Baquiran v R

[2014] NSWCCA 221

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Baquiran v R [2014] NSWCCA 221

Hearing dates:

11 August 2014

Decision date:

17 October 2014

Before:

Macfarlan JA at [1];
Adamson J at [66];
Bellew J at [67]

Decision:

(1) Leave to appeal against sentence granted.

(2) Appeal allowed.

(3) Quash the sentences imposed by the District Court on the applicant on 5 April 2013 and substitute the following sentences.

(4) On count 1 of the Indictment, sentence the applicant to 10 years imprisonment consisting of a non-parole period of 6 years and 8 months commencing on 28 January 2010 and expiring on 27 September 2016, and an additional term of 3 years and 4 months expiring on 27 January 2020. This sentence takes into account the matters on the applicable Form 1.

(5) On count 2 of the Indictment, sentence the applicant to a term of 5 years and 6 months imprisonment consisting of a non-parole period of 3 years and 8 months commencing on 28 January 2013 and expiring on 27 September 2016, and an additional term of 1 year and 10 months expiring on 27 July 2018.

(6) The total sentence to which the applicant is sentenced is 10 years imprisonment consisting of a non-parole period of 6 years and 8 months commencing on 28 January 2010 and expiring on 27 September 2016 and an additional term of 3 years and 4 months expiring on 27 January 2020.

(7) Accordingly, the applicant will be eligible for release on parole on 28 September 2016.

Catchwords:

CRIMINAL LAW - sentence - applicant pleaded guilty to two counts of supply of methylamphetamine - parity - whether justifiable sense of grievance in light of sentences imposed on co-offenders - whether sentencing judge bound by factual findings in remarks on sentence for co-offenders - whether sentencing judge erred in finding that the applicant was the principal of drug supply syndicate - what constitute proper bases for finding of special circumstances

Legislation Cited:

Crimes Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Collier v R [2012] NSWCCA 213
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Green v The Queen [2011] HCA 49; 244 CLR 462
Ith v R [2013] NSWCCA 280
Langbein v R [2008] NSWCCA 38; 181 A Crim R 378
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Chandler [2012] NSWCCA 135
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Tisalandis [1982] 2 NSWLR 430
R v Tuuta [2014] NSWCCA 40

Category:

Principal judgment

Parties:

Jerry Uda Baquiran (Applicant)
Regina (Respondent)

Representation:

Counsel:
D Carroll (Applicant)
V Lydiard (Respondent)
Solicitors:
S E O'Connor, Legal Aid NSW (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s):

2010/25515

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-04-05 00:00:00

Before:

Knox DCJ

File Number(s):

2010/25515

Judgment

1. MACFARLAN JA: On 5 April 2013 the applicant was sentenced by Knox DCJ to a total term of imprisonment of 12 years, with an 8 year non-parole period, on one count of supplying a large commercial quantity of methylamphetamine and one count of supplying a commercial quantity of methylamphetamine, both contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). On the former count, an offence of participating in a criminal group, contrary to s 93T(1) of the Crimes Act 1900 (NSW), was taken into account on a Form 1.

1. The applicant seeks leave to appeal against his sentences on four grounds, including that he has a legitimate sense of grievance when his sentence is compared to those of his co-accused, some of whom were sentenced by Knox DCJ. Others had been sentenced earlier by different judges.

1. The applicant was a member of a drug supply syndicate that operated out of premises, owned jointly by the applicant and his ex-wife, upon which the business "Solartint" was conducted. The applicant was the proprietor of the business and other members of the syndicate worked for it, including Sabas Capili who was the manager of the business. The sentencing judge found that the applicant was the principal of the syndicate. Others involved included Francis De Vera, Rowena Olaivar (who was the applicant's girlfriend), Joel Tongol and Mario Tabuan. The syndicate sourced drugs from an associated manufacturing operation conducted from other premises. Persons involved in that operation included Eric Lim, Nghia Huynh, Sythat Hay and Oliver Bui.

1. The count against the applicant of supply of a commercial quantity arose out of three sales of methylamphetamine to two undercover police officers, the amounts supplied being 58 grams, 84 grams and 169.3 grams respectively.

1. The count of supply of a large commercial quantity related to the intended supply of one kilogram of methylamphetamine to an undercover police officer. As those in charge of the manufacture (referred to by the syndicate as "the Viets") did not wish to take the risk of supplying a kilogram of the drug in one lot, two supplies of approximately 500 grams each were arranged. A number of the offenders (including the applicant) were arrested at the time of supply of the first tranche (being 460 grams).

