Tiew v R

Court of Criminal Appeal (NSW)|2020-06-29|Before: Macfarlan JA, Fagan J, Cavanagh J

Judgment

THE COURT: The applicant seeks leave to appeal from a sentence imposed upon him in the District Court on 1 March 2019 upon his plea of guilty to supplying a prohibited drug greater than the large commercial quantity (methyl amphetamine, 67.477kg) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for the offence is life imprisonment and/or a fine of 5,000 penalty units. A standard non-parole period of 15 years applies. The sentence imposed by his Honour Judge Mahony SC DCJ was 14 years and 6 months with a non-parole period of 10 years and 10 months commencing on the date of the applicant's arrest and remand, being 1 December 2015.
The application for leave is out of time. The Crown does not oppose the application on that basis but only by reference to what is said to be the lack of merit in the proposed grounds. The grounds are as follows: 1 In considering objective seriousness, his Honour erred in finding: a that the offence was aggravated by having been committed without regard to public safety; b that the offence was aggravated by involving financial gain; c that the offence was aggravated by involving a level of planning; d ultimately, that the level of objective seriousness of the offending was "above the mid-range". 2 His Honour erred in failing to make a finding as to the applicant's remorse. 3 His Honour erred in failing to take into account: a the applicant's lack of previous convictions and good character; and b the applicant's prospects of rehabilitation and likelihood of reoffending. 4 The sentence was manifestly excessive. 5 The applicant has a justifiable sense of grievance by reason of a marked disparity between his sentence and the sentence imposed on the co-offender, Bunny Bannister.

Subjective considerations

The applicant was born in 1983. He was 32 years old at the time of the offence and 36 when he was sentenced. The sentencing judge accepted much of the applicant's account of his background, which was given in part through a report of Mr Sheehan, forensic psychologist, and in part through the applicant's oral evidence. The applicant came from a semi-rural area in Malaysia. He had completed only two years of high school and thereafter had been employed in a series of unskilled and low-paying positions. Between 2006 and 2009 the applicant had worked for three years in a laundry in Singapore. During three months without employment during 2014 he had gambled recklessly and accrued a debt of $27,000.
The applicant said that he had been assaulted in Malaysia by the person to whom he owed the gambling debt and that, although his family members had never actually been threatened, the creditor was "circling" in a manner that caused him to fear for their safety. The applicant said that the creditor coerced him to come to Australia to carry out some work to do with "a furniture business" in order to settle the gambling debt. He admitted that he sensed this work would be something illegal although he claimed only to have realised that he was to be involved in the supply of methyl amphetamine after he arrived in this country. The learned sentencing judge did not accept that the applicant acted under duress. His Honour found that he had chosen not to seek the support of family or friends in Malaysia, or to report the creditor's intimidation to authorities. Instead he had chosen to engage in a criminal undertaking.
The Crown tendered a report showing that the applicant had no recorded convictions in New South Wales. The learned judge accepted that he had no previous history of criminal activity and that his involvement had not been related to his own of use of illicit drugs. His Honour referred to the applicant's evidence that he was very regretful of his involvement in the distribution of this large amount of methyl amphetamine in Sydney and that he understood his conduct had been wrong.
His Honour accepted that the applicant speaks only Cantonese and that his ability to communicate in prison, particularly with Corrective Services officers, was limited. The language difficulties and the improbability of the applicant having any visitors were recognised as giving rise to hardship in custody. His Honour declined to make a finding of special circumstances. A discount of 10% was allowed for the late plea of guilty.

Ground 1 a-c - aggravating factors

The learned sentencing judge said: [It] is an aggravating factor that the offence was committed without regard to public safety, and I reject the submission made on behalf of the offender here that the offending did not go beyond "what might ordinarily be expected for a large commercial supply offence".
Earlier his Honour had noted that the total quantity of drug involved was "many times the [prescribed] amount for a large commercial quantity, namely, 500g". In taking into account the aggravating factor that "the offence was committed without regard for public safety" (see s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) and that in this respect the offending went beyond what might ordinarily be expected for such an offence, it appears that his Honour did no more than recognise that the degree of risk to the public is directly proportional to the quantity of drug involved. The more methyl amphetamine supplied, in this case 135 times threshold for a large commercial quantity, the greater the disregard for public safety. There is no indication that his Honour double counted the degree of objective seriousness that was indicated by the very great quantity involved in the offence.
The applicant submits that his Honour double counted the planning and financial gain aspects of the applicant's conduct by treating them as both serious aspects of the agreed facts and also as aggravating features pursuant to s 21A(2)(n) and (o) of the Crimes (Sentencing Procedure) Act. The following statement in the remarks on sentence is relied upon: Whilst it may be inherent in this class of offence that there is a level of planning and financial gain, those characteristics were clearly in play here […] and the potential financial gain, both to the offender and other syndicate members, was significant.
There is no indication of double counting in this passage. It does no more than draw attention to the organised nature of the enterprise, the applicant's coordinated involvement in it and his evident objective of generating substantial gain for the syndicate that engaged him and for himself. No error of the nature asserted in pars a-c of ground 1 has been shown.

