Wan v R

Court of Criminal Appeal (NSW)|2017-09-15|Before: Payne JA, Beech-Jones J, Fagan J, Jones J

Solicitors: Proctor & Associates (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2013/185153 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 19 August 2016 Before: Lakatos SC DCJ File Number(s): 2013/185153

Judgment

PAYNE JA: I agree with Beech-Jones J.
BEECH-JONES J: This is an application for leave to appeal from a sentence imposed by Judge Lakatos SC on 19 August 2016 for two drug offences, namely knowingly taking part in the manufacture of a large commercial quantity of a prohibited drug contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 ("DMTA") and supplying a prohibited drug in an amount not less than the large commercial quantity, contrary to s 25(2) of the DMTA. With both offences the prohibited drug was methylamphetamine. The maximum penalty for each offence was life imprisonment and 5000 penalty units (DMTA; s 33(3)(a)). Each offence carried a standard non-parole period of 15 years' imprisonment (Crimes (Sentencing Procedure) Act 1999; s 54A, the "Sentencing Act").

The Offences

Placed before the sentencing judge was a 35 page statement of facts which had a further 22 pages of annexures. It related to the applicant, Choy, Kwok and another co-offender, Chan Heng ("Heng"). In summary, between early 2013 and June 2013, 73.80 kilograms in pure weight of methylamphetamine was imported into Australia in wax blocks. The blocks and the rest of the consignment of which they formed a part were initially delivered to a warehouse in St Peters (the "St Peters warehouse") and then delivered to a "clandestine drug laboratory" at Beverley Hills. The form of "manufacture" that was to be undertaken at Beverley Hills appears to have been the extraction of the methylamphetamine from the wax blocks. It was then proposed to deliver the methylamphetamine into the supply chain. In light of the submissions on the appeal it is necessary to describe the acts of the applicant and the co-offenders as referred to in the agreed facts and the sentencing judgment. During the period of the offences the applicant and his co-offenders were the subject of electronic surveillance.
On 18 April 2013, the applicant arrived in Australia. On 14 May 2013, a consignment of 258 packages, supposedly of "furniture", arrived from China aboard a freighter vessel. The vessel arrived at Port Botany on 25 May 2013. During that month, the applicant arranged premises for a clandestine drug laboratory. In early June 2013, he signed a lease for the premises in Beverly Hills.
Between 24 April 2013 and 24 May 2013, Heng and Choy discussed leasing the St Peters warehouse.
Between 1 June 2013 and 3 June 2013, Choy had conversations with a removalist whilst receiving instructions from Heng to arrange the transportation of the consignment to the St Peters warehouse. The consignment was unloaded at the St Peters warehouse on the morning of 3 June 2013, while Choy was present. Soon afterwards, Heng arrived.
On 4 June 2013, Choy collected the applicant from the Beverly Hills premises. They went to the St Peters warehouse at about 1pm. For approximately three hours the applicant and Choy moved boxes around the warehouse. They unloaded two boxes into Choy's vehicle. They then drove to the Beverly Hills premises.
On 5 June 2013, Choy drove to the Beverly Hills premises and collected the applicant and drove to the St Peters warehouse. They moved boxes around the St Peters warehouse for about an hour. They also moved boxes around the warehouse on 6 and 7 June 2013.
On 5 June 2013 Kwok arrived in Australia from Hong Kong. On the morning of 9 June, 2013, the applicant and Kwok were at the Beverly Hills premises. They opened and moved boxes. They also discussed the money they would receive.
Around this time, the applicant and Choy, and then Choy and Heng, discussed what was needed to set up a large clandestine methylamphetamine laboratory. The applicant requested Choy obtain items for the manufacturing process.
The applicant and Kwok returned to the Beverly Hills premises after shopping at Hurstville. They were carrying shopping bags, the contents of which included cardboard boxes and plastic tubs.
