Wong v R

Court of Criminal Appeal (NSW)|2018-10-10|Before: Leeming JA, Walton J, Wilson J, Mr P

Judgment

LEEMING JA: I agree with Wilson J.
WALTON J: I agree with Wilson J.
WILSON J: On 25 January 2018 the applicant, Ka Yi Elizabeth Wong, was sentenced for an offence of importing a commercial quantity of a border controlled drug, namely methamphetamine, in a pure quantity of 787 grams. The offence, to which she had entered a plea of guilty in the Local Court, is contrary to s 307.1(1) of the Criminal Code (Cth) ("the Code"), and carries a maximum penalty upon conviction of imprisonment for life, 7500 penalty units, or both. In sentencing the applicant, the court took into account pursuant to s 16BA of the Crimes Act 1914 (Cth) a further offence of trafficking a border controlled drug, namely methamphetamine, contrary to s 302.4(1) of the Code. Dealt with on indictment, that offence carries a maximum sentence of 10 years imprisonment, or a fine of 2000 penalty units, or both.
His Honour Judge Haesler SC imposed a sentence of 6 years and nine months imprisonment upon the applicant, with a non-parole period ("NPP") of 3 years and 9 months. The sentence commenced on 6 September 2016. The NPP expires on 5 June 2020, and the overall term ends on 5 June 2023.
The applicant seeks leave pursuant to s5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against that sentence. If granted leave, she advances seven grounds of appeal: 1. "The sentence does not provide mitigation for the plea; 2. The sentencing judge erred in dealing with the criminality involved in the 16BA matter; 3. The sentencing judge erred in finding the sentence was aggravated by being committed without regard for public safety and involved organised criminal activity; 4. The sentencing judge erred in placing emphasis on the offence being committed for financial gain as a matter of aggravation; 5. The sentencing judge erred in failing to take into account the character, age and antecedents of the applicant; 6. The sentencing judge erred in failing to make a finding regarding rehabilitation; 7. Manifest excess".

The Circumstances of the Offending

At the sentencing hearing, the Crown tendered a Statement of Agreed Facts. The sentencing judge found the facts as agreed between the parties, from which the following summary is drawn.
The applicant and her co-offender, Mr Chi Pan Chow, are citizens of Hong Kong and were, at the relevant time, in a relationship. The applicant first came to Australia in November 2015 on a working holiday visa. She returned to Hong Kong on two occasions, before again returning to Australia.
On 15 November 2015 and 19 July 2016, Australian Border Force officials at the Sydney Gateway Facility intercepted international consignments from Hong Kong directed to persons with the name Ken Chau, Ben Chow and Ken Chow. Subsequent testing and analysis of a white crystalline substance inside the consignments confirmed the presence of methamphetamine. These consignments were relevant to charges laid against Mr Chow.
On 4 August 2016, Australian Border Force intercepted a consignment addressed to "Emma Wong" at an address in Castlereagh St in Sydney, described as "household items". Methamphetamine with a pure weight of 787.8 grams was located, and forms the basis for the import offence of which the applicant was convicted.
On 25 July 2016, the applicant had a telephone conversation with an employee of a freight forwarding company in relation to the consignment and, subsequently, further email contact with the same employee. In the emails, the applicant made inquiries including, "What exactly I need to complete now?" and "Good afternoon just wanna confirm everything is complete?".
On 10 August 2016, two uniformed NSW police officers attended a property in Eastwood that was being rented by Mr Chow, in relation to an unconnected matter. Lawfully intercepted telephone conversations between the applicant and Mr Chow shortly afterwards record panicked discussion between the pair in relation to the presence of police, during which the applicant asked Mr Chow whether he "tidied things up" and told him, "You need to hurry up".
On 6 September 2016, the Australian Federal Police ("AFP") executed a search warrant at premises occupied by Mr Chow and located, in the bedroom in which the applicant and he were present, methamphetamine with a pure weight of 43.4 grams. Mr Chow was charged in relation to that substance.
That same day, AFP officers also executed a search warrant at the applicant's premises in Ashfield and seized 111.9 grams of pure weight methamphetamine, being the subject of the trafficking offence on the s 16BA schedule signed by the applicant, and which was taken into account on sentence.