Ground 1d - an offence "above the mid-range of seriousness"

The Court rejects the applicant's contention in ground 1d that his Honour erred in ranking this offence as "above the mid-range". That assessment was well justified having regard to the quantity of drug involved, the monetary value of it, the sophistication of the scheme and the importance of the role played by the applicant. He was the interface between the syndicate and its customer. This required, first, safe-keeping of the drug until delivery had been arranged. Secondly, it required the applicant to undertake the responsibility and assume the risk of effecting physical handover. It was significant that the applicant had come to Australia specifically to take possession of the shelves in which the drug was concealed and to fulfil these tasks of storing them in his accommodation then effecting physical transfer. This role was essential to the enterprise. It is evident that significant trust was reposed in the applicant by his superiors in the organisation.
Assessment of the objective seriousness of an offence is essentially a matter for the sentencing judge, which this Court would set aside only upon the applicant demonstrating that the judge's characterisation of the degree of seriousness was not open to him: Mulato v R [2006] NSWCCA 282; Salafia v R [2015] NSWCCA 141. Error has not been shown in the present case.

Ground 2 - failure to make a finding of remorse

The applicant gave evidence before his Honour that he was "very regretful, very sorry" for his offence. The judge referred to that evidence in his remarks under a heading "The offender's evidence" but did not state, either there or under later headings - "The offender's submissions" and "Determination" - whether he accepted the applicant's expression of remorse or whether he took this into account in mitigation of penalty.
A report of Mr Sheehan, forensic psychologist, tendered on behalf of the applicant included the following: Although [the applicant] reported having felt that he had limited choice but to participate in the offence, he was able to articulate an understanding of the implications of his involvement, saying: "I broke the law. I dealt with drugs. Drugs are harmful to society and I played a part in".
In the remarks on sentence the learned judge did not refer to this part of the history taken by Mr Sheehan. Again, his Honour did not say one way or the other whether he accepted this as a genuine expression of remorse to be taken into account in the applicant's favour. The failure to make an express finding on remorse was an error. The submissions of the applicant's counsel clearly articulated that such a finding was sought and that it should be taken into account toward some degree of lenience. Leave to appeal will be granted in respect of ground 2. It remains to be considered whether, upon this Court making a finding with respect to remorse, any lesser sentence than that imposed by the sentencing judge was warranted in law.

Ground 3 - absence of criminal record, prospects of rehabilitation

Contrary to the applicant's submissions in relation to ground 3a, the learned sentencing judge clearly did take into account the applicant's lack of previous convictions. This matter was referred to in the remarks on sentence only under the heading "The offender's evidence" but his Honour's mention of the applicant having "no previous history of criminal activity" was a statement of fact. There was no challenge to or contradiction of the evidence of the applicant's clear record. Unlike the subjects of remorse and prospects of rehabilitation, the absence of prior convictions did not have to be established by evaluation of contestable evidence, followed by a finding. The absence of criminal record was common ground in the proceedings before the sentencing judge. There is no basis for concluding that his Honour did not have regard to it, merely because he did not repeat his reference to the subject under the subsequent heading in his judgment "Determination".
The second part of ground 3a, concerning good character, was the subject of a bald submission to the learned judge that "Mr Tiew was a person of good character". In the submissions the only reference to the evidence that could, possibly, be construed as an attempt to substantiate good character was the following: As outlined in the psychological report of Patrick she and dated 7 November 2018, Mr Tiew had an unremarkable childhood and adult life, and it is conceded that there are no particular aspects of his subjective circumstances that significantly impinge on his moral culpability.
There was nothing in the evidence, beyond the absence of a criminal record, to throw any light upon the applicant's character apart from the commission of these offences. There was no basis upon which the learned judge ought to have made an affirmative finding of good character such as would entitle the applicant to a measure of lenience, applying the consideration prescribed in s 21A(3)(f) of the Crimes (Sentencing Procedure) Act.
As for ground 3b, the only evidence before the learned trial judge concerning the applicant's prospects of rehabilitation was the following passage at Mr Sheehan's report: There may be limited rehabilitative value to [the applicant's] time in custody. Whilst a gambling treatment intervention could be of value in addressing the disorder underpinning his offence, his lack of English skills would disqualify him from meaningful participation in such a program (which are operated in a group format in the English language). Furthermore, [the applicant's] visa status may impede any attempt to obtain a gradual release to stable community living through works release programs, with deportation seeming a likely outcome at release.
The applicant's written submissions to the sentencing judge asserted that "Mr Tiew has good prospects of rehabilitation", without reference to supporting evidence. There was no evidence that could sustain counsel's proposition. The absence from the remarks of an express finding does not indicate that his Honour erred in failing to reach a conclusion on the subject. Rather, it indicates that he found counsel's submission unsupported and that he intentionally refrained from finding good prospects of rehabilitation and from taking that matter into account under 21A(3)(h).
The Court is not satisfied that leave to appeal should be granted in respect of any aspect of ground 3.

