Wang v R

Wang v R - [2010] NSWCCA 319 - NSWCCA 2010 case summary — Zoe

[16]

The evidence 6 The agreed statement of facts referred to a police investigation into a company, Australia/China International Exchange Centre Pty Limited and its director, Frank Hu Yang. $AUD17,192,315.50 remittances were made to various bank accounts in China between November 2006 and February 2008. Police became aware of the company's impending importation of a shipping container from China, said to contain furniture and handicraft work. On 10 February 2008, the applicant arrived in Sydney from Hong Kong, shortly before her ex husband, Yu Diao. On 2 March, the container arrived in Australia. 7 On examination by the Australian Customs Service the container was found to contain 10 boxes each containing 23-27 vacuum-sealed foil packets, purporting to be Chinese tea. The packets were found to contain cocaine. The cocaine was substituted with an inert substance. The pure weight of the cocaine was found to be 201.2465 kg, with purity ranging from 72.3% to 88.2%, a wholesale value estimated to range between $32.5 million and $45 million and a street value ranging between $50 million and $112.5 million. 8 The applicant contacted Mr Hu before the container arrived in Sydney. They remained in contact and discussed its arrival and unloading and they also met. The applicant arranged for removalists to take the drugs from the container, after it was delivered to premises at Auburn. They were transported to her flat in Rockdale. Ms Ma and the applicant then unpacked them at the flat and discussed their further delivery. 9 The applicant, Ms Ma and Mr Hu were all arrested on 11 March 2008. Mr Yu left the country and has not been apprehended. Nine boxes of the inert substance and part of the tenth box were found at the applicant's flat, as well as scales and seal bags. 10 The applicant was twice interviewed after her arrest, the second time on 28 April 2009, after she had entered a plea and been committed for sentence. While initially she had denied her involvement, in April 2009 she admitted various involvement, including placing a newspaper advertisement in the Chinese Daily newspaper about unloading the container and taking a sample of the powder for testing, which she gave to her ex-husband. 11 The applicant also gave evidence. She denied having promised to pay Ms Ma $400,000 for her assistance. The applicant claimed that she herself had not been promised any particular payment, but expected to receive more than $100,000.

[18]

"Clearly Ms Wang was a long way further up the chain of command to the position occupied by Ms Ma. She was involved in the operation from the time that she was in China. She was a trusted member of this group, having been formerly married to Mr Diao. She recruited Ms Ma to assist her. Ms Wang was a vital component of the scheme, whereas Ms Ma was merely an accessory ..... (page 7) In my view Ms Wang played a significantly greater role than that played by the offender Ma. Equally her role was a subordinate one to that of Mr Hu, and also that of her former husband Diao." 13 It was argued that these conclusions were erroneous and beyond the scope of the indictment, the applicant not having been charged nor involved with the actual importation of the cocaine, in which she had no active role. It was submitted that while she may have been asked to become involved in the operation while she was in China, the applicant's involvement did not begin until she was in Australia and that was reflected in the dates contained in the indictment. Her offence was confined to attempting to posses an unlawful import in Australia. 14 It was also argued that his Honour overstated the applicant's role vis a vis to that of Ms Ma. The involvement of the two offenders was similar. Ms Ma was approached because she had a car and the applicant wanted support from a friend. Ms Ma was not merely an accessory, given her evidence, accepted as truthful, that she was to receive $400,000 for her involvement. The evidence showed that there was little to differentiate between their respective involvement. There was no evidence that Ms Wang was a trusted member of the group who imported the drug. Both she and Ms Ma were at the lower end of the hierarchy of persons involved, taking the greatest risk as the possessors or minders of the drugs. Those higher in the drug organisation had successfully directed the applicant from a distance, in order to avoid detection and prosecution for their offences. 15 The applicant also argued that the view that the offence ranked towards the upper end, while relevant for the importation of the total amount of the drug, was not directly attributable to the applicant's involvement in the operation. The matters to which reference was made by his Honour were not matters within the applicant's knowledge at the time of the offence. The result was a failure to appropriately assess the applicant's role in determining sentence. It was further argued to be relevant that there was no sophistication in this case, there being no attempt to conceal or secrete the boxes of drugs, which were simply placed at the back of the container. Such sophistication would have increased the objective criminality of the offence. 16 In my view this ground of appeal was not made out. There was ample evidence on which it could be concluded that the applicant was an active participant in the operation with Mr Hu and her ex-husband, and no mere accessory. 17 In R v Nguyen; R v Pham [2010] NSWCCA 238, a similar drug offence to that here in question was before the Court, although the quantity and value of the drugs involved was lower, Johnson J, with whom MacFarlane and RA Hulme JJ agreed, observed at [72] and [82]:

[33]

"The seriousness of the offence places it objectively towards the upper end, if not at the top of the range for this offence. That is based on the sophistication of the scheme involved, the amount of money paid for the drugs, the quantity, and the quality of those drugs, and the amount of money that could be expected for the sale of drugs. As previously noted, it is it is important to assess the offender's role in the offence. In my view Ms Wang played a significantly greater role than that played by the offender Ma. Equally her role was a subordinate one to that of Mr Hu, and also that of her former husband Diao." 27 His Honour had earlier observed: "The estimated wholesale value of the drugs is between thirty-two and a half to forty-five million Australian dollars. Obviously the potential street value is astronomical, reaching well over $100 million. There is no suggestion that this offender was aware of the value of the drugs, and the only reason in referring to the value is to identify the objective seriousness of the offence." 28 In making that observation his Honour does appear to have overlooked that the agreed statement of facts revealed that the applicant had told Ms Ma that each packet of the drugs was valued at over $150,000. There were 251 packets. Having concluded that the applicant had herself promised to pay Ms Ma $400,000 for her assistance, that the applicant had an understanding of the astronomical value of the drugs involved in this operation cannot seriously be doubted. 29 The respective sentences finally imposed on the applicant, 18 years imprisonment, and that imposed on Ms Ma, 15 years, reflected the conclusions reached as to the relationship between their respective roles in this enterprise and the seriousness of their respective offences, given the various aggravating and mitigating matters which arose for consideration in each case. 30 I cannot see, in the face of the agreed facts and the evidence given by Ms Wang and Ms Ma, that his Honour fell into error in the conclusions which he reached as to the applicant's role in this enterprise.

[34]

Ground 2 - His Honour failed to give the applicant an appropriate discount for her plea and assistance to the authorities. 31 The applicant was given a combined discount of 35% for the plea of guilty and assistance, of which 15% was for future assistance. Ms Ma also received a combined discount of 35%, 6% of which was for future assistance. 32 Given the importance of the applicant's assistance, past and present, it was argued for the applicant that a total discount of 50% should have been applied. Reference was made to various authorities, including R v El Hani [2004] NSWCCA 162, where a total discount of 25% was allowed for plea and past assistance, where the value of the assistance given was reduced by the offender's denial of his own involvement; and R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1, where a 50% discount had been given for plea and assistance, with the discount for assistance alone being 35%. 33 Here, it was submitted, the practical value of the future assistance which the applicant had agreed to provide and had provided was high, with the result that a 15% discount for such assistance was inadequate. The threat which flows from assistance would flow naturally from the nature of the involvement in the prosecution of others. That this case was recognised as having been the fourth largest importation of cocaine ever detected, was also a factor which ought to have resulted in higher discount. The value of assistance, it was argued, should increase with the seriousness of the crimes in respect of which assistance is being given. The applicant's decision not to spend the duration of her imprisonment in protection should not disentitle the applicant to a discount. 34 There is no question that the value of the assistance given was an important consideration in his Honour's assessment of the quantum of the discount which the applicant was to receive (see Yenice v R (1994) 72 A Crim R 234). In considering this ground of appeal, the observations of Kirby J, with whom Beazley JA and Johnson J agreed in Chan, Lo and Nguyen v R [2010] NSWCCA 153, are apt to consider. His Honour observed:

[35]

"65 Dealing with these submissions, the suggestion by the applicant Chan that insufficient weight had been given to the assistance which he had provided, inevitably encounters the difficulties described by Latham CJ in Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 (reaffirmed in Mallet v Mallet [1984] HCA 21; 156 CLR 605 at 614; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 330). Latham CJ in Lovell said this: (at 519) "... The references in the various authorities on this matter to a failure to give sufficient weight to relevant considerations should not be understood in such a sense as to entitle an appellate tribunal to deal with an appeal from an order made in the exercise of a discretion in the same way as in the case of an appeal from any other order. If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v Wakefield [1891] AC 173 at 179) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.' " 35 Here his Honour found as to the applicant's assistance: "Diao is no longer in Australia, and is not to be prosecuted at this time. On the other hand the man Hu Yang is in Australia and will shortly face trial. Ms Wang is due to give evidence in that trial. In my view her evidence could be significant and powerful. The fact that she is providing that assistance is itself a matter for assessment. The police have assessed her assistance at a level of only low to medium. I form the view that it is higher than that. In my view the assistance is at a medium level. The only deficit in her assistance might be her credibility as a witness. I found that she was not as impressive a witness as Ms Ma. Despite that she is giving evidence, much of which will be supported by other objective evidence, such as listening device evidence, and when taken together that evidence is quite likely to assist, or greatly assist the Crown case.

