B v The The Queen

[2022] NSWCCA 102

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

B v R [2022] NSWCCA 102

Hearing dates:

21 March 2022

Date of orders:

25 May 2022

Decision date:

25 May 2022

Before:

Beech-Jones CJ at CL [1];
Price J at [2];
N Adams J at [108]

Decision:

1.Extend time for leave to appeal against the sentence.

2.Leave to appeal against sentence is allowed.

3.The sentence imposed for the sequence 2 offence in the District Court on 12 June 2020 is quashed.

4.In lieu thereof, the applicant is sentenced to a term of imprisonment with a non-parole period of 3 years and 6 months commencing on 15 June 2018 and expiring on 14 December 2021, with a balance of term of 1 year and 5 months expiring on 14 May 2023.

5.Confirm the sentence of imprisonment imposed in the District Court on 12 June 2020 for sequence 3 except for the commencement date. The non-parole period of 3 years and 2 months is to commence on 15 October 2019 and is to expire on 14 December 2022, with the balance of term of 2 years and 1 month expiring on 14 January 2025.

Catchwords:

CRIMINAL LAW – sentence appeal – whether parity principle applied – whether offenders were co-offenders in a common criminal enterprise – whether there was a marked disparity – justifiable sense of grievance – applicant re-sentenced

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(n), 21A(3)

Cases Cited:

Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483

Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462; 86 ALJR 36; 283 ALR 1; 214 A Crim R 152

Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540; 269 ALR 115; 240 FLR 27

Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; 71 ALJR 875; 145 ALR 408; 94 A Crim R 397

R v Ilbay [2000] NSWCCA 251

R v Kollas and Mitchell [2002] NSWCCA 491

Why v R [2017] NSWCCA 101

Texts Cited:

Nil

Category:

Principal judgment

Parties:

B (Applicant)
Regina (Respondent)

Representation:

Counsel:
D Barrow (Applicant)
C Everson SC (Respondent)

Solicitors:
Jamieson Criminal Law (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2018/186278

Publication restriction:

An order has been made under the Court Suppression and Non-publication Orders Act 2010 that there be no publication of the name of the person referred to in this judgment by the letter B.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

12 June 2020

Before:

Shead SC DCJ

File Number(s):

2018/186278

Judgment

1. BEECH-JONES CJ at CL: I agree with Price J and the orders his Honour proposes.

2. PRICE J: The focus of this appeal against sentence is on the principle of parity. B (‘the applicant’) grounds of appeal are:

“1. The learned sentencing judge erred in holding that principles of parity did not apply to the applicant’s sentence, when considering the sentences imposed upon Sai Kwan Chan and Kai Hang Wong;

2. The applicant has a justifiable sense of grievance, both as to the non-parole period and the total term of sentence imposed for sequence 2, when his sentence is compared with the sentences imposed upon Sai Kwan Chan and Kai Hang Wong.”

3. The applicant pleaded guilty to two counts of supplying a large commercial quantity of the prohibited drug methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is life imprisonment with a standard non-parole period of 15 years’ imprisonment. On 12 June 2020, the sentencing judge convicted the applicant of both offences. For the sequence 2 offence (‘sequence 2’), after applying a discount of 25% for the early guilty plea, together with “the combined 20% discount for assistance”, the applicant was sentenced to a term of imprisonment for 6 years, with a non-parole period of 4 years and 3 months. This sentence was backdated to 15 June 2018, being the date when the applicant was taken into custody. The head sentence for this offence will expire on 14 June 2024 and the non-parole period will expire on 14 September 2022.

4. For the sequence 3 offence (‘sequence 3’), after applying a discount of 25% for the early guilty plea, together with the combined discount of 20% for assistance, the applicant was sentenced to a term of imprisonment of 5 years and 3 months with a non-parole period of 3 years and 2 months. The commencement date for that sentence was 15 June 2020, with the head sentence expiring on 14 September 2025 and the non-parole period expiring on 14 August 2023.

5. Accordingly, the total effective sentence is imprisonment for 7 years and 3 months with a non-parole period of 5 years and 2 months. The earliest date the applicant will be eligible for parole is on 14 August 2023.

Application for extension of time

6. The applicant seeks an extension of time to apply for leave to appeal against sentence. In support of the application for extension of time, the applicant relied upon the affidavit of Benjamin Jamieson, affirmed 31 August 2021.

7. The Crown accepts that it is appropriate to consider the merits of the application for leave to appeal itself, for the purpose of addressing the application for extension of time.

