Smith (a pseudonym) v R

Court of Criminal Appeal (NSW)|2022-05-27|Before: Bell CJ, Button J, Adams J

The Applicant's subjective case

The Applicant's subjective case was outlined by the sentencing judge, drawing upon a sentencing assessment report, a psychological report, and a character reference provided by the Applicant's wife. The findings of the sentencing judge with respect to the Applicant's personal circumstances are not challenged on appeal, and are summarised below.
The Applicant was 33 years old when he first became involved in the present offending, and was 36 years old at the time of sentence. He had no history of prior offending.
The Applicant was born in Shanghai, where he was raised primarily by his father and paternal grandparents. His parents separated when he was young, and his mother left China when he was five to six years old after his parents separated. At the age of 11, he was sent to Australia to live with his mother and her new partner.
He did not have a good relationship with his stepfather, and moved out of the family home in late adolescence to live with his then partner. He subsequently separated from that partner and returned to live with his mother in around 2007-2008. Around that time he developed a debilitating anxiety disorder. He became fearful of going out in public, and was unable to continue working.
The Applicant attended high school in Australia, where he completed his Higher School Certificate. After leaving school, he was employed on a full-time basis for approximately five to six years in his stepfather's fire rating business, until he began to suffer from the anxiety disorder. He has not been in lawful employment since 2009.

The sentencing judge's findings

With respect to the objective seriousness of Count 2, the sentencing judge said the following: "I turn then to my assessment of the objective seriousness of the offence contained in sequence 2, being the manufacture of 9.6 kilograms of methylamphetamine at Georges Hall on 28 June 2017. The offender was the person conducting the clandestine manufacturing process at his mother's premises at [the Georges Hall address]. It is an overwhelming inference that he was the person who was involved in sourcing the ingredients needed to engage in the manufacture and in conducting the manufacture itself. As I understand it, the Crown accepts that he was effectively engaged to do so by others, in particular Quoc, Tran and Dries, which is what he effectively told the police in an interview conducted with him on 16 October 2018. The manufacture that took place at those premises was a significant one, producing 9.6 kilograms of methylamphetamine with a relatively high purity. I note the large commercial quantity for that drug at that time was 500 grams, so that the amount manufactured was several times that amount. When sentencing drug manufacturing offences the amount of the drug and its purity is a relevant but not determinative factor on sentence. Another factor is the offender's role in the manufacture. Clearly the offender's role here was a significant one involving the use of premises occupied by relatives in the manufacturing process, obtaining the ingredients to engage in the manufacturing process and the recruitment of the person Lu (sic) in that regard and engaging directly in the manufacturing process. There was a significant level of planning involved in the offence, as there always is in large scale drug manufacture. Similarly, the offender involved himself primarily for financial gain but that is generally speaking inherent in large scale drug manufacturing offences. I consider this offence to be one, keeping in mind his role in it, as falling in the low end of the mid-range of objective seriousness."
In an important passage of the remarks on sentence, the sentencing judge made direct reference to the sentence that had been imposed upon Lou (who is incorrectly referred to in the transcript as Liang Wu): "In considering the sentence to impose on the sequence 2 offence involving the manufacture of 9.6 kilograms of methylamphetamine on 28 June 2017 I have considered the sentencing remarks of Madgwick ADCJ on 25 July 2019 concerning the sentencing of Liang Wu. Wu was sentenced on the basis this offender Mr Smith admitted to the police that he was responsible for the manufacture at those premises and hired Wu to assist him and to transfer the drug. Wu also had no prior record. It is clear that Wu's role was far less than this offender's in that manufacture. His Honour allowed Wu a 25% discount for his plea of guilty but found no remorse. His Honour imposed a sentence of four and a half years with a non-parole period of three years imprisonment." (emphasis added)
The sentencing judge discussed the diagnoses made by the forensic psychologist, and noted the opinion expressed in his report that the diagnosed disorders had a relationship to the current offences. He then continued, "[t]hat relationship really is a tenuous one, in my view, in that it is clear that the offender involved himself in the offences from an expectation of a substantial financial gain." His Honour did, however, make a finding of special circumstances when fixing the non-parole period for the State offences, on the basis that the Applicant's time in custody was likely to be more arduous than usual due to his assistance to authorities, together with his anxiety and panic disorders.
The sentencing judge voiced some scepticism about the Applicant's expressions of remorse to the authors of the sentencing assessment report and psychological report. In this context, his Honour said, "I view those comments in something of a sceptical light, given the offender, on the material before me, first involved himself in significant drug activity in 2012." Nonetheless, in light of the Applicant's early pleas of guilty, assistance to authorities, and behaviour in custody, his Honour found "that there is some genuine evidence of remorse".
Noting that the Applicant had no criminal history and had commenced rehabilitation in custody, his Honour found that the Applicant "has reasonable prospects for rehabilitation".
With respect to the Applicant's assistance to law enforcement authorities, his Honour found that the information the Applicant gave to authorities "provided greater detail of material matters that was not previously known to the investigators insofar as the importation investigation is concerned." He noted that the police considered the Applicant's evidence to have "had a significant impact upon the prosecution of those charged with involvement in the importation and decisions by some persons to enter pleas of guilty".
As already noted, the sentencing judge allowed the Applicant a discount of 25% by reason of his guilty pleas, and a further discount of 20% to reflect his assistance to law enforcement authorities.