[42]

Once it is determined that a discount should be given in return for the assistance supplied, the judge must consider not only the extent and the willingness of that assistance but also the consequences to the prisoner of it having been given to the authorities. He will have to take into account any threat to the prisoner's safety and both the conditions under which he will have to serve his sentence in order to avoid reprisals and the steps which will need to be taken to protect him once he is released. Evidence should normally be led as to the existence and extent of such a threat, but to a large degree the judge is entitled to rely upon his own awareness of the severe hardships of protective custody in gaol. If there is any particular facility provided for the prisoner beyond the normal protection system, the judge should be given that information. It should not normally be a matter about which formal evidence is needed or about which there should be any real dispute. If there is any specific loss to the prisoner as a consequence of the conditions of his incarceration, it obviously should be raised expressly. In the present case, for example, it is asserted that the applicant has been denied the benefit of camp remissions. Just for what period before his release a prisoner with a thirteen year minimum term would have enjoyed the advantages of being sent to a camp is anything but clear, but such a loss of remissions (if applicable) is the sort of matter which should be raised expressly. It should also be made clear to the judge as to whether it is thought that some form of protection will continue to be necessary after the prisoner's release from custody, both for the prisoner himself and for his family." 37 It seems to me that his Honour did not err in his assessment of the discount to which the applicant was entitled. This was a Commonwealth offence and so there was no entitlement to a specified discount to reflect the utilitarian value of the plea. The decision as to the amount of the discount to be given was a discretionary one. The time and circumstances in which the plea was entered had to be considered, as did the value of the assistance already provided and the value of assistance likely to be provided in future. That a comparison was drawn with Ms Ma was appropriate, given that they were co-offenders. It was Ms Ma who first entered a plea, followed by the applicant's subsequent plea. His Honour was entitled to take this into account. He was also entitled to have regard to his rejection of the applicant's evidence in relation to what she had promised to pay Ms Ma. Clearly his Honour took the view that the applicant had not been as frank as she could have been in the evidence which she gave. He concluded that the applicant should receive a total 20% for her plea and past assistance, and Ms Ma 29%. 38 His Honour took the view that the applicant's future assistance would be of greater significance than that of Ms Ma, even though he took into account that the applicant's evidence would be supported by other objective evidence obtained during the police investigation. He also accepted that if her ex-husband were ever apprehended, the applicant's evidence could be vital. 39 The case advanced for the applicant below was that a 15% discount was appropriate for the plea, although a discount as low as 10% was available. It was also submitted that while a discount of 50 - 60% was available as a maximum for the combined plea and assistance given, in this case the applicant warranted 'something in the order of 25%, with the result that 40% was appropriate.' 40 In considering this ground of appeal, these submissions may not be overlooked, nor may the view taken by this Court that a discount of more than 40% for a guilty plea and assistance, will not readily be available. A greater discount will require evidence that the offender is going to serve the sentence in a more difficult or harsher environment as a result of assistance given, will be required (see R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 at [55], Jimmy v R [2010] NSWCCA 60; [2010] 269 ALR 115 at [250] and FS v R [2009] NSWCCA 301 at [21]). There was no such evidence in this case. 41 When all of these matters are considered, I cannot see that his Honour overlooked any relevant consideration, or took into account any irrelevant matter in reaching his conclusion as to the value of the plea and discount. That higher discounts have been awarded in other cases involving differing circumstances, does not lead to the conclusion that a 35% discount in this case involved an error in the exercise of the discretion. Nor does the conclusion that Ms Ma should also receive a 35% discount, given her early plea, past assistance, but more limited future assistance, reveal error. 42 Given the nature of the evidence which the applicant gave at trial, the evidence which she could give at future trials, his Honour's reservations as to her credibility and his view of the strength of the Crown case generally, that there was error in assessing the value of future assistance at 15% is not apparent. A total discount for the plea and past assistance of 20%, making a total of 35% was also clearly open, given the time at which the plea was entered, some 12 months after being charged, and the nature of the assistance then given. 43 Having in mind all of these matters, I cannot see that this Honour's conclusion that a total 35% discount should be granted involved error.

