Zhang v R

Court of Criminal Appeal (NSW)|2011-08-17|Before: Latham J, Whealy JA, Harrison J

Judgment 1WHEALY JA : I agree with Latham J. 2LATHAM J : The applicant seeks leave to appeal against a sentence imposed by his Honour Judge King SC in the District Court on 30 July 2010 in respect of an offence of import commercial quantity of a border controlled drug, namely heroin and methylamphetamine, pursuant to s 307.1 of the Criminal Code Act 1995. The offence carries a maximum penalty of life imprisonment. 3The applicant pleaded guilty to the offence at the Local Court. Following the application of a combined discount "in the order of 30%" for the plea of guilty and the provision of some assistance to the authorities, the applicant received a sentence of 14 years imprisonment, including a non-parole period of 9 years. 4The facts upon which the judge sentenced the applicant were agreed between the parties. It is helpful to set them out in full, given the applicant's submissions in relation to the role that he played in the importation. They appear from the remarks in the following terms: In late December 2008, information was received by the JACG in relation to the impending importation of a commercial quantity of crystal methyl amphetamine ("ice") into Australia. The JACG is the Joint Asian Crime Group, being a multi-agency task force of both Federal and New South Wales police and Crime Commissions. As a result of that information, police commenced covert monitoring of the activities of the offender ....., also known as Daniel, including the interception of a mobile telephone service subscribe to in the false name and details of Kuola Liu. The date of connection of the service was 24 June 2008. Enquiries into the details provided, together with the name for the service, indicated that all the details were false and that no such person existed. Monitoring of the service identified a number of calls between that service and a mobile service from the People's Republic of China. On 11 February 2009, a conversation was monitored between the offender and an unknown male on the PRC service. The offender and the unknown male discussed the price of an unspecified item. The offender stated "220 for one pair, 220 for 700". "220" is a reference to Australian dollars, $220,000 being the average price of the standard unit of the prohibited drug heroin. The reference to 700 refers to 700 g of the prohibited drug heroin, which is the standard unit of compressed heroin. During the conversation, the offender asked "if the goods can be cut, can be mixed?" He stated that he wanted it to be "80% pure". On 16 February 2009, a further conversation was monitored on the mobile service used by the offender between him and the unknown male on the People's Republic of China mobile service. The offender asked which address he gave him. The unknown male told the offender that "it has already been posted out". The offender stated that he knew that he had to give the address to another person and was not sure of it and said "is it 1078?" The unknown male said "They are all gone this morning, the stuff has left Hong Kong". On 17 February 2009 a further conversation was monitored between the offender and the unknown male. The unknown male referred to "1078" and told the accused that "three sets of his old clothing has gone, weight is 5.7 or 5.8. There is tape which is marked." There was further discussion concerning the price and the accused's share, which is agreed between the parties as having been $30,000-$40,000 of an expected A$120,000. Enquiries conducted by police established that the reference to "1078" was a reference to a post office box at Ultimo Post Office. On 19 February 2009, a further conversation was monitored between the offender and the male. The male informed the offender that "according to parcel tracing, the parcel arrived today". The offender said that "he would do it tomorrow, the shop has already closed." The call took place at 5:23 p.m. The reference to the shop is a reference to the post office. At about 11:45 a.m. on Friday 20 February 2009, the offender was observed walking in the Broadway shopping centre, Ultimo, and was seen to walk to the vicinity of the post office boxes. He entered the post office and was handed a cardboard box by an Australia Post employee. On leaving the post office the offender was stopped and spoken to by police. He was arrested and conveyed to the Australian Federal Police offices. 5The examination of the cardboard box disclosed three blocks of compressed white powder (heroin) wrapped in black electrical tape. The gross weight of the blocks was 2.57 kg. The weight of the pure heroin was 1527.6 g. The applicant declined the services of a legal representative and made full and frank admissions to the Australian Federal Police. 6The applicant volunteered to police a further importation to the same post office box within the next few days of a quantity of crystal methyl amphetamine concealed in a box of clothing. On 24 February 2009, police went to the Post Office and took possession of a parcel addressed to the same person at the same post office box as the parcel containing the heroin. Police located two heat sealed clip-lock plastic bags wrapped in aluminium foil containing a gross weight of 143 g of methyl amphetamine. The total weight of the drug was 108.6 g. This importation is the subject of part of the applicant's assistance to authorities.