The sentence imposed on Lou

Lou was sentenced in the District Court on 25 July 2019, on the basis of a statement of facts that was substantially similar to that which was before the sentencing judge in this matter. To the extent that there were differences between the two sets of statements of facts, neither party submits that they are material for present purposes.
While the material before Madgwick ADCJ QC did not include the evidence outlined above at [18]-[20] concerning the payments received by the applicant and Lou, the agreed facts recorded the following: "In 2018 [the Applicant] participated in a recorded interview with Police. [The Applicant] told Police that he was responsible for manufacturing methylamphetamine at the Georges Hall address… He said that the offender Lou worked for him by assisting him with the manufacturing of the drug and its transportation once manufactured. He told Police he paid Lou money for his work." (emphasis added)
Also in evidence was a psychological report, which included conflicting information about the benefit Lou derived from his participation in the offending. That report recorded that Lou had told the psychologist that "he was offered free drugs in exchange for assisting… in [the] manufacturing activities", and that, as he was addicted to methylamphetamine, he "couldn't resist". Madgwick ADCJ QC did not make an express finding as to whether he accepted Lou's account to the psychologist, or that of the applicant recorded in the statement of facts. He did indicate, however, that Lou's untested statements to the psychologist should be "taken with no small grain of salt".
Madgwick ADCJ QC also noted other aspects of Lou's subjective case which were recorded in the psychological report. These are summarised as follows. Lou was 39 years of age when he committed the relevant offending, and 41 years old at the time of sentence. He was from Shanghai, where he had run a used car dealership. He reported a comfortable and supportive upbringing, and had no history of mental health conditions. The psychologist diagnosed him with substance use disorder on the basis of his presentation, but said that he had overcome his dependency while in prison.
Lou reported having been married twice, and had a son who was 12 years of age. He separated from his second wife shortly after arriving in Australia in January 2017, and moved into the Georges Hall property with the Applicant's family, who were his only Chinese contacts in Sydney. He told the psychologist that he became addicted to methylamphetamine after trying it at a party in 2015, and began using it about twice per week. He ceased using methylamphetamine when he first arrived in Australia, but soon resumed when he stayed at the Georges Hall property.
Madgwick ADCJ QC noted that Lou's "time in prison will be harder to cope with than that of the average prisoner", as he had no friends or family in Australia and received no social visits.
Although Lou made expressions of remorse to the psychologist, Madgwick ADCJ QC considered that "expressions of remorse which cannot be tested by cross-examination carry little weight and I do not believe that he has proven that he is truly remorseful at all".
Madgwick ADCJ QC found that the offending fell at "something less than in the mid-range of seriousness", but considered it to be "in an absolute sense quite serious and deserving of serious punishment". He considered a starting point of six years to be appropriate, but allowed a discount of 25% by virtue of Lou's early guilty plea, reducing the head sentence to four and a half years. He also made a finding of special circumstances on the grounds that Lou was lonely and isolated, and had not previously been in custody. As a result, he fixed the non-parole period at three years.

