Tan v R

Assistance 14The judge then devoted the following section of his sentencing judgment to a question of whether the applicant was entitled to some benefit on sentence for his offer of assistance to authorities. It revolved around his explanation for his involvement in the offence and his claim that he was recruited on the morning of the transaction by another person. The judge considered that the reliability of the applicant's account was highly questionable. He considered that this aspect might be of benefit to the applicant in terms of demonstrating contrition in finally admitting the offence in the sentence proceedings but found that this was qualified by minimisation of his own role. 15The judge also found that the assistance might be of benefit to the applicant in terms of a discount on sentence granted pursuant to s 23 of the Crimes (Sentencing Procedure) Act. Although he held reservations about the significance, truthfulness, reliability and completeness of the information, he thought it had "at least some intelligence value".

Personal circumstances of the applicant 16The applicant lived in Malaysia and was aged 22 at the time of sentence and 21 at the time of the offence. He had no prior criminal record. He has no family in Australia. He is married and has two young daughters. He had received two visits from his wife since his arrest but the judge took into account that the prospects of future visits by his wife and children were remote. 17The applicant's father is ill and his mother cares for him. The applicant has limited education because of his need to leave school and work to support the family after his father's illness arose. 18He worked in a trade involving scrap metal until a downturn in the market for that commodity occurred in 2007 and he found he was unable to support his family. He claimed that he decided to come to Australia in December 2008 in order to study and find work but after he arrived he found those opportunities were limited. The judge noted, however, that he was on a tourist visa with no prospect of it ever being extended so that he could pursue those goals. However, the judge said that he "cannot come to the view beyond reasonable doubt that his sole purpose in coming to this country was to participate in this crime". 19The judge found that his late acknowledgement of guilt was "some demonstration of contrition", albeit qualified by his minimisation of his role. He also accepted that the applicant was of good character; had no previous convictions; had good prospects of rehabilitation; and had a low likelihood of offending in the future. One can also divine that the judge took into account that imprisonment would be more onerous for the applicant on account of his family being overseas; his family including as it does his wife, his young daughters and his aging parents, one of whom was ill.

Grounds of proposed appeal 1. The sentencing judge erred in the application of the standard non-parole provisions contrary to the decision in Muldrock v The Queen [2011] HCA 39. 2. The sentencing judge erred in the assessment of the objective seriousness of the offence. 3. The sentencing judge erred in finding as an aggravating factor that the offence was part of an organised criminal activity. 4. The sentencing judge erred in finding as an aggravating factor that the offence was committed without regard for public safety. 5. The sentencing judge did not take into account the youth of the appellant in determining an appropriate sentence. 6. As a result of the sentences that have been imposed upon the co-offenders based on the principles of parity of sentencing the appellant has a justifiable sense of grievance. 7. The sentence that was imposed was manifestly excessive.

Ground 1 - Muldrock error 20The Crown conceded that there was error and that this ground should be upheld. It is apparent from the reasoning of the sentencing judge that he approached the issue of the standard non-parole period in the manner required by this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168, since disapproved by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. The Crown's concession is appropriate. That gives rise to the question whether a lesser sentence is warranted: s 6(3) Criminal Appeal Act. It is appropriate to deal with the other grounds, but relatively briefly.

Ground 2 - error in assessment of objective seriousness of the offence 21It was contended that there was no proper foundation for the judge to find that the objective seriousness was in the middle of the range for this type of offence. It was submitted that the applicant's role was more important in the assessment than the quantity of the drugs involved. It was contended that he was no more than a courier. He was not a principal in the enterprise. 22In my view the Crown's submissions in reply are correct. The applicant was more than a courier. He was a foreign national present in this country on a tourist visa who within a relatively short time after his arrival was living in accommodation under a false name. He was in frequent contact by telephone in a period of a fortnight with the person to whom he ultimately provided 14 times the large commercial quantity of heroin with a significant level of purity. 23The assessment of the objective seriousness of an offence is principally one for sentencing judges to determine; an assessment with which this Court will not interfere unless it is apparent that the finding of a judge was simply one that was not open to be made: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) and [46] (Simpson J). 24In my view, for the factors identified above, it was open to the judge to make the finding that he did as to the relative seriousness of the offence. This ground has no merit.

Ground 3 - error in finding the offence was "part of organised criminal activity"

Ground 4 - error in finding the offence was committed "without regard to the safety of the community" 25The judge agreed with a submission made by the Crown that the seriousness of the offence was aggravated by it being "part of organised criminal activity" and was committed "without regard to the safety of the community". 26It is technically possible for an offence of supplying a large commercial quantity of heroin to be committed without the first factor being involved but it is likely that would be a rare case. But whether a particular offender is part of the "organised criminal activity" is of significance. An offender may be engaged as a courier and kept ignorant of and at arm's length to the criminal organisational aspect of the enterprise. That is not entirely the case here. 27The second factor is inherent in the offence but the degree to which it applies may be greater than what is inherent. When that is the case it is permissible to take the matter into account: see, for example, Mansour v R [2011] NSWCCA 28 at [50] (Price J). The potential harm to the community of supplying 14 kilograms of heroin is significantly higher than supplying the 1 kilogram threshold for the large commercial quantity. I see no error in this being regarded as an aggravating factor, although care would need to be taken that there is no double counting in the assessment of the seriousness of the offence by having regard to both quantity and potential harm. The two are inextricably linked. 28Whether the sentencing judge took these matters into account to a degree beyond what the facts of the case warranted is difficult to determine from the reasons alone. The ultimate guide is the assessment of the objective seriousness of the offence and I find no difficulty with that assessment. 29I would reject these grounds.

