Xue v Regina

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Meager v Regina [2009] NSWCCA 215 CASES CITED : Mulato v Regina [2006] NSWCCA 282 Regina v Araya [2005] NSWCCA 283 Regina v Gao; Regina v Lim [2007] NSWCCA 343 Tatana v Regina [2006] NSWCCA 398

PARTIES: Li Min Xue - Applicant Regina - Respondent Crown

COUNSEL: Mr MP King - Applicant Mr P Leask - Respondent Crown

SOLICITORS: Baker Ryrie Rickards Titmarsh - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

IN THE COURT OF CRIMINAL APPEAL 2007/16010013

TOBIAS JA HOEBEN J McCALLUM J

Thursday 10 September 2009 Lee Min XUE v REGINA Judgment 1 TOBIAS JA: I agree with Hoeben J. 2 HOEBEN J: On 20 June 2008 the applicant was sentenced in respect of the following charge by RA Hulme DCJ. Between 21 December 2005 and 5 January 2006 at Sydney - supplying a prohibited drug, namely 3,4- Methylenedioxymethylamphetamine (MDMA) in an amount not less than a large commercial quantity for that drug contrary to s 25(2) of the Drugs Misuse and Trafficking Act 1985 (maximum penalty imprisonment for life with a standard non-parole period of 15 years). 3 The applicant pleaded guilty to this offence. His Honour passed the following sentence: "A term of imprisonment of 13 years and 6 months with a non-parole period of 10 years commencing 26 July 2007 and expiring 25 July 2017 and a balance of term of 3 years and 6 months expiring 25 January 2021".

