Yin v Regina

Court of Criminal Appeal (NSW)|2019-06-28|Before: Bathurst CJ, Harrison J, Adams J

[This headnote is not to be read as part of the judgment] Following a two week trial, Mr Po-Wen Yin (the applicant) was found guilty of possessing a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine, contrary to section 307.5(1) of the Criminal Code (Cth). The applicant was sentenced to 16 years imprisonment with a non-parole period of 10 years. The offence involved the unlawful importation from Taiwan of 41 kilograms of methamphetamine of which 33 kilograms was pure methamphetamine. The sentencing judge found that the applicant committed his offence with two co-offenders, Mr Chun-Yuan Huang and Mr Wei-Len Lu. Mr Huang and Mr Lu pleaded guilty to a charge of attempting to possess a commercial quantity of methamphetamine and were each sentenced to 10 years imprisonment with a non-parole period of 6 years, after a 25% discount for their pleas of guilty. The sentencing judge assessed the applicant's role as more responsible than that of the co-offenders, and therefore his offending was more serious. The applicant's role in the offence involved managing the finances of the enterprise, paying required expenses, bringing the co-offenders to Australia, directing the co-offenders, organising an apartment, incorporating a company to be the consignee, being in contact with people involved in the offence in Taiwan and using another mobile phone number for contact about the consignment. The sentencing judge concluded that on all the evidence, the applicant was in a senior position in Australia with respect to obtaining possession of the drugs. The applicant sought leave to appeal against his sentence on two grounds. The first ground of appeal was whether the sentencing judge erred in her assessment of the comparative objective seriousness of the applicant's offending and that of the two co-offenders. The second ground of appeal was whether the disparity between the sentence imposed on the applicant and the sentences imposed on the two co-offenders gives rise to a justifiable sense of grievance on the part of the applicant. Error in assessment of the comparative objective seriousness (i) The sentencing judge did not err in concluding beyond reasonable doubt that the applicant played a more significant role in the offence than his co-offenders and his offence was thus more serious: Bathurst CJ [42]-[46]; Harrison J [54]; N Adams J [55]. R v Olbrich (1999) 199 CLR 270; [1999] HCA 54; R v Nguyen; R v Pham [2010] NSWCCA 238; R v Lee [2007] NSWCCA 234 referred to. Disparity giving rise to a justifiable sense of grievance (ii) The disparity between the sentence imposed on the applicant and that of his co-offenders was not such as to give rise to a justifiable sense of grievance. The applicant's sterner sentence was justified by the difference in the roles played by the applicant and that of his co-offenders and the acceptance that the subjective circumstances were similar: Bathurst CJ [49]-[52]; Harrison J [54]; N Adams J [55]. Green v The Queen; Quin v The Queen (2011) 244 CLR 462; [2011] HCA 49; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Klomfar v R [2019] NSWCCA 61 referred to.

Judgment

BATHURST CJ: The applicant, Po-Wen Yin (the applicant) was charged on indictment with the following offence: "Between about 26 March 2016 and about 11 May 2016, at Sydney in the State of New South Wales and elsewhere, did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely methamphetamine, and the quantity being a commercial quantity. Contrary to section 307.5(1) of the Criminal Code (Cth) with sections 11.1(1) and 11.2A of the Criminal Code (Cth) (Law Part Code: 58468, 41445, 77028)."
The maximum penalty for the offence was life imprisonment and/or a fine of $1.275 million.
After a two week trial, the applicant was found guilty of the offence charged. On 1 December 2017, the applicant was sentenced to 16 years imprisonment with a non-parole period of 10 years. The commencement of his sentence was backdated to the date of his arrest on 11 May 2016.
The applicant seeks leave to appeal against his sentence raising the following grounds of appeal: "1. The learned sentencing judge erred in her assessment of the comparative objective seriousness of the applicant's offending and that of the two co-offenders, Huang and Lu. 2. Alternatively, even having regard to that assessment, there is disparity between the sentence imposed on the applicant and the sentences imposed on the two co-offenders, Huang and Lu, such as to give rise to a justifiable sense of grievance on the part of the applicant."