THE SENTENCES IMPOSED

1. The offenders were sentenced as follows:

Sentencing judge
● OLAIVAR	Sentenced 27/01/12	Syme DCJ
● HAY	Sentenced 20/07/12	Lakatos SC DCJ
● TONGOL	Sentenced 27/07/12	Lakatos SC DCJ
● TABUAN	Sentenced 03/08/12	Frearson SC DCJ
● BUI	Sentenced 20/08/12	Blackmore DCJ
● DE VERA	Sentenced 12/03/13	Jeffreys DCJ
● HUYNH	Sentenced 05/04/13	Knox SC DCJ
● BAQUIRAN	Sentenced 05/04/13	Knox SC DCJ
● LIM	Sentenced 05/04/13	Knox SC DCJ
● CAPILI	Sentenced 10/05/13	Knox SC DCJ

1. Baquiran (the applicant), Capili, Huynh and Lim were the subject of Knox DCJ's judgment of 5 April 2013, with Capili being the subject of an additional judgment of 10 May 2013 by which sentence was imposed on him. Knox DCJ had before him the following information about the sentences imposed on co-offenders:

Name	Offence	Form 1	NPP	Term
Rowena OLAIVAR	(Effective sentence)	2 years & 6 months	4 years & 6 months
Supply commercial quantity	2 x Supply indictable quantity	2 years & 6 months	4 years
Supply commercial quantity	Participate in criminal group	2 years	4 years
Sythat HAY	(Effective sentence)	4 years & 4 months	6 years & 2 months
Manufacture a prohibited drug	2 years
Supply commercial quantity	Participate in criminal group; 2 x Deal with suspected proceeds of crime	3 years & 10 months	5 years & 8 months
Supply indictable quantity	3 years
Joel TONGOL	Supply commercial quantity	Supply commercial quantity; Participate in criminal group	3 years	4 years & 6 months
Mario TABUAN	Supply indictable quantity	1 year & 4 months	2 years & 2 months
Oliver BUI	(Effective sentence)	3 years & 3 months	5 years & 3 months
Manufacture large commercial quantity	2 years & 6 months
Manufacture large commercial quantity	Possess pill press; Possess precursor	3 years & 3 months	5 years & 3 months
Francis DE VERA	(Effective sentence)	3 years & 6 months	7 years
Supply commercial quantity	2 years & 6 months	5 years
Supply large commercial quantity	Participate in criminal group	2 years & 6 months	6 years

1. The sentences imposed by Knox DCJ on the applicant and the remaining co-offenders by his Honour's judgments of 5 April and 10 May 2013 were as follows:

Name	Offence	Form 1	NPP	Term
Jerry BAQUIRAN	(Effective sentence)	8 years	12 years
Supply large commercial quantity	Participate in criminal group	7 years	12 years
Supply commercial quantity	3 years & 6 months	5 years & 6 months
Nghia HUYNH	(Effective sentence)	8 years	12 years
Supply large commercial quantity	Participate in criminal group	6 years	9 years
Manufacture prohibited drug	3 years
Eric LIM	(Effective sentence)	7 years & 6 months	11 years & 2 months
Supply large commercial quantity	7 years	10 years & 8 months
Manufacture prohibited drug	3 years	4 years & 6 months
Ongoing supply	2 years	3 years
Sabas CAPILI	(Effective sentence)	5 years	7 years & 6 months
Supply large commercial quantity	Participate in criminal group	4 years & 6 months	6 years & 9 months
Supply commercial quantity	3 years & 6 months	6 years

THE SENTENCING JUDGMENT

1. In sentencing the applicant, Capili, Huynh and Lim, Knox DCJ reached the following conclusions concerning the roles of the principal offenders:

"In terms of the roles of those involved directly and to whom reference has been made in these proceedings, it does seem to me, and I find, that Baquiran was the principal behind the scheme. Capili was the manager of Baquiran's Solartint business at West Ryde. For the purposes of this scheme he was Baquiran's right hand man. I will hear further in relation to that matter when the matter of Capili is dealt with this afternoon but for these proceedings, that is the basis on which I operate. De Vera appears to have acted as a point of communication and conduit to others outside the group. He appears to have been the negotiator to the undercover operative on at least some of the transactions. Judge Jeffreys, in proceedings involving that co-offender, found him to be the spokesman for the group. Mr Jameson, who appears today on behalf of Mr Baquiran, submits that he was the initial negotiator. Both Capili and De Vera were employees of Baquiran and effectively subject to his direction and, to some extent, to his control. There seems to be no issue taken by them or even of them about his control or his directions; indeed they appear to be enthusiastic participants. Ms Olaivar, who identified Lim finally, was in an emotional relationship with Baquiran and also appears to have been subject to either his control or direction.

Lim was a supplier to Baquiran and one with whom Baquiran dealt. He was referred to at various stages as either 'Unc' or occasionally 'Eric'. My Huynh also dealt with Mr Lim in terms of the provision of advice by Lim as to the manufacture. It seems that Mr Lim was also working with Huynh and Hay. He was and I find him to have been the one who gave Huynh instructions and was a point of advice and consultation. Mr Dawe QC submits that his role was more one of a cooperative effort. With respect, his role seems to me to be beyond that. Huynh and Lim were both involved in different stages of the manufacture. They had a similar role to each other in terms of the ultimate manufacture, but I find that it was Mr Lim who was providing the advice and was apparently in a more senior position, at least in terms of experience" (pp 5-6).