Factual Background 4 On the evening of 22 December 2005 at Darling Harbour an undercover police operative entered into negotiations with Peng Gao for the supply of 1000 MDMA tablets. During the negotiations, Gao contacted the applicant who told him to go to the Hurstville RSL Club and that he would have "it" soon. The applicant subsequently supplied Gao with 1000 MDMA tablets. Gao in turn supplied the undercover police officer at Darling Harbour with the tablets in return for $15,000. 5 The tablets had a purity of 26.5 percent and weighed 284 grams. 6 Later that evening, Gao contacted the applicant by telephone and informed him that the deal had been done. The applicant said "Good, I'll meet you now". They agreed to meet in town in relation to the money due to the applicant. 7 On 4 January 2006 the same undercover police operative entered into negotiations with Gao for the supply of 2000 MDMA tablets. Gao again contacted the applicant. Gao was told by the applicant to go to the Hurstville RSL Club. The applicant then picked him up and took him to his home. Gao emerged a short time later and went to Darling Harbour where he gave 2000 MDMA tablets to the undercover operative in exchange for $30,000. 8 Upon analysis these tablets were found to contain 26 percent MDMA and weighed 568.9 grams. 9 A short time after the transaction, the applicant drove into the city and met with Gao. They were seen to have a meal together. The applicant returned home and was seen to remove a bag from his car before going inside. 10 On 9 February 2006 a search warrant was executed at the applicant's home. The police found approximately $104,320 in cash, drug paraphernalia, a small amount of methylamphetamine weighing 5.42 grams and a number of mobile telephones. 11 The large commercial quantity for MDMA is 500 grams. The total amount supplied by the offender was 852.9 grams. 12 The applicant was arrested and charged on that date. The applicant was granted bail. He was arraigned on 20 April 2007 and his trial was listed to commence on 19 November 2007. On the first day of the trial, the applicant pleaded guilty to the offence. The applicant was refused bail. 13 Because of the way in which the appeal was argued, it is necessary to review the facts relating to Pen Gao and Benjamin Lim. 14 Gao was subsequently arrested and charged. The supply to the undercover officer on 22 December 2005 gave rise to a charge of supply a commercial quantity of MDMA. The supply to the undercover officer on 4 January 2006 gave rise to a charge of supply large commercial quantity of MDMA. It should be noted that the offence of which the applicant was convicted related to the supply by him to Gao of the MDMA on both 22 December 2005 and 4 January 2006. 15 On 20 January 2006 the undercover police officer again contacted Gao and commenced negotiations with him for the purchase of 10,000 MDMA tablets. Gao advised the police officer that his usual supplier was unavailable and that he would have to source the tablets from another associate. As a result of this negotiation, Gao contacted Lim. 16 On 24 January 2006 Gao contacted the undercover police officer to negotiate the supply of between 8000 and 10,000 tablets on the following day. Gao then contacted Lim and they had discussions about the supply of the tablets. Although Gao attended at Darling Harbour on the following night and was shown $160,000 by the undercover police officer, the supply did not take place. 17 On 26 January 2006 Lim contacted Gao and asked for an explanation for the failure of the transaction on the previous evening. Lim urged Gao to contact the undercover police officer with a view to supplying 5000 tablets. That afternoon the police officer contacted Gao and negotiated the purchase of 5000 tablets for the following day. 18 On 27 January 2006 the police officer contacted Gao and confirmed that the transaction was to go ahead that evening. The police officer cancelled the supply when Gao was unable to produce the tablets that day. It should be noted that when Gao was sentenced in respect of his offences, three matters were included on a Form 1. The three matters were an agreement with the undercover officer to supply a sample of 50 tablets on 20 January 2006, the agreement to supply 10,000 tablets on 24 January 2006 and the agreement to supply 5000 tablets on 27 January 2006. 19 Lim was charged and pleaded guilty to the offence of supply large commercial quantity of MDMA on the basis that he had agreed to supply not less than 500 grams of MDMA (at least 5000 tablets, weighing between 1 kg and 2.5 kg) between 19 and 28 January 2006. On 9 February 2006 police executed search warrants on Lim's premises and found 3.8 g of MDMA and 7.7g of methylamphetamine. These amounts founded two charges of deemed supply and were dealt with on a Form 1. 20 On 30 May 2006 Gao was committed for sentence, following pleas of guilty to the charges of (charge 1) supply a large commercial quantity of MDMA and (charge 2) supply commercial quantity of MDMA. On 15 December 2006 Gao was sentenced by Berman DCJ to a total term of 12 years imprisonment with a non-parole period of 8 years in respect of those offences. His Honour also had regard to the three matters on the Form 1. He received a 25 percent discount for his early plea of guilty. 21 On 14 December 2007 the Court of Criminal Appeal dismissed an appeal by the Crown against the inadequacy of the sentences imposed upon Gao. The Court found that the sentences were lenient but that they were not "entirely out of the range available". The Court expressed concern about the inadequacy of the total sentence imposed for the two charges, but dismissed the appeal in the exercise of its discretion. 22 On 29 March 2007 Lim was sentenced by Berman DCJ for one offence of supplying (agreeing to supply) a large commercial quantity of MDMA. Lim pleaded guilty on the day of his trial. He was sentenced to a non-parole period of 5 years imprisonment with a balance of term of 3 years. His Honour took into account the two offences of deemed supply on the Form 1. Ten percent was allowed by way of discount for Lim's late plea of guilty. 23 The offence for which Lim was sentenced was not the same offence for which Gao was sentenced. That offence appeared on Gao's Form 1, i.e. the agreement to supply on 27 January 2006. 24 The Crown appealed against the manifest inadequacy of the sentence imposed upon Lim. The Court of Criminal Appeal allowed the appeal and re-sentenced Lim to a total term of imprisonment for 9 years and 10 months with a non-parole period of 6 years. Ten percent was allowed by way of discount for Lim's late plea of guilty. 25 The Court of Criminal Appeal indicated that this sentence was at the "very bottom of the available range" and noted that a starting point of 14 years would have been justified at first instance.

