Shi v R

Court of Criminal Appeal (NSW)|2017-07-21|Before: Hoeben CJ, Adamson J, Bellew J

Judgment

HOEBEN CJ AT CL: I agree with Bellew J.
ADAMSON J: I agree with Bellew J.
BELLEW J: Zie Pie Shi ("the applicant") pleaded guilty before the Local Court to an offence contrary to s. 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) in the following terms: Between 12pm on 5 February 2014 and 4.45pm on 16 April 2014 at Sydney in the State of New South Wales did knowingly take part in the supply of an amount of a prohibited drug, to wit, 2545gms (2.545kgs) of Methylamphetamine being an amount which was not less than the large commercial quantity applicable to that prohibited drug.
The applicant adhered to that plea before the District Court and asked that a further offence of participating in a criminal group contrary to s. 93T(1A) of the Crimes Act 1900 (NSW) be taken into account on sentence.
On 16 October 2015 the applicant was sentenced by Acting Judge Hosking SC to a non-parole period of 7 years imprisonment with an additional term of 3 years. He now seeks leave to appeal against his sentence on a single ground, namely that the sentence is too severe having regard to what is said to be an unjustified disparity with the sentences imposed upon his co-offenders.

The facts of the offending

The sentencing judge found the facts of the offending to be as follows (commencing at ROS 2): Between 5 February 2014 and 11 April 2014 the offender supplied various amounts of methylamphetamine he obtained from Chan to undercover operatives using Mohammad to carry out the actual deliveries. There were the following transactions: On 5 February 2014 the offender supplied through Mohammad one ounce, that is to say 27.9 grams of methylamphetamine to an undercover operative for $7,500 at Croydon Park. On 5 March 2014 there was the same transaction but this time involving five ounces of methylamphetamine which Mohammad obtained from the offender and which he exchanged with an undercover operative for $36,000. On 26 March 2014 there was a further supply by Shi and then Mohammad for $36,000. In this instance unlike the earlier ones the facts do not make any reference to Shi previously meeting with Chan and in this instance it is said that Shi took that particular methylamphetamine from his own premises a unit in Campsie, he may have obtained it previously from Chan, the facts do not reveal that. On 8 April 2014 there was a negotiation for the supply via Mohammad and the offender to an undercover operative for ten ounces of methylamphetamine for $6,900. Mohammad introduced the undercover operative and the offender and what in fact happened, according to the statement of facts was that Shi was able to supply only eight ounces of that agreed amount and a further 11 grams. On my understanding of the facts the remaining agreed amount does not appear to have been supplied. On 11 April 2014 Shi discussed with an undercover operative the possibility of further supplies to the undercover operative. The undercover operative told Mr Shi that he was interested in obtaining two kilograms of methylamphetamine and the offender said that he could source one kilogram and two kilograms next time. A price for one kilogram of $180,000 was discussed. Mr Shi and the undercover operative discussed possible locations for the transaction, the offender expressed a preference for the deal to take place indoors as he said he in effect he did not want to be seen in the street. On 16 April 2014 a further meeting took place between the offender Mohammad and two undercover operatives at the Krispy Kreme premises at Mascot. It was there agreed that the offender and Mohammad would supply two kilograms to the undercover operatives, the $360,000 and that supply was to take place at Lilyfield. That afternoon police surveillance showed the offender again to visit Chan's residential premises at Campsie. At about 3.35pm on that date Mohammad arrived by taxi at Lilyfield and me the two undercover operatives who were waiting in their vehicle. Mohammad told the undercover operatives that the offender wanted the exchange done not there at Lilyfield but at Bunnings at Ashfield. The undercover operatives said they were not prepared to change the location and they showed Mohammad the $360,000 in cash. Mohammad asked of the undercover operatives whether they trusted him to take the bag of money away. They replied in the negative. Mohammad then called the offender and arranged to meet him. Paragraphs 75 to 81 of the agreed facts then read in this way: "At about 4.17pm Mohammad returned to the undercover operative's vehicle and got in. Mohammad indicated that Shi had 'decided to come down'. They discussed arrangements with the money, confirming a total price of $360,000 where [20 thousand] was taken out for Mohammad to keep for the three participants in the transaction. 76. Mohammad then left the vehicle and returned shortly afterwards with Shi. Bot (sic) got into the undercover operative's vehicle and had a short conversation. Shi then got out of the vehicle and walked away while Mohammad remained. 77. A black Mazda registration number given then pulled up in the parking space next to the undercover operative's vehicle. Shi got out of the passenger's side. The driver Tony So remained in the vehicle. 78. Shi got into the undercover operative's vehicle, he and both undercover operatives then got out. One of the undercover operatives got in the front passenger seat of the Mazda while the other undercover operative and Shi went to the driver's side window. 79. After a short conversation with Shi, So handed the undercover operative a green Enviro bag which contained a white plastic bag containing in turn three clear resealable bags containing crystalline substance. So said 'so you already got the paper?' To which the undercover operative replied 'yeah, yeah, yeah' So then said 'Guarantee anything wrong...tell him come back to me it's all good guaranteed'. The undercover operative then took the bag to the boot of their vehicle. 80. Police from the tactical operations unit then moved to arrest Messrs Shi, Mohammad and So. In the course of the arrest Shi sustained some injuries to his face and left shoulder which received treatment at Royal Price Alfred Hospital. 81. When conveyed to Surry Hills police station Shi was offered the opportunity for an electronically recorded interview during which he declined to answer questions." They then in short are the relevant facts.

