Solicitors:
Jeffreys Lawyers
Solicitor for Public Prosecutions
File Number(s): 2014/116673
Decision under appeal Court or tribunal: District Court
Date of Decision: 16 October 2015
Before: Hosking SC ADCJ
File Number(s): 2014/116673
[2]
Judgment
R A HULME J: Zi Pei Shi appeals against a sentence imposed upon him in the District Court for an offence of knowingly taking part in the supply of a large commercial quantity of methylamphetamine.
At the appellant's request, a further offence of participating in a criminal group, contrary to s 93T(1A) of the Crimes Act 1900 (NSW), was taken into account.
The primary offence is contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty is imprisonment for life (and/or a fine of 5,000 penalty units). There is also a standard non-parole period (SNPP) of 15 years.
On 16 October 2015, his Honour Acting Judge Hosking SC imposed a sentence of imprisonment for 10 years with a non-parole period of 7 years, dating from 16 April 2014.
The judge took into account the appellant's early plea of guilty and assistance to authorities and reduced the sentence by one-third. The sentence would otherwise have been one of 15 years.
The appellant had previously been granted leave to appeal against the sentence but the appeal was dismissed: Shi v R [2017] NSWCCA 183. That appeal was based upon a sole ground contending that the sentence was too severe having regard to an unjustified disparity with the sentences imposed upon two co-offenders. Those co-offenders were Moheen Mohammed and Tony So. It was held by Bellew J, with whom the other members of the court agreed, that the differences in the sentences imposed were justifiable, having regard to the nature of the offending and the personal circumstances of the three offenders.
When that appeal was determined on 4 August 2017, a further co-offender, San Sang Chan, was awaiting sentence. Mr Chan was sentenced by his Honour Judge Craigie SC on 26 October 2017.
The appellant subsequently contended that his sentence was too severe having regard to unjustified disparity with the sentencing of Mr Chan. He made an application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) for his case to be referred to this Court on the basis that there was a doubt or question as to his sentence. The application was considered by Davies J who, on 29 November 2019, referred the case to this Court pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act to be dealt with under the Criminal Appeal Act 1912 (NSW): Shi v Attorney-General for New South Wales [2019] NSWSC 1686.
It is important to recognise that Davies J was not required to determine the issue that is now before this Court. He was authorised by s 79(2) to refer the matter if it "appeared" that there was a doubt or question as to the sentence: Buttrose v Attorney General of New South Wales [2015] NSWCA 221 at [16] (Beazley P and Leeming JA). His Honour said (at [40]) that he was satisfied there was such an appearance on the basis that the sentence imposed upon Mr Chan "causes unease when regard is had to the sentence imposed upon [the appellant]".
Leave to appeal is not required when a matter is referred to this Court pursuant to s 79(1)(b); the case is referred to the Court "to be dealt with as an appeal under the Criminal Appeal Act 1912".
[3]
The offending
The circumstances of the appellant's offence are comprehensively set out in the judgment of Bellew J in Shi v R and so a brief summary is sufficient for present purposes.
The applicant supplied quantities of methylamphetamine to police undercover operatives on five occasions from 5 February 2014 to 16 April 2014. He did so with the assistance of Moheen Mohammed and, on the last occasion, Tony So as well. Those five transactions may be summarised as follows:
5 February 2014: 27.9 grams of the drug were supplied to an undercover operative through Mr Mohammed for $7,500. The appellant had obtained the drug from Mr Chan.
5 March 2014: Five ounces (about 140 grams) of the drug were supplied to an undercover operative through Mr Mohammed for $36,000. The appellant obtained four of the five ounces from Mr Chan.
26 March 2014: Five ounces (about 140 grams) of the drug were supplied to an undercover operative by Mr Mohammed for $36,000. The appellant obtained the drug from his own home. It is accepted that it did not come from Mr Chan.
11 April 2014: 239 grams of the drug were supplied to an undercover operative through Mr Mohammed for $57,400. The appellant obtained the drug from Mr Chan.
16 April 2014: 2 kilograms of the drug were supplied to an undercover operative with the assistance of Messrs Mohammed and So for $360,000. It is accepted that this drug was not sourced from Mr Chan.
The total amount of methylamphetamine supplied by the appellant over the five transactions was 2.545 kilograms. The prescribed amount for a large commercial quantity under the Drug Misuse and Trafficking Act was, at the relevant time, 1 kilogram.
[4]
Mr Chan's offending
Mr Chan was sentenced for four offences. Count 1 was the offence that was in common with the appellant's offence and concerned his supply of the drug that was ultimately sold to the undercover operative in the first and fourth transactions and the majority of that which was sold in the second transaction. The offence for Mr Chan was supplying methylamphetamine between 4 February 2014 and 12 April 2014 in an amount not less than the commercial quantity. The prescribed amount for a commercial quantity, at the relevant time, was 250 grams. This offence is one for which the maximum penalty is imprisonment for 20 years and there is a SNPP of 10 years.
Mr Chan was also sentenced for offences relating to drugs that were found in his possession on 17 April 2014. That gave rise to charges of supplying a large commercial quantity of methylamphetamine (Count 5), supplying a large commercial quantity of ephedrine (Count 6), and supplying a commercial quantity of cocaine (Count 7). There is no suggestion that the appellant had anything to do with those offences.
