Cheng v The Queen

[2020] NSWCCA 252

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Cheng v R [2020] NSWCCA 252

Hearing dates:

2 June 2020

Date of orders:

2 October 2020

Decision date:

02 October 2020

Before:

Bathurst CJ at [1]
Price J at [2]
N Adams J at [3]

Decision:

(1) Leave to appeal against sentence granted.

(2) Appeal dismissed.

Catchwords:

CRIME - sentence - appeal against sentence - totality principle - import a commercial quantity of methylamphetamine - found guilty on five counts - degree of overlapping criminality - whether sentence crushing on offender- effect of finding special circumstances

Legislation Cited:

Crimes Act 1914 (Cth), Part 1B

Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 53A

Cases