Remarks on sentence 26 In relation to subjective features, his Honour noted that the applicant was born on 18 October 1969 so that he was 37 at the time of the offence and 38 at the time of sentence. The applicant had a criminal history comprising convictions for some driving offences and two drug possession offences. His Honour did not regard these as being of particular significance. 27 The applicant did not give evidence in the sentence proceedings. The evidence comprised the pre-sentence report and the evidence of the applicant's mother. His Honour's information concerning the applicant came from his mother. It seems that the applicant had not seen his mother for 10 years but when she learned of his incarceration, she came to Australia to provide comfort and assistance to him. 28 The applicant came to Australia in order to learn English in 1989 when he was 17. The applicant was apparently in regular employment as a chef until about the middle of 2005 when he was sacked for drug use. Prior to going into custody, the applicant was living with his girlfriend. The Probation and Parole officer reported that the applicant presented with "unresolved grief issues pertaining to the death of his father" who had died in 1998. The applicant attributed his use of the drug "ice" to this. Apart from the regular use of drugs, the applicant told the Probation and Parole officer he had a gambling problem and was spending between $100 - $500 per day. 29 The applicant's mother told the court that since she had come to Australia, she used to visit him twice a week. He told her that he felt shame because of what he had done and he apologised to his family and to the Australian Government. He vowed to her that he would be a law-abiding person in the future. She said that she hoped to be able to remain in Australia and live with her son when he was released from prison. In relation to remorse, his Honour said: "Because I have heard no evidence from the offender I do not have sufficient material to make a finding in his favour that he is remorseful. Although as I indicated earlier he has no significant record of previous convictions, he was a user of illegal drugs for some 10 years and so I am unable to find in his favour that he was of prior good character. I am also unable to find that he is unlikely to re-offend and has good prospects of rehabilitation. Whilst he has not offended in relation to supplying drugs in the past, he did so on such a significant scale for motives of financial gain to the extent that I cannot be assured that he is unlikely to do so again." 30 His Honour discounted the applicant's sentence by 10 percent because of the plea of guilty entered on the first day of trial. 31 The details of the sentences imposed on Gao and Lim were placed before his Honour and his Honour analysed the offences which gave rise to the sentences, and the sentences themselves. His Honour also had regard to the decision of the Court of Criminal Appeal in those matters (R v Gao; R v Lim [2007] NSWCCA 343). 32 His Honour concluded as follows: "No direct parity applies given the differences between the cases, particularly Lim where the offences were constituted by an unfulfilled agreement to supply. He was not, strictly speaking, a co-offender. Nevertheless, it has been submitted that I should bear in mind the sentences imposed upon these two men when I sentence the present offender, and I will do so." 33 His Honour assessed the applicant as being at a higher level in the drug supply hierarchy than Gao. His Honour noted that Gao sourced his drugs from the applicant and that the applicant was closer to those involved in the manufacture or importation of the drugs than Gao. Gao had to consult with the applicant before being able to conclude his negotiations with the undercover police operative. 34 His Honour noted that the Court of Criminal Appeal had found that it was open to the sentencing judge to find that both of Gao's offences fell slightly below the mid-range of objective gravity. His Honour was of the opinion, however, that even without that guidance he would have assessed the objective seriousness of the applicant's offending at the middle of the range. 35 Because the applicant's offence involved an amount of 852 grams, which was the total quantity involved in Gao's two offences, his Honour considered that it was appropriate for him to take into account for comparison purposes the total effective sentence imposed upon Gao when considering what was an appropriate sentence for the applicant. His Honour noted that he had to keep in mind the differences between the two cases, in particular that there were different discounts for pleas of guilty and that Gao had offences on a Form 1 to be taken into account. 36 Given his finding as to the objective seriousness of the applicant's offence, his Honour considered whether there were reasons for not imposing the standard non-parole period of 15 years. Even though the applicant had pleaded guilty before trial, his Honour noted that the sentence which he passed must still bear an appropriate relationship to the standard non-parole period which remained relevant as a benchmark. 37 His Honour had regard to the tension between that consideration and the fact that the sentences imposed upon Gao and Lim represented a significant departure from the standard non-parole period. The problem was further complicated by the specific differences in the cases. In that regard his Honour referred specifically to the Form 1 matters and the different discounts for the pleas of guilty. 38 In order to make allowance for periods which the applicant had already spent in custody, his Honour backdated the commencement of his sentence to 26 July 2007. In relation to special circumstances his Honour said: "No submission was made that I should find special circumstances and reduce the proportion of the total sentence that is represented by the non-parole period and in my view, that was a realistic, implicit concession. The sentence I am about to announce provides for a more than adequate period of potential parole supervision for the offender notwithstanding it is his first time in prison. Any subjective feature I can possibly take into account in the offender's favour has been considered in my assessment of the overall sentence. I must also bear in mind the need to impose a non-parole period that properly reflects the objective gravity of the offence."

