(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:
(a) it appears that the matter:
(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or
(ii) has previously been dealt with under this Part or under the previous review provisions, or
(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or
(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and
(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.
(3A) The Supreme Court may defer consideration of an application under section 78 if:
(a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or
(b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or
(c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered.
(3B) This section does not authorise a direction to be given, or a referral to be made to the Court of Criminal Appeal, if the Supreme Court is satisfied that the grounds for the direction or referral arise only from:
(a) the fact that the convicted person was:
(i) questioned under section 24 of the Crime Commission Act 2012, or
(ii) required under section 24 or 29 of that Act to produce a document or thing, or
(b) either or both of the following:
(i) evidence obtained directly from that questioning or requirement,
(ii) any further information, evidence, document or thing obtained as a result of the questioning or the production of the document or thing.
(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.
(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).
In Application by Matthew Soames pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2017] NSWSC 423 I said at [34]:
The legal principles governing these applications are now reasonably well known. The inquiry is not whether there is a doubt or question as to the convicted person's guilt or, here, as to the sentence (Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [29]-[31]) but whether there appears to be a doubt or question: Buttrose v Attorney General of New South Wales [2015] NSWCA 221 at [16]. The requisite "doubt or question" was said to be something which might cause unease: Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30 at 48.
In Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Johnson J said:
[6] The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18].
[7] Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19].
[8] There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9].
Some Other Features of the Jurisdiction
[9] The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result.
In GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 Simpson JA said:
[62] To reiterate, by s 79 of the CAR Act, the Supreme Court may direct that an inquiry be conducted into a conviction or sentence, (or may refer "the whole case" to the Court of Criminal Appeal) if (and only if) it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstance in the case, or as to any part of the evidence in the case. The task is not a composite one; it is tripartite. The section potentially calls for attention to three discrete and distinct issues. (I say "potentially" because not each issue will call for attention in each case. What is called for will depend upon the circumstances of the individual case.) There remain, however, three components to s 79, each of which is, as I have said, separate and distinct and needs, where it arises, to be addressed separately from the others. The three components are (in the sequence stated in the legislation):
• the guilt of the convicted person;
• any mitigating circumstances in the case; and
• any part of the evidence in the case.
In Sinkovich (at [27]) Basten JA also pointed out the tripartite nature of the exercise prescribed by s 29(4).
[63] The second of the three heads prescribed for inquiry is peculiarly related to questions of sentence and can for present purposes be put to one side. The first and third relate to conviction, although the third could also relate to sentence.
[64] In Sinkovich, Basten JA (with whom Bathurst CJ, Beazley P, and Price and Beech-Jones JJ agreed) likened the "overriding purpose" of Pt 7 to:
"… the high value placed on freedom of the individual and the unwillingness to allow that liberty to be infringed because of commission of a criminal offence unless the offence has been established beyond reasonable doubt …" (at [52])
He added (reviewing the long history of the Pt 7 provisions and their predecessors) that:
"… the need for a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence, so as to avoid an unremediable miscarriage of justice, called for statutory intervention."
[65] To that I would add that the inclusion of "any part of the evidence" in the trio of issues that could warrant the further investigation of a conviction by inquiry or appeal reflects the importance placed by the criminal justice system on, not only the outcome of criminal proceedings, but the integrity of the process by which the outcome is reached. The legislature could have, but expressly did not, confine the circumstances that might give rise to further investigation of a conviction to doubts or questions about the guilt of the convicted person.
[66] That there appears to the judge to be a doubt or question about any part of the evidence is sufficient to warrant directing an inquiry or referring the case to the Court of Criminal Appeal, even if it is unlikely that the evidence in question was determinative (although the importance of the evidence, as well as the extent of any concerns about its integrity, may well be relevant to the exercise of the discretion to take one of the steps provided by s 79(2)).
[3]
The sentences
As mentioned earlier, on 16 October 2016 Acting Judge Hosking sentenced the applicant in relation to the offence of knowingly taking part in the supply of a large commercial quantity of a prohibited drug namely methylamphetamine in a quantity of 2,545 grams. At the relevant time a large commercial quantity of methylamphetamine was one kilogram. The offence carried a maximum penalty of life imprisonment and there was a standard non-parole period of 15 years. The applicant asked Acting Judge Hosking to take into account a matter on a Form 1 of participation in a criminal group from 5 February to 16 April 2014.
The principal offence involved a number of drug supplies to undercover police officers between 5 February 2014 and 11 April 2014.