The applicant's role in the offending

The sentencing judge made the following findings regarding the role played by the applicant in the enterprise surrounding the various supplies (commencing at ROS 6): These facts show then the offender being involved in a number of escalating drug transactions, acting in effect as a middle man. The offender, as I have said was sourcing methylamphetamine in crystal form from Chan and in the initial transactions at least had Mohammad deliver it to the undercover operatives. He had, as I have already observed a number of mobile phone services which tells me something about what he was doing and he liaised between Chan on the one hand and Mohammad on the other and also presumably with So. He mentioned in his evidence another man Benjamin who asked him to source drugs for him, who Benjamin is and where he fits into all this I really have no idea. He received and was trusted to receive large amounts of money for the supply of methylamphetamine. My best assessment of this is that while the offender was not at the top of the supply chain, he was not at the bottom of it either. He was not simply a courier of these various amounts of methylamphetamine, he was actively sourcing them from Chan. He claims to have made relatively little from these transactions in terms of the total sums involved. He said he was to receive $400 per ounce supplied and "about" $3,000 from the final supply of the two kilograms. Whether those assertions are true or not I do not know. He was not cross-examined on that evidence but I do have reservations about Mr Shi's account of the small amounts he claimed that he received and was going to receive. However even if his evidence is true the fact remains that he was actively acting as a middleman in ongoing methylamphetamine supplies for profit. He said and I accept this that he himself was a user of crystal methylamphetamine and was using in the order of three grams per week at a cost of between $800 and $1,000 per week. During his cross-examination by the prosecutor the offender said, amongst other things this, he conceded that he had made phone calls and had meetings. He agreed that he arranged for the drugs to be supplied for Mohammad, for Mohammad to on-sell it. He said that of the $20,000 that was to have come from the two kilogram deal, that he was to receive only $3,000 and he claimed that the rest of the money was for Mohammad and Benjamin. In terms of the objective seriousness of the offence, as I have already observed, this is an offence that carries as a maximum life imprisonment and a standard non-parole period of 15 years. The question is then where does this offence fall in the scheme of such offences. As I have said he was not at the top of the supply chain but was an intermediary, a middleman. He handled and was trusted to handle large sums of money. His supplies extended over some months. The quantity was two and a half times the then large commercial quantity. In my view the bottom of the range of this kind of conduct is represented by a user who acts as in effect a 'dog's body', a courier who simply acts as directed and is given some drugs to consume for his risk and trouble.

The applicant's co-offenders

Three other persons were charged in respect of their involvement in the supply of the methylamphetamine in which the applicant took part.

San Sang Chan

San Sang Chan ("Chan") was found guilty by a jury in late 2016 following a trial in the District Court. The Court was informed on the hearing of the present application that he is to be sentenced later this year.