Appeal 39 It was agreed between the parties that the observation made by Howie J in Tatana v R [2006] NSWCCA 398 was pertinent and that the ground of appeal relating to parity should be considered last. There his Honour said: "15 Although the first ground of appeal is based upon what is asserted to be disparity between the sentence imposed upon the applicant with those imposed upon his co-offenders, it is more appropriate to first consider the grounds asserting error on the part of the sentencing judge. This is because this Court need only consider the question of parity if there is no error in the exercise of the sentencing discretion. A ground based upon parity assumes that the sentence imposed is otherwise correct. ..."

Ground of Appeal 2 - The Sentencing Judge erred in finding that the applicant's behaviour fell within "the mid range of offending". 40 The applicant submitted that his Honour erred in characterising the applicant's behaviour as falling within the mid-range of objective seriousness because that was not how Berman DCJ had characterised the objective seriousness of the offending of either Lim or Gao. The applicant noted that the Court of Criminal Appeal had found that the assessment of Berman DCJ in that regard was within a range open to him. The applicant therefore sought to invoke the principle of parity to substantiate the submission. 41 The submission is misconceived. Implicit in the submission is the proposition that parity informs a sentencing judge's findings as to objective seriousness. That is not the law and is simply incorrect. Principles of parity come into play, if they are relevant, at the time when a sentencing judge is formulating the sentence well after an assessment of objective seriousness has been made. 42 The considerations to be taken into account by a sentencing judge when assessing the objective seriousness of an offence have been referred to on many occasions by this Court and parity has never been a matter which informs that assessment. 43 A useful description of the correct approach is that by Spigelman CJ in Mulato v Regina [2006] NSWCCA 282: "37 Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open ..." 44 This ground of appeal has not been made out.

Ground of Appeal 3 - The Sentencing Judge erred in failing to find that the applicant had demonstrated remorse for his offending. 45 The applicant submitted that the only evidence before his Honour supported a finding of remorse. The applicant submitted that the way in which his Honour had expressed himself suggested that before remorse could be found, an offender had to give evidence. 46 This submission misunderstands what his Honour did. His Honour did not say, nor did he suggest, that before he was prepared to make a finding of remorse, the applicant would have to give evidence. 47 What his Honour did was to summarise the only two pieces of evidence before him, i.e. the evidence of the applicant's mother and the report from the Probation and Parole Service of what the applicant had said. His Honour, as he was entitled to do, said that he was not satisfied on that evidence that the applicant was genuinely remorseful. Since the applicant had not given evidence in the sentencing proceedings, his Honour was unable to supplement the evidence before him by an assessment of the applicant. 48 The submission misunderstands the onus of proof in such situations. His Honour was not obliged to accept the evidence of the applicant's mother, nor second hand evidence in the Probation and Parole report. From his Honour's assessment of the motivation behind the applicant's offending, one can see why his Honour would need some persuading that the applicant was genuinely remorseful. It was well open to the judge not to be satisfied of the applicant's remorse on the evidence before him. 49 This ground of appeal has not been made out.