Other Evidence in the Crown Case on Sentence

Additional to the Statement of Agreed Facts, the Crown tendered a NSW criminal history indicating that the applicant was not known in this State, together with a criminal history from South Australia, which contained a single entry for dishonestly taking property without consent, dealt with on 9 June 2016 by dismissal without conviction.

The Applicant's Case on Sentence

The applicant did not give evidence before the sentencing court. She wrote a letter to the court, which was admitted into evidence. In the hand-written and undated letter she frankly acknowledged that she assisted Mr Chow despite knowing it was "wrong" and "illegal" but that, until she was incarcerated, she did not appreciate the effect of drugs on those who use them. Having now witnessed the devastation wrought by illicit substances on the lives of so many people, particularly addicts, she wrote that she felt "really sad and guilty" for her conduct, and was "deeply sorry".
The applicant also spoke of her regret for the "pain and sadness" she occasioned to her family as a consequence of her conduct. She said that she has learnt "big lessons" about the consequences of bad decisions, and the value of family. The applicant wrote that she accepts her punishment, and is attempting to utilise the time in custody to "improve [her]self" including improving her English, teaching yoga to other female inmates, and exercising. Upon release, the applicant expressed her desire to "make her family proud again", complete a qualification in yoga instructing, become a yoga teacher and "help others".

Report of Mr Anthony Diment

Tendered on the applicant's behalf was a psychological report under the hand of Mr Anthony Diment, dated 19 January 2018, prepared for the purpose of the sentencing proceedings. In compiling his report, Mr Diment conducted an interview with the applicant on 18 January 2018, and had regard to other documentary material supplied to him.
The applicant reported "mixed" memories of her childhood and upbringing in Hong Kong. Whilst her father was frequently absent, working abroad, her mother formed a new relationship. Over a period of several years, the relationship between her parents became increasingly fractured, culminating in her mother's attempted suicide, and the eventual divorce of the applicant's parents when she was 13 years of age. Following her parents' separation, the applicant's relationship with both became more distant, and she lived principally with a friend. The applicant attended school in Hong Kong until the age of 17 and reported being "very happy" there.
The applicant told Mr Diment that she met her co-offender, Mr Chow, in about 2013 and they entered a relationship. She joined him in Australia in November 2015. Upon her arrival in Sydney it became apparent that Mr Chow had developed a gambling habit - a development which made the applicant "very angry". The applicant returned to Hong Kong two weeks later. While in Hong Kong, she was aware that Mr Chow persisted in his gambling habit and, on occasion, she sent him money as she "loved him and wanted to help him".
The applicant returned to Australia in February 2016 and resided with Mr Chow, assuming they would soon be married. She told Mr Diment that Mr Chow appeared "normal". He had money and a network of new friends, to whom he introduced her. The applicant reported that she did not like his new friends, but was told by Mr Chow that he "needed" them as he had gambling debts, and "they gave him jobs to do". Eventually, Mr Chow disclosed to the applicant the nature of these "jobs", and the applicant moved to another house.
The applicant expressed remorse to Mr Diment for her offending conduct, relating that: "I know I am guilty because I had the choice to stay with him and help him or to leave. Now in gaol I see girls who have taken drugs and they say they can't stop. I was a part of this… Their lives have been ruined by drugs. I feel very bad as to why I got involved in this. I have never taken drugs and didn't realise the problems they cause everyone in the community. I regret that a lot."
The applicant reported that since entering custody she has developed skin allergies, which have persisted despite medication prescribed by Justice Health professionals. She also reported some gynaecological concerns. Otherwise, she reported a "basically healthy" life and normal developmental milestones.
Mr Diment considered the applicant to be at least of average intelligence, with no indication of psychosis or personality disorder. He described the applicant as "polite and cooperative" throughout the interview, able to concentrate, and to give open and direct answers to the questions asked of her.
During his consultation with the applicant, Mr Diment administered a number of psychometric tests, assessing her as within the "severe" range for anxiety, and the moderate to severe range for depression. Mr Diment opined that, overall, the applicant has a "mild" risk of experiencing clinical problems in the future, especially anxiety and depression. He regarded her as "sincere, open and 'bubbly'", but "somewhat immature", with a naivety with regards to interpersonal relationships. He considered the applicant's prospects of rehabilitation to be "good", due to her capacity for critical self-reflection, her strong family support, her expressed goals for the future, her regret over her actions, and her relative youth (being now 24 years of age).