1. Before finding that "the range of criminality in these matters is at or just below mid-range" (p 30), his Honour made the following findings concerning the drug manufacture and supply operations:

"The total enterprise was a significant operation involving methylamphetamine. While there is no hierarchy of drugs for sentencing purposes, the experience of this Court is that methylamphetamine is a drug of a particularly pernicious nature with destructive consequences of both a societal and personal nature. Here the drugs involved were of substantial purity, value and amount as reflected in charges laid. The joint and individual motivations of the offenders were financial and in some cases followed their association over the years when some of them had been involved in drug usage. All offenders knew each other and apparently had been involved in the drug world through their own earlier drug consumption. They had graduated from consumption through to what becomes a significant supply and manufacturing operation. Their individual habits escalated. They had developed those contacts within the world of supply and the manufacture of drugs as well as that of the precursor chemicals, associated material and the establishment of the laboratories.

In terms of the supply, the matters that I take into account are that those actions pursuant to this enterprise took place over weeks and certainly the months of December 2009 and January 2010. However, their involvement came to an end, in the case of the majority of them, on 28 January 2010. It was a commercial operation with the inevitable inference and, in my view, overwhelming inference that it was to be for the purposes of ongoing supply, not, for example, a one-off supply to friends.

The scheme involved was sophisticated. It involved multiple telephone usage. It involved the purchase of items such as the identical backpacks. It involved the switching of phones presenting difficulties and additional demands on police intelligence and interception resources. Baquiran, for example, was using a mobile service connected in the name of a five year old child.

...

I do not accept the submission that [the applicant] was a mere participant and find he was the principal, as I have said, providing the premises at the Solartint premises ... securing the drugs, being involved in the negotiations and the discussions" (pp 20, 21 and 39).

1. In relation to the applicant's subjective circumstances, the sentencing judge noted, inter alia, a report of Dr Martyn Patfield who is a psychiatrist at Justice Health. Dr Patfield diagnosed the applicant as having "Chronic psychotic illness, probably Schizophrenia, complicated by longstanding entrenched abuse of psycho stimulants". He referred to the applicant as presenting "with a long history of psychotic symptoms including paranoia and auditory hallucinations" and that he "also reports visual hallucinations (which is unusual in schizophrenia but certainly reported)". His Honour then concluded:

"Whatever the submissions in relation to his mental health he certainly had the intellectual acumen and cunning to be able to be continuously involved in an ongoing commercial methylamphetamine supply operation. He was able to switch phones as he did on some occasions indicating a clear awareness of the interception procedures by the police.

He also had the capacity and the awareness of the drug trade to make the arrangements that he did in terms of financing. The proceedings in De Vera, a matter before Judge Jeffreys, indicate that at one stage Mr Baquiran asked De Vera to check the number on the undercover operative's vehicle as part of the determination of whether the deal was risky. There are related references to that in other parts of the papers. It seems that he was the one who discussed and initiated the parameters of the deal with Capili and made arrangements with Capili as to going to the transfer point" (p 40).

1. His Honour had guarded views about the applicant's prospects for rehabilitation as he could see "little evidence, particularly in the absence of sworn evidence that [the offenders and the applicant in particular] are going to sever their connections with those in the drug environment which they have experienced and participated in for ... some time" (p 41).

1. The sentencing judge allowed a utilitarian discount of 25% for the applicant's early plea of guilty and made a finding of special circumstances, resulting in the overall non-parole period being fixed at two-thirds of the applicant's total sentence.

GROUNDS OF APPEAL

GROUND 1 - THAT THE LEARNED SENTENCING JUDGE ERRED IN HIS CONSIDERATION OF THE APPLICANT'S MENTAL HEALTH

1. The applicant first submitted that the sentencing judge "expressly reduced the weight to be afforded to the psychiatric evidence initiated by the District Court and tendered by the Crown by virtue of his view as to the facts being inconsistent with significant psychiatric illness".

1. I do not consider that his Honour did this. The effect of his Honour's reasoning referred to in [11] above was, first, that, notwithstanding his mental illness, the applicant was fully conscious of his wrongdoing which involved the application of "intellectual acumen and cunning" and, secondly, that the consequence was that his mental illness did not either reduce his moral culpability for his offences or cause them (compare Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [54]). These conclusions were not inconsistent with the psychiatric evidence which did not assert the contrary to be the case. Contrary to the applicant's submissions, the evidence of his mental illness did not therefore warrant "a moderation of the significance of general deterrence in sentencing" (submissions [35]). I do not consider there to have been any reason why the applicant was "not an appropriate medium for making an example to others" (Muldrock at [53]).