Applicable legal principles

The application of the parity principle was explained by French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen [1] in the following terms: "The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. 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." (footnotes omitted; emphasis added)
When a question of parity arises on appeal but it is a matter which, as in the present case, has been the subject of attention by the sentencing judge, House v The King error must be established. [2] As was said by Basten JA, Adamson J and Bellew J in Afu v R, [3] "[w]here a sentencing judge recognises the importance of the parity principle and ostensibly gives effect to it, this Court will be cautious to intervene."
In determining whether a disparity in sentences between co-offenders is justified by differing circumstances, an appellate court must have regard to the discretionary and qualitative nature of the process of drawing relevant distinctions between co-offenders. [4] Accordingly, the proper enquiry for an appellate court is that put by R A Hulme J in Lloyd v R: [5] "was the differentiation made by the judge one that was open to her [or him] in the exercise of her [or his] discretion?"
A complicating factor in this appeal arises from the fact that the Applicant relies upon a comparison between the indicative sentence noted by the sentencing judge in relation to Count 2, and the sentence imposed on Lou by Madgwick ADCJ QC for a single offence in the same terms.
Although it is well-established that an appeal lies from an aggregate rather than indicative sentence or sentences, this Court has held that it is permissible to have regard to indicative sentences in determining whether the parity principle is engaged. [6] As was said by McCallum J in R v Clarke: [7] "In comparing the two sentences, it is necessary to bear in mind the fact that the applicant received an aggregate sentence. I see no reason in principle why, in order to determine whether there has been equal justice, a sentence passed on a co-offender may not be compared with an aggregate sentence, taking due account of the other offences comprehended within the aggregation. A primary consideration in that exercise will of course be to consider the indicative sentence for the equivalent offence. That is one of the functions of the requirement under s 53A(2) for the judge to identify the sentence that would have been passed if not an aggregate sentence. It does complicate the task but that is no warrant for overlooking the norm of equal justice, in my view."
Nonetheless, it is clear that reference to indicative sentences serves only as a guide in determining whether a sentencing disposition offends the parity principle. As Payne JA held in Vu v R [8] in the context of the parity principle, "[t]he indicative sentences imposed may be a guide to whether the aggregate sentence is excessive, but it is the aggregate sentences which must ultimately be compared."