Character References

A number of references written by family members and friends were tendered, with each attesting to the applicant's good character. Reference was consistently made to the withdrawal of the applicant when her parents separated, her remorse for her "huge mistake", her commitment to yoga, and to her motivation for the future, with respect to which she has considerable family and other support available to her.
A number of family members travelled from Hong Kong to Australia to support the applicant at the sentencing hearing.

Remarks on Sentence

In his ex tempore judgment, in which his Honour dealt jointly with both the applicant and Mr Chow, he referred to the devastation drugs cause in the community and noted that the sentences to be imposed had to operate as a deterrent to others who might be tempted to import drugs to Australia, with a view to making substantial profits.
The sentencing judge referred to the facts of the applicant's involvement in the importation of drugs reflected by the charges before the court, and noted that she had chosen to involve herself in the importation of a quantity of methamphetamine that was a little over the commercial quantity, and had taken active steps to facilitate the importation. She had trafficked in the drug (that being the offence on a schedule before the court).
His Honour concluded that the applicant had no financial resources other than those which she could obtain through work, and had decided to engage in the drug trade because of the prospect of financial reward, a reward that would allow her to establish a business rather than work for others for a salary. Referring to both the applicant and Mr Chow the sentencing judge said, "[…] they wanted to return to Hong Kong after their working visit to Australia with substantially more funds than they would have had if they had just gone fruit picking as was their original intention."
He noted that the applicant had been "given an opportunity to obtain a reward and she embraced that opportunity". He accepted, however, that her conduct was naïve and unthinking.
Of the trafficking charge before the court on a schedule, his Honour observed that, in the circumstances of the case, and consistent with authority, the schedule offence required an increase in the sentence that would otherwise have been imposed for the principal offence, to recognise the need for personal deterrence and to exact a degree of retribution.
Although unsworn, the sentencing judge was prepared to accept the applicant's assertions in her letter to the court that she regretted the harm she had caused, and had learned an important lesson. He found that it was "highly unlikely" that she would offend again, and believed she had the capacity for a law-abiding life in the future.
Although no sentence other than a custodial one was appropriate, his Honour had regard to the additional difficulties the applicant faced in custody, due to her linguistic and cultural differences from other prisoners and staff, and the isolation from family and friends in Hong Kong.

The Proposed Appeal

Seven proposed grounds of appeal have been pleaded. It is proposed to deal with each proposed ground in turn.