Throughout 10 and 11 June 2013, sounds consistent with the movement of items and the use of the premises to make drugs were recorded within the Beverly Hills premises.
On 11 June 2013, further conversations were recorded between the applicant and Kwok. The conversation included a reference to continuing "the cooking process". There was an agreement between them to call the person identified as "boss number 1" or the "big boss".
The cooking process continued through 12 June 2013. From time to time the applicant and Kwok left the Beverly Hills premises and attended at hardware stores and a supermarket to purchase various items, including a number of plastic tubs. They also arranged to buy a bigger fridge, to aid the preparation of methylamphetamine.
On 13 June 2013, the applicant attended at an appliance store and purchased a fridge as well as tubs. The fridge was delivered the following day.
On 14 June 2013, surveillance captured activity consistent with the applicant and Kwok continuing the cooking process. During the day Kwok received a call from "boss number 1" or the "big boss". Kwok advised him that drugs would be available the following Monday. According to the agreed facts, the cooking process continued on 15, 16 and 17 June 2013.
At 5.30pm on 17 June 2013, the applicant and Kwok were arrested in a taxi in Beverly Hills in possession of two bags. One bag contained 13 plastic clip seal bags containing approximately one kilogram of a white crystalline substance. The other bag contained three plastic bags each containing one kilogram of a similar substance. The applicant and Kwok were taken to a police station but declined to be interviewed. The net weight of the crystalline material that was found in the bags was 15.9409 kilograms. It contained methylamphetamine. The purity of the drugs was somewhere between 77.4% and 80.3%. The calculated pure weight of methylamphetamine was 12.6492 kilograms (AB 197). The possession of this methylamphetamine was the basis for the supply offence with which the applicant and Kwok were charged.
A forensic examination of the Beverly Hills premises showed that the premises were being used for manufacturing the imported methylamphetamine, specifically its extraction from the blocks of wax. Police seized a large quantity of white crystalline substance found in three rooms; numerous pieces of butcher's paper; three fridges; numerous glass bowls, baking trays and other items containing a white crystalline substance and liquid; flasks, colanders and other items also with a white powder residue; a blue vacuum pump with an attached green plastic hose; a respirator fitted with an attached filter; a number of fans; electronic scales; digital thermometers; gloves; wax; and numerous cardboard boxes as well as numerous laminated furniture panels, amongst other things. The material seized suggested that a substance had been concealed within solid wax. The equipment found was consistent with the type of equipment used in the recrystallisation, filtration and drying of methylamphetamine salts.
The total net weight of the crystalline material, paste, fabric and liquid containing methylamphetamine found at the Beverly Hills premises was 128.6858 kilograms. The amount of methylamphetamine, the subject of the manufacture charge against the applicant, was 144.6 kilograms. This was the sum of the amount seized at the Beverley Hills premises and the amount found in the plastic bags seized when the applicant was arrested.
The amount of the drugs the subject of the importation charge against Choy was 73.80 kilograms being the total calculated pure weight of the 144.6 kilogram of seized crystalline material and additives. The difference between the two reflected the circumstance that s 4 of the DMTA requires that the weight of the prohibited drug be calculated using the weight of the total admixture whereas the relevant provisions of the Criminal Code uses the pure weight of the drug (see Criminal Code; ss 301.10, 301.11, 301.12 and 312.1).
The agreed facts noted that in June 2013 in New South Wales, the wholesale value of 144.6 kilograms of methylamphetamine was approximately $23,859,000. The "street value" was $89,652,000. The wholesale value of the 15.94 kilograms of methylamphetamine found in the plastic bags seized when the applicant was arrested was $4,074,700. The "street value" was $15,143,000.