Factual background

8. The facts were agreed for the purposes of sentence. The following summary is largely taken from the sentencing judge’s account of them.

Sequence 2

9. The applicant’s offending regarding sequence 2 related to a purported shipment of 70kgs of methylamphetamine from Mexico via the United States of America (‘USA’) to Australia which was intercepted and seized by the United States Drug Enforcement Administration before March 2018. As a result, the shipment never reached Australia.

10. Despite the seizure, a New South Wales undercover operative (‘UCO’) represented to a person known as ‘Sultab’ that he had received the shipment. Sultab acted as an agent in a larger scale drug syndicate, charged with procuring buyers for the holder of the drug shipment. Sultab operated remotely and resided in Mexico.

11. It was agreed between Sultab and the UCO that Sultab would arrange a purchaser for the methylamphetamine shipment and for contact between the purchaser and the UCO. The UCO was then to liaise with the purchaser or the purchaser’s representative for the delivery of the drugs. In return, the UCO would receive a fee of $200,000. It was further agreed that the intended purchaser would first take possession of a sample of the methylamphetamine in exchange for a deposit towards the balance of the UCO’s fee.

12. In May 2018, Sultab arranged for the UCO to meet with Mr Sai Kwan Chan to exchange a sample of the methylamphetamine, contemplating that a larger exchange would be carried out if the sample was satisfactory. In return for a 2kg sample, Mr Chan gave the UCO $120,000 in cash for the purported methylamphetamine which was in fact an inert substance. Mr Chan was arrested following the exchange.

13. The agreed facts record that on 8 June 2018, Sultab informed “UCO Michael” that he had a prospective buyer named ‘Martin’ for the 70kgs of methylamphetamine, who had just arrived in Australia. There was a debate on appeal as to whether the matter should be approached on the basis that this was the same UCO who took the steps outlined in [10] to [12]. I address that below (at [78]). Sultab informed UCO Michael that the buyer was in Australia for the specific purpose of conducting the transaction.

14. The applicant was the buyer referred to, having adopted the alias ‘Martin’. He had entered Australia in June 2018, and on 9 June 2018 the applicant engaged in conversation with UCO Michael using that alias. They had subsequent conversations and made arrangements to meet at Bondi Junction on 15 June 2018.

15. There were further conversations between UCO Michael and the applicant from which it became apparent that miscommunications had occurred. The applicant understood that he was to collect the whole of the shipment, not a 1kg sample for which he would pay $50,000.

16. UCO Michael sent Sultab a message to alert him that the exchange had not taken place. Sultab said that he would call the applicant, and that the UCO should do the same and arrange to meet with the applicant again.

17. UCO Michael called the applicant to suggest that he bring $50,000 in exchange for the single kilogram of methylamphetamine and that the remaining $150,000 could be organised later. The applicant refused and replied that he would need to “explain to my guy” the proposed course. They later agreed to meet once more and that UCO Michael would provide the applicant with the 1kg sample in exchange for the $50,000.

18. When they met again, the applicant provided UCO Michael with five bundles of Australian currency totalling $50,000, and in exchange the UCO provided the applicant with 1kg of an inert substance that he represented to be methylamphetamine. They then made arrangements for the applicant to provide the outstanding $150,000 for the balance of the methylamphetamine.

19. A short while later, the applicant was arrested and searched. An encrypted mobile phone, two locked mobile phones, and $2,700 cash was found in his possession.

Sequence 3

20. Later that afternoon, police executed a search warrant at the applicant’s Bondi Junction address. The police found 4.324kgs of methylamphetamine in open containers on the balcony area of the apartment. Also located were multiple encrypted mobile phones and a passport identifying the applicant by his real name.

Mr Wong

21. In July 2018, by arrangements made with Sultab, Kai Hang Wong met the UCO to buy 5kgs of methylamphetamine and was immediately arrested after having received a replacement inert substance.

The applicant’s subjective case

22. The applicant did not give evidence during the proceedings on sentence and his background was provided in Alison Cullen’s Forensic Psychologist report. In summary, the applicant is a citizen of the USA who was born on 25 March 1976. His parents divorced when he was 2 years old. His father entered a new relationship which ended when the applicant was aged 14. When he was 16 years old, his father re-married. The applicant described his relationship with his father as “wonderful”.

23. The applicant had a sound employment history and strong work ethic which was demonstrated by his ability to manage and maintain multiple businesses across time, while concurrently being employed.