Ground 1: The sentence does not provide mitigation for the plea

As noted above, the applicant had entered a plea of guilty to the principal charge when the matter was still in the Local Court. Section 16A(2)(g) of the Commonwealth Crimes Act provides that, when imposing sentence on an offender, the sentencing court must take into account the fact that the person has pleaded guilty to the charge.
In imposing sentence upon the applicant, the sentencing judge did not refer to s 16A(2)(g), and nor did he specifically refer to her early plea of guilty or to any mitigation of sentence allowed to the applicant to take into account that plea. The applicant argues that this denotes error, and submits that she did not receive "the full benefit of her plea" plus a reduction for assisting authorities [presumably, by acknowledging her guilt], to which she was entitled.
The first thing to observe in dealing with this proposed ground is that this was a sentence that was imposed ex tempore, late in the afternoon. As his Honour observed in his remarks, sentences imposed in such circumstances "are rarely capable of subtlety and refinement".
At the very commencement of proceedings, counsel for the applicant advised his Honour that family, including the applicant's parents, had flown from Hong Kong to Sydney to be present at the sentence proceedings. She expressed some anxiety that the matter be dealt with that day. It is reasonable to conclude that the sentencing judge proceeded directly to sentence that afternoon, rather than adjourning the matter to another day, at counsel's request, and because of the presence of family members who may have been unable to return to court at some later date. That is, his Honour was endeavouring to do a kindness to the applicant and her family, by dealing with the matter that day.
The second observation it is worth making in considering this ground is that a failure to expressly refer to a plea of guilty and any discount on sentence allowed to reflect its value to the justice system does not necessarily demonstrate a failure to take the plea into account: Kassis v R [2013] NSWCCA 298 at [13]. It is necessary to evaluate every case according to its own facts and circumstances: R v Schumacher [2005] NSWCCA 335 at [15] per Hall J; cited in Landner v R [2014] NSWCCA 198 at [38] per Hoeben CJ at CL (with whom Beech-Jones and Hamill JJ agreed).
As already noted, the remarks on sentence were delivered ex tempore, immediately after evidence and submissions had been heard. During the course of the sentence hearing, the fact of the applicant's plea of guilty entered in the Local Court and its mitigating consequence was well understood, and was mentioned on more than one occasion. Indeed, it was the sentencing judge who first raised the subject, noting the pleas recorded in the Local Court when the Crown sought to present an indictment (to facilitate administrative matters connected with offences to be taken into account for both the applicant and Mr Chow). Later still, in exchange with the applicant's then legal representative, his Honour observed that the applicant had admitted her guilt and taken responsibility for her conduct very soon after arrest and interview. In that context he remarked that a trial would have required considerable time and effort. To the Crown, the sentencing judge put it quite directly by noting that, with respect to the pleas, the offenders "didn't try and stuff you around".
It is clear from the sentence proceedings that his Honour was well aware that the applicant had acknowledged her guilt of the offences at an early stage, and entered a plea of guilty to the principal offence in the Local Court. It is equally clear that the sentencing judge understood that full recognition of the benefit to the criminal justice system of the early plea should be extended to the applicant. It cannot in those circumstances be assumed that his Honour, a very experienced criminal lawyer and judge, failed to have regard to the applicant's early plea when, very shortly afterwards, he imposed sentence.
That conclusion is lent further support by the fact that the language used by the sentencing judge concerning the early plea of guilty in discussion with counsel during the sentence hearing was echoed in the joint sentence judgment, albeit with respect to the co-offender. His Honour observed that the co-offender had accepted his guilt soon after arrest and had facilitated the course of justice by accepting responsibility for his crimes when the matter was in the Local Court. A discount of about 25% on the sentence that would otherwise have been imposed was specified. It is difficult to accept that an experienced criminal judge would reward an early plea for one offender but overlook doing so for another, in circumstances where both were sentenced at the same time.
The final feature that indicates the sentencing judge did take the early guilty plea into account is the sentence imposed. The overall term of imprisonment was one of 6 years and 9 months. That is the figure one would arrive at if a 25% discount was applied to a sentence of 9 years imprisonment. Of itself, the sentence imposed suggests that the sentencing judge allowed a discount of that order to recognise the facilitation of justice provided by the early plea.
Although it is always preferable for a sentencing judge to specifically refer to an early plea, and to quantify the discount on sentence allowed to reflect it, failure to do so does not necessarily establish error. The remarks of Spigelman CJ (with whom Grove and Bell JJ agreed) in R v Lawrence [2005] NSWCCA 91 at [15] are apposite: "This Court is, of course, aware of the pressures under which District Court Judges have to deliver their sentences and that it is easy not to state a fact that everybody knows is required to be taken into account. Nevertheless, the reasons given in Thomson [R v Thomson and Houlton (2000) 49 NSWLR 383] for issuing a guideline included the need to ensure that participants in the New South Wales criminal justice system had no reason to be sceptical about whether or not the benefits of a guilty plea were in fact made available to accused. It would have been preferable, for that reason, if his Honour had mentioned that he had done so. However, in view of his Honour's long experience and the structure and length of the sentence he imposed, I am not prepared to act on the basis that his Honour failed to take into account the plea, or that he failed to give it appropriate weight."
I am not persuaded that there was error; to the contrary, I have no doubt that the sentencing judge allowed a discount on the sentence that would otherwise have been imposed of 25% to reflect the applicant's early plea and willingness to facilitate the course of justice. This is one of the cases referred to by Fullerton J in Devine v R [2009] NSWCCA 261 where it is safe to conclude that, whilst the sentencing judge did not state it, he applied a 25% discount to the sentence imposed.