Moheen Mohammed

Moheen Mohammed ("Mohammed") appeared before his Honour Judge Bennett SC in the District Court on 15 July 2016, having pleaded guilty to the same charge (encompassing the same five instances of supply) as that brought against the applicant. Mohammed also asked the court to take into account the same matter contained on a Form 1.
In sentencing Mohammed, his Honour found (at ROS 6) that Mohammed's role was "as an employee of the group to deliver to customers prohibited drugs provided by his co-offenders". That description of Mohammed's role necessarily placed him at a level in the hierarchy below that of the applicant. His Honour then went on to say (at ROS 20): This was a sophisticated enterprise in which the offender played a part properly described as a significant role. The offenders with whom he engaged and who had access to significant quantities of methylamphetamine as and when it was sought in the conduct of the controlled operation working clearly at a higher level. This offender is aptly described as a mere courier. If he was to be allowed a title in this enterprise, I would describe him as a facilitator acting between the undercover operatives who purchased these increasing quantities of drugs and the Asian men from whom it was sourced in significant quantities.
Mohammed was sentenced to a non-parole period of 5 years, with an additional term of 3 years. In imposing that sentence, Judge Bennett SC observed (at ROS 21): I have reviewed the judgment and the sentencing proceedings brought against (the applicant), dealt with as a middleman with Chan at a more senior level in the enterprise. (The applicant) had a more senior role than this offender and a fair worse record of antecedents. I agree that considerations of parity apply. In my judgment the sentence imposed by Acting Judge Hosking SC was within the appropriate range upon the material his Honour summarised. This offender will suffer a lower sentence to reflect considerations of parity.

Tony So

Tony So ("So") appeared before Acting Judge Hosking SC for sentence on 7 October 2016, having pleaded guilty to a charge of supplying a prohibited drug based solely upon his involvement in the supply on 16 April 2014.
In assessing the role played by So, his Honour said (commencing at ROS 5): The question then arising of what was the offender So's role in all of that? The immediate answer is that beyond being the driver of the Mazda in which the methylamphetamine was carried and handing it over the undercover operative, it is difficult to say. The Crown urged me to find by implication that So was a principle (sic). To reach that conclusion I would need to be satisfied beyond reasonable doubt; that is to say that there was no other reasonable possibility. In my view there is at least one other reasonable possibility which is that So was not a principle (sic) but occupied some position in the supply chain below not only Chan but below Shi as well. …. I am not prepared to making any finding of exactly what Mr So's role was or where he stood in the hierarchy. But I am prepared to find, as a probability, that he was closer to the bottom of the hierarchy than he was to the top. That is really all I conclude on such limited information.
These findings necessarily placed So at a level in the hierarchy below that of both the applicant and Mohammed.
His Honour imposed a non-parole period of 4½ years imprisonment, with an additional term of 2½ years of imprisonment.
It is important to note that no direct challenge was made by senior counsel for the applicant, on the hearing of this application, to any of the factual findings made by the respective sentencing judges as to the roles played by any of the three offenders.

THE GROUND OF APPEAL

The applicant advances a single ground of appeal which is expressed in the following terms: The sentence is too severe on the ground of unjustified disparity with the sentences imposed upon the applicant's co-offenders.

Submissions of the applicant

Senior counsel submitted that the applicant had a justifiable sense of grievance arising from the sentences which had been imposed upon both Mohammed and So. In advancing this submission, it was argued that the similarities between the offenders, both objectively and subjectively, did not justify what was said to be disparities in the sentences imposed between Mohammed and So on the one hand, and the applicant on the other. Senior counsel for the applicant submitted that the applicant's justifiable sense of grievance arose, in particular, from the differing non-parole periods which were imposed.
It was submitted that whilst the applicant was responsible for obtaining the quantities of the drug and passing them on to Mohammed, Mohammed had dealt directly with the undercover police, negotiated with them, and handed the drugs to them in exchange for money. Senior counsel emphasised that whilst the applicant and Mohammed were together on some occasions, there were other occasions on which Mohammed performed those tasks alone.
It was further submitted that in respect of the supply on 16 April 2014, So had also played a significant role. Senior counsel submitted that on that occasion So had "acted as though he was in charge of the suppliers". However, it was conceded that it was not alleged that So had played any part in any of the earlier instances of supply. Ultimately, It was submitted that properly analysed, each of So and Mohammed "played roles of similar seriousness".
Senior Counsel further submitted that the applicant had a justifiable sense of grievance arising from the manner in which the respective sentencing judges had addressed the issue of the drug use of the individual offenders. It was submitted that Acting Judge Hosking SC had concluded that the applicant's drug addiction provided "little or no justification" for his offending, but that Judge Bennett SC had been "more sympathetic" to this issue in respect of Mohammed (although it should be noted that his Honour ultimately concluded that the extent to which such a factor might ameliorate any sentence was necessarily limited).
Senior counsel accepted that the applicant had a more serious criminal history than Mohammed, but submitted that such history was less serious (at least in respect of drug offending) than that of So. He further submitted that excessive emphasis had been given to the applicant's criminal record by Acting Judge Hosking SC, in circumstances where So had also previously had a significant sentence imposed in respect of drug supply. It was submitted that Acting Judge Hosking SC had been far more lenient towards So when dealing with that aspect of his sentence than he had been when sentencing the applicant, and that this reflected an inconsistent approach.