The sentencing judgment

The sentencing judge stated that she made the findings of fact set out below "beyond reasonable doubt based on the evidence the jury must have accepted to return their guilty verdict". Her Honour found that the applicant committed his offence with two co-offenders, Mr Chun-Yuan Huang and Mr Wei-Len Lu.
The applicant lived in Brisbane and knew Mr Huang who lived in Taiwan. In January 2016, the applicant had arranged travel to Taiwan and back but this was postponed. On 26 January 2016, Mr Huang arrived in Sydney from Taiwan. His visa was cancelled and he was deported. The applicant was informed of this.
On 2 March 2016, Mr Huang obtained a new passport using a new first name. On 7 March 2016, Mr Huang obtained a new visa for Australia. The applicant then arranged to travel to Taiwan on 12 March 2016, returning on 26 March 2016.
When the applicant returned to Brisbane on that day, Mr Huang and Mr Lu flew to Brisbane on the same flight. They stayed in Brisbane with the applicant. Mr Lu obtained a Queensland driver licence and bought a car with the applicant's assistance. Mr Huang then arranged a flat for him and Mr Lu in Sydney. Her Honour referred to a note in the applicant's mobile phone showing that he was keeping track of expenses for the enterprise, including paying for the airline tickets, phone SIM cards, the car, rental of the flat in Sydney, the rental of a storage unit and tools to access the drugs. The expenses were deducted from a starting point of $33,000. On 29 March 2016, $20,000 was deposited in the applicant's account.
On 8 April 2016, a consignment left Taiwan for Sydney. The consignee was a company, Itwan, which was incorporated on 30 March 2016 after the applicant had phone conversations with accountants in Brisbane. The consignee's phone number on the consignment was in a phone in the applicant's home at the time of his arrest. It was subscribed in a name and address which were not his.
On 22 April 2016, the applicant travelled to Sydney for the day. On that day, freight forwarders were advised that the delivery address for the consignment was Storage King at Eastgardens and a deposit was paid for the Storage King unit.
On 1 May 2016, Mr Huang and Mr Lu drove from Brisbane to Sydney and checked into the rented flat at Hurstville. On 3 May 2016, they attended Storage King at Eastgardens and leased a storage unit. While they were attending to this, Mr Lu was in phone contact with the applicant. On 4 May 2016, the consignment arrived in Sydney. It consisted of two crates containing fibre cement boards and one crate containing two heavy metal rollers.
Methamphetamine was detected within the rollers and they were deconstructed by the Australian Federal Police who found concealed within them bags of methamphetamine. The bags of methamphetamine had a gross weight of 41 kilograms of which the pure methamphetamine was just over 33 kilograms with a purity of 79% and 80% in various bags sampled. The police substituted the drug with other material, reconstituted the rollers and sent them out for delivery.
On 5 and 6 May 2016, the applicant was in Sydney. On 11 May 2016, the consignment was delivered to Storage King at Eastgardens and the delivery driver called the applicant on the phone number provided on the consignment. The applicant and Mr Lu were in phone contact thereafter. Mr Huang and Mr Lu went to Storage King. The rollers were unloaded. Mr Huang and Mr Lu spent the best part of the day using tools to access one of the rollers. They were in constant phone communication with the applicant throughout the day, including discussing the return of the opened rollers and the fibre cement boards. The applicant was searching on his computer to find a Bunnings store nearby for Mr Huang and Mr Lu to obtain more tools to open the rollers, which had three metal discs on each end.
The applicant made internet searches for rubbish removal firms in Sydney and his friend, Jessica So, rang two businesses in Sydney to arrange for the remains of the consignment to be removed and dumped by 13 May 2016, as Mr Huang and Mr Lu were booked to fly from Brisbane to Taiwan the following day.
Mr Huang and Mr Lu removed the bags containing the substituted material from one of the rollers and took them to their flat in Hurstville. Mr Huang and Mr Lu were arrested in Sydney and the applicant was arrested in Brisbane.
Her Honour found that the weight of the drug, 33 kilograms, was a relevant factor. The commercial quantity prescribed for methamphetamine is 0.75 kilograms. She found that the quantity of drugs attempted to be possessed by the applicant and his co-offenders was a significant quantity.
Her Honour noted that there was a dispute between the Crown and the applicant as to whether the applicant had a more senior role than Mr Huang and Mr Lu, directing their activities and managing the budget for the enterprise.