Ground 2: The sentencing judge erred in dealing with the criminality involved in the 16BA matter

The applicant complains that the remarks of the sentencing judge with respect to the offence of trafficking a controlled drug demonstrate that he imposed sentence on the basis that she had come to Australia for the purpose of dealing in drugs, and had been selling drugs whilst in the country, thus wrongly increasing the sentence imposed for the principal offence because of his erroneous conclusions about the seriousness of the trafficking offence.
To make that complaint, the applicant drew part-sentences and phrases out of context from his Honour's remarks on sentence, but also from comments made by him during the sentence hearing. Placing the isolated references together, the applicant argues for error. That is an approach which must be firmly rejected. As this Court has said repeatedly, error cannot be found by considering a selected portion of a sentencing judgment in isolation; less still can that occur by taking individual words and phrases from both proceedings and judgment and combining them. It is necessary to consider the whole of the judgment, and to do so fairly.
There is nothing in the judgment that allows for the interpretation advanced by the applicant. His Honour nowhere concluded that the applicant had come to Australia for the purpose of importing and trafficking in drugs. To the contrary, he accepted that she had arrived here to join her fiancée, expecting to undertake some legitimate work with him, such as fruit picking, before returning home to Hong Kong. His Honour found that, having arrived in Australia, the applicant was offered the opportunity of making money illegitimately, and took it.
Another conclusion that cannot be found in the judgment is that the applicant was "selling" methamphetamine although, having regard to the wide meaning of trafficking, such a conclusion would not necessarily have been wrong at law.
"Trafficking" is defined very broadly by s 302.1 of the Code, and includes selling the drug, preparing the drug for sale, guarding or concealing it with the intention of selling it, or possessing or transporting it with the same intention, or to assist another. By her acknowledgement of guilt, the applicant accepted that she had trafficked in methamphetamine in a pure weight of 111.9 grams, the drug that was found at her home, and in her possession.
That is, the applicant acknowledged before the court that she sold methamphetamine, or that she prepared, guarded, concealed, transported, or possessed the drug with the intention of selling it, or did so to assist another person to sell it. That is the crime she asked the sentencing court to take into account.
It did not fall to the sentencing court to sentence the applicant on the basis asserted by her before this Court that she "admitted no more than acceptance that [she] was physically in possession of those drugs".
Having acknowledged her guilt of an offence of trafficking, it is entirely appropriate that there was some increase to the sentence imposed upon the applicant for the principal offence, to take this further crime into account, an increase that was not required to be modest. This was not an offence which ought to have led to little or no increase to the penalty imposed with respect to the principal offence, particularly in circumstances where it constituted separate criminality to the importation offence.
Although these are federal offences, no distinction is to be drawn in that regard between the relevant principles determined to apply to State offences: R v Dennison [2011] NSWCCA 114, at [51].
As Spigelman CJ said in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 137 A Crim R 180; [2002] NSWCCA 518, at [18] of the purpose of taking other offences into account on sentence, "[…] the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone."
Any suggestion that there should be little or no increase to the sentence imposed with respect to the principal offence because of another offence or other offences taken into account has been consistently rejected by this Court: R v Vougdis (1989) 41 A Crim R 125 at 128 - 129; R v Morgan (1993) 70 A Crim R 368 at 371 - 371; R v Barton (2001) 121 A Crim R 185; [2001] NSWCCA 63, at [55], [62], and [64]. Submissions to that effect were again, and decisively, rejected in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 by a Bench constituted by five judges, and where it was said by Bathurst CJ at [22] that, "It is clear from the provisions of s 33(3) that [taking further offences into account] could lead to an increase in penalty up to the maximum penalty for the principal offence. The existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged."
The maximum penalty for the principal offence is life imprisonment.
Here, the sentencing judge properly concluded that the applicant had methamphetamine in her possession, admitted she "was trafficking in" it, and had accepted her guilt for trafficking that drug. Referring to Attorney General's Reference, his Honour said, "[The offences on schedules for both offenders] do operate here to increase what would otherwise be the appropriate sentence for the principal matter. I do not sentence for a matter on the schedule but take it into account as part of the instinctive synthesis approach to sentencing […]. The increase recognises the need for personal deterrence and to a degree retribution for the crime for sentence. These are not notional increases […]."
This proposed ground is without merit.