The sentencing judge found that while the applicant was not at the top of the supply chain, he was not at the bottom of it either. He was not simply a courier but was actively sourcing the drugs from his co-offender Chan. His Honour found that the objective seriousness of the offence was "below the mid-range but not too far below it".
In terms of the applicant's subjective features, his Honour found that his criminal record was such that he was entitled to no leniency whatsoever. In particular, the sentencing judge noted that the applicant had spent a long time in gaol for supplying a commercial quantity of a prohibited drug for which he was re-sentenced by the Court of Criminal Appeal to six years' imprisonment with a non-parole period of three years.
His Honour accorded a combined discount for the applicant's early plea and assistance of 33%.
His Honour indicated that the notional starting point would have been a sentence of 15 years' imprisonment. With a discount of one third his Honour sentenced the applicant to imprisonment for ten years with a non-parole period of seven years by reason of a finding of special circumstances, seemingly arising from extracurial punishment suffered by the applicant.
One of the co-offenders, Moheen Mohammed was sentenced by Judge Bennett SC on 15 July 2016 for the same offence. Judge Bennett also took into account the same offence on a Form 1 that had been taken into account in respect of the applicant.
Judge Bennett found that Mohammed's role placed him at a level in the hierarchy below that of the applicant. Judge Bennett described him as a facilitator acting between the undercover operatives and "the Asian men" from whom the drugs were sourced. Mohammed was sentenced to a non-parole period of five years with an additional term of three years.
Another co-offender, Tony So, was sentenced by Acting Judge Hosking SC on 7 October 2016. He pleaded guilty to a charge of supplying a prohibited drug based solely upon his involvement in one of the five supplies, being the supply on 16 April 2014. Judge Hosking found that Mr So was closer to the bottom of the hierarchy than he was to the top. The Court of Criminal Appeal, when hearing the present applicant's appeal, concluded that Judge Hosking's finding placed Mr So below both the applicant and Mr Mohammed in the hierarchy. Mr So was given a non-parole period of four and a half years with an additional term of two and half years.
The co-offender Chan was found guilty at trial in respect of four counts of supplying commercial and large commercial quantities of different prohibited drugs from 4 February to 17 April 2014. Count 1 against Chan related to part of the supply in respect of which the applicant, Mohammed and So were convicted and sentenced. Chan was also convicted of supplying two large commercial quantities and a commercial quantity. Those counts were independent of the involvement of the applicant.
In assessing Chan's role in relation to count 1 charged against him, Judge Craigie said this:
In that regard there is no evidence of persons further up in any notional hierarchy above the offender but I have taken account of the inherent improbability of a person actively involved in the activities encompassed by the verdict in count 1 simply being a warehouse keeper of the drugs, but most particularly including the methylamphetamine. In making those observations I make no finding that the offender was alone in his level of the enterprise, that being a level apart from Shi particularly, let alone at the top of it.
His Honour also said:
I have found that the offender's role in respect of count 1 was somewhat above that of Shi, although principally because he was in a position where Shi relied upon him rather than the reverse, …
His Honour found that the objective offending in relation to count 1 was at the mid-level of seriousness.
In relation to subjective matters, Chan was aged 70 years. He had two minor matters on his criminal record although one such offence involved dishonesty. He also admitted to having evaded his tax obligations in Australia for some period of time. He had also lived in Australia for over 20 years without immigration status.
Chan had a number of health issues although they were being adequately treated. He was also found to exhibit above average measures of anxiety and depression although these matters appear to have developed after he was arrested.
His Honour imposed an aggregate sentence of 13 years with a non-parole period of seven years and ten months. In relation to count 1 his Honour said the indicative sentence was one of 11 years and six months with a non-parole period of seven years.
[4]
Submissions
The applicant submitted that the role of the co-offender Chan and his criminality was a significant consideration, and was more important than the quantity of drugs involved. The applicant submitted that his role had been found to fall below that of Chan in the hierarchy. The objective seriousness of the applicant's offending had also been found to be at a lower level than that of Chan.
The applicant submitted that, when the notional starting point of the applicant's sentence is compared to the indicative sentence for Chan in respect of the same offence, and when the aggregate sentence for Chan is compared to the sentence imposed on the applicant, he has a justifiable sense of grievance.
The Attorney-General, quite properly, submitted that the Court might find that the potential disparity between the sentence imposed on the applicant and that given to Mr Chan does give rise to an appearance of a doubt or question as to mitigating circumstance or evidence in the case so as to enliven a referral of the case to the Court of Criminal Appeal pursuant to s 79(1)(b).