In that context, her Honour found that by their verdict the jury rejected the applicant's account that he only helped Mr Huang and Mr Lu to buy a car, rent a flat and a storage unit because he was helping them to overcome their lack of the English language. Her Honour did not accept that as a plausible explanation of the applicant's actions. Her Honour was satisfied beyond reasonable doubt that the applicant had a more senior role than Mr Huang and Mr Lu, that he was in contact with Taiwan about the consignment, that he stayed in Brisbane whilst Mr Huang and Mr Lu went to Sydney to deal with the consignment and recover the drugs and that he directed them from Brisbane, keeping himself removed from the risk of exposure and arrest. Her Honour was satisfied that the applicant was in charge of the money, received money and withdrew money when the car was bought and before Mr Huang and Mr Lu went to Sydney.
Her Honour found that the enterprise involved a degree of planning including bringing Mr Huang and Mr Lu to Australia, moving them to Sydney, renting the flat and the storage unit, and incorporating a company to be the consignee and using another mobile phone number rather than the applicant's number for contact about the consignment. Her Honour concluded that on all the evidence the applicant was in a senior position in Australia with respect to obtaining possession of the drugs.
Her Honour was satisfied from the applicant's involvement in arrangements for receiving the consignment, his being told by the delivery driver of the weight of the consignment, his receiving photographs of the consignment from Mr Huang and Mr Lu and his contact with Mr Huang and Mr Lu during the lengthy time and effort it took them to access the substituted material from the rollers that he knew there was a significant quantity of drugs in the consignment, although there was no evidence pointing to him having knowledge of the precise quantity. Her Honour was satisfied that the applicant's motivation for committing the offence was financial reward, although there was no precise evidence about the quantum of his reward. The wholesale value of 41 kilograms of impure methamphetamine was estimated at over $8 million and the street value at over $24 million. Her Honour considered the offence to be a serious offence of its kind.
Her Honour noted that the applicant was 39 years of age at the time of sentence and 37 at the time of his offence. He was born in Taiwan and came to Australia as an adult to work. He ran food businesses in Queensland, although at the time of the offence he was working as a part-time Uber driver and tour guide and was experiencing some financial stress. Her Honour noted that the applicant was an Australian citizen and his wife, child, mother and brother were in Taiwan. She noted the evidence established that his wife was depressed by his absence and incarceration. She noted that the applicant was stressed from his imprisonment and its effect on his family. Her Honour did not treat his family's situation as exceptional circumstances but took them into account as part of his personal circumstances.
Her Honour noted that the applicant had no prior record and had not come under adverse notice in custody. He was assessed at a low risk of reoffending. Her Honour considered that when he is returned to his family and because of his prior good character until the age of 37, he had reasonable prospects of rehabilitation.
Her Honour also noted that the applicant agreed to the Crown producing evidence in summary form, which he could have required the Crown to prove more formally, making the trial longer and that he should be given credit for that. She said that she would take that into account in sentencing but did not think it necessary or appropriate to quantify a percentage discount.
Her Honour noted that Mr Huang and Mr Lu had pleaded guilty to a charge of attempting to possess a commercial quantity of methamphetamine and with a 25% discount for their pleas of guilty, each was sentenced to 10 years imprisonment with a non-parole period of 6 years. They were sentenced on the basis that their roles were subordinate to the applicant's in the enterprise to obtain possession of the drug. Her Honour assessed the applicant's role as more responsible than theirs and therefore his offending was more serious. Accordingly, she stated that the applicant's sentence had to be greater than theirs for that reason and also because their sentences were discounted for their pleas of guilty to a greater degree than the applicant's would be for some co-operation in the conduct of his trial.
In the circumstances, her Honour imposed the sentence to which I have already referred.