24. Ms Cullen reported that the applicant had been diagnosed with post-traumatic stress disorder (‘PTSD’), depression, and anxiety at the age of 25 after being assaulted and hospitalised. The PTSD symptomology had re-emerged since his incarceration in 2018. Psychometric testing revealed extremely severe DASS-21 ratings for depression, anxiety, and stress.

25. Ms Cullen opined that the applicant’s vulnerability to physical assaults within the correctional environment was likely to further perpetuate his trauma, stressor symptomology, and sense of isolation (in addition to his geographical and racial isolation).

26. The applicant had no prior criminal history and was 42 years old at the time of the offences.

The parity argument before the sentencing judge

27. The applicant’s complaint of disparity with the sentences imposed on Mr Chan and Mr Wong is confined to the sequence 2 sentence. It was the applicant’s contention that both these offenders were involved in the same criminal enterprise.

28. In written submissions provided to the sentencing judge, the applicant submitted that even though he, Mr Chan, and Mr Wong were not “strictly co-offenders”, they were all involved in the same syndicate and had acted in a similar way. The applicant argued that the sentences imposed on Mr Chan and Mr Wong could be used for parity purposes. Mr Chan’s case, it was submitted, was particularly similar to that of the applicant. The similar features included that they were both foreign nationals who had travelled to Australia to be involved in the offending, and Mr Chan was talking about facilitating potential additional supplies.

29. In oral argument, the Crown informed the sentencing judge that there were no other co-offenders her Honour needed to be aware of. The Crown explained that Sultab had arranged “a number of seller’s agents who came to speak with the UCO” and “those people were charged with similar offences to the applicant”. Her Honour was informed that they had been charged and dealt with by other judges of the District Court. The Crown’s submission was:

“Although the scenario was very similar, they were charged in relation to the same operation, they were not co-offenders in the sense they did not participate in any of the same conduct as the [applicant].”

30. The applicant’s counsel contended that Mr Chan and Mr Wong had been sentenced for their involvement in the syndicate organising the supply of the drugs and the proceedings were adjourned by her Honour to obtain the remarks on sentence. At the further proceedings on sentence, the remarks on sentence for Mr Wong and Mr Chan were tendered.

31. Mr Wong had been sentenced by Judge Craigie SC on 7 May 2019. Mr Chan had been sentenced by Judge Woodburne SC on 15 November 2019.

The sentences imposed on Mr Wong and Mr Chan

Kai Hang Wong

32. Mr Wong pleaded guilty to knowingly taking part in the supply of a large commercial quantity (6kgs) of methylamphetamine that was obtained from a UCO on 17 July 2018. The possession of a “very small quantity of cannabis” was taken into account on a Form 1.

33. Judge Craigie SC (‘the Judge’) found that Mr Wong “on one occasion only” became the courier of money and 6kgs of what was purported to be methylamphetamine.

34. Mr Wong had been contacted on 16 July 2018 by a man named “David” to meet UCO Michael and to pay the UCO $50,000 for a 6kg sample. The Judge found that there was no evidence of Mr Wong’s knowledge or involvement in the greater scheme.

35. Mr Wong handed over $50,000 and obtained 6kgs of an inert substance from the UCO, after which he was arrested.

36. The Judge found that Mr Wong had come to Australia from Macau when he was 28 years old seeking to improve his prospects with education, leaving behind his wife. His Honour concluded that Mr Wong “was a vulnerable individual ripe for exploitation who as a cannabis user came into contact with someone who saw him as a convenient pawn”.

37. His Honour found that the offending was “towards the lower end of the range”.

38. At the time of the offence, Mr Wong was 31 years old. His Honour considered that Mr Wong presented “a quite compelling subjective case”. Although he did have a prior criminal history which was not trivial, his Honour said that it bore no meaningful relationship to the seriousness of the present offence. The Judge said that he gave recognition to Mr Wong’s prior good character, and his prospects for and commitment to his own rehabilitation. Mr Wong received a 25% discount for his plea of guilty and special circumstances were found being his first time in custody and “circumstances of considerable social isolation”.

39. Mr Wong was sentenced to imprisonment consisting of a non-parole period of 2 years with a total head sentence of 3 years and 3 months.

Sai Kwan Chan

40. Mr Chan pleaded guilty to one count of supplying a large commercial quantity (2kgs) of methylamphetamine that was obtained from a UCO on 28 May 2018.

41. Sultab had provided the UCO with Mr Chan’s mobile number. After discussions between the UCO and Mr Chan, Mr Chan agreed to take possession of 2kgs of methylamphetamine as a sample for $120,000 before meeting again for a further 4kg purchase. Upon paying $120,000, Mr Chan was provided with 2kgs of an inert substance by the UCO.