Ground 1 : Failure to Take into Account Demonstrated Contrition. 7Section 16A(2)(f) of the Crimes Act (Cth) 1914 requires the court to take into account the degree to which an offender has shown contrition for the offence by taking action to make reparation for any injury, loss or damage resulting from the offence or in any other manner in so far as it is relevant and known to the court. The basis of this ground is an alleged failure by the judge to "pay any regard" to the evidence of the applicant's contrition. 8The source of the evidence relied upon by the applicant on this ground consists of the applicant's testimony, his assistance to the authorities and a letter written by the applicant that was tendered to the court (Ex 4). The applicant's evidence in chief in the course of the sentencing proceedings revisited the contents of Exhibit 4. The extent to which the applicant's assertions of contrition were supported by his co-operation with police, his disclosure of the details of his offending and the involvement of others (that is, in a manner other than by making reparation) was a matter for assessment by the judge, after taking into account other relevant evidence bearing on this issue. 9Essentially, the applicant maintained that his decision to engage in the importation was driven by an inability to obtain funds for the purchase of a business, following the loss of his employment. The applicant said that he was depressed following the discovery that his girlfriend was pregnant and the realisation that he could not afford to support a child. His girlfriend terminated the pregnancy and the applicant commenced using illicit drugs out of a sense of hopelessness and despair. 10The applicant said that he had expressed his remorse by telling the police the truth and co-operating in the interview. In the course of the interview, the applicant said that he called a close friend in China in order to suggest a "joint venture" whereby the applicant would take delivery of the drugs, pass them to a purchaser and remit a portion of the money back to his "sponsors". The applicant said that he had discussed the packaging, cutting and pricing of the drug with this person. The applicant was to receive $120,000 in cash, which would be split with two other people in Hong Kong. The applicant arranged for the post office box at Ultimo to be opened in a false name and used a falsely subscribed mobile phone service, which he acquired through an associate. 11The contents of the intercepted telephone conversations confirmed what the applicant told police, namely that he insisted on some taping or marking of the box containing the drugs so that he could determine whether the box had been tampered with. The applicant appeared concerned that the importation was a setup and he was reluctant to meet with anyone in Sydney. The applicant was recorded telling the other person, in relation to the pricing of the drug by the supplier, "we don't need to work with him after this is done, .... we shall have money to do it ourselves." There was a further conversation in which the applicant was told that there was a big shipment of drugs coming into Australia in about April or May. The applicant asked the other person if he could "help get me a few to play with". The applicant acknowledged in cross-examination that he was indicating an interest in distributing the drug, once it was imported. 12The applicant submitted that his letter "clearly expressed contrition and remorse for his commission of the offences" and that this evidence was not challenged by the Crown in cross-examination. A reading of the letter does not support an unqualified expression of remorse and contrition, rather the applicant is at pains to express to the judge "the motivations behind the crime that I committed". The letter recounts the applicant's personal history since leaving prison on the last occasion and his efforts towards obtaining employment, refraining from the use of illicit drugs and the financial pressures that led him to make the "desperate" decision to engage in the importation of drugs. 