Ground of Appeal 4 - The Sentencing Judge erred in failing to find "special circumstances" pursuant to s 34 Crimes (Sentencing Procedure) Act 1999. 50 The applicant noted that Berman DCJ had found special circumstances when sentencing Gao on the basis that it was that offender's first time in custody and because his family lived in another country. When sentencing Lim, Berman DCJ had found special circumstances on account of the accumulation in sentences. The applicant submitted that as a matter of parity, special circumstances should have been found in the applicant's favour in this case because it was the applicant's first time in custody. 51 The fallacy in these submissions is adequately illustrated by the following quotation from Howie J in Tatana v R: "25 The second ground asserts that the Judge was in error in not finding special circumstances. Again the argument proceeds generally from a consideration of the findings made by Judge Berman and a submission that had his Honour sentenced the applicant he would have found special circumstances. This is irrelevant to this ground of appeal. Acting Judge Boulton was making a finding of fact and he was not bound by any finding made by Judge Berman. There will be many cases where judges might differ as to whether they would make a finding of special circumstances given that the same material was placed before them. It is largely an intuitive determination. As long as the finding was open to the sentencing judge it is not for this Court to interfere." 52 His Honour specifically considered this question. He concluded that he had allowed ample time for supervision by the Probation and Parole Service in the sentence which he imposed. Apart from the fact that this would be the applicant's first time in custody, there was no other consideration which would lead to a finding of special circumstances. Such a factor does not of itself compel a finding of special circumstances. His Honour's finding was well open to him and this Court should not interfere. 53 This ground of appeal is not made out.

Ground of Appeal 1 - The sentencing process resulted in a miscarriage of justice because the applicant has been left with a justifiable sense of grievance due to the disparity between his sentence and the sentences imposed on Peng Gao and Benjamin Lim. 54 The applicant submitted that despite his Honour stating that he was giving considerable weight to the imposition of a sentence not disproportionate to those imposed on Gao and to a lesser extent Lim, his Honour did not in fact do so. 55 In order to illustrate that proposition, the applicant submitted that allowing for the 25 percent discount for the plea of guilty, the starting point for Gao's sentence would have been 14 years and 8 months. In the course of argument, counsel for the applicant accepted that his mathematics were defective and that in fact the correct starting point was 16 years. In the case of Lim, the applicant relied upon the starting point suggested by the Court of Criminal Appeal of 14 years. 56 The applicant then compared his own sentence which must have had a start point of 15 years before the 10 percent discount for his plea of guilty. The applicant submitted that this discrepancy demonstrated the basis for his justifiable sense of grievance. 57 The applicant also relied upon a comparison of the respective non-parole periods before the application of any discount, e.g. Gao - 10 years 7 months; Lim - 9 years 1 month and applicant - 11 years 1 month. 58 The applicant submitted that although he was higher in the drug supply hierarchy than Gao, Gao's objective offending was far more serious when one took into account the matters on the Form 1. These were particularly serious matters which were directly related to the criminality of Lim. 59 In relation to Lim, the applicant submitted that he was at the same level in the drug supply hierarchy, had been convicted of a similarly serious offence and yet his sentence was significantly less than that of the applicant. 60 As his Honour correctly appreciated, Lim was not a co-offender and there cannot be any justifiable sense of grievance on the part of the applicant due to any disparity between his sentence and the sentence imposed on Lim. While it was open to his Honour to have regard to the sentence passed on Lim, the principles of parity did not require him to do so. 61 The applicability of parity principles in such circumstances was recently examined by Latham J in Meager v R [2009] NSWCCA 215 at [10] - [13]. During the course of that analysis her Honour (with whom Young JA and Johnson J agreed) quoted with approval the observations of Johnson J in R v Araya [2005] NSWCCA 283 where his Honour said: "65 … Senior Counsel for the Applicant accepts that Mr Chandra and the Applicant were not co-offenders and that the normal parity principle does not strictly apply. However, he contends that there are similarities between the criminal conduct of the two offenders, their related arrests and parallel criminal proceedings in such a way as to attract, by analogy, the parity principle. It is submitted that the Applicant has been left with a sense of grievance which, in all the circumstances, is justifiable. 66 As the Applicant and Mr Chandra were not co-offenders, the parity principle reflected in Lowe v The Queen (1984) 154 CLR 606 and Jones v The Queen [1993] 67 ALJR 376 has no application. 67 This Court has held that the parity principle is not to be applied when a ground of appeal invites comparison between sentences imposed upon two offenders, who are not co-offenders, simply because the two offenders may have similar characteristics and may have committed similar crimes. In R v Morgan (1993) 70 A Crim R 368, Hunt CJ at CL (Allen J and Loveday AJ agreeing) said at 371: "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range." …