Ground 4 - manifestly excessive sentence

As a specific error in the learned judge's exercise of the sentencing discretion has been identified in ground 2, namely, failure to make a finding with respect to the applicant's remorse, the Court must consider whether on the whole of the material relative to penalty, including the Court's own findings as to remorse, any lesser sentence than that imposed by his Honour was warranted in law, for either of the offences: Kentwell v The Queen [2014] HCA 37. It follows that there is no occasion to consider the applicant's ground 4, pursuant to which it has been argued that the sentence imposed was manifestly excessive.

No lesser sentence is warranted in law

In the joint judgment in Kentwell v The Queen it was said that in a case such as the present where a specific error of failing to take into account a relevant consideration, or the like, has occurred, this Court should proceed as follows (citations omitted): [42] […] The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Crimes (Sentencing Procedure) Act will, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. […] [43] After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. […]
The Court is satisfied that the applicant demonstrated genuine remorse and that this should be taken into account in his favour. With that additional conclusion, the Court proceeds on the basis that it finds the applicant's subjective circumstances are otherwise as found by his Honour and summarised in these reasons.
At [20] and [23] above we have identified features of the case that fully justified the learned sentencing judge's assessment of the objective seriousness of the applicant's offending as "above the mid-range" for an offence against s 25(2) of the Drug Misuse and Trafficking Act. The applicant was a subordinate of Senior and of anyone else who may have been involved in masterminding and initiating this very large supply. He acted under direction but in an essential and highly responsible role of storeman and high-risk delivery man. Taking the objective seriousness of the offending together with all of the applicant's subjective circumstances, giving full credit for his remorse, it is the Court's view that no lesser sentence than that imposed by the learned judge is warranted. Accordingly, although one of the appeal grounds is made good, the appeal must be dismissed unless the parity ground should succeed.

Ground 5 - parity with Bannister's sentence

The applicant's co-accused, Bannister, was also arrested on 1 December 2015 and was originally charged with three offences. After extensive negotiations the prosecution case against him was reduced to one charge in the same terms as that laid against the applicant. Bannister entered a late plea of guilty on the day his trial was to have begun, 23 April 2018. His Honour Judge Mahony SC heard the sentence proceedings against him on 23 November 2018 and passed sentence on both the applicant and Bannister at the same time. Because the applicant had offered to enter a plea of guilty on 3 April 2018 and his late plea had followed protracted negotiations, the judge allowed a discount on sentence of 15%. The result was a sentence of 6 years and 5 months with a non-parole period of 4 years and 10 months.
Objectively, Bannister's offending was significantly less serious than that of the applicant. Bannister was also a Malaysian national. He had arrived in Australia on 25 October 2015 and initially spent a short period of time on the Gold Coast. He then flew to Sydney and took up residence with the applicant in Burwood. Bannister denied that he had been recruited by the syndicate in his own country. The learned sentencing judge was not satisfied beyond reasonable doubt to the contrary. Accordingly, Bannister was not sentenced on the basis that he had come to Australia for the predetermined purpose of assisting the syndicate to carry out its plan.
Bannister admitted that he had been offered $5,000 to "take care of the thing". This was evidently a reference to the boxes of shelving stored in the accommodation Bannister shared with the applicant, comprising the 12 boxes containing 60.125kg of methyl amphetamine that were found there on 1 December 2015, as described at [11] above, and the two boxes that had been delivered to the civilian participant on 27 November 2015. Bannister said that he had only touched the boxes when they were moved from the warehouse to the accommodation and the prosecution accepted that there was no evidence of any more extensive handling. As described at [9]-[10] above, Bannister accompanied the applicant to a point within 100m of where the handover took place but he did not participate in the handover and he had taken no part in the prior meeting between the applicant and the civilian participant.
On these facts the learned judge accepted the prosecution's characterisation of Bannister's role as that of storeman in relation to the boxes in which the drug was secreted during periods when the applicant was not present in the shared apartment. In the remarks on sentence Bannister's position was described as "at the bottom of the chain of responsibility by comparison to other co-offenders". With respect to the ranking of the offence on a scale of seriousness for infringements of s 25(2) of the Drug Misuse and Trafficking Act, his Honour said this: Because of the amount of prohibited drugs involved overall, [Bannister's offence] was not at the very lowest end of the range, but rather, in the low range, but towards the middle of that low range. It still constituted serious offending.
The subjective cases of the applicant and of Bannister were broadly comparable, with no outstanding feature in relation to either of them that would significantly differentiate their respective penalties. It is not necessary to make a detailed comparison of their subjective circumstances. The differences in the particulars of their offending are so great that that comparison, alone, is sufficient to explain fully and rationally the margin between their sentences. Having regard to the very much greater objective seriousness of the applicant's offending and applying the principles stated in Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31]-[32], there could be no justifiable sense of grievance arising from the greater severity with which the applicant was treated. The sentence imposed by the learned judge is not, on any other ground, to be disturbed and the ground of alleged disparity of that sentence with the penalty imposed upon Bannister is without merit.

Orders

The orders of the court will be: 1. Leave to appeal granted so far as necessary, including respect to the filing of the application for leave out of time. 2. The appeal is 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: 18 September 2020

er sentence lacked parity with sentence of co-offender - appeal dismissed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)) Drug Misuse and Trafficking Act 1985(NSW)

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