Ground 3: The sentencing judge erred in finding the sentence was aggravated by being committed without regard for public safety and involved organised criminal activity

This ground also depends upon reading out of context a portion of the whole of the sentence judgment to argue for error. The applicant complains that his Honour found that her crime was aggravated in that it was committed without regard for public safety, and as part of organised criminal activity, in the sense set out in s 21A(2)(i) and s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Those provisions are in the following terms: "21A Aggravating, mitigating and other factors in sentencing (1) […] (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: […] (i) the offence was committed without regard for public safety, […] (n) the offence was part of a planned or organised criminal activity."
To conclude that an offence was aggravated by either of those features being present, a sentencing judge would be obliged to find beyond reasonable doubt on the basis of evidence before the court that one or both was present, and that neither feature was an element or inherent feature of the offence. There is an expectation that a judge who does conclude that an aggravating feature is present will clearly say so, and explain how that conclusion was reached: Van Can Ha v R [2008] NSWCCA 141 at [4]; DBW v R [2007] NSWCCA 236 at [33], [36]. As an experienced criminal judge, his Honour would be well aware of those principles.
In what are clearly introductory remarks to the sentence judgment, the sentencing judge said, "Obviously a role occupied by an offender is important, as is the quantity of drugs. That motivation is also important. Principles requiring harsh sentencing with a deterrent value, apply to all of those who engage at any level in drug supply networks. Absent people prepared to take risks, absent people such as Chi Pan Chow and Ka Yi Wong drug networks would collapse. The actions of both offenders were committed without regard to public safety. They chose to involve themselves in organised criminal activity and they are paying a price, a price that is not being paid by those higher up who provided them with the drugs and means of sending it to Australia. Turning now to the factors relating to the specific offences. They are set out in a statement of facts, I will recite them briefly."
I do not interpret those remarks, in an introductory section of the judgment where general statements of principle were made, to support a conclusion that his Honour found that two features of statutory aggravation were present such that a greater sentence was required, particularly in circumstances where the Crown made no submission that such a finding should be made.
The reference to public safety is no more than a reference to the known evils of the drug trade, leading as it does to the destructive use of drugs by individuals to their detriment, and to the associated social ills of drug use. The reference to organised criminal activity is no more than a reference to the sort of organisation that is typical of offences such as these.
There is no reasonable basis to conclude that his Honour made these remarks in any other sense.

Ground 4: The sentencing judge erred in placing emphasis on the offence being committed for financial gain as a matter of aggravation

This ground can be quickly dealt with since it is no more meritorious than is ground 3, and shares the same faults.
The applicant contends that the sentencing judge found a further feature of aggravation, being that specified in s 21A(2)(o) of the Crimes (Sentencing Procedure) Act, that the offence was committed for financial gain, and wrongly increased the sentence that was imposed as a consequence. The complaint places far more meaning on the remarks than can objectively be drawn from them.
The sentencing judge referred in his remarks to the applicant's motivation for her participation in the importation of drugs as financial. He concluded that the applicant had been desirous of improving her circumstances and, when offered the opportunity to make money through involvement in the importation of drugs, she took it. That is to do no more than acknowledge the obvious, and distinguish a crime motivated by a desire for money as opposed to a crime motivated by a need for drugs. The distinction is not immaterial in sentencing for drug offences since, in some circumstances, the motivation of the addict can reduce the moral culpability in committing the crime.
It is not clear, however, that his Honour concluded that the applicant had received significant monies, or expected to. His conclusion was that her expectation went no higher than receiving a greater reward than would be the case had she worked as a fruit picker. His Honour said, "I must find that both Mr Chow and Ms Wong engaged in this behaviour because they expected to receive a reward; a financial reward. There is no indication that they were living the highlife or they expected to lead the highlife but it seems clear to me that they wanted to return to Hong Kong after their working visit to Australia with substantially more funds than they would have had if they had just gone fruit picking as was their original intention. Whether it is characterised as greed or simply financial advantage, need was not a reason for commission of each offence."
That observation cannot be equated with a finding that a feature of aggravation, beyond that which would ordinarily be expected of an offence of this nature, was held to have been present.