1. Secondly, the applicant submitted that the sentencing judge made factual errors when dealing with the applicant's mental illness. One of those errors is dealt with under Ground 2(b) below. The other was in the finding that the applicant asked De Vera to check the registration number of the undercover operative's vehicle (see [11] above). There was however no error in this finding as it was supported by the Statement of Agreed Facts (p 7, third paragraph).

1. Thirdly, the applicant alleged that his sentence of imprisonment "would weigh more heavily on [him] than a person in normal health" (see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]). This submission should be rejected in the absence of any evidence, medical or otherwise, suggesting this to be the case.

GROUND 2 - THAT THE LEARNED SENTENCING JUDGE MADE MATERIAL FACTUAL ERRORS WITH RESPECT TO THE ACTS AND ROLE OF THE APPLICANT

1. The factual errors asserted by the applicant were as follows:

(a) That the applicant decided to reduce the amount [the subject of the large commercial quantity count] initially from 1 kg to a lesser amount to ensure that payment was made and received first

1. The sentencing judge erred in making this finding as the Statement of Agreed Facts before his Honour in relation to the sentencing of the applicant made it clear that this decision was made by the "Viets" (referring to the manufacturers), rather than the applicant (p 9).

(b) That it was the applicant who discussed and initiated the parameters of the deal with Capili and made arrangements with Capili as to going to the transfer point

1. The evidence did not justify a finding that the applicant "initiated the parameters of the deal", although it did justify the other aspects of this finding which is quoted at [11] above.

(c) That the applicant sent a text message to Olaivar that said "only 17 short, 0.857 see you tonight eight thirty"

1. This was an error as it was Mr Lim rather than the applicant who sent the message.

(d) That the applicant was using a mobile service connected in the name of a five year old

1. This was also an error as the person using this mobile service was Mr Lim, not the applicant.

(e) That each of the offenders other than Lim was found with money and drugs

1. This finding (made at p 24) was erroneous so far as it applied to the applicant.

Conclusion

1. Whilst these errors do not, when considered alone, appear to have been of fundamental significance to his Honour's sentencing of the applicant, they no doubt formed part of the material upon which his Honour's finding that the applicant was the "principal" of the drug supply syndicate was based. This finding is dealt with at [30] to [47] below. I have concluded that it was erroneous.

GROUND 3 - THAT THE LEARNED SENTENCING JUDGE ERRED IN HOLDING THAT HE WAS BOUND BY THE FACTUAL FINDINGS MADE WITHIN THE REMARKS ON SENTENCE BY OTHER JUDGES WHO HAD PREVIOUSLY SENTENCED OTHER CO-ACCUSED

1. Knox DCJ said at page 12 of his judgment that he was bound by the findings made by Jeffreys DCJ in the course of sentencing De Vera. In particular he referred to Jeffreys DCJ's findings as to the involvement of De Vera.

1. Jeffreys DCJ found that De Vera acted on behalf of Baquiran and at his instruction and direction (pp 12-13). Knox DCJ did not say that he used this finding that De Vera was subordinate to the present applicant to support his finding that the present applicant was the principal of the supply organisation, but the applicant suggests that he may have done so.

1. If he did, that was an impermissible use of Jeffreys DCJ's findings. Those findings were relevant to the proceedings before Knox DCJ to identify the basis upon which De Vera had been sentenced. In that sense they were part of the factual circumstances that Knox DCJ needed to take into account in sentencing Baquiran (R v Tisalandis [1982] 2 NSWLR 430 at 434-5 per Street CJ). However Baquiran's role had to be determined by Knox DCJ by reference to the facts in evidence before him, essentially those set out in the Statement of Agreed Facts. As Basten JA pointed out in R v Chandler [2012] NSWCCA 135 at [6] (referred to with approval in Ith v R [2013] NSWCCA 280 at [61]), sentences of co-offenders may occur on differing factual bases if the evidence before the sentencing judges differs. Whilst material in relation to the sentencing of De Vera and other co-offenders was tendered without objection in the proceedings before Knox DCJ, the purpose of the tender was clearly the former purpose I have identified and it could thus not be used as evidence of the truth of the matters asserted in it or, in the case of the other sentencing judgments, of the accuracy of the findings made in them. The applicant firmly, and correctly, asserted this to be the position in his written submissions to the sentencing judge (Ex SB12 at 4).

1. Knox DCJ's reference to Olaivar being "subject to either [the applicant's] control or direction" (p 5) reflects a departure from these principles as that proposition was derived not from the Agreed Facts concerning Baquiran but from the evidence in the proceedings concerning Ms Olaivar. This was one of the matters that the sentencing judge no doubt took into account in concluding that the applicant was the "principal" of the drug supply operation, a finding that I conclude below was erroneous.