13Relevantly, the letter states:- Then my friend from overseas contacted me saying that if I pick up some drugs for him, he would give me the money. I just agreed without thinking because I was so desperate to find a way out that I didn't consider any consequences. .......... All I wanted was my family to be healthy and happy. I did not want to commit a crime. I did not want to harm others and I did not want to go back to jail. After I was arrested I did so much damage to [my family] physically, emotionally and financially. ......... I feel guilty and ashamed and I feel that I cannot lift my head up in front of them. I am a terrible son and now I am paying heavily for the consequences of my stupidity, and I cannot live with myself. .............................................................................. At the police station, I made full admissions of the crime that I committed and told them who sent the drugs to Australia and I was willing to testify against that person. I was very cooperative and I was really remorseful and still genuinely am. I went to the Australian Federal police headquarters on three separate occasions to give more information for their future investigations and told them I wanted to help the police further in the future after my release date. I honestly am so remorseful and will do anything to help their investigations and I know for a fact that I will NEVER make the stupid MISTAKE EVER again. It is just not worth it, for the sake of my family and for the sake of all the people I am harming. 14It is immediately apparent that the applicant's account of the offence in the letter stands at odds with his account to the police immediately following his arrest. The judge was entitled to take the view (as he did) that the applicant was attempting to retreat from his acknowledgement to the police of his responsibility for initiating and organising the importation. The fact that the Crown did not cross examine the applicant on the contents of the letter did not preclude the judge from forming his own view of its reliability. The extent of the applicant's assistance to the authorities is dealt with more fully in relation to ground 3. 15The avowal by the applicant in Exhibit 4 of his remorse for what he describes as a "stupid mistake" must be considered in the light of the applicant's conviction in August 2002 for knowingly importing a commercial quantity of heroin (3.3kgs pure), committed on 24 December 2001 when the applicant was 18 years of age. The applicant was apprehended at Sydney airport carrying two suitcases, each of which concealed approximately 2 .5 kg of heroin. The applicant was sentenced to a non-parole period of 4 years and 9 months to date from 24 December 2001, expiring 23 September 2006, with a balance of term of 3 years and 9 months, expiring 23 June 2010. 16The remarks of his Honour Judge Woods QC DCJ (Exhibit 5) indicate that an otherwise appropriate head sentence of 12 years was mitigated by the applicant's youth, his plea of guilty and the fact that the judge accepted that the applicant had been coerced into the importation by threats from persons to whom he owed money for drugs and gambling. However, the applicant declined to name his co-offenders. Relevantly, Judge Woods observed that the applicant was genuinely contrite and that he had "become conscious of the large number of people who are [in gaol] for drug-related matters. This [had] apparently opened his eyes." Further, the judge was in "no doubt that he personally will be deterred." 17The commission of the instant offence within 18 months of the applicant's release to parole was in breach of an express condition that the applicant not unlawfully use, possess or sell any substance that is a drug or narcotic preparation and that the applicant not associate with anyone who unlawfully possesses, uses or sells a drug or narcotic preparation. 18In these circumstances, the weight to be attached to the most recent expressions of contrition must be slight. The applicant's contrition, such as it is, appears to spring from his arrest and incarceration for the second time. It should also be remembered that the applicant's expressions of contrition are tempered by the strength of the Crown case against him on the importation of the heroin: R v Thomson [2000] NSWCCA 309 ; 49 NSWLR 383 ; R v Sutton [2004] NSWCCA 225. 19It was in the above context that the judge found that "the court is unable to find that the offender has been frank with the court as to how he became engaged in the imports or his motivation. This most significantly affects consideration of remorse and the prospect of rehabilitation." Elsewhere in the remarks on sentence, the judge referred to the applicant's early plea of guilty, his cooperation with the police immediately following his arrest and his offer of assistance to the authorities, which the judge assessed as of low or limited value. 20I am not persuaded that any error has been demonstrated. It is clear that the judge did have regard to the applicant's evidence, his cooperation and assistance on the question of his contrition. There is no merit in this ground.

Ground 2 : Failure to Give Appropriate Consideration to the Voluntary Disclosure of a Further Importation.