42. Mr Chan was a 56 year old Canadian citizen at the time of the offence. Judge Woodburne SC (‘the Judge’) accepted that Mr Chan was in Australia to pursue legitimate business interests. Before travelling to Australia, Mr Chan was contacted by an associate to get a sample of what he knew to be an illicit substance for which he was to be paid $6,000.

43. The Judge found that Mr Chan knew of the quantity of the purported drug involved and well understood the drug to be of significant value. Her Honour found that Mr Chan:

“…performed a trusted role in speaking to and meeting with the UCO and negotiating with him, albeit at the direction and/or instruction of others, receiving the money and passing it on to the UCO, and receiving possession of the purported drugs from the UCO and to facilitate its safe transport”.

44. Her Honour considered that Mr Chan played an important role and a trusted one “in a criminal enterprise, controlled by others, directed at the supply of prohibited drugs in New South Wales”.

45. Mr Chan’s offending was assessed as falling below the mid-range, although it was not placed at the “lower or lowest end of the range”.

46. Mr Chan did not have a criminal record. Her Honour concluded that he was unlikely to re-offend and had good prospects of rehabilitation. A 25% discount for his plea of guilty was allowed.

47. The Judge took into account the sentence imposed upon Mr Wong, although her Honour considered that Mr Chan and Mr Wong were not in fact co-offenders. Her Honour noted the connection was that the supply in both cases was “both related to the methamphetamine load that it was anticipated had been in fact imported to Australia”.

48. Her Honour found special circumstances being Mr Chan’s first time in custody which he was likely to find more onerous due to his separation from his family.

49. Mr Chan was sentenced to imprisonment with a non-parole period of 3 years and 3 months and a balance of term of 2 years.

Some findings by the sentencing judge

50. As the sentencing judge’s findings on the applicant’s assistance to authorities is not in dispute, it is unnecessary to canvas this issue.

51. As to sequence 2, the sentencing judge said the applicant belonged to a network that sought to introduce 70kgs of methylamphetamine into the community. Her Honour noted that the parties agreed that the applicant took instructions from others in the drug syndicate and had the necessary resources to effect exchange. Her Honour opined that whether the applicant was classed as a facilitator, a ‘buyer’s agent’ or a ‘courier’ did not detract from the position he was “ultimately charged with the responsibility to land in Australia and act upon a proposed exchange of a large commercial quantity of drugs”.

52. Her Honour accepted that the applicant’s submission that he was “neither at the top nor the bottom of the drug supply chain”. He was clearly in Australia on the instructions of another which were different to the instructions communicated to the UCO.

53. On the other hand, her Honour was satisfied that the applicant was not a “mere mule” or a “crop sitter” and was not at the lower end of the drug chain.

54. The sentencing judge found that the applicant supplied a large commercial quantity of methylamphetamine at least two times the threshold quantity of a large commercial quantity of the prohibited drug “in circumstances where he was able to comfortably assert some authority or control over the drugs in his possession and had the not insignificant quantity of money required to exchange”. Her Honour assessed the offending as approaching the mid-range of objective seriousness.

55. As to sequence 3, her Honour found the offending to be below but approaching the mid-range of seriousness.

56. The sentencing judge said that the objective seriousness of the offending was aggravated by being part of a planned or organised criminal activity pursuant to s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 as the degree of planning was more than the lowest level of offending than might otherwise have been occasioned. Her Honour was satisfied that his international trip evinced a degree of planning that was significant. He had crossed borders from the USA to Australia to procure the large drug shipment. The persons involved in the syndicate operated globally, with a co-ordinator residing in Mexico and the UCO operating in Australia. Effectively, the applicant was actively liaising with multiple international intermediaries. He arranged for the exchange with the UCO to occur nearby where he was living in Bondi Junction as the carrying of bags would not be burdensome.

50. Her Honour rejected the defence submission that it was only Sultab who engaged in a serious amount of planning. Her Honour said that this “would completely ignore the fact that [the applicant] had travelled from a distant country to make the exchange, and the necessary planning that must have been involved in that enterprise.” Her Honour said that in making the assessment, she had “moderated the position to reflect that the [applicant] acted upon instruction and is not at the apex of a drug syndicate”.

51. The sentencing judge noted that it was common ground that the applicant was to be sentenced in relation to the 1kg of the prohibited drug and he was not to be sentenced on his intention to obtain the full balance of the 70kgs.