[43]

Ground 3 - The sentence imposed was too severe in all of the circumstances. 44 The applicant's case was that absent the discount, her sentence would have been in the vicinity of 27 years, 8 months, a manifestly excessive sentence in the case of a plea to an offence of attempting to possess an import, notwithstanding the quantity of drugs involved, especially given that her role was at the lower end of this drug hierarchy. 45 This submission was sought to be made good by reference to other decided cases. In written submissions reference was made to R v To [2007] NSWCCA 200; (2007) 172 A Crim R 121, where conviction in relation to importation of 34.8 kgs of methyl-amphetamine resulted on appeal in a sentence of 25 years, with a minimum term of 15 years imposed upon an offender described for the applicant as an 'enthusiastic supporter of the enterprise who played the principal role in Australia and whose sole motivation was financial gain'. It was argued that the applicant's role in this case was less and that Mr Hu was higher up the chain of command than she was. It followed that while the quantity and type of drug involved in this case differed, the applicant's sentence, by comparison to that imposed upon To was too severe. 46 Reference was also made to Sukkar, where a sentence with a starting point of 21 years and a final sentence of 14 years, with a non-parole period of 9 years, was argued to share many points of comparison with this case. There consideration was given to the destruction of the offender's career as a lawyer. Here consideration would be given to the effect of the sentence, which with release at age 40 would be likely to prevent the applicant from having children. 47 In Bartle, where 383 kg of pure cocaine was imported, the largest importation in history, a number of participants received sentences which had a starting point of 36 years and a final sentence of 24 years. It was argued that by comparison, the 27 years, 8 months sentence imposed on the applicant as a starting point, given that she was not responsible for importing the narcotic, but rather possessing and moving the drug in Australia, was difficult to reconcile. 48 In oral submissions reference was also made to R v Bateman [2000] NSWSC 915, an importation offence involving some 383 kilograms of cocaine worth some $62.5 million. The offence was committed after the offender had escaped from custody, having been convicted and sentenced to a term of 5 years imprisonment for cultivation of cannabis. Bateman admitted his guilt on the day of his arrest and entered a plea at the first opportunity. He received a discount for the utilitarian value of the plea and his contrition, as well as for assistance, which included cooperation acknowledged to have been instrumental in the arrest of the Australian principal of the criminal organisation involved in the importation. He had provided other assistance and was in protective custody and was found to have been a willing participant, who was to obtain approximately $1 million for his involvement. The starting point for his sentence was close to a life sentence, substantially greater than 30 years, with a discount of 50% for assistance and the plea, with a one third reduction required by s 16G, resulting in a sentence of 13 years. 49 In FS, there was 28.399 kg of pure cocaine involved and the sentence commenced with 20 years, with a 40% combined discount for an early plea and assistance. On appeal there was no interference with the 20 year starting point. 50 In Chan, Lo and Nguyen, a case concerned with 15.10 kg of methylamphetamine, the sentences imposed were 12 years and 6 months for Chan, a discount from 17 years and 10 months; 7 years and 6 months for Lo, a discount from 10 years; and 10 years for Nguyen, a discount from 11 years and 2 months. These sentences were argued to be considerable different to that imposed on the applicant, so revealing that her sentence was manifestly excessive. 51 Despite the comparisons sought to be drawn with these other cases, in my view this ground of appeal was not made out. 52 The importance of consistency in sentencing is frequently discussed, yet there are always difficulties with comparisons of this kind, particularly when they are not concerned with co-offenders (see Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610; Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 326 - 327; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 at 538; Everett v The Queen [1990] HCA 49; (1994) 181 CLR 295 at 306; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 340). 53 The sentence imposed must reflect the criminality involved in the particular offence, having in mind the maximum penalty for the offence, the various objective and subjective factors which the evidence reveals, together with the application of principles such as general and specific deterrence and totality, if there is more than one charge being dealt with. (See for example the discussion in Chan, Lo and Nguyen at [117].) 54 It follows that if comparisons with other cases are to be of any assistance, they have to be drawn at the starting point of the sentencing exercise. Thus the comparison between the starting point of 27 years, 8 months in this case and the end result in Bartle, a sentence of 24 years, throws no real light on whether the sentence here imposed, 18 years, was too severe. Nor does the comparison of the starting point in Bateman, of 'close to a life sentence and exceeding substantially a sentence in the order of thirty years' resulting in a figure of 39 years, with a starting point in this case of 27 years, lead to the conclusion that the sentence imposed in this case was manifestly excessive. 55 There are other obvious contrasts to be drawn between this case and those relied on for the applicant. For example, the charge in To related to 34.8 kgs of methyl-amphetamine and that in Sukkar to 34.4 kg of ecstasy. This offence concerned some 201.2465 kg of cocaine. Bartle involved 383.434 kg of cocaine, Bateman 383.434 kg and FS 28.399 kg and yet a starting sentence of 20 years was not disturbed on appeal. The weight and value of the drugs in question in each case are undoubtedly important factors to be considered in sentencing, but they alone do not govern the sentence and the range into which it might fall (see Wong v The Queen [2001] HCA 64; 207 CLR 584; R v Nguyen and Ors [2005] NSWCCA 362; 157 A Crim R 80 at [110] and Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194). There are many other factors which result in the sentence finally imposed, which makes comparisons of this kind problematic. 56 Also necessary to be born in mind when considering Bartle and Batemen is that s 16G of the Crimes Act 1914 (Cth) was in operation at the time those sentences were imposed. In R v Tran [2007] QCA 221; 172 A Crim R 436 it was explained by Keane JA that: "34 The apparent disparity in sentencing in the various States and Territories was in part attributable to s 16G of the Crimes Act which was introduced in 1990 by the Crimes Legislation Amendment Act (No 2) 1989 (Cth). Section 16G provided: " 16G Federal sentence to be adjusted if no State or Territory remissions laws apply If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly.'