Consideration

The sentencing judge adverted to considerations of parity as between the applicant and Lou, albeit briefly, in the section of his sentencing remarks extracted above at [30]. He concluded, "[i]t is clear that [Lou's] role was far less than [the Applicant's] in that manufacture". That conclusion was not challenged on appeal. Indeed, counsel for the Applicant conceded on appeal that the Applicant played a greater role in the manufacturing process than Lou, but contended that "the difference was not so great so as to justify the applicant receiving a notional head sentence which is 100% greater than that imposed upon Lou". [9] Counsel for the Applicant also contended that the Applicant's subjective case was significantly stronger than Lou's, by reason of his diagnoses for several mental health conditions.
With respect to the first of these arguments, some reliance was placed on the similarity in the assessments of objective seriousness made by the sentencing judge and by Madgwick ADCJ QC. The sentencing judge considered the Applicant's offending to be at the "low end of the mid-range of objective seriousness", while Madgwick ADCJ QC considered Lou's offending to be "something less than in the mid-range". While these assessments are similar on their face, limited weight can be attributed to a direct comparison of the words used to describe impressionistic assessments of objective seriousness made by different judges. A comparison of criminality and moral culpability is better drawn from the specific findings made about the nature of the offending in each case.
Such a comparison reveals what is, in my view, a significant difference between the two offenders' involvement in the criminal enterprise. That difference arises from, among other things, the following matters: 1. the Applicant personally recruited and paid Lou to participate in the criminal scheme; 2. the Applicant derived a substantially greater monetary benefit from the offending than Lou; 3. the Applicant provided the premises for the manufacture; 4. the Applicant sourced manufacturing equipment and chemicals required for the manufacturing process; and 5. the Applicant was largely responsible for undertaking the manufacturing process, whereas Lou had no knowledge or expertise in the manufacture of methylamphetamine.
In addition, evidence was led before Madgwick ADCJ QC that Lou was addicted to methylamphetamine, and engaged in the offending at least partly in exchange for drugs. As I have noted, however, his Honour made no express findings about what payment Lou received for the offending conduct.
On the part of the Applicant, the factors I have outlined are consistent with a thoroughly planned course of criminal conduct, motivated by a desire for a significant financial reward, and in the context of close involvement in organised crime. The Applicant occupied an indispensable place in a criminal group responsible for the production of large amounts of methylamphetamine. Lou, on the other hand, appeared to have little involvement in the criminal group other than by virtue of the relatively menial tasks he performed for the Applicant. His offending was motivated by, on the Applicant's account, a modest financial incentive, and on his own account, his addiction to methylamphetamine. In either case, I consider there to be very significant differences in the nature and degree of criminality inherent in each offender's conduct.
With respect to the Applicant's subjective case, it may be accepted that the Applicant's personal circumstances were in some respects more compelling than Lou's. Evidence before the sentencing judge established that the Applicant experienced a difficult childhood, and that he suffered from a number of psychological conditions. Lou, on the other hand, was raised in a comfortable and supportive familial environment, and had no diagnosed mental health conditions other than a substance use disorder, which he has overcome in custody.
The force of this submission is significantly reduced, however, by the sentencing judge's finding that the asserted relationship between the Applicant's diagnosed conditions and his offending was a "tenuous one". In any case, the Applicant's moderately stronger subjective case does little to detract from his significantly more serious offending, particularly in circumstances where, as the sentencing judge recognised, the need for general deterrence is considerable. Further, as I have noted at [31], his Honour did have regard to the Applicant's mental health conditions in making a finding of special circumstances when fixing his non-parole period for the State offences.
Finally, in oral argument, counsel for the Applicant drew attention to remarks made by the prosecutor before the sentencing judge, which he contended amounted to a concession that the indicative sentence for Count 2 should be only "modestly lengthier" than that which was imposed by Madgwick ADCJ QC on Lou. Those remarks were as follows: "My submission is that, in relation to the deemed supply from the girlfriend's house, if you accept my submission that this offender's culpability is much higher but tempers that with the fact that he disclosed that he intended to traffic those drugs, then my submission would be that the sentence imposed for that would be somewhat modestly lengthier than that of Ms Pungpek's. I make the same point in relation to Mr Liu, (sic) who was the "worker" for this offender, if I could use that term, at the Georges Hall address." (emphasis added)
One difficulty which arises from this passage is that it is unclear whether the prosecutor was referring to the indicative sentence before or after the application of any relevant sentencing discounts. The prosecutor's reference to the Applicant's disclosures to law enforcement authorities, in the context of the deemed supply offence, suggests that he may have been referring to the appropriate indicative sentence after allowing discounts for assistance. If this is so, it is arguable that the discounted indicative sentence attributed to Count 2 (being six years and seven months) in fact was only "modestly lengthier" than the head sentence imposed upon Lou (being four years and six months). In any case, the sentencing judge's discretion was not bound by the prosecutor's submissions as to the appropriate sentence relative to co-offenders. I do not consider these comments to be material to the present appeal.
For the reasons I have outlined, the disparity between the sentences is plainly capable of being "justified by differences between… the part each has played in the relevant criminal conduct or enterprise", [10] notwithstanding the Applicant's slightly stronger subjective case. To the extent that the indicative sentence attributed to Count 2 provides some guidance as to the application of the parity principle, I am satisfied that any disparity is not such as to warrant appellate intervention. More pertinently, the indicative sentence reveals no relevant disparity affecting the aggregate sentence imposed by the sentencing judge for Counts 2, 4 and 5. In this respect, it is relevant that the aggregate sentence imposed by the sentencing judge was consistent with a substantial degree of concurrency between the indicative sentences, had they been imposed as separate sentences.
Having regard to the differences in the offending conduct, and bearing in mind the discretionary nature of the sentencing process, the sentence imposed by the sentencing judge was plainly open to him.