Ground 3 : Failure to Adequately Reflect the Plea of Guilty and Assistance to Authorities. 21These two grounds may be conveniently dealt with together. 22The applicant's complaint on ground 2 is that the judge "made bare reference in his remarks on sentence to the fact that the applicant had disclosed his guilt of the offence of importing the methylamphetamine" and he made no reference to the evidence of a Federal police officer on this aspect of the applicant's co-operation or to the principles in R v Ellis (1986) 6 NSWLR 603. Further complaint is made that the judge did not expressly acknowledge or assess the significance of this factor on the applicant's sentence. It is further submitted that the judge made a finding which was not open to him, namely that it was likely that the importation of the methyl amphetamine would have been discovered, without the applicant's voluntary disclosure. It is said that this failure to give appropriate or adequate weight to these factors is borne out by the term of the sentence that was imposed. 23In the course of his remarks, his Honour said :- In this matter, the offender was arrested in possession of a commercial quantity of heroin on collection from a post office box registered in a false name. He rapidly formed the opinion that his relevant communications had been intercepted. Indeed, the material before the court indicates that he believed he was under surveillance before attending to collect the heroin. ...... [Of] significance in that regard is that the offender made full and frank admissions at the outset, and disclosed his expectation of the subsequent arrival of the methyl amphetamine, albeit in circumstances that he would have anticipated the authorities were either already aware of it or would in due course discover it when it arrived for collection at the same post office box as the heroin. The offender disclosed the expected arrival of the methyl amphetamine. 24The Federal police officer gave evidence that the applicant disclosed on the day of his arrest, after the record of interview, a pending importation of methyl amphetamine of which the police were unaware, to the same post office box at the Ultimo Post Office. The police were maintaining communication with the staff at the post office, so that if another parcel had arrived, "there is a chance that we would have picked it up." Thus, the applicant's complaint that the judge made a finding that was not open on the evidence must be rejected. 25The fact that no specific reference was made to the evidence of the police officer, or to the principles discussed in Ellis , does not constitute error. The sentencing considerations were those set out in s 16A, including, relevantly, (2)(h), the degree to which the applicant co-operated with law enforcement agencies in the investigation of the offence, and the plea of guilty as an expression of the applicant's willingness to facilitate the course of justice. The judge acknowledged the applicant's co-operation and his plea of guilty, the value of which was in some measure reduced by the realisation that he had been caught red-handed. In that regard, the judge referred to Tyler v R ; R v Chalmers [2007] NSWCCA 247 and Danial v R [2008] NSWCCA 15. 26In the circumstances of this case, there was considerable overlap between the applicant's co-operation with police in the investigation of the offence, his disclosure of the importation of the methylamphetamine and his plea of guilty. That is not to say that the applicant was not entitled to have all three factors taken into account, but the instinctive synthesis of these factors, among others, was a matter within the exercise of a broad sentencing discretion. 27In Ellis , the then Chief Justice said (at 604) :- The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned . (italics not in original) 28This passage was the subject of further comment by McHugh J in Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267, when addressing an argument advanced by the appellant not unlike the argument advanced in this application (at [15] ; 272-273) :- The appellant's argument based on the trial judge's failure to indicate that he was giving the appellant "a significant added element of leniency" reflects a misunderstanding of the use that can properly be made of statements by judges in other cases. Judgments are not to be read as if they were Acts of Parliament. In Broome v Cassell & Co Ltd , Lord Reid pointed out that it is not the function of judges "to frame definitions or to lay down hard and fast rules". Their function is "to enunciate principles and much that they say is intended to be illustrative or explanatory and not to be definitive". The statement in Ellis that "the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency" is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case. 