Yeung v R

Ground 1: assessment of objective gravity

1. The first ground of appeal is: "The sentencing judge erred in failing to make a determination as to where the offence stood in terms of objective criminality."
2. In order to address this ground, it is necessary to be clear as to the task required to be undertaken by a sentencing judge in respect of the assessment of objective seriousness or objective criminality. In Muldrock v The Queen (2011) 244 CLR 120; (2011) 212 A Crim R 254; [2011] HCA 39 at [26], the High Court confirmed that the proper approach to sentencing is as described by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], as follows: "[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case."
3. One factor relevant to the sentence is the objective seriousness of the offence. Accordingly, an assessment of that factor has always been an essential element of the sentencing process: Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [71] per Simpson J (as her Honour then was); Davies J and Grove AJ agreeing at [159] and [160].
4. Following the introduction of standard non-parole periods, it was thought that the sentencing judge was required to undertake a separate, additional task. Section 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW) as originally introduced provided that a standard non-parole period represented "the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division." For a time, the provisions relating to the application of standard non-parole periods were thought to require the sentencing judge to make a specific determination as to the point on a hypothetical scale of objective seriousness at which the particular offence stood, so as to assess the appropriate degree of departure (up or down) from the prescribed standard non-parole period.
5. In overturning the line of authority that had been the genesis of that approach, the High Court said in Muldrock at [28]: "Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period."
6. The Court further explained at [29] that the requirement to give reasons for increasing or reducing the standard non-parole period: "is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending." (emphasis added)
7. I understand the decision in Muldrock to hold that a sentencing judge is not required to articulate a determination placing the offence for which an offender is to be sentenced at a point along a hypothetical range, such as "below mid-range" or "just below mid-range". That is the conclusion I reached in Lawson v R [2012] NSWCCA 56 at [19]; Beazley JA (as her Honour then was) and Harrison J agreeing at [1] and [2]. Others have expressed the same view: see Badans v R [2012] NSWCCA 97 at [55] per Meagher JA; Hoeben J (as his Honour then was) and Rothman J agreeing at [84] and [85]; Khoury at [76]-[77]. However, it remains an essential task to undertake an evaluative assessment of the objective seriousness of the offence, for the reasons explained by Simpson J in Khoury at [71]-[77].
8. The terms in which ground 1 is expressed echo the language of the jurisprudence overruled in Muldrock, suggesting the need to fix the offence at a point on a line. However, as the argument was developed in submissions, the complaint was, rather, that the judge failed to undertake the essential task of making an assessment of the objective gravity of the offence.
9. In support of this ground, the applicant relied on the remarks of Latham J in R v Cage [2006] NSWCCA 304 at [17] (Hunt AJA and Johnson J agreeing at [1] and [2]) that: "A bare recitation of the facts constituting the offences and a reference to the "objective features of the offences" does not satisfy the requirements of sentencing."
10. Those remarks were cited with approval in the more recent decision of R v Van Ryn [2016] NSWCCA 1 at [133] per R A Hulme J; Leeming JA and Johnson J agreeing at [1] and [2].
11. In Cage, the Court held that the judge had made no assessment of the objective gravity of the offences "insofar as no attempt was made to determine where on the scale of criminality these examples of the offences lay, referable to the maximum penalty prescribed by the legislature in each case" (at [18]). Justice Latham went on to explain: "I do not mean to suggest by these remarks that it is necessary to undertake a mathematical or prescriptive approach to sentencing, or that one should engage in a two-tier approach: see Markarian v The Queen [2005] HCA 25. However, his Honour's remarks lacked the transparency that would allow the respondent, this Court and the general community to understand how it was that his Honour arrived at the final result."