[45]

"43 To give effect to the sections, the courts in this State proceeded to sentence a Federal offender by determining the appropriate head sentence and non-parole period by the application of normal sentencing principles and the relevant provisions of the Crimes Act (Cth) and then, before pronouncing the sentence, reduced it by a period of about a third. Although Hunt J in Paull suggested that a set formula should be applied to determine the appropriate discount to be applied by reason of s 16G, that approach was disapproved in Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370. It was held that a discretion should be exercised in determining the effect of s 16G on the otherwise appropriate sentence and that, although a discount of a third was a "legitimate starting point", in an appropriate case a sentencing judge could "moderate" the discount. The seriousness of the particular offence committed was identified as one reason why a court might depart from the normal discount; R v Chan (2002) 128 A Crim R 119. It was unnecessary for the judge to specify the actual discount that was applied; R v Budiman (1998) 102 A Crim R 411, or the reason for departing from the normal discount unless that departure was substantial; R v Bradley (1997) 137 FLR 314. However, it was an error for the sentencing judge to fail to indicate that the section was being taken into account in determining the sentence that was imposed; R v O'Connor [2002] NSWCCA 156." 58 The result was that the sentences imposed in Bartle and Bateman, were substantially reduced by the trial judge, to give effect to s 16G. (See at [349] in Bartle for example, where reference was made to sentencing remarks which refer to a reduction in sentence by one third on this account). The appeal on sentence was dismissed in that case. 59 In my view, none of the decisions relied on support the conclusion that a starting point of 27 years, 8 months in this case was too high for the criminality involved in the applicant's offence. In the face of the maximum penalty of life imprisonment and the evidence as to the applicant's involvement in this very serious offence, that was a starting point which falls within the available range. The result of the 35% discount which his Honour applied, a term of imprisonment of 18 years, has not been shown to be manifestly excessive. 60 It seems to me that the approach urged for the applicant also overlooks the fact that the maximum sentences for this offence and that of importation are the same, namely life imprisonment. The legislature has not taken the view that the importation offence is necessarily more serious than the offence with which the applicant was charged, as was urged for the applicant. 61 I have earlier dealt with his Honour's conclusions as to the applicant's role in this criminal enterprise. His Honour did not err in the conclusion reached on that matter. His Honour was also criticised for concluding that the subjective cases of Ms Ma and the applicant were very similar. That conclusion was said not to be available in light of evidence that it was likely that the applicant was vulnerable to her ex-husband and that her judgment may have been impaired, because of her depressed state in the aftermath of the collapse of her marriage, when her trauma led to an inadvertent overdose of sleeping pills. 62 It was thus argued that his Honour had failed to take account important findings which affected the applicant's motivation and role in the offence. While greed was expressly found to be one motivating factor, his Honour also found that a desire to reconcile with her ex-husband was another. This should have led to the conclusion that her involvement stemmed from her vulnerability. 63 In my view the evidence and his Honour's remarks on sentence do not reveal such error. 64 The psychologist's report in evidence was that while the applicant was not suffering from clinical depression: "The history provided by Ms. Wang is that she was raised in a reasonably stable early home environment until she was 16 years of age when she and her father joined her mother in Australia. Her mother had come to Australia 6 years earlier and had sponsored them. Following their arrival in Australia however her parents began to argue a great deal and separated when she was about 18 years old.

At a glance

Court

Decision date

Before

Source

Judgment (54 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (51)

Cited By (7)