Craigie SC DCJ imposed an aggregate sentence of imprisonment for 13 years with a non-parole period of 7 years and 10 months. He specified the sentences that he would have imposed for the individual offences if he were not imposing an aggregate sentence. For Count 1, the indicative sentence was 11 years 6 months with a non-parole period of 7 years. There was no discounting as Mr Chan had been convicted after a trial.
[5]
Submissions
It was accepted by Mr Smith SC, counsel for the appellant, that the relevant comparison is between the starting point of 15 years for the appellant's sentence and the indicative sentence of 11 years 6 months for the corresponding offence for Mr Chan.
In written submissions, it was contended by Mr Smith that the appellant had a justifiable sense of grievance in respect of the sentence imposed upon Mr Chan. By reference to authority, it was contended that in relation to drug supply offending, an offender's role and level of criminality is more important in determining a sentence than the quantity of drugs involved. In oral submissions, the Court was taken to the passage of the remarks on sentence of Craigie SC DCJ where he said:
"I have found that the offender's [that is Chan'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 …" [1]
Craigie SC DCJ found that Mr Chan's offence in Count 1 was in the middle of the range of objective seriousness.
Hosking SC ADCJ had described the appellant as "actively acting as a middleman in ongoing methylamphetamine supplies for profit" and he assessed his offence as being "below the mid-range but not too far below it". [2]
Mr Smith acknowledged that the appellant "had a worse criminal record" but pointed out, "whilst [Mr Chan] didn't have much of a criminal record, he'd been in this country without permission for over 20 years and hadn't paid any tax during that period apparently". [3]
Mr Smith implicitly accepted at the hearing of the appeal that there was nothing to indicate that Mr Chan had any interest in the transactions involving the appellant and Mr Mohammed and others with the undercover police operative. [4] It was accepted that Mr Chan was a supplier to the appellant when the appellant sought drugs from him and that there was "a very large amount" supplied by the appellant that did not come from Mr Chan. [5]
[6]
Consideration
The following succinct statement of the principle of parity in sentencing appears in the joint judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]:
"Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice' [Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 at 610 per Mason J]. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner [Leeth v The Commonwealth (1992) 174 CLR 455; [1992] HCA 29 at 470 per Mason CJ, Dawson and McHugh JJ]. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances [Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 301 per Dawson and Gaudron JJ]."
It has not been contended that the appellant should have received the same sentence (by way of a starting point before discounting) as Mr Chan. Differences between the offending and the personal circumstances of the offenders were acknowledged. The contention was to the effect that the sentence assessed for the appellant is "too severe", in other words disparate to an unreasonable degree, when fair comparison is made of all relevant factors.
Factors that support a more significant sentence being imposed upon the appellant as compared to Mr Chan include the following:
1. The appellant was sentenced for the supply of a large commercial quantity while Mr Chan was sentenced for the supply of a commercial quantity. The maximum penalties applying were life (with a SNPP 15 years) as compared to 20 years (with a SNPP 10 years).
2. The appellant supplied a total of about 2.5kg of the drug in five transactions while Mr Chan supplied a total of 372.8g in three transactions.
3. The appellant had what Hosking SC ADCJ described as a "serious criminal record". It included a commercial drug supply offence, malicious wounding in company and kidnapping and he had served various terms of imprisonment. Mr Chan had no significant prior record. He was described by Craigie SC DCJ as an "older ethnic Chinese man who is experiencing prison for the first time". Mr Chan was aged 70 at the time of sentence whereas the appellant was aged 30.
4. The appellant's prospects of rehabilitation and likelihood of reoffending were assessed as "uncertain", whereas the assessments for Mr Chan were "good" or "reasonable" for rehabilitation and "low" for likelihood of reoffending.
5. Special circumstances warranting a lower non-parole period for the appellant comprised only extra-curial punishment because of his treatment on arrest, including that he was bitten by a police dog. Hosking SC ADCJ said for this reason there would be a reduction of the non-parole period "albeit, not to a large degree". The finding for Mr Chan was based upon his age, ill-health and the accumulation in the aggregate sentence.
Factors tending to favour the appellant in comparison with Mr Chan are:
1. Mr Chan was involved in the drug trade at a high level when regard is had to the substantial quantities of other drugs found in his possession. While both offenders were wholesalers, the appellant operated at a level down the line from Mr Chan.
2. Mr Chan's offence was described at a higher level of objective seriousness than the appellant's offence. However, it is difficult to make much of this comparison given the different and more serious offence for which the appellant was sentenced. Mr Chan's offence involved 372g at a time when the commercial quantity for methylamphetamine ranged from 250g to 1000g. The appellant's offence involved two and a half times the large commercial quantity threshold and the most serious examples of such an offence may involve unlimited greater quantities.
3. The appellant was allowed a one-third reduction of sentence whereas Mr Chan was not entitled to any reduction. However, this consideration is irrelevant when the comparison is made between undiscounted sentence assessments for each offender.
The above considerations amply justify the degree of disparity in the sentences of the appellant and Mr Chan. I am not satisfied that there can be any legitimate sense of grievance held by the appellant.
I propose the following order:
Appeal against sentence dismissed.
ADAMSON J: I agree with R A Hulme J.
IERACE J: I also agree with R A Hulme J.
[7]
Endnotes
R v San Sang Chan (District Court (NSW), 26 October 2017, unrep) at p33.
Remarks on sentence pp 7.7; 9.2.
Tcpt 9.3.20 at p3.27.
Tcpt 9.3.20 at p4.43.
Tcpt 9.3.20 at pp4.43; 5.1.
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Decision last updated: 19 March 2020