GROUND 4 - THAT THE APPLICANT HAS A LEGITIMATE SENSE OF GRIEVANCE WHEN HIS SENTENCE IS COMPARED TO [THOSE OF] HIS CO-ACCUSED, ... IN PARTICULAR, LIM, CAPILI, DE VERA AND OLAIVAR

Whether it was proved that the applicant was the principal of the drug supply syndicate

1. Integral to the applicant's submissions in relation to this ground is the contention that the sentencing judge erred in finding that the applicant was the "principal" of the drug supply syndicate. I turn to consider that contention first.

1. The matters that the Crown relied upon before the sentencing judge to support the conclusion that the applicant was the principal of the drug supply syndicate were as follows:

"(1) The fact [the applicant] was the proprietor of Solartint;

(2) The three transactions in December were conducted out of the Solartint business premises;

(3) He personally sourced the drugs from co-offender Lim for the 3 transactions in December 2009 and on 28 January 2010;

(4) The offender would pass the phone over to De Vera to communicate on the mobile phones with the UCOs;

(5) Offender asks De Vera if 'the key has called', to which De Vera replied that 'the key' would only speak with Baquiran [Statement of Facts, p 4, paragraph 2];

(6) De Vera informs UCOs that he has to relay any proposal back to his associates [p 3, paragraph 7];

(7) He would provide feedback to Lim as to quality of the drugs [p 5, para 4];

(8) The offender directs the co-offenders, for example, telling Capili how he would pass over the drugs to De Vera on 9 December and tells De Vera to get the registration plate of the UCO's vehicle [p 7, para 3];

(9) Conversations between the offender and Lim on 28 January, for example, at 13.14 '.. i just find excuse so I can organized [sic] all my boys. I hope they will not back out and don't know that I'm giving them a half a roll of films' [p 10, para 3]. He then travels to Huynh's to 'see the stuff';

(10) Arrested at the scene in car with Olaivar;

(11) The offender after obtaining methylampethamine would divide it up, giving Capili more than the others, who included De Vera and Tongol, they on sold it and settled up with the offender later [p 16, para 6]."

1. Proposition (1) was correct but did not indicate that the applicant was the "principal" of the drug supply operation.

1. Proposition (2) was also correct but again did not indicate that the applicant was the principal. The Solartint premises were a convenient meeting place because the applicant, Capili, De Vera and others worked at the premises, with Capili being the manager of the business conducted there. De Vera lived in the garage at the premises. Nevertheless, the applicant's ownership (with his ex-wife) of the premises from which the drug syndicate operated and his proprietorship of the Solartint business which operated from the same premises is a reflection of the important role he had in the syndicate and therefore of his criminality.

1. Proposition (3) was correct.

1. As to (4), the Statement of Agreed Facts does not suggest that this happened more than once (on 9 December 2009). The reason that the applicant handed the phone over on that occasion is not apparent. That he might have acted as a principal in delegating the handling of the call to De Vera is only one of a number of possibilities.

1. The sentencing judge did not take proposition (5) into account as he considered it equivocal (p 11).

1. Proposition (6) does not indicate the existence of any particular hierarchy as it is consistent with there being a level of mutual responsibility and coordination amongst the "associates".

1. The Statement of Facts does not suggest that feedback as referred to in Proposition (7) was given more than once. In any event, its provision does not give significant support to the proposition that the applicant was the principal of the supply organisation as he was a heavy drug user and was thus an obvious person to provide information as to the quality of the drugs.

1. The two examples given in Proposition (8) were correct but constituted the only evidence of directions to co-offenders given by the applicant.

1. Moreover the Agreed Facts refer to directions given by co-offenders. For example, during the course of the transaction on 30 December 2009, De Vera directed Olaivar to assist by "sending people around the corner", and on 25 January 2010 Capili told the applicant to record the undercover officer's car registration plate and house number. This is a direction to the same effect as that earlier given by the applicant to De Vera.

1. The evidence thus provides only limited support for the sentencing judge's conclusion that the applicant had the "power to give directions". In any event, that power does not appear to have been peculiar to the applicant and does not provide a basis for differentiating between his role and that of De Vera and Capili. It follows that the sentencing judge's conclusion that Capili and De Vera were "effectively subject to [the applicant's] direction and, to some extent, to his control" (p 5) does not appear to be well-founded so far as the drug operations, as distinct from the conduct of the Solartint business, are concerned.

1. Proposition (9) was correct but is of only limited significance as it is not evidence of any communications between the members of the supply syndicate but is simply a claim made by the applicant to one of the suppliers in which he may or may not have overstated his role.

1. Proposition (10) is correct but does not assist in determining whether the applicant was the principal, particularly as others were arrested at the scene or on their way there.

1. Proposition (11) reflects a statement of Olaivar to the police. As it is contained in the Statement of Facts tendered to support the sentencing of the applicant, it can be treated as evidence against the applicant. It provides some evidence of an important role being adopted by the applicant but its significance is lessened by the fact that Capili was given more of the drugs than the others (who may have included the applicant). Moreover, it is unclear whether the applicant's role in this respect was a mechanical one only or represented an important decision-making position.