The Sentencing Judgment

In imposing sentence Judge Lakatos SC gave careful and detailed reasons which outlined the facts of the offences as set out above. Otherwise his Honour carefully addressed the factors relevant to the sentencing of each of the applicants, Kwok and Choy. In that regard I note the following eight aspects of the sentencing judgment.
First, his Honour addressed the benefit afforded to each offender on account of their pleas of guilty. His Honour determined that each of Kwok and the applicant were entitled to a 25% discount for their "utilitarian" value of their pleas of guilty (AB 111.5). In relation to Choy, his Honour noted that he had pleaded guilty in the Local Court but later withdrew his plea. His Honour found that Choy "should be accorded a lesser discount for facilitating the course of justice".
Second, his Honour addressed the role played by each offender. In doing so His Honour accepted the Crown's submissions on their respective roles (AB 34.1, 147.6, 155.4). In relation to Kwok, the sentencing judge noted that he arrived in Australia on 5 June 2013 to "make all significant decisions about the manufacturing process" with a view to "directing [the applicant]… how it was to be done ... and … he intended to teach [the applicant] for future cooks'" as well as liaising with "members of the Hong Kong syndicate" (AB 143.9).
In relation to the applicant, his Honour accepted the Crown's submission that "he played a significant and trusted role in the enterprise", that he travelled to Australia for the specific purpose of manufacturing and supplying large commercial quantities of methylamphetamine, that "he was the sole liaison person for the Hong Kong syndicate when dealing with the Australia end of the operations", was "trusted with information about which items concealed the [methylamphetamine]" and was "responsible for sorting the items and transporting them" (AB 147.10 and 148.1). In relation to the supply offence, the sentencing judge accepted that the applicant's "role was to meet the Australian buyers and to arrange a time for the handover, and he was actually on the way to supply… extracted [methylamphetamine] when he was arrested" (AB 149.4).
In relation to Choy, his Honour recited the various steps that he undertook in receiving the consignment, arranging for its delivery to the St Peters warehouse, selecting the boxes that contained drugs and having them delivered to Beverley Hills (AB 150 to 151).
His Honour found that the nature of the work each of Kwok, the applicant and Choy "carried out ... and the trust required of each of them … made each of them … indispensable to the significant criminal enterprise". His Honour found that each of them "became involved in the process with the knowledge that very large quantities of drugs were in contemplation" which would be supplied or on-sold "with a view to earning a very large financial reward" (AB 158.2).
Third, his Honour described the 'hierarchy of known offenders" as involving Kwok as the "apex" with Choy and the applicant at an "equal level" below Kwok (AB 155.3). His Honour concluded that Kwok was sent from Hong Kong "specifically to supervise [the applicant]" (AB 160.15) but that both Kwok and the applicant "were recruited by members of the criminal syndicate in Hong Kong to come here to manufacture and distribute the drugs" (AB 160.24 to 160.25). His Honour found that Kwok and the applicant "were sufficiently trusted by those in Hong Kong to carry out this very profitable task" and there was a "comparative detachment of those offenders from others in Australia, including, apparently, Mr Choy" (AB 161.2).
Fourth, his Honour found that "these offences so far as Mr Kwok and [the applicant] are concerned mark these out as at the upper range of objective seriousness" (AB 155.11 to 155.12). No such finding was made in relation to Choy. In oral submissions, Senior Counsel for the applicant, Mr Stratton, contended this was explicable on the basis that each of the offences committed by Kwok and the applicant carried a standard non-parole period such that the Court was entitled, and perhaps required, to address the relative objective seriousness of the offence (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39) (Tr 15/09/17 at p 4.10).
Fifth, based on the contents of the telephone intercepts, his Honour was satisfied beyond reasonable doubt that the three offenders had engaged in similar acts previously which meant that none could contend that the subject offences were "an isolated incident" (AB 139.20). Instead his Honour found they were part of a "sophisticated system of trafficking in prohibited drugs" (AB 142.6).
Sixth, his Honour noted that each of the offenders had a criminal record but not one that contained offences "of this magnitude" (AB 119.9). Choy was convicted in 2008 of maliciously inflicting grievous bodily harm and robbery with an offensive weapon. He received custodial sentences for both offences. Kwok had no criminal history in New South Wales but had served substantial custodial sentences in Hong Kong for administering a stupefying or overpowering drug with intention to commit an indictable offence and blackmail (AB 120.1). The applicant had no criminal history in New South Wales but had served custodial sentences in Hong Kong for living on the earnings of prostitution, permitting a girl under the age of 16 to resort to premises for unlawful sexual intercourse as well as aiding and abetting a person to remain in Hong Kong without authority (AB 120.2).
Seventh, his Honour addressed material placed before the Court in relation to each offender's personal circumstances. As at the date of sentencing, Choy was 29 years of age. His Honour accepted that he suffered from "mental health issues" but did not accept that affected his commission of the offences (AB 125.2). His Honour accepted that Choy's mental illness "may work some difficulty in his custodial setting" (AB 162.2). Kwok was 58 years of age, had family in Hong Kong and had been diagnosed with hepatitis B (AB 131.10). The applicant was 43 years old (AB 225) and divorced with two children in China (AB 132). He satisfied the diagnostic criteria for a "gambling disorder" (AB 133.6) and had accumulated a large gambling debt at Macau casinos (AB 132.6). His Honour held that each of Kwok and the applicant would experience "onerous gaol conditions by reason of the separation of them from their families and language difficulties" (AB 161.10 to 162.1).
Eighth, his Honour found that "partial accumulation" of the sentences for their two offences was appropriate for Kwok and the applicant as the manufacture of drugs and their supply are "self-evidently separate criminal offences" (AB 161.6). His Honour also noted that, in sentencing Choy, it was necessary to have regard to the offence listed on the document filed under s 16BA(1) of the Crimes Act 1914 (AB 161.7).