12. In Van Ryn, R A Hulme J provided a similar explanation for the requirement to undertake an assessment of an objective seriousness (at [135]), as follows: "One reason that it is important for there to be some assessment of the seriousness of an offence is because one of the purposes of sentencing is to ensure that the offender is adequately punished for the offence: s 3A(a) Crimes (Sentencing Procedure) Act. Another reason is the requirement that a sentence should not exceed, or be less than, what is proportionate to the gravity of the crime: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 572 [15] (Spigelman CJ). Further, it enables use of the legislative guideposts of the maximum penalty and any prescribed standard non-parole period: R v West [2014] NSWCCA 250 at [27] (Adamson J)."
13. While it may be accepted that a bare recitation of the facts and the objective features of the offence may not, of itself, demonstrate adherence to the requirements of the sentencing task, it must equally be accepted, in my respectful opinion, that the failure to attach a specific label to the objective seriousness of the offence will not necessarily demonstrate a failure to undertake the necessary task of making an assessment of objective seriousness as one of the factors relevant to the value judgment as to what is the appropriate sentence in all the circumstances. The task for the appellate Court is to consider whether, reading the sentencing judgment fairly as a whole, there has been a failure to make that essential assessment.
14. In the present case, although the sentencing judge did not attach a specific label to the objective seriousness or objective criminality of the applicant's offending, it is clear in my view that his Honour undertook an evaluative assessment of the relevant factors including the amount of the drug involved, the role of the applicant and the nature of his conduct.
15. As already noted, the judge was required to consider a number of separate but overlapping statements of facts. In his sentencing judgment, his Honour summarised the facts according to the different groupings of offences and broadly in chronological order, turning to the facts specific to the applicant at page 22 of the judgment.
16. The agreed facts in respect of the group of offences concerning the applicant included a summary of the respective roles of the offenders which his Honour set out verbatim in his sentencing judgment (reproduced at [15] above).
17. His Honour then proceeded to identify the relevant considerations in respect of each individual offender, beginning with Field (who was clearly regarded as the offender of the highest objective seriousness overall) and proceeding to address each in descending order of seriousness.
18. After reciting those matters, which were reproduced largely from the agreed statements of facts, his Honour did undertake an analysis of the respective roles of the offenders, saying (at pages 29-30): "The facts in relation to this sequence of offending demonstrate a close relationship between each of the offenders in relation to the supply of methylamphetamine on a number of occasions, although their roles vary, and in particular, in relation to Mr Tran, he is only involved in one instance of supply, being 103.1 grams of methylamphetamine. It is, however, clear that Sibbritt was an intimate of Field and Yeung, trusted to participate in communications and arrangements in relation to the supply of methylamphetamine on a number of occasions. It would appear from the facts that Field was the most senior person, if that is a correct way to describe him, who called on others from time to time to actually supply the prohibited drug to be sold to persons that he had arranged to supply to."
19. At the conclusion of his summary of the relevant factors, the judge indicated that he intended to sentence the offenders "in the reverse order" (apparently, in ascending order of seriousness), beginning with the "lowest placed associate", Tran, then Ting, the applicant, Sibbritt and finally Field.
20. In my respectful opinion, it is clear that the judge did turn his mind to the task of making an assessment of the offender's objective criminality. The fact that his Honour's conclusions were expressed in relative terms does not derogate from that conclusion. Ground 1 must be dismissed.