70 Similar sentiments have been expressed by this Court when arguments have been advanced on appeal comparing sentences imposed for offences of dishonesty or fraud committed by persons who are not co-offenders: R v Hawker [2001] NSWCCA 148 at paragraphs 17-18; R v Swadling [2004] NSWCCA 421 at paragraphs 29, 54; R v Martin [2005] NSWCCA 190 at paragraph 56. In each of those cases, the Court has emphasised that far greater assistance is derived from references to general sentencing policy. 71 In R v Singh [2001] NSWCCA 424, an argument was advanced that an unjustified disparity existed between the overall sentence imposed upon the Applicant when compared with others who might be considered to be his co-offenders. It was submitted for the Applicant that he was one of a group of offenders, most of whom had been dealt with by different District Court Judges, in respect of the sale of amphetamines from a particular café in Kings Cross. In the course of rejecting this argument, Howie J (Grove J agreeing) said at paragraph 12: "The applicant was never charged with any offence in relation to the supply of drugs to, or by, the persons at the café. The applicant was not a co-offender of any person other than the unidentified person or persons who supplied him with the drugs that he on-supplied to the operative. The supply to the undercover officer was only in the most indirect way connected to the criminal conduct emanating from the café and for which other persons were sentenced. As Judge Woods noted, the applicant was not the target of the police operation and, in his Honour's words, he 'simply became roped in'. Regardless of what sentences the persons connected with the drug dealing from the café received, the applicant could not have a justifiable sense of grievance about them. The sentences of those persons are no more relevant than would be the sentences imposed upon other associates of the applicant for unrelated drug offences. Although Judge Woods said that he would bear in mind the sentence imposed upon one of the barmen at the café for supplying ecstasy, I cannot understand why he did so." 72 It was accepted in this case that the Applicant and Mr Chandra were not co-offenders. Whatever may have been the position with the offences contained in the original indictment, it is the case that none of the offences to which the two offenders ultimately pleaded guilty were committed by them as co-offenders. As will be seen, it appears that there was some association between the two offenders and some overlap in their activities. However, I do not consider that this attracts the parity principle to the Applicant's case. In my view, the correct approach to the present argument involves application of the principles referred to in Morgan , F , George and Singh referred to above." 62 The sentence imposed on Lim can therefore be ignored for the purposes of the parity submission. 63 The applicant's submissions in relation to the sentence imposed on Gao assume that there is a marked difference between the penalty imposed on him and the applicant. I am not so persuaded. Applying the analysis put forward in the applicant's own argument, the start point for the head sentence imposed on Gao (16 years) when compared with the start point of the head sentence imposed on the applicant (15 years) adequately takes into account the matters which have been put to the Court in submissions. The applicant was in a more senior position in the drug supply hierarchy but Gao's criminality was more extensive as shown by the matters referred to on the Form 1. 64 In that regard it should be remembered that the statutory scheme involving the use of a Form 1 requires the Court to focus on the "principal offence". Although the Court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted with a view to increasing the penalty that would otherwise be appropriate for the particular offence by giving greater weight to the need for personal deterrence and the community's entitlement to extract retribution for serious offences. (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518.) 65 Allowing for the superior position in the drug supply hierarchy of the applicant, it seems to me that the difference in the starting point for the head sentences adequately reflects the lower position of Gao and the weight to be given to the matters on the Form 1 in his case. 66 It follows that the difference in the starting point for those head sentences is not of such significance as to leave the applicant with a justifiable sense of grievance. 67 A comparison of the non-parole periods in the sentences imposed on the applicant and Gao to substantiate this ground of appeal, is not appropriate. That difference is adequately explained by the refusal of his Honour to find special circumstances in the case of the applicant. There was also a significant difference in the applicant's subjective case when compared to that of Gao. 68 This ground of appeal has not been made out.

Orders 69 The orders which I propose are as follows:

(i) Leave to appeal granted. (ii) The appeal is dismissed. 70 McCALLUM J: I agree with Hoeben J. **********

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