1. As noted earlier (see [10]) the sentencing judge referred to the applicant being the principal of the supply operation as he had provided the premises, secured the drugs and been "involved in the negotiations and the discussions".

1. As to the first of these matters, the applicant did provide the premises but, as noted earlier, many of his co-offenders also worked there and De Vera lived there, making it a convenient location from which to operate the syndicate. Secondly, the applicant did secure the drugs from Lim but Olaivar often accompanied him.

1. Thirdly, the applicant was involved in the "negotiations and the discussions" (presumably a reference primarily to those with the undercover officers) but De Vera appears to have had a more prominent role in those negotiations and discussions.

1. I conclude in light of these matters that there was insufficient evidence to justify the sentencing judge's conclusion that the applicant was the principal of the supply operation, it being necessary that that proposition be established beyond reasonable doubt (R v Olbrich [1999] HCA 54; 199 CLR 270 at [26]-[27]).

The bases of the sentences of the main co-offenders (Lim, Capili, De Vera and Olaivar)

1. Knox DCJ sentenced Lim at the same time that his Honour sentenced the applicant. His Honour found that Lim's role in the manufacturing process was "as a directing person, a person of advice and a higher and different level than that of Huynh" (p 47). His Honour regarded "the roles of both Lim and Baquiran as being different but being at about the same level of responsibility in the overall scheme. Baquiran has more criminality given his involvement in the organisational sense of directing and negotiating but clearly Lim had a responsibility in terms of directions and advice giving and was also the subject of ongoing discussions with Mr Baquiran in relation to the provision of the drugs" (p 48). Lim was allowed a 25% discount on sentence for an early plea of guilty.

1. Knox DCJ found that Capili was Baquiran's "right hand man" and that both Capili and De Vera were "effectively subject to [the applicant's] direction and, to some extent, to his control" (p 5). Later, his Honour found that Baquiran was the principal but "Capili was certainly at a senior level but under his direction" (p 25). In his further judgment of 10 May 2013 concerning Capili, Knox DCJ said:

"It is clear, in my view, that the offender was not only the manager of the Solartint business, Baquiran's senior assistant and intimately involved in the transactions and illegality, that he knew what was going on in relation to the supply to the undercover operative, but was fully aware of the nature of this enterprise. There are no charges of manufacture for this offender compared to the relevant matters of Huynh or Lim" (p 21).

1. His Honour referred to Capili's role as being "at a lesser level - namely that of a senior assistant. His involvement in the events of the offence represent [sic] criminality above low range but below mid-range" (p 23). His Honour allowed a 25% utilitarian discount to reflect Capili's early plea.

1. In comparing Capili's role to that of Olaivar, his Honour said:

"[Olaivar] was a vulnerable girlfriend of the co-offender Baquiran. He had a dominant personality in respect of her in any event. She became addicted to methylamphetamine after meeting him and it is a matter of some inference that that, and the associated effects of the addiction, must have been known to others in this group" (p 20).

1. In his sentencing judgment of 12 March 2013 in relation to De Vera, Jeffreys DCJ said:

"In this case, although the offender was participating with the undercover operative, it is clear in my view that the offender is not the person making the decisions in relation to the ultimate supply and prospective supply to the undercover operative" (p 10).

"The evidence shows that the offender was acting on behalf of Baquiran, directly communicating with the undercover operatives on behalf of Baquiran, that he agreed with the undercover operatives and in fact supplied quantities of drugs to the undercover operatives. His role was that of a front man who dealt with the undercover operatives, received drugs from Baquiran and others on behalf of the organisation, delivered them to the undercover operatives and received money in return and gave the money to Baquiran and others" (pp 12-13).

1. De Vera received a 25% utilitarian discount against his sentence to reflect his early plea. His Honour was satisfied that De Vera's judgment in relation to his participation in the events the subject of the charges was impaired from the use of drugs. His Honour found this to be a relevant mitigating circumstance on the basis of what Wood CJ at CL said in R vHenry [1999] NSWCCA 111; 46 NSWLR 346. His Honour also found that De Vera had shown "deep contrition".

1. In her sentencing judgment of 27 January 2012 relating to Olaivar, Syme DCJ said:

"I take into account the following matters: First, the offender was a girlfriend of one of the principals of the syndicate. Second, she started using, and quickly became addicted to, the drug ice. Her involvement in the drug ice initially was via another friend of hers who introduced her to the principal. As a result of this offender's rapid addiction to the drug, her boyfriend's physical control over her increased, and in her emotional state she became powerless to exercise her own will. Evidence of this is the fact that not only did the offender act to assist the syndicate, she also lent her boyfriend a significant amount of money, probably about $35,000, that she had saved from legitimate sources.