Ground 2: accumulation

1. The second ground of appeal is: "The sentencing judge erred in fully accumulating the sentence."
2. This ground relates to the accumulation of the present sentence on a sentence imposed at an earlier point in time. The applicant was arrested for the present matters on 1 July 2015 and remained in custody from that date. At that time, he faced two unrelated charges of driving whilst disqualified, committed in February and May 2015 respectively. He had many prior convictions of a similar nature. He was sentenced for the two driving offences on 13 August 2015 to terms of imprisonment totalling 18 months with a total non-parole period of 13 months.
3. The proceedings on sentence in the present matter were heard on 8, 28 and 29 July 2015. At that time, the non-parole period for the driving offences was due to expire on 12 September 2016. That issue was addressed briefly by counsel appearing for the applicant at the proceedings on sentence, who submitted that "bearing in mind the totality considerations", the judge would not simply commence the sentence for the drug offence from that date and that "some concurrency would be appropriate" (T26.42, 29 July 2016).
4. The judge considered that submission and rejected it, saying: "In my view, however, it is not appropriate to make the sentence to be imposed in respect of this matter in any way concurrent with the sentences imposed for the drive while disqualified offences…"
5. In reaching that conclusion, his Honour recognised that he had a discretion to make the sentence imposed on the drug matter "concurrent, partially concurrent with or wholly accumulative upon" the sentence imposed for the driving offences, citing the decision of this Court in Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58. That decision was concerned with the circumstance where an offender commits an offence while on parole and then has parole revoked for that reason. The focus of the appeal was whether, where the fact of the offence having been committed whilst on parole had been taken into account as an aggravating factor, it would impose double punishment to make the sentence for the fresh offence wholly cumulative. The Court held that the sentencing judge did have a discretion to make the sentences wholly or partly cumulative upon the sentence the applicant was serving as a consequence of the revocation of parole: at [25] per Simpson J (as her Honour then was); James and Hall JJ agreeing at [1] and [27]. The decision is perhaps not precisely on point but would hold, a fortiori, that a sentencing judge has a discretion to make the sentences wholly cumulative in the circumstances of the present case.
6. The applicant relied on s 55(1) of the Crimes (Sentencing Procedure) Act, which provides that a sentence imposed upon a prisoner already serving a term of imprisonment should be served concurrently unless the Court directs otherwise. It was submitted that the sentencing judge gave no reasons for making the sentences wholly cumulative and failed to make a specific direction under that section.
7. Section 55 relevantly provides: "(1) In the absence of a direction under this section, a sentence of imprisonment imposed on an offender: (a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or (b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings, is to be served concurrently with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence. (2) The court imposing the sentence of imprisonment may instead direct that the sentence is to be served consecutively (or partly concurrently and partly consecutively) with the other sentence of imprisonment or, if there is a further sentence of imprisonment that is yet to commence, with the further sentence of imprisonment."
8. It may be observed that the section was not invoked at the proceedings on sentence. The burden of the submission in this court was that the section creates a prima facie position in favour of concurrency. Mr Ramage QC, who appears for the applicant, said "we accept that there is obviously a discretion there but if you exercise that discretion contrary to the prima facie position under the Act in our submission you should give reasons".
9. I am not persuaded that the section was intended to create a presumption in favour of concurrency. Rather, it appears to be directed to ensuring that, if the sentencing judge does not expressly address that issue, the default position is that the sentences are to be served concurrently. The discretion otherwise remains unconstrained by the section.
10. Even if that is wrong, there was an obvious reason for departing from the default position provided for in the section, which was that the offending was of an entirely different nature. There was no overlap between the offences. Whilst a more lenient approach could have been taken, I am not persuaded that error is established in that respect.
11. As to the alleged failure to make "a specific direction" under the section, the making of such a direction is necessarily implicit in the fixing of the relevant commencement date. I doubt whether the section requires any more formalistic approach. I would reject this ground.

Ground 3: special circumstances

1. The third ground of appeal is: "the sentencing judge erred in his application of the principles regarding special circumstances and totality."
2. The judge made a finding of special circumstances in respect of the applicant "in relation to his need for a longer period of supervision on parole to assist him to deal with his drug addiction problems". His Honour added, "I have also taken into account the concept of totality" (at 50).
3. Section 44(2) of the Crimes (Sentencing Procedure) Act provides: "The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more…"
4. An arithmetically equivalent representation of the same proposition is that, absent a finding of special circumstances, the non-parole period must not be less than 75% of the total sentence.
5. The non-parole period fixed in respect of the drug offence was 68% of the total sentence. However, taking the aggregate sentence including the sentence imposed for the drink driving offences, the overall proportion was 73%.
6. The burden of the applicant's submission was that an allowance of only 2% failed to give effect to the judge's finding that the applicant needed a longer period of supervision on parole to assist him to deal with his drug addiction problems.
7. I do not think there is any substance in this ground. The finding of special circumstances was a composite finding expressly addressed at the need to consider the total period in custody including the sentences imposed for the driving offences. It may be accepted that almost the whole of the adjustment allowed was on that account. The adjustment allowed on the drug offence alone was a period of only about 5 weeks.
8. However, the period on parole still allows 1 year and 9 months for the purpose identified ("a longer period of supervision on parole to assist [the applicant] to deal with his drug addiction problems"). As in the case of ground 2, whilst a more generous approach could have been taken, I am not persuaded that error is established.