52. As to the parity question, the sentencing judge said:

“I have had due regard to the findings in R v Wong and R v Chan. Notwithstanding that in R v Chan – which I accept has a closer factual matrix to this matter – the offender was likewise a foreign national who arrived in Australia to effect the exchange, in this case the objective seriousness is greater given the offender is to be sentenced in relation to two separate and apparently unrelated occasions of supply. I do not regard it as a breach of the principles of parity to conclude the offender’s present circumstances are discernibly different. Furthermore, it should be said that the principle of parity, strictly speaking, does not apply given the offenders are not co-offenders.”

60. The sentencing judge’s findings on the applicant’s subjective case included the following:

1. A 25% discount for the guilty plea entered in the Local Court;

2. The applicant’s lack of previous convictions and first time in trouble with the law was a mitigating factor: s 21A(3) of the Crimes (Sentencing Procedure) Act;

3. Her Honour acknowledged that good character carried less weight in drug offences but found that the applicant’s prior good character was a mitigating factor;

4. The applicant was unlikely to re-offend and had good prospects of rehabilitation;

5. The applicant was remorseful; and

6. A combined discount of 20% for assistance to authorities.

61. The sentencing judge found special circumstances observing that the applicant had a notable history of anxiety and PTSD and would be incarcerated without familial support. Furthermore, because of his assistance, his incarceration was much more dangerous than for other offenders. Those factors, taken in combination, her Honour said formed the basis for finding special circumstances.

62. Her Honour remarked that general deterrence was an important consideration and that the applicant must also be denounced, made accountable for his actions, and be adequately punished.

63. Her Honour took into consideration the principle of totality and the questions of concurrency or accumulation of the sentences. Her Honour found that some degree of accumulation was appropriate.

64. The sentencing judge then imposed the sentences detailed at [3]-[4] above.

Ground 1: The learned sentencing judge erred in holding that principles of parity did not apply to the applicant’s sentence, when considering the sentences imposed upon Sai Kwan Chan and Kai Hang Wong

65. The applicant submitted that her Honour erred in considering the parity principle did not apply. The applicant referred to Green v The Queen; Quinn v The Queen [1] (‘Green’) where the plurality (French CJ, Crennan and Keifel JJ) said at [29]:

“…The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of “co-offenders”, albeit the limits of the term have not been defined with precision.”

1. [2011] HCA 49; (2011) 244 CLR 462; 86 ALJR 36; 283 ALR 1; 214 A Crim R 152.

66. Particular emphasis was placed on Jimmy v The Queen [2] (‘Jimmy’) in which the scope of the parity principle was considered by Campbell JA. The applicant pointed out that although the offenders in Jimmy did not know one another and had committed different crimes, Campbell JA (with whom Howie and Rothman JJ agreed) considered that the parity principle applied as they were participants in a common criminal enterprise. The applicant contended that there are factual similarities in the present case to those considered in Jimmy.

    2. [2010] NSWCCA 60; 77 NSWLR 540; 269 ALR 115; 240 FLR 27.

67. In oral argument in this Court, the applicant’s counsel concentrated on Ground 1 of the appeal as he recognised that if the parity principle did not apply, Ground 2 would have no application.

68. The Crown argued that her Honour’s statement in the passage quoted at [59] above that “the principle of parity, strictly speaking, does not apply given that the offenders are not co-offenders” should be understood within the context it was made. The Crown submitted that a fair reading of her Honour’s sentencing remarks made it clear that the parity principle was considered as her Honour expressly adverted to the parity principle and the sentencing remarks in the cases of Mr Wong and Mr Chan.

69. The Crown argued that the three offenders had individual roles with varying levels of criminality and were not co-offenders in a common criminal enterprise. The Crown pointed to Why v R [3] (‘Why’) in which Mr Why and a Mr Shipman were held by this Court not to be co-offenders in a common criminal enterprise and the parity principle had no application. The Crown submitted that the present case had factual similarities to the offenders in Why.

    3. [2017] NSWCCA 101.

Consideration

70. The sentencing judge did not disregard the parity principle when sentencing the applicant. Her Honour explicitly referred to the sentences imposed upon Mr Wong and Mr Chan but concluded the applicant’s circumstances were “discernibly different” and the parity principle had not been breached.

71. It appears that her Honour concluded that the differences between the applicant and the other offenders were such that the sentence to be imposed on the applicant would not give rise to a justifiable sense of grievance. Her Honour did not detail the differences between the offenders other than to state that the objective seriousness of the applicant’s offending was greater than Mr Chan’s as the applicant was to be sentenced “in relation to two separate and apparently unrelated occasions of supply”.