Submissions of the Crown

The Crown submitted that there were a number of factors which justified the differences in the sentences imposed on each of the offenders. Primarily, the Crown relied on the fact that the applicant had been assessed as having had a substantially more senior role in the enterprise than either of his two co-offenders.
It was also pointed out that the applicant had a prior history of commercial drug supply (and other offences) for which he had received full time custody. It was submitted that in those circumstances, specific deterrence was necessarily an important consideration in the applicant's case.
The Crown also pointed out that the finding of special circumstances made in favour of the applicant had been imposed as a consequence of the extra curial punishment arising from the injuries sustained in the course of his arrest, and not on the basis of any particular need for rehabilitation (the latter having been the basis for the finding of special circumstances made in respect of each of the two co-offenders).
To the extent that the applicant asserted that the sentencing judge had given "excessive emphasis" to his criminal history, the Crown submitted that such an assertion, properly viewed, raised an issue regarding the weight to be given to subjective factors on sentence. It was submitted that this Court had, on many occasions, highlighted the difficulty involved in advancing a ground of appeal based on the proposition that insufficient weight had been given to a particular factor.
Ultimately, the Crown submitted that the applicant had failed to demonstrate that there was a marked, clearly unjustifiable, or manifest discrepancy between the respective sentences so as to engender a justifiable sense of grievance on the part of the applicant.