Prior to her involvement with the principal and her addiction to drugs, this offender was a person of very good character, who worked hard in three jobs in order to support her family who live in the Philippines. The involvement of this offender with the syndicate was somewhere between two and six months. What I would say is that the offender's drug use spanned a period of about twelve months according to her evidence. I am prepared to make a finding that her involvement in the syndicate, to a substantial extent, appears to have been between two and six months; her involvement on a peripheral level was probably a little more than that" (pp 2-3).

Her Honour then referred to Olaivar's "peripheral role" in the organisation, her addiction to the drug involved and the control that the principal of the organisation (Baquiran) had over her.

1. Her Honour gave a 50% discount against sentence for Olaivar's early plea and her assistance to authorities.

The parity principle

1. As French CJ, Crennan and Kiefel JJ said in Green v The Queen [2011] HCA 49; 244 CLR 462 at [28], the parity principle requires "that like offenders should be treated in a like manner" but "allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances". Whilst an appellate court will, because of the discretionary nature of the sentencing judges' decisions, exercise caution before intervening, it will do so where there is a marked disparity between offenders' sentences that cannot be explained by differences in the offenders' offences or circumstances.

Comparison of the sentences

1. The not greatly dissimilar total sentences imposed upon Lim and Baquiran (11 years and 2 months, and 12 years imprisonment respectively) are explicable on the basis of Knox DCJ's finding that Baquiran was the principal of the supply syndicate and that, whilst the roles of Lim and Baquiran were different, they were "at about the same level of responsibility in the overall scheme" (p 48). However, as I have found that the finding that Baquiran was the principal of the supply syndicate was not well-founded, the similarity in the sentences cannot be justified.

1. Whilst the evidence showed that Baquiran had an influential position in the supply organisation, it did not demonstrate beyond reasonable doubt that he was the principal thereof. As the respective roles of Lim and Baquiran were critical elements in his Honour's determination of the appropriate sentences to impose, Baquiran would be justified in concluding that he should have received a lesser sentence than Lim, particularly bearing in mind that Lim had, and Baquiran had not, been sentenced for a manufacture offence as well as supply offences.

1. Even if it be accepted, as it must, that the evidence did not establish that Baquiran was the principal of the supply syndicate, there were different circumstances relevant to the sentencing of De Vera and Baquiran that warranted the imposition of a higher sentence on Baquiran than on De Vera. As the plurality observed in Olbrich at [19], care must be taken in using labels such as "principal" to describe the role of offenders in relation to drug offences: the labels must not obscure the necessary assessment of what the offender did. Whilst Baquiran was not established to be the principal, the evidence did in my view establish that he had a more important role in the syndicate than that of De Vera, particularly in his sourcing of the drugs and providing the premises out of which the syndicate operated. Furthermore, De Vera was sentenced on the basis, not applicable to the sentencing of Baquiran, that his judgment in relation to his participation in the events giving rise to the charges was impaired by the use of drugs and that he had shown deep contrition. In contrast, Knox DCJ noted that Baquiran lacked awareness of the seriousness of his offending behaviour. In light of this, his mental illness and drug addiction his Honour held "considerably guarded" views about Baquiran's prospects of rehabilitation.

1. Capili received a not dissimilar sentence to that imposed on De Vera (a head sentence of 7 years and 6 months for the former and 7 years for the latter). In sentencing him, Knox DCJ said that Capili was at a senior assistant level, having a higher strategic role but a lesser operational role than De Vera (pp 17 and 18). The evidence at their joint sentencing hearing suggested that Baquiran had an important role both at a strategic and operational level. In those circumstances, and because of his sourcing of the drugs from the manufacturers and provision of the premises in which the syndicate operated, Baquiran could not justifiably be aggrieved at receiving a sentence significantly greater than those imposed on both Capili and De Vera.

1. The other co-offender to whom the applicant made particular reference in the context of the parity principle was Olaivar. However, her different role and circumstances (see [54] above), and the discount of 50% on sentence that she was allowed, indicated that her sentence was justifiably markedly less than that imposed on Baquiran.

1. Taking these matters into account, I consider that Baquiran's overall head sentence should be reduced to 10 years imprisonment so that it is less than that imposed on Lim but still significantly more than those imposed on De Vera and Capili. Adopting the sentencing judge's finding of special circumstances, the non-parole period should again be two-thirds of the overall head sentence.

1. In reaching these conclusions, I have taken into account the applicable maximum sentences and standard non-parole periods. These are maximum sentences of life imprisonment or a $550,000 fine, or both, on the supply large commercial quantity offence; 20 years imprisonment, or a $385,000 fine, or both, on the supply commercial quantity offence; and 5 years imprisonment on the Form 1 offence. The former supply offence has a standard non-parole period of 15 years and the latter, 10 years. I have also taken into account the applicant's entitlement to a 25% discount on sentence for his early plea.

1. Moreover, I have had regard to the sentencing judge's findings concerning the subjective circumstances of the applicant and the seriousness of the illegal activities of the syndicate.