29Assuming that the judge had specifically referred to Ellis , I am not persuaded that any significant additional leniency to that already extended to the applicant by reason of his co-operation and plea of guilty was justified. There was a real likelihood that police would have been alerted to the arrival of another package at the post office box and there is no reason to think that the applicant's guilt of that importation would not have been circumstantially proved, without any admission on his part. 30The applicant claims that the combined discount of 30% for the applicant's plea of guilty and his assistance was inadequate in all the circumstances. The applicant supports that claim by noting the 25% discount for the plea of guilty, which was referred to in the course of the sentencing proceedings, and not contradicted by the Crown. The applicant goes on to say that "a total combined discount of 35% would have been more appropriate." That was the submission made below. The Crown's submission below was that a combined discount of 30% properly reflected these two factors. It is apparent that the judge accepted the Crown's submission. 31Leaving to one side the disclosure of the importation of methyl amphetamine, the applicant gave the police information concerning an additional importation by a different syndicate, but was unable to identify the syndicate members. Consequently, police were unable to identify the importation or the syndicate itself. In March 2009, the applicant provided further information concerning domestic and international based syndicates. This information assisted police in identifying another person of interest. However, police were unable to identify any criminal activity conducted by that person. At about the same time, the applicant provided information which allowed the police to identify an overseas male whom the applicant alleged was involved in the importation of heroin. The police have not been able to confirm that the identified person was so involved. 32In August and December 2009, the applicant provided information to police regarding members of Sydney-based drug syndicates. Some of the information was consistent with information already known to the police. The information confirmed a police suspicion that a particular person was no longer able to participate in the drug trade, although police had already removed their surveillance of this person. In December 2009, the applicant gave police copies of documents he had been translating on behalf of another inmate, although nothing of substance was known about the inmate. Further information that the applicant gave concerning alleged corruption of public officials was investigated and was unable to be substantiated. 33The combination of the information provided by the applicant was accordingly assessed as low in value. It has long been recognized that, notwithstanding the importance of encouraging offenders to assist the authorities by providing an appropriate reward regardless of the offenders' motive, the effectiveness of the assistance and its value remain integral to the allocation of a discount : R v Barrientos [1999] NSWCCA 1. 34His Honour was correct to classify the assistance as "intelligence" of a hearsay nature. The applicant has not demonstrated that the combined discount fell outside the appropriate range, particularly when the high point of the applicant's submissions on this ground urges no more than a further 5% as "more appropriate". 35Grounds 2 and 3 fail.

Ground 4 : Manifest Excess 36The applicant contends that the sentence imposed is "plainly unjust or unreasonable", particularly having regard to the applicant's role in the commission of the offence. The applicant submits that the judge erred in his assessment of the role played by the applicant in the commission of the offence and that the correct characterisation of the applicant's role was "between that of a courier and a principal". 37The judge's remarks contained the following :- The material before the court, particularly the intercepted telephone calls and the record of interview, allows the court to find beyond reasonable doubt that the offender :

initiated the importation of both the heroin and the methamphetamine with his overseas contact.
directed his overseas contact as to relevant considerations such as price, quantity, quality, expected proceeds, security arrangements to indicate if the importation had been detected on entry, arrangements for delivery in Australia after importation, and distribution of proceeds to be shared for conducting the importation.
established directly or indirectly a post office box in the false details of John Chow approximately 2 months before the importation.
personally collected the first of the two imported substances.