Ground 1 - Error in assessment of the comparative objective seriousness of the applicant's offending and that of the two co-offenders

The submissions

The applicant accepted that to succeed he must establish that the conclusion reached by her Honour was not reasonably open on the evidence. This was consistent with what was said to be the correct approach in R v O'Donoghue (1988) 34 A Crim R 397 at 401 and cases which followed it including AB v R [2014] NSWCCA 339 at [52]-[59]; Turnbull v Chief Executive of the Office Environment and Heritage [2015] NSWCCA 278; Biddle v R [2017] NSWCCA 128 at [73].
In Clarke v R [2015] NSWCCA 232 ('Clarke') and Hordern v R [2019] NSWCCA 138 ('Hordern') Basten JA with whom Hamill J in each case agreed, stated that the approach in the cases referred to above was incorrect and that the Court of Criminal Appeal was not so constrained in an appeal on factual matters: see Clarke at [32]-[36]; Hordern at [6]-[20]. The conclusion in the latter case was reached without any argument on the question. It is, to say the least, unfortunate that there are now two conflicting lines of authority on this issue.
Counsel for the applicant, when asked if he wished to present any argument on the issue, declined to do so. As will be seen, I am of the opinion that in the present case, it was not only open for the sentencing judge to reach the conclusion she did but that she was correct in doing so. In these circumstances, it is unnecessary to deal with the matter further.
Counsel for the applicant referred to the fact that the sentencing judge had the remarks made by Judge Hoy in sentencing the co-offenders before her in which his Honour noted that it was the Crown case that Mr Yin was "higher up in the hierarchy" and referred to Mr Yin giving directions and instructions. He submitted that the sentencing judge might have been influenced by what was said by Judge Hoy, although he acknowledged that there was nothing to suggest that she simply adopted his reasoning.
There is no basis for this submission. Her Honour correctly concluded that if she was to make the finding complained of, it was necessary for her based on the evidence at the trial to be satisfied beyond reasonable doubt that the applicant had a more senior role in the hierarchy. There is nothing to suggest that she placed any reliance on the basis on which the co-offenders were sentenced as distinct from the evidence which emerged at the applicant's trial.
Counsel for the applicant referred to the finding by the sentencing judge that the applicant was in contact with Taiwan about the consignment (at [18] above), submitting that the communications took place at a time when the offenders were trying to work out what to do with the remains of the consignment after the substituted material had been removed. He submitted that the communication was with an unknown person overseas known as "Little Yang" and the extent of it was that he only called "Little Yang" to ask "the boss" what to do with the remains of the consignment.
Counsel for the applicant referred to the finding by the sentencing judge that his client remained in Brisbane to remove himself from the risk of exposure. He stated that there were other reasons why someone might be removed from the location of the drugs, other than being "higher up in the hierarchy". In the written submissions, it was contended that removing himself from the scene was "consistent with an equal or lesser role than that of his co-offenders". It was also submitted that there were other circumstances which showed that he was not seeking to distance himself from his other offenders, including the fact that he flew to Sydney from Taiwan with the co-offenders, the co-offenders stayed with him in Brisbane, his computer was used to arrange accommodation and his bank used was used to receive the $20,000.
In the applicant's submissions, it was accepted that funds were remitted to the applicant for the purpose of the venture but that did not demonstrate that the applicant had a greater role in the organisation of the offence. It was submitted, both orally and in writing, that the fact that the financial records showed that the applicant was "skimming off the top" of the remitted funds was inconsistent with what would be expected from a senior person in the hierarchy who would derive significant benefit from the offence.
Counsel for the applicant submitted that the sentencing judge made what he described as a "two-step error". Counsel for the applicant submitted that the applicant's "English speaking skills put him in a position of having to undertake many of these tasks for other members of the group, and because he had undertaken those tasks by necessity because of his English speaking skills her Honour has overvalued that to make him a more senior member of the enterprise". He accepted however, that the sentencing judge did not say this.
In his written submissions, the applicant contended that the fact that the applicant purchased the co-offenders' airline tickets and arranged for the incorporation of the consignee did not lend support to the proposition that the applicant was the more senior member of the group. It was submitted that the purchase of airline tickets to Australia required "little planning" and all that was involved in setting up the company was making two calls to the applicant's accountant.
The applicant also submitted that the fact that he was in financial difficulty and faced bankruptcy, while consistent with motive, was inconsistent with a high level offender. The applicant further submitted that there was no evidence that the digital kitchen scales and five boxes of clip seal bags found at the co-offenders' premises had any connection with the applicant and was consistent with the co-offenders intending to repack and weigh the substance.
The Crown submitted that the syphoning-off of funds did not militate against the fact that the applicant occupied a more senior role than that of his co-offenders. He submitted that the fact the applicant was in charge of managing the expenses and ensuring that the money was properly spent on the project, was evidence that he held a more serious and responsible role. He submitted that people at all levels of an organisation are capable of defrauding their employer.
At the hearing, the Crown pointed to the findings by the sentencing judge, to which I have referred at [18]-[19] above, and the fact that the applicant purchased the airline tickets, as supportive of the conclusion that he occupied a more senior role.
The Crown also submitted that although the co-offender Mr Lu signed the lease of the storage facility, it was paid out of the budget (see [8] above). He submitted that apart from Mr Lu executing the lease, the role of Mr Lu and Mr Wang was confined to manual physical labour and there was no evidence of them exercising a managerial role.
The Crown also referred to the fact that the applicant, unlike his co-offenders, was the person who was in contact with "Little Yang" in Taiwan, including in relation to decisions about shipping the remnants of the consignment back to Taiwan.
In these circumstances, the Crown contended that Ground 1 had not been made out.