The Attorney-General's position was said to be that the differences in sentences imposed may be said to result in an appearance of a doubt or question.
The Attorney-General conceded that in relation to s 79(3)(a)(i), that the sentencing of Mr Chan at a later time means that the current ground of appeal relied upon by the applicant has not been previously been dealt with at first instance or an appeal by the Court. In that way the Attorney-General said there had not been a previous application pursuant to s 78(1) or a previous right of appeal not pursued or an application for leave to appeal that had been withdrawn or lapsed.
The Attorney-General submitted that whilst there was little dispute that the level of criminality of the applicant was below that of Mr Chan, the Court's inquiry in any appeal did not end there.
The Attorney-General submitted that the proportionality between the head sentence and non-parole periods were also relevant factors. He submitted that the applicant's head sentence was considerably lower than that of Mr Chan, taking into account the differentiation in role. Further, the differences in the subjective cases of the co-offenders had a significant impact upon the finding of special circumstances that were made in the respective cases. The Attorney-General submitted that this was not a case where the offenders played such a substantially different role as to warrant a further divergence in the sentences imposed.
[5]
Consideration
In my opinion, none of the matters set out in s 79(3)(a) apply. The decision of the Court of Criminal Appeal in Lowe v R [2015] NSWCCA 46; (2015) 249 A Crim R 362 means that, because leave to appeal was granted to the applicant in his previous appeal but the appeal was dismissed, he is now precluded from seeking leave on a second occasion.
A number of matters point to a disparity in the sentences of the applicant and Chan. First, the applicant was given a sentence based on a notional starting point of 15 years' imprisonment. The final sentence for the applicant was ten years' imprisonment with a seven year non-parole period. On the other hand, the starting point for Mr Chan's sentence was an indicative sentence of 11 years and six months because Mr Chan was not entitled to any discounts. The indicative non-parole period was seven years.
Secondly, those sentences were imposed where the applicant's level of objective seriousness was said to be below the mid-range and the objective seriousness of Chan's offending was determined to be at the mid-level.
Thirdly, on the assessments of both judges who sentenced the applicant and Chan, the applicant was found to be below Mr Chan in the hierarchy.
Finally, there was a very considerable degree of notional accumulation in the aggregate sentence imposed on Chan. Chan's final sentence, when the other counts in respect of which he was convicted were included, was an aggregate sentence of 13 years with a non-parole period of seven years and ten months.
Count 5 was for the supply of a large commercial quantity (2.5835 kg) of methylamphetamine. The indicative sentence was nine years with a non-parole period of five years and five months. Count 6 was for the supply of a large commercial quantity (134.9 kg) of ephedrine. The indicative sentence was 10 years and six months with a non-parole period of six years and four months. Count 7 was for the supply of a commercial quantity of cocaine. The weight was said to be 978.2 kg but it seems likely that the quantity was 978.2 g because the large commercial quantity of cocaine is 1 kg. The indicative sentence was eight years and six months with a non-parole period of five years and two months.
It may be seen that by reason of the accumulation, in theory the sentence for Count 1 is entirely subsumed in the sentences for no more than two of the other offences. I accept that the same could be said of any of the other counts, depending upon which sentence was being considered. The point is, however, that the notional accumulation has been calculated in a manner very favourably to Chan. It adds to the sense of disquiet about Chan's sentence as far as the applicant is concerned.
I accept that the applicant's criminal record was a very poor one compared to that of Mr Chan. However, the judge who sentenced Chan took account of the fact that Mr Chan had evaded his tax obligations in Australia for some period of time and had lived in the country for 20 years without immigration status.
I accept that Mr Chan was an older man with health issues so that his subjective features went some way to providing an explanation for the difference in the sentence he was given from that of the applicant.
There would be no impediment to the applicant's sentence being adjusted downwards by reason of the sentences imposed on Mohammed and So. Any such adjustment would not give rise to a justifiable sense of grievance on the part of either of those offenders.
The test is not whether there is a doubt or question as to the sentence but whether there appears to be a doubt or question. In my opinion, the sentence imposed upon Mr Chan causes unease when regard is had to the sentence imposed upon the applicant. In those circumstances, I am satisfied that there appears to be a doubt or question concerning the sentence imposed upon the applicant.
[6]
Conclusion
Accordingly, I make the following order:
Pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) the whole case is referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW).
[7]
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Decision last updated: 29 November 2019