conducted all conversations with his overseas contact on the mobile service obtained or subscribed to in the false details referred to. In short, the offender was entirely responsible for determining, instituting and controlling the whole of the importation system. The offender's role in the importation was, in the circumstances, as the principal. He held himself out as being the "can-do" person to carry out the importation. While he had not purchased the border controlled drugs overseas, he undertook to import them for a substantial share, 20% of the wholesale price in Australia. The calls evidenced that he was encouraging his overseas contact to pursue future importations so that they would be able to operate entirely on their own behalf in the future by reinvesting the proceeds obtained by conducting importations. The subsequent importation of the methyl amphetamine demonstrates that the offender intended to undertake a continuing course of action, and that this was not intended to be a "one-off". 38By way of taking issue with these findings, the applicant points to the fact that he did not know the identity of the person who would take delivery of the drugs in Australia, and the fact that there were a number of persons involved in the importation, apart from himself, including the supplier of the drugs, the applicant's friend who sourced the drugs, and an associate of that person. The applicant points to the 24 telephone and SMS transcripts over a three-week period in February 2009, only two of which involve conversations between the applicant and persons other than the applicant's friend. 39Ultimately, the applicant submits that he falls within the third and fourth group of the cases collated in DPP v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1 at [212 - 215]. There, McClellan CJ at CL said :- 213 In [the third] group the head sentences range from 8 years to 15 years, and non-parole periods start at 4 years and end at 11 years. A number of the sentences in this group involved pleas of guilty. The range of sentences represents a noticeable "step down" from the sentences in the previous group. A number of factors appear to explain this. First, the pure quantity of drugs imported is generally below 7 kg. (Two obvious exceptions are Chalmers and Np v R : the former was a successful Crown appeal and the latter involved a very favourable subjective case for the offender.) Secondly, the offenders in this third group occupy mid-range roles between that of principal and courier. (The exception is Speer , which may have been placed within the fourth group had the offender's plea been entered at an early stage.) Finally, in this group, there are instances of assistance, sometimes significant, provided to the authorities (e.g. Vasquez-Felipe; Np; Speer; W ). These efforts attract discounts of up to 30%. 214 The cases which I have included in the fourth group are Soewandi v R [2002] WASCA 315; R v B [2004] WASCA 1; R v Labanon [2006] QCA 529; Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458; R v Lake [2007] QCA 209; (2007) 174 A Crim R 491; R v Geerlings [2007] QCA 209; (2007) 174 A Crim R 491 and Davidson v R [2009] NSWCCA 150. 215 In this group the head sentences range from 6.25 years through to 8 years, while the non-parole periods range from around 3 to 4.5 years. The cases are roughly split between those in which the offenders pleaded guilty and those in which they pleaded not guilty. Quantities of drugs range from 1 kg to 30 kg and offenders occupy roles variously described as instigators, overseers, collectors and couriers. Many offenders in this group had good antecedents and no prior convictions. 40More particularly, it is said that the applicant is akin to the offender in R v Holland [2011] NSWCCA 65; 205 A Crim R 429 Notwithstanding the fact that Holland undertook two trips to Australia, leased the subject premises, registered a business associated with the importation, liaised with customs and advised the supplier of the arrival of the drug, he was not found to be a principal. 41Before passing to consider these submissions regarding Holland , it is worthwhile noting that the Chief Judge said in that case at [3] :- Much of the argument in the appeal focused upon the "Categories of offence" which I developed in the course of my reasons in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28 . Some of my remarks may have been misunderstood. When preparing my reasons in De La Rosa it became increasingly apparent that there were many significant decisions with respect to the sentence for individual offenders which had never been gathered together and analysed. The number is such that to merely list them without further classification was likely to be of modest assistance to practitioners and judges required to sentence future offenders. As I said in my reasons in De La Rosa , so as to assist others to readily access the information I grouped the decisions by reference to common characteristics, so far as they could be identified. However it would be wrong to sentence an offender by seeking out the "category" into which they fit and imposing a sentence which is thought to be appropriate for an offence which happens to have the characteristics found in that category. 42The applicant's reliance on Holland is misplaced. The offender in Holland was engaged in the establishment of a seemingly legitimate business which then became the recipient of a piece of machinery, within which a large quantity of cocaine was concealed. The offender did not initiate the importation and was unaware of the precise nature and quantity of the drug. The Crown's characterisation of the role of Holland was that of a middleman, with extensive involvement in assisting the importation of the drug. That is a far cry from the objective features of the applicant's role. 43The specific findings set out at [37] above were well open to his Honour. The applicant does not contend otherwise. The applicant's ignorance of the ultimate purchaser in Australia, the involvement of others in the importation and the restricted nature of his communications are not inconsistent with the role attributed to him by the judge. 44I am not persuaded that a lesser sentence is warranted in law. As I have already noted, this was a serious offence committed whilst on parole for a like offence. Specific and general deterrence demanded a significant term of imprisonment. 45The orders I propose are :- (1)Leave to appeal granted. (2)Appeal dismissed. 46HARRISON J : I agree with Latham J.

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: 18 November 2011

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