72. In my respectful opinion, if the parity principle applies this distinction made by her Honour between the applicant and Mr Chan was unjustifiable, as a comparison could only be made between the objective gravity of the sequence 2 offence for the applicant and Mr Chan’s offence. The sequence 3 offence had no part to play in the application of the parity principle as the methylamphetamine found in the applicant’s apartment did not relate in any way to the intercepted shipment from Mexico.

73. In any event, her Honour concluded that the parity principle did not apply as the offenders were not co-offenders.

74. The applicant contended that the three offenders were participants in the same criminal enterprise whereas the Crown argued that they had individual roles to play and their levels of criminality varied such that the parity principle had no application.

75. In Elias v The Queen; Issa v The Queen,[4] the High Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) said at [30]:

“…Parity is concerned with the equal treatment of co-offenders. As Green v The Queen explains, the principle is not confined to co-offenders in the strict sense. It has application in the sentencing of persons involved in the same criminal enterprise.” (Footnotes omitted.)

4. [2013] HCA 31; 248 CLR 483; 87 ALJR 895; 298 ALR 637.

76. Counsel for the applicant placed particular reliance on Jimmy. In Jimmy, the applicant, Huang, and Siu (the asserted co-offenders) were charged with money laundering offences involving the transmission overseas of various sums of money on behalf of a man named Chen. Campbell JA said at [204]:

“There is no basis in the Agreed Facts for concluding that the Applicant knew of the existence of Huang or Siu. There is no basis in the Agreed Facts for concluding that the Applicant knew that Mr Chen had ever engaged another person to take money to the bank for remission to Hong Kong in parcels of less than $10,000. The period when the Applicant was taking money to the bank for Mr Chen did not coincide, or even overlap, with the periods when Siu and Huang were taking money to the bank for Mr Chen. The sums of money that the Applicant remitted to Hong Kong are different to the sums of money that each of Huang and Siu remitted to Hong Kong. Thus, the Applicant, Siu and Huang, did not commit the same crime. However, it is clear that the Applicant, Siu and Huang were all being used by Mr Chen as part of an enterprise involving the repeated commission of crimes of a similar character. That suffices, in my view, to make them participants in a common criminal enterprise. The Crown’s submission that the parity principle cannot apply because they are not co-offenders in the relevant sense fails.”

77. The factual similarities between the present case and those in Jimmy were submitted to be: the one quantity of prohibited drugs (the 70kg Mexico intercepted shipment); the three offenders who did not know one another; one vendor (Sultab) and one UCO (Michael). The applicant submitted that all three offenders were being used by Sultab to purchase part or all of the same consignment of drugs from the same UCO and were participants in the same common criminal enterprise.

78. In written submissions, the Crown argued that the agreed facts did not support the assertion that the UCO was the same person who interacted with Sultab, Mr Chan, Mr Wong, and the applicant. However, in this Court, the Crown agreed that both the sentencing judge and Judge Woodburne SC had acted on the assumption that the UCO was the same person, and the Crown could not inform this Court any differently.

79. The Crown relied on Why. In Why, the charges against Mr Why arose out of an investigation into the activities of members and associates of the Lone Wolf Outlaw Motorcycle Gang (‘the OMCG’). The investigation led to 11 persons, including Mr Why and Mr Shipman, being charged and sentenced for various offences for the supply of prohibited drugs.

80. The most serious charge that Mr Why faced involved the supply of more than the commercial quantity of methylamphetamine. The agreed facts identified a number of instances of actual supply by Mr Why to members and non-members of the OMCG including Mr Shipman.

81. Mr Shipman had also been charged with the supply of more than the commercial quantity of methylamphetamine. When the Judge came to sentence Mr Why, regard was had to the sentence imposed on Mr Shipman. One of the findings the Judge made was that Mr Why was higher up in the network than Mr Shipman but the duration of his offending conduct was significantly less than the period over which Mr Shipman had been supplying drugs.

82. On appeal to this Court, Mr Why argued that he had a justifiable sense of grievance given the sentence passed on Mr Shipman.

83. Walton J (with whom Hoeben CJ at CL and R A Hulme J agreed) found that the parity principle did not apply as Mr Why and Mr Shipman were not participants in a “common criminal enterprise”. Walton J said:

“[48] The Crown submitted, correctly in my view, that the offenders, although part of the same network distributing drugs in the Coffs Harbour area, had individual roles and levels of criminality which varied such that the parity principle simply had no application.