Consideration

In Why v R [2017] NSWCCA 101 Walton J (with whom Hoeben CJ at CL and RA Hulme J agreed) summarised the principles relating to parity as follows (at [43]-[45]); [43] The principles for the application of the parity principle were summarised by Garling J (with whom Macfarlan JA and R S Hulme J agreed) in Rees v R [2012] NSWCCA 47 at [50]: (1) The parity principle is an aspect of equal justice, which requires that there be consistency in punishment. Unequal treatment under the law is likely to lead to an erosion of public confidence in the integrity of the administration of justice: […]; (2) Because the function of imposing a sentence on an individual has a discretionary character, an appellate court will ordinarily be reluctant to intervene. There is no such thing as perfect consistency in sentencing. A search for perfect consistency is to look for the unattainable and will frequently be an exercise of academic abstraction: […]; (3) Hence, the discrepancy required to be identified between sentences is one which is not merely an arguable one, but one which is 'marked', or 'clearly unjustifiable', or 'manifest ... such as to engender a justifiable sense of grievance' or else it '[appears] that justice has not been done': […]; (4) The elimination of an 'unjustified' discrepancy is a matter of importance not just to the individual concerned, but to the administration of justice in the community more generally. This Court is therefore concerned not with whether an appellant actually feels a sense of grievance, that is, a subjective test, but rather whether, examined objectively, the sense of grievance is a justifiable one, namely that a reasonable mind looking over all of what happened would see that a grievance was justified. In other words, the matter is considered objectively: […]. (5) In determining whether there has been a discrepancy of a kind sufficient to give rise to a justifiable sense of grievance, a court: (i) must consider not just the head sentence, but all components of the sentence including the non-parole period and the total effective period that both offenders will serve: […]; (ii) must also consider all of the facts and circumstances applicable to both individuals involved, including the objective seriousness of the offence, in order to identify whether a differential sentence was justified; […]; (iii) ought not intervene to reduce a sentence below a level, which would mean that the sentence would be wholly inadequate having regard to the offence involved and the criminality of the offender, and consequently the result would be an affront to the proper administration of justice: […].[references omitted.] [44] In Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 at [31] French CJ, Crennan and Kiefel JJ explained: The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. [45] Further, their Honours noted, at [32], that: A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders.
For a number of reasons, the application of these principles in the present case leads to the conclusion that the ground relied upon by the applicant is not made out.
As I have noted, senior counsel for the applicant did not take specific issue with any of the factual findings reached by Acting Judge Hosking SC when sentencing the applicant. Significantly, these factual findings included that the applicant: 1. was involved in a number of escalating drug transactions, acting, in effect, as a middle man; 2. was sourcing methylamphetamine in crystal form, from Chan; 3. possessed a number of mobile telephone services; and 4. had Mohammed deliver the drugs to the undercover operatives in the initial transactions.
These factors led his Honour to conclude (inter alia) that whilst the applicant was not "at the top of the supply chain, he was not at the bottom of it either". His Honour went on to observe that the applicant was "not simply a courier of these various amounts of methylamphetamine, he was actively sourcing them from Chan". His Honour's ultimate conclusion was that even if evidence given by the applicant on sentence was accepted, he was actively acting as a middle man in ongoing methylamphetamine supplies for profit.
Clearly, the position occupied by the applicant in the hierarchy was higher than that of either Mohammed or So, and the tasks that he performed were far more significant. In the case of Mohammed, Judge Bennett SC found that he was "an employee of the group to deliver to customers prohibited drugs provided by his co-offenders". It is self-evident that one of the co-offenders who supplied the drugs to Mohammed was the applicant. In terms of So, Acting Judge Hosking SC was not prepared to reach any precise conclusion as to his role, or his position in the hierarchy. He did, however, conclude that it was probable that So was "closer to the bottom of the hierarchy than he was to the top". That was completely consistent with the fact that So's involvement in the enterprise was limited to the supply which took place on 16 April 2014, he having played no role whatsoever in the earlier supplies which took place on 5 February 2014, 5 March 2014, 26 March 2014 and a 8 April 2014. I am unable to accept the submission advanced on behalf of the applicant that the earlier instances of supply were inconsequential. Clearly that is not the case, given the amounts involved. The finding as to So's role was also completely consistent with what he actually did on the occasion of the supply on 16 April 2014.
It follows that on any view of the evidence, the role played by the applicant was substantially greater than that of either Mohammed or So. That alone tends against the proposition that the applicant should have a justifiable sense of grievance.
As I have previously noted, in oral submissions before this Court senior counsel for the applicant focussed upon the non-parole periods imposed and effectively submitted that the disparity in those periods highlighted the unjustifiable sense of grievance held by the applicant. In the applicant's case, his Honour adjusted the statutory ratio between the non-parole period and the head sentence to 70% on account of the extra curial punishment suffered by the applicant at the time of his arrest. His Honour (at ROS 14) expressed some uncertainty as to the applicant's prospects of rehabilitation, and whether he was likely to re-offend. Accordingly, there was no basis on which it was open to his Honour to make any finding of special circumstances so as to further adjust the statutory ratio.
When sentencing Mohammed, Judge Bennett SC found (at ROS 17-19) that various aspects of that offender's subjective case supported a finding of special circumstances "requiring a longer period on parole to allow the prospects of rehabilitation, such as they might ultimately be, to evolve under appropriate supervision". Similarly, when sentencing So, Acting Judge Hosking SC found, notwithstanding the fact that this was the second occasion on which So was to be sentenced to a term of imprisonment, that special circumstances were made out. His Honour concluded (at ROS 13) that So required a long period of post-release supervision in order to address his long standing drug and gambling habits. The differing circumstances which were found to exist in the respective cases explain why the non-parole periods differ.
Finally, reliance was placed by the applicant on the treatment of his criminal history by the sentencing judge, compared with the treatment of the respective histories of the two co-offenders. The applicant's record included previous convictions for commercial drug supply, malicious wounding in company and kidnapping. Although Mohammed had a conviction for trafficking drugs in the Australian Capital Territory, Judge Bennett SC found that the applicant's antecedents were "far worse" (at ROS 21). A comparison of the respective criminal histories justifies that conclusion.
So's record was significant. In particular, it included two previous instances of commercial drug supply. However, even if it were accepted that his record was worse than that of the applicant, it must be emphasised that that was not the only relevant factor on sentence. As I have already pointed out, So's offending was far more limited, and was carried out at a level substantially below that of the applicant.
For all of these reasons, the ground of appeal relied on has not been made out.

ORDERS

I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 August 2017

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