Disposition

For these reasons, I would grant leave to appeal but dismiss the appeal.
BUTTON J: I agree with the Chief Justice.
N ADAMS J: I agree with Bell CJ.

Endnotes

(2011) 244 CLR 462; [2011] HCA 49 at [28].
Daw v R [2017] NSWCCA 327 at [21] per Basten JA.
[2017] NSWCCA 246 at [15], cited in Lloyd v R [2017] NSWCCA 303 at [90].
See Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [32]; Lloyd v R [2017] NSWCCA 303 at [96].
[2017] NSWCCA 303 at [97].
See eg R v Clarke [2013] NSWCCA 260 at [68]; JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [39]; Kadwell (a pseudonym) v R [2021] NSWCCA 42 at [48].
[2013] NSWCCA 260 at [68].
[2018] NSWCCA 122 at [56]; see also Thangavelautham v R [2016] NSWCCA 141 at [70].
AWS [26].
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]. 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: 10 June 2022

Crimes Act 1900(NSW)s 193C(1)

HEADNOTE [This headnote is not to be read as part of the judgment] On 20 February 2020, Mr Smith (a pseudonym) (the Applicant) was sentenced for four drug-related offences in the District Court, including one Commonwealth offence and three New South Wales offences. For each offence, he received a discount of 25% for his early guilty plea, and a further 20% discount for assistance he provided to law enforcement authorities. He was sentenced to a total effective term of 12 years and four months of imprisonment, with a non-parole period of eight years and two months. This sentence included an aggregate sentence for the three New South Wales offences. In accordance with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge noted the indicative sentences that he would have imposed for each of these three offences, had separate sentences been imposed. One of the New South Wales offences was an offence of manufacturing a large commercial quantity of a prohibited drug, namely 9.6 kilograms of methylamphetamine, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (Count 2). For Count 2, the sentencing judge indicated that he would have imposed a sentence of six years and seven months, with a non-parole period of four years and five months. This indicative sentence had been reduced from a starting point of 12 years, after applying the sentencing discounts. Count 2 was committed with a co-offender, Mr Lou (Lou), who had been recruited and paid by the Applicant to assist him in the manufacture and delivery of the methylamphetamine. Lou received a substantially lesser monetary benefit from the offending than the Applicant, and had no knowledge or expertise in the manufacture of methylamphetamine. On 25 July 2019, Lou had been sentenced by Madgwick ADCJ QC for a single offence in the same terms as Count 2. He was sentenced to a term of imprisonment of four and a half years, with a non-parole period of three years. This sentence had been reduced from a notional starting point of six years' imprisonment, by reason of Lou's guilty plea. The Applicant sought leave to appeal against his sentence on the sole ground that that there was an unjustifiable disparity between his sentence and that imposed on Lou. The Court held (Bell CJ, Button and N Adams JJ agreeing), granting leave to appeal but dismissing the appeal: 1. Although an appeal lies from an aggregate rather than indicative sentence, it is permissible to have regard to indicative sentences in determining whether the parity principle is engaged. Nonetheless, it is the aggregate sentence which must ultimately be compared: [48]-[49] (Bell CJ); [62] (Button J); [63] (N Adams J). R v Clarke [2013] NSWCCA 260; JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297; Kadwell (a pseudonym) v R [2021] NSWCCA 42; Vu v R [2018] NSWCCA 122; Thangavelautham v R [2016] NSWCCA 141, discussed with approval. 1. The disparity between the sentences imposed upon the Applicant and Lou was capable of being justified by differences in the nature and degree of criminality inherent in each offender's conduct, notwithstanding the Applicant's slightly stronger subjective case. As such, the sentence imposed by the sentencing judge was open to his Honour: [59]-[60] (Bell CJ); [62] (Button J); [63] (N Adams J). Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, applied.

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