Consideration

The sentencing judge, in my opinion, was correct in concluding beyond reasonable doubt that the applicant played a more significant role in the importation than his co-offenders and his offence was thus more serious. Although as was pointed out in R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [13] the identification of the precise nature of the accused's involvement in an act of importation of prohibited imports is not an essential aspect of the sentencing process, the criminality of each offender must be assessed by consideration of his or her involvement in the steps taken to effect the importation: R v Nguyen; R v Pham [2010] NSWCCA 238 at [72]; R v Lee [2007] NSWCCA 234 at [27].
In the present case, the applicant, rather than his co-offenders had control of the funds used to finance the Australian side of the operation. The fact that he may have dishonestly "skimmed" these funds for his own purpose does not alter the position. Further, the applicant purchased airline tickets to enable the co-offenders to come to Australia and importantly, in my view, arranged for the incorporation of the consignee company with a phone number on consignment being a phone in his possession.
Further, the sentencing judge found that during the period the consignment was unloaded, the applicant directed his co-offenders from Brisbane and discussed with people involved in the offence in Taiwan what to do with the balance of the consignment after the drugs had been removed.
By contrast it seems to me that the Crown was correct in submitting that apart from Mr Lu signing the lease of the storage unit which was paid for out of the funds in possession of the applicant, the role of the co-offenders was basically confined to the manual task of unloading the drugs and perhaps repackaging them. Her Honour's finding that Mr Huang and Mr Lu were to return to Taiwan on 14 May 2016, three days after the drugs had been unloaded, reinforced the proposition that they had a limited role in the operation.
For these reasons, it seems to me that the applicant played a more significant role in the offence than his co-offenders. Her Honour was correct to reach this conclusion beyond reasonable doubt. This ground of appeal has not been made out.

Ground 2 - Parity

The applicant suggested that what he described as the unquantified discount for the assistance given at the trial (see [23] above) could be quantified at 5%, meaning that the indicative head sentence was a term of 16 years and 10 months. Apart from submitting the subjective circumstances of the applicant and his co-offenders were substantially the same, he made no further submissions on this ground.
The Crown stated that it did not cavil with the estimated discount on the sentence because even having regard to the additional amount, the difference in the starting point of the sentences imposed on the applicant and that imposed on his co-offenders was only 3 years and 6 months, which did not objectively give rise to a justifiable sense of grievance. The Crown referred to the analysis undertaken by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 when his Honour grouped sentences imposed for drug offences of varying degrees of seriousness, pointing out that on that analysis playing different roles in the offence can warrant a substantial disproportion between the sentences imposed on co-offenders. In his written submissions, the Crown pointed to cases which illustrated that approach: R v Yuan [2015] NSWCCA 198; Chan, Lo and Nguyen v R [2010] NSWCCA 153.

Consideration

The principles surrounding this ground are well established. The parity principle requires that like offenders be treated in a like manner whilst allowing for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different subjective circumstances. The Court will interfere if it considers disparity in sentencing of co-offenders is such as to give rise to a justified sense of grievance assessed by objective criteria: Green v The Queen; Quin v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]-[31] ('Green and Quin'); Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26; Lowe v The Queen (1984) 154 CLR 606 at 609-610; [1984] HCA 46.
As I have indicated, the Crown accepted the applicant's assessment of the discount that was given to the two co-offenders for co-operation in the conduct of the trial. For my part, when a discount of such a nature is not quantified, it is not necessarily helpful to speculate on the percentage discount (if any) that the judge had in mind. Nevertheless, I am prepared to proceed on the basis agreed by the parties.
As was pointed out in Green and Quin at [32], the Court "will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders": see also Klomfar v R [2019] NSWCCA 61 at [28].
In dealing with Ground 1, I have pointed to the different roles played by the offenders in the importation. The difference in the roles where it was accepted that the subjective circumstances were similar justifies a sterner sentence being imposed on the applicant than that imposed on his co-offenders. The difference in the sentence imposed in the circumstances of the present case was not such as to give rise to a justifiable sense of grievance in the sense described in the authorities. In these circumstances, this ground of appeal has not been made out.

Conclusion

In the result I would make the following order: 1. Refuse leave to appeal.
HARRISON J: I agree with Bathurst CJ.
N ADAMS J: I agree with Bathurst CJ.

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: 17 September 2019

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