[49] Mr Shipman’s offending extended across a longer period than that of the applicant and, it is evident, as the applicant contended below, that he sourced his drugs from various people, only one of whom was the applicant. The applicant, as a wholesaler of methylamphetamine, supplied to persons other than Mr Shipman. He supplied both to OMCG members and also, at a higher price, to non-members like Mr Shipman.

[50] Further, the applicant had encouraged his son to “undercut” Mr Shipman.

[51] The fact that both the applicant and Mr Shipman were charged with the same offences contrary to ss 25(1) and (2) of the Act in respect of the same type of drugs of relatively similar quantities does not make them co-offenders in a common criminal enterprise: see also Meager at [8] and [13].”

84. The Crown submitted that like Mr Why and Mr Shipman, the applicant, Mr Wong, and Mr Chan had individual roles and different levels of criminality even though they were part of the same network. On the one hand, Mr Wong was a mere courier and pawn, whilst Mr Chan was in Australia pursuing legitimate interests. In contrast, the applicant had travelled from the USA to Australia as part of the network, having been charged with the responsibility of exchanging large sums of money for a large commercial quantity of methylamphetamine.

85. Whether or not the applicant engaged in a common criminal enterprise and was a co-offender with Mr Wong and Mr Chan depends on the circumstances of the case. Although each of the offenders did not know one another, acted on different instructions, and had different roles, there was a marked interconnection between their offending. Arrangements had been made by Sultab for the offenders to meet the UCO. Each of the offenders had a common understanding with the UCO and Sultab to obtain at least part of the purported shipment of 70kgs of methylamphetamine from Mexico to Australia. The common criminal enterprise was the supply of the prohibited drug in Australia and the three offenders were co-offenders. The parity principle does apply.

86. Ground 1 has been established.

Ground 2: The applicant has a justifiable sense of grievance, both as to the non-parole period and the total term of sentence imposed for sequence 2, when his sentence is compared with the sentences imposed upon Sai Kwan Chan and Kai Hang Wong

87. The applicant submitted there was a marked discrepancy in the starting point of each offender’s sentence relevant to sequence 2. Whilst the applicant’s starting point before the 45% discount was 10 years and 11 months’ imprisonment, the undiscounted starting point for Mr Chan was 7 years and for Mr Wong was 4 years and 4 months.

88. The applicant contended that particularly in the case of Mr Chan, there were no factors that warranted a significantly greater sentence to be imposed upon the applicant for his involvement in the common offence.

89. Another argument was that the sentencing judge did not consider the relative non-parole periods of the co-offenders which were approximately 62% of their sentences, whereas the non-parole period for sequence 2 was 70.8% of the sentence, and the overall proportion of the total non-parole period to the total sentence was 71.3%. The applicant submitted that the different treatment of the three offenders upon the finding of special circumstances also gives rise to a justifiable sense of grievance.

90. The Crown argued that there was a material difference in the objective gravity of the applicant’s offending when compared to the co-offenders. The Crown pointed out that unlike Mr Wong and Mr Chan, the applicant did not simply receive a telephone call and meet a person who had the drugs to make the exchange. He travelled from the USA and actively liaised with multiple international intermediaries. The applicant’s pre-offence actions evinced a degree of planning that was sufficiently significant to aggravate the offending and her Honour assessed the offence as falling towards the mid-range of objective seriousness.

91. The Crown accepted that the subjective cases of the three offenders were not dissimilar. As to the differences in the non-parole periods, the Crown submitted that her Honour expressly dealt with special circumstances and the adjustment of the statutory ratio, and the difference was justified.

92. The Crown submitted that the applicant does not have a justifiable sense of grievance.

Consideration

93. Where there is a marked disparity between the sentences imposed on co-offenders giving rise to a justifiable sense of grievance, this Court will intervene. [5] The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the applicant’s grievance was justified. [6] The plurality (French CJ, Crennan and Kiefel JJ) in Green said at [31]:

“…The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.” (Footnotes omitted.)

5. Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; 71 ALJR 875; 145 ALR 408; 94 A Crim R 397.

6. R v Ilbay [2000] NSWCCA 251 at [6]; R v Kollas and Mitchell [2002] NSWCCA 491 at [50].

94. The applicant’s complaint of a marked disparity focussed on the sentence imposed on Mr Chan. The applicant recognised that Mr Wong’s sentence was not a good comparator as Mr Wong’s participation in the drug supply was that of a courier and his offending was assessed as being towards the lower end of the range, whereas the applicant had entered Australia for the express purpose of obtaining the purported shipment from Mexico.