Ground 4: Parity

1. The final ground of appeal simply reads "parity". The written submissions contend that there is disparity such as to give rise to a justifiable sense of grievance between the sentence imposed on the applicant and the sentences imposed on Field, Sibbritt and Ting.
2. While a parity ground always requires a careful comparison of the relevant factors, upon analysis, the argument in the present case raises a relatively narrow issue and can be addressed succinctly.
3. Field was sentenced for six offences. They included the two offences with which the applicant was charged. However, whereas the applicant had the first offence (committed on 23 June 2015) taken into account on a Form 1, in the case of Field, that offence was charged as a separate offence on the indictment. The additional offences for which Field was sentenced were an offence of being an accessory after the fact to manufacturing more than the large commercial quantity of a prohibited drug contrary to s 24(2) of the Drug Misuse and Trafficking Act; supplying more than the commercial quantity of a prohibited drug contrary to s 25(2) of the Act; manufacturing more than the indictable quantity of a prohibited drug contrary to s 24(1) of the Act and an offence of ongoing supply contrary to s 25A(1) of the Act.
4. The manufacturing offence involving the large commercial quantity related to a quantity of 19,343 grams. However, Field was charged only as an accessory after the fact to that offence, his involvement being to attempt to dismantle and move a manufacturing facility after it had been discovered by police. The amount of the drug specified in the charge was based on a retrospective expert calculation of the amount that would have been produced based on the items found by police. In respect of the ongoing supply charge, Field had a further offence of knowingly taking part in the supply of a small quantity of methylamphetamine taken into account (less than one gram).
5. The judge sentenced Field to an aggregate sentence of imprisonment for 8½ years with a non-parole period of 6 years. The indicative sentence in respect of the offence that was equivalent to the offence on the applicant's Form 1 was 5 years with a non-parole period of 3 years. In his sentencing judgment, his Honour omitted to state an indicative sentence for the offence that was equivalent to the offence on the applicant's indictment. However, a schedule of all of the sentences passed in respect of all of the offenders, which his Honour attached to the sentencing judgment for ease of reference, indicates (albeit with some transcription errors) that his Honour intended to specify the same indicative sentence for both offences.
6. Sibbritt was sentenced for five offences, being the same as the charges against Field except that she was not charged with the ongoing supply offence. She was sentenced to an aggregate sentence of imprisonment for 7 years with a non-parole period of 5 years. The indicative sentence in respect of the two offences for which the applicant was dealt with was the same as in respect of Field, namely, imprisonment for 5 years with a non-parole period of 3 years.
7. Ting faced the same charges as the applicant and was sentenced on the same basis, namely, the offence committed on 1 July 2015 was the only count on the indictment, the offence committed on 23 June 2015 being taken into account on a Form 1. He was sentenced more leniently than the applicant, being sentenced to a term of imprisonment for 4 years with a non-parole period of 2½ years. Ting barely featured in the material presented by the Crown. As noted in the summary of the facts set out above, the investigation into the syndicate had targeted Field, Sibbritt, the applicant and Tran. The statement of facts presented in relation to Ting (exhibit 11) was in almost identical terms to those presented in respect of the co-offenders but featured him only at the conclusion, in each case describing him as the person who handed the drugs to the buyer and received the money. In the Crown submissions (exhibit 14), the respective roles of the five offenders were described as follows: "• Field is distributor • Yeung: ◦ acts in part to source for Field with commercial quantities ◦ drug distributor to Field • Sibbritt assists Field in distribution • Tran is lowest placed able to supply indictable quantities to Field • Ting not nominated as having a particular role but from the facts he appears to only have handed drugs over and received money but under supervision of Field."
8. I do not think the applicant can sensibly have any sense of grievance on a comparison with the sentence imposed on Ting.
9. As to Field and Sibbritt, the principal submission was that the applicant should have received a sentence considerably less than the indicative sentences stated for Field and Sibbritt in respect of the same offences. There are two difficulties with that submission. The first is that, while Field was evidently regarded as the head of the operation, there was little to distinguish the roles of Field, Sibbritt and the applicant in respect of the two offences in which they were co-offenders. Secondly, Field and Sibbritt were charged separately for those two offences, and then dealt with by way of aggregate sentence, whereas the applicant was sentenced for only one offence but had the other, which was of equal seriousness, taken into account on a Form 1. In my opinion, the different structure of the sentences removes any possible suggestion of disparity.
10. For those reasons, I am not persuaded that the applicant has a legitimate sense of grievance based on parity considerations.
11. The orders I propose are that leave to appeal be granted but that the appeal be dismissed.

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