ORDERS

1. I propose the following orders:

(1)   Leave to appeal against sentence granted.

(2)   Appeal allowed.

(3)   Quash the sentences imposed by the District Court on the applicant on 5 April 2013 and substitute the following sentences.

(4)   On count 1 of the Indictment, sentence the applicant to 10 years imprisonment consisting of a non-parole period of 6 years and 8 months commencing on 28 January 2010 and expiring on 27 September 2016, and an additional term of 3 years and 4 months expiring on 27 January 2020. This sentence takes into account the matters on the applicable Form 1.

(5)   On count 2 of the Indictment, sentence the applicant to a term of 5 years and 6 months imprisonment consisting of a non-parole period of 3 years and 8 months commencing on 28 January 2013 and expiring on 27 September 2016, and an additional term of 1 year and 10 months expiring on 27 July 2018.

(6)   The total sentence to which the applicant is sentenced is 10 years imprisonment consisting of a non-parole period of 6 years and 8 months commencing on 28 January 2010 and expiring on 27 September 2016 and an additional term of 3 years and 4 months expiring on 27 January 2020.

(7)   Accordingly, the applicant will be eligible for release on parole on 28 September 2016.

1. ADAMSON J: I have had the benefit of reading the reasons in draft of Macfarlan JA and Bellew J. I agree with Macfarlan JA's reasons and the orders his Honour proposes and also with the additional comments of Bellew J.

1. BELLEW J: I have had the benefit of reading, in draft, the reasons of Macfarlan JA. I agree, for the reasons expressed by his Honour, that the sentencing judge erred and that this Court should exercise its discretion to re-sentence the applicant in the manner his Honour has proposed. However, I wish to add some observations in relation to the finding of special circumstances which was made by the sentencing judge.

1. His Honour's conclusions relevant to the issue of special circumstances were as follows:

(i)   none of the offenders had any "prior relevant convictions" (ROS 32);

(ii)   none of the offenders had previously served a term of imprisonment (ROS 32);

(iii)   all of the offenders had found imprisonment onerous, although not to a degree which was over and above that which might otherwise have been expected (ROS 33);

(iv)   the applicant had enjoyed little in the way of family support since being taken into custody, which gave rise to "further doubts about any support structure being available to him on release in terms of matters of rehabilitation" (at ROS 39); and

(v)   there was little evidence that the applicant would sever his connection with those in the "drug environment" upon his release (at ROS 41).

1. Arising from these conclusions, I make the following observations.

1. Firstly, a person's previous good character, and the fact that he or she will be serving a custodial sentence for the first time, will not ordinarily constitute special circumstances: Collier v R [2012] NSWCCA 213 at [36] per McClellan CJ at CL, R A Hulme and Schmidt JJ agreeing.

1. Secondly, as the sentencing judge acknowledged, there was no evidence to support the conclusion that the conditions of the applicant's incarceration were more onerous than usual: Langbein v R [2008] NSWCCA 38; (2008) 181 A Crim R 378 at [113] per McClellan CJ at CL, Hall and Price JJ agreeing. Accordingly, this factor provided no support for a finding of special circumstances.

1. Thirdly, the absence of family support was necessarily relevant to the applicant's prospects of rehabilitation. It led his Honour to express further doubts about those prospects, as did the absence of any evidence that the applicant was intending to sever his previous connections with "those in the drug environment".

1. Finally, against this background, his Honour expressly acknowledged (at ROS 33) that a finding of special circumstances in the present case was "a matter of leniency", before stating (at ROS 41) that it represented "an element of generosity to these offenders and to (the applicant) in particular".

1. In my view there was, to say the least, a real issue as to whether the finding of special circumstances was properly made. Some of the factors cited by his Honour, such as the absence of any prior criminal history and the fact that the applicant was in custody for the first time, provided little or no support for such a finding. Others, such as the lack of family support and the absence of evidence suggesting that the applicant would cut ties with criminal associates upon his release from custody, tended positively against it. Moreover, the leniency which was inherent in the finding was expressly acknowledged by his Honour on two separate occasions.

1. Notwithstanding these matters, the Crown did not argue against a finding of special circumstances when the matter was before the sentencing judge. The Crown similarly raised no issue about the matter before this Court. In all of these circumstances, it would operate unfairly to the applicant if this Court were to adopt a different approach to that of the sentencing judge. However, in light of the matters to which I have referred it is appropriate that I repeat the observations I made, with the concurrence of Bathurst CJ and Hoeben CJ at CL, in R v Tuuta [2014] NSWCCA 40 at [57]:

"Circumstances which are not properly regarded as being "special" should not be elevated into that category (see R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at 719; [68]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [20]). In order for special circumstances to be made out there must exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful, and that this is not merely a possibility (see R v Carter [2003] NSWCCA 243 at [20])".

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Decision last updated: 17 October 2014