Ground One: Parity

The first ground of appeal is that the "fact that the applicant received the same overall sentence as the offender Choy is such as to leave the applicant with a justifiable sense of grievance".
The reference in this ground of appeal to a "justifiable sense of grievance" invokes the discussion of the parity principle in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 610 (per Gibbs CJ), at 613 (per Mason J) and at 623 (per Dawson J, "Lowe"). The parity principle holds that there should not be a "marked disparity" between the sentences imposed on co-offenders such as to give rise to "a justifiable sense of grievance" in one of them (Lowe at 610 per Gibbs CJ, with whom Wilson J agreed at 616 and at 612 to 613 per Mason J and at 623 per Dawson J). The parity principle has its foundation in the obligation of the Courts to afford "equal justice" (Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ, "Green").
Two aspects of the parity principle are of relevance to this application. First, the principle is not just concerned with identical outcomes in cases that "are relevantly identical". It also seeks "different outcomes in cases that are different in some relevant respect" (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 608 per Gaudron, Gummow and Hayne JJ, "Wong"). Thus, in this case, the applicant accepts that his overall sentence was not materially different from that imposed on Choy but contends that his circumstances were relevantly different to those of Choy.
Second, the application of the parity principle is not excluded by the circumstance that participants in a criminal enterprise are charged with different offences. The application of the principle is governed "by considerations of substance rather than form" (Green at [30]). Nevertheless, the "greater the differences between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the [applicant]" (Green at [30]). These "practical difficulties" can be compounded in a case such as this where the two offenders are sentenced under two different statutory regimes, namely the Crimes Act 1914 in the case of Choy and the Sentencing Act in the case of the applicant.
In DS v R [2014] NSWCCA 267 at [39] the Court (Bathurst CJ, Fullerton and Davies JJ) described the approach to be adopted as follows: "The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender's subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be 'gross', 'marked' or 'glaring'….."
The written submissions in support of this ground embraced the sentencing judge's finding that Kwok was "at the apex of the offenders" with the applicant and Choy at an equal level. They point to the difference between the timing of the plea of guilty entered by the applicant compared with Choy. As noted, the applicant received a benefit of a 25% discount whereas Choy withdrew the plea he entered in the Local Court before pleading guilty in the District Court. The written submissions noted that his Honour did not specify the discount afforded to Choy but contend that "it should have been in the order of 10%" (Applicant's Submissions at [24]). The applicant's submissions compare and contrast the applicant's subjective case, including his age and criminal record with Choy's and contend that "a comparison of the subjective factors relevant to each offender was not in Mr Choy's favour" (Applicant's Submissions at [28]). Having regard to the similarity of their roles and the dissimilarity of the circumstances in which the applicant and Choy entered pleas of guilty, it was contended that the applicant's "overall sentence should have been in the order of 15% less than Mr Choy's sentence" (Applicant's Submissions at [29]).
The Crown's submissions accepted that the differences between the applicant's and Choy's subjective circumstances including their criminal records "were not such as to require significant differentiation in their respective sentences" (Crown Submissions at [55] and [59]). Nevertheless, the Crown pointed to four points of distinction between the applicant and Choy that individually or collectively warranted differential treatment, even after allowance for the different times they entered pleas of guilty, namely: the Applicant was convicted of two offences whereas Choy was sentenced for one offence with one taken into account on a document filed under s16BA(1) of the Crimes Act 1914; the difference between the weight of the drug involved, which reflects the different manner in which the Criminal Code and the DMTA determine the weight of a drug with additives; the different nature and extent of each offender's role; and the different sentencing regimes applicable to the applicant and Choy (Crown's Submissions at [45], [46], [48] and [56]).