95. The degree of planning involved in the applicant’s offending is also the principal difference between the applicant and Mr Chan. Although prior to travelling from Canada to Australia Mr Chan had been contacted to obtain a sample of the prohibited drugs, he was in Australia to pursue legitimate business interests. Mr Chan’s offending was assessed to be as falling below the mid-range.

96. On the other hand, the applicant’s mission in travelling from the USA was to effect an exchange of the Mexican shipment. As her Honour found, the syndicate operated globally and the applicant actively liaised with multiple international intermediaries.

97. The applicant does not challenge the sentencing judge’s finding of a significant degree of planning which is an aggravating factor under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act. No such finding was made when Mr Chan was sentenced. Furthermore, the applicant’s offending was assessed to be approaching the mid-range of objective seriousness.

98. In my view, her Honour was entitled to give greater weight to general deterrence in the applicant’s case to send a clear message to international drug syndicates that Australia will not tolerate the international dissemination of prohibited drugs.

99. However, the differential between the undiscounted starting point of the sentences imposed on the applicant and Mr Chan is 3 years and 11 months. The undiscounted starting point of the applicant’s sentence is approximately 56% more than his co-offender’s sentence. There is little difference in their subjective cases. Whilst the differences in the objective gravity of their offending necessarily requires significantly different sentences, the disproportion is such as gives rise, in my opinion, to a justifiable sense of grievance.

100. Ground 2 of the appeal is established.

Re-sentence for sequence 2

101. Before proceeding to re-sentence, it should be said that her Honour’s sentencing judgment comprehensively analysed the relevant facts and sentencing principles. This is reflected by the grounds of appeal being confined to the parity principle.

102. The applicant tendered on re-sentence his affidavit sworn on 3 March 2022. The affidavit details his employment history and the courses undertaken by him while in custody. He has not committed any other offences while in custody. The applicant further refers to his limited contact with his family, including his daughter, and to various health issues suffered by family members.

103. The progress that the applicant has made in custody and his family difficulties re-enforces the sentencing judge’s favourable findings of good prospects of rehabilitation, unlikelihood of re-offending, and special circumstances.

101. As the applicant does not challenge her Honour’s findings as to the objective gravity of the offence and as to his subjective case, I will adopt them on re-sentence.

102. I consider that the unjustifiable disproportion between the applicant’s sentence and Mr Chan’s sentence may be removed by a reduction in the undiscounted starting point of 10 years and 11 months to 9 years’ imprisonment. This application of the principle of equal justice will result, after the application of the combined discount of 45%, in a sentence for sequence 2 of imprisonment for 4 years and 11 months, consisting of a non-parole period of 3 years and 6 months and a balance of term of 1 year and 5 months which is less than the sentence for sequence 3. The sentencing judge’s findings of special circumstances and adjustment of the statutory ratio of almost 71% has been maintained as any lesser non-parole period would not adequately reflect the objective gravity of the offence.

103. In determining the appropriate sentence, I have taken into account the principle of totality and questions of accumulation and concurrence. Her Honour’s sentence for sequence 3 of imprisonment for 5 years and 3 months with a non-parole period of 3 years and 2 months has not been appealed and has been maintained on re-sentence, save for the commencement date which has been brought forward to 15 October 2019. The total effective sentence will be imprisonment for 6 years 7 months, consisting of a non-parole period of 4 years and 6 months with a balance of term of 2 years and 1 month. The earliest date the applicant will be eligible for parole on 14 December 2022.

Orders

107. Accordingly, I propose the following orders:

1. Extend time for leave to appeal against the sentence.

2. Leave to appeal against sentence is allowed.

3. The sentence imposed for the sequence 2 offence in the District Court on 12 June 2020 is quashed.

4. In lieu thereof, the applicant is sentenced to a term of imprisonment with a non-parole period of 3 years and 6 months commencing on 15 June 2018 and expiring on 14 December 2021, with a balance of term of 1 year and 5 months expiring on 14 May 2023.

5. Confirm the sentence of imprisonment imposed in the District Court on 12 June 2020 for sequence 3 except for the commencement date. The non-parole period of 3 years and 2 months is to commence on 15 October 2019 and is to expire on 14 December 2022, with the balance of term of 2 years and 1 month expiring on 14 January 2025.

108. N ADAMS J: I agree with the orders proposed by Price J for the reasons provided.

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Endnotes

Decision last updated: 25 May 2022