Ground 5 - error in not taking into account the applicant's youth 30The judge reviewed the entirety of the personal circumstances of the applicant and I have summarised the matters to which he referred. The applicant's age was but one of the factors. 31This was not a case in which the age of the offender demanded that considerations of rehabilitation should be given greater prominence over the need for general deterrence. And the judge did take into account that the offender was a foreign national who would be serving a sentence a great distance from his young wife and small children. He took this, and the age and health of his parents, into account in setting the total term of the sentence as well as in finding special circumstances that reduced the non-parole period to one that was 65 percent of the total term of the sentence. 32I do not accept that the sentencing judge was in error in not making greater allowance for the applicant's age in the assessment of the sentence.

Ground 6 - parity 33The starting point for the sentence imposed upon the applicant before the 15 percent allowed for his assistance to authorities was 18 years. 34Lawrence Yong Shun Loh was sentenced by Bennett DCJ a little over four months later on 28 October 2010. The starting point adopted for his sentencing was 16 years. An allowance of 12.5 percent was made for his plea of guilty and he was sentenced to imprisonment for 14 years. 35Loh appealed against his sentence but the appeal was dismissed: Loh v R [2013] NSWCCA 339. One ground of appeal asserting Muldrock error was upheld. The other ground concerning parity in relation to the sentencing of Chuan Tat Kho by his Honour Judge Berman SC on 14 September 2012 was rejected. Kho was sentenced to 12 years (no discounts were factored in). It was held (at [44]) that the involvement of Kho in the offence was less than that of Tan and Loh, thus affirming a finding that Berman DCJ had made that a lesser sentence for him was warranted. For this reason I would reject the argument of the applicant insofar as it concerned the sentencing of Kho. 36The judge assessed the objective seriousness of the offences committed by the applicant and Loh as equivalent. The difference in the starting points adopted must lie in the assessment of their subjective circumstances. 37Loh had an additional offence on a Form 1 document taken into account but the judge considered that it would have a "marginal impact on the sentence to be imposed". The applicant had his youth to be considered (Loh was aged 41). Loh had provided some assistance to authorities which was not reflected in any quantified reduction of his sentence but led to a more favourable finding as to his remorse. 38Bennett DCJ was well aware of the approach he had taken and the matters he had taken into account in the sentencing of the applicant by the time he came to sentence Loh. He referred to such matters at some length. It is pertinent to note that it was said in R v Swan [2006] NSWCCA 47 at [71] that "this Court should be cautious before determining that one of the offenders has a justifiable sense of grievance just because of the different sentencing outcomes". That was said by reference to sentencing by the one judge of two offenders on the same occasion. The same must apply when the same judge sentences offenders on different occasions, particularly as in the present case when specific regard was had to the approach earlier taken in the sentencing of a co-offender. 39It is also pertinent to note that for there to be a justifiable sense of grievance the disparity must be "gross", "marked" or "glaring": see the discussion by Howie J in England v R; Phanith v R [2009] NSWCCA 274 at [61]-[67]. 40Counsel for the applicant advanced arguments under this ground that extended to a comparison of the non-parole periods imposed upon the co-offenders, particularly as to the extent to which the represented a percentage proportion of the total term. It is the actual length of the potential parole period of a sentence that is more significant than percentage proportions of the non-parole and parole periods: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [58]; Caristo v R [2011] NSWCCA 7 at [41]-[42]. Any disparity in the non-parole proportions of the sentences is not of any significance. 41Acknowledging that the sentencing judge was fully cognisant of the sentencing of one offender when he sentenced the other, the difference in outcomes is explicable on the basis of his instinctive synthesis of various subjective features in the respective cases and the weight to be accorded to them. In these circumstances I cannot accept that any sense of grievance experienced by the applicant can be characterised as objectively justifiable. This ground should not be upheld.

Ground 7 - manifest excess / s 6(3) Criminal Appeal Act 42It is unnecessary to determine ground 7. Because of the merit in ground 1 it is necessary to consider the question posed by s 6(3) of the Criminal Appeal Act: whether some other sentence whether more or less severe is warranted in law and should have been passed. 43In my view, the answer to that question is clearly in the negative. I agree with the assessment of the sentencing judge concerning the relative seriousness of the offence (he found "middle of the range"). The applicant had a number of favourable subjective features to be taken into account. He was (generously in my respectful view) allowed a discount of 15 percent on account of his assistance to authorities (which was of minimal, if any, value). He had been found guilty after trial and so was not entitled to any added element of leniency that might have been extended if he had pleaded guilty. 44It remains necessary after Muldrock to pay heed to the maximum penalty provided by Parliament (life imprisonment) and the standard non-parole period (15 years) as the legislative guideposts. Assessed against those guideposts I am unpersuaded that a lesser sentence is warranted. (It follows that ground 7 would fail.)

Extension of time 45I return to the fact that the Notice of Application for Leave to Appeal was filed on 3 December 2013. Materials relied upon to support the application for an extension of time provide quite an incomplete explanation for the long periods of inactivity by both the applicant and his legal representatives in bringing the matter before this Court. For example, the applicant filed a Notice of Intention to Appeal soon after he was sentenced but then did nothing to pursue it for some two years. A lawyer became involved in about September 2012 but nothing much happened after that until well into 2013. I accept that language difficulties and the applicant being held at a gaol away from metropolitan Sydney posed some problems but by no means does that provide an adequate explanation for the inordinate delay. 46I have assessed each of the grounds of appeal and found only one has technical, but not practical, merit. In these circumstances, an extension of time should be refused.

Order 47I propose the following order: Extension of time in which to apply for leave to appeal against sentence refused.

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