Ground 5: The sentencing judge erred in failing to take into account the character, age and antecedents of the Applicant

This ground can be quickly dealt with since it is, simply put, factually wrong.
In sentencing the applicant his Honour referred to each of these features. It is true that these matters were not neatly set out in a distinct category, or with sub-titles to aid the later reader, but that may be because either, it is not necessary to take that approach or, because this was an ex tempore judgment delivered immediately after the sentence proceedings were completed.
His Honour referred to and clearly accepted (favourably to the applicant, since there was no sworn evidence to support many of his Honour's conclusions) the following: 1. The applicant is a citizen of Hong Kong who will find imprisonment in Australia more onerous than would a prisoner with local ties and cultural connection to her environment; 2. She is regretful of her conduct and has insight into its seriousness and social consequences; 3. She is remorseful; 4. She suffered adversely from the separation of her parents when she was a child, although that suffering was not linked to the commission of the offence; 5. She is young, naïve and impressionable, and her crime was committed unthinkingly; 6. She now suffers from a likely depressive disorder, and faces considerable emotional stressors by reason of her separation from family and country; 7. The applicant has learned a big lesson, it is "highly unlikely that she will offend again" and "she has the capacity to lead a law abiding life", demonstrated by the contents of the references tendered in evidence; and 8. She has strong support in the community, and is a person highly regarded by others.
His Honour did not, in terms, refer to the applicant's criminal history, containing as it does only one matter in Australia which was of no significance, but he clearly accepted that the applicant was formerly a well-regarded person, who was unlikely to ever again offend. He did not, as it is argued he should have done, give primary focus to rehabilitation for the applicant, treating her as a "youthful offender". No doubt that is because, whilst the applicant is a young woman, she is not a child, and there was no basis for sentencing her as one. It could not be said that a young woman, living independently of family, travelling internationally, and about to be married was so immature as to be treated, for the purpose of sentencing, as a child. The applicant was given the benefit of youth and naivety; more was not required.
This ground is without merit.

Ground 6: The sentencing judge erred in failing to make a finding regarding rehabilitation

Like ground 5, this ground also is factually wrong. As can be seen from [73(7)] above the sentencing judge found that the applicant had learned an important lesson, taken steps in custody to reform herself, and is unlikely to reoffend. His Honour was satisfied that the applicant had the capacity to lead a law-abiding life, and had considerable support to aid her in that object. It is not necessary for a sentencing judge to recite specific words, such as "good prospects of rehabilitation", as a mantra, to convey a finding of that nature.

Ground 7: Manifest Excess

In considering ground 1, I inferred that his Honour was likely to have concluded that a sentence of 9 years imprisonment, prior to a reduction of sentence in the order of 25%, was an appropriate one. That inference was available, at least in part, because a sentence of 9 years for the importation of a commercial quantity of a border controlled drug, taking into account trafficking in such a drug, was one I regarded as within the available sentencing range.
The applicant argued that it is not, referring to those matters already raised as relevant to her earlier proposed grounds of appeal, being her youth, naivety, good future prospects, antecedents, plea of guilty, and so on. The Crown referred the Court to authority to aid in determining a range, being R v Onyebuchi [2016] QCA 143; DPP (Cth) v Gow (2015) NSWCCA 208; 298 FLR 397; Iyoha v R [2011] WASCA 46; Lim v The Queen [2017] VSCA 246; and R v Calis [2013] QCA 165. All of those decisions are informative.
The starting point for considering whether a sentence is manifestly excessive (or inadequate) is the maximum penalty specified for the offence; here, life imprisonment. That is an indicator of how seriously the community regards the importation of controlled drugs, and the seriousness with which the courts are obliged to treat such crimes. As the sentencing judge correctly observed in his remarks, his task was to have regard to that statutory guidepost and relevant principles of sentencing law, to take into account the offence on a schedule before the court, to give weight to the applicant's personal circumstances, and to arrive at a sentence that did justice to the community and the applicant. That is a discretionary exercise.
To establish that a sentence is manifestly excessive, the following considerations, as summarised in Hughes v R [2018] NSWCCA 2 at [86], apply: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: 1. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; 2. intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; 3. it is not to the point that this Court might have exercised the sentencing discretion differently; 4. there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and 5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust."
In my view, the sentence imposed could not be characterised as one which is unfair or plainly unjust. The sentencing judge allowed the applicant the benefit of all positive features of her subjective case, and varied the ratio of sentence considerably, in her favour. In all of the circumstances, the sentence imposed was a modest one. This ground must also fail.

Conclusion

I would make the following orders: 1. Leave to appeal is granted. 2. Appeal is dismissed.

Amendments 27 November 2018 - Amend [69] from "It is clear," to read "It is not clear,". 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: 27 November 2018

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (3)

Cases Cited (29)

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