The applicant's contention that Choy's plea was such that he was only entitled to a discount on his plea of around 10% potentially raises an issue as to the "practical difficulties" in comparing sentences imposed under two different statutory regimes in that it is arguable that the rationale for allowing a discount on account of a plea under the Sentencing Act is not the same as under the Crimes Act 1914 (see R v Saleh (2015) 257 A Crim R 212; [2015] NSWCCA 299 at [5]). Further, the prescription of a standard non-parole period for the applicant's offences and the finding noted at [33] are relevant matters that may warrant some differentiation between the applicant and Choy even though the maximum sentences for the offences for which they were convicted were the same. However, this ground can be resolved by assuming without deciding that these matters do not amount to a difference in some "relevant respect" (Wong at 608) and accepting that the circumstances of Choy's plea warranted a discount of around 10% compared to the discount of 25% received by the applicant. Further, at this point of analysis, the differences between the Criminal Code and the DMTA in relation to the assessment of the weight of the drugs involved are, at least in this case, truly matters of form rather than substance (Green at [30]). The drugs that were imported were the same as the drugs the subject of the manufacturing process.
However, I accept the Crown's submission that there were differences between the roles of the applicant and Choy. Those differences were reflected in the offences to which they pleaded guilty. As noted, the applicant's submissions emphasised the sentencing judge's findings that the applicant and Choy were at "equal levels". However, that finding only concerned their position in the hierarchy. It did not address the extent to which they participated in the scheme from that position in the hierarchy. The sentencing judge's findings summarised above at [28] to [31] demonstrate that there was a more extensive participation by the applicant than Choy in a sophisticated scheme of importation, manufacture and then distribution of methylamphetamine. This is exemplified by the findings noted in [29] concerning the applicant's participation in the supply offence. Choy organised the receipt of the imported drugs. Choy and the applicant jointly organised the selection of the wax blocks for melting down. Under the direction of Kwok, the applicant and not Choy arranged for the methylamphetamine to be extracted. Again, under the direction of Kwok, the applicant and not Choy arranged for the first on supply of the extracted drugs. There was no finding that Choy engaged in any equivalent conduct to the conduct of the applicant that supported the supply offence. The sentencing judge correctly recognised this in partly accumulating the sentence for the supply offence to the manufacture offence.
In rough terms, the 3 years accumulation for the supply offence approximates to the extra benefit the applicant received for his plea of guilty. If the discount the applicant received for his plea of guilty for the manufacture offence was unwound then his non-parole period is 16 years. If one accepts that Choy either did receive, or was entitled to receive, a discount of 10% for his plea of guilty then his sentence for the importation offence prior to any discount was 16 years 8 months. The extra period for that offence can be seen as reflecting the effect of s 15AB of the Crimes Act 1914. The conclusion that the sentences were roughly comparable is only reinforced if one commences to build in some of the matters referred to in [44] that I have excluded, especially the effect of the prescription of standard non-parole periods for the offences under the DMTA which have no equivalent for the offences under the Criminal Code.
It follows that there is no marked or glaring disparity between the sentences imposed on the applicant and Choy. Any sense of grievance derived from comparing the two is not justifiable.
I would reject ground one.

Ground 2: Manifest Excess

Ground 2 of the appeal was that the sentence imposed on the applicant for the manufacture offence and the overall sentence imposed on him were manifestly excessive. At the hearing of the appeal the Court was advised that this ground was not pressed.

Conclusion

It follows that no grounds for interfering with his Honour's sentence have been made out.
The orders that I propose are: 1. Leave to appeal against sentence be granted; 2. The appeal be dismissed.
FAGAN J: I agree with Beech-Jones J

Amendments 15 November 2017 - At [2] second last sentence: "The maximum charge for each offence...." change to "The maximum penalty for each offence...." At [4] reference to "...of the Criminal Code Act 1995...." change to "...of the Schedule to the Criminal Code Act 1995...." At [39] CLR page reference "...with whom Wilson J agreed at 166...." change to "...with whom Wilson J agreed at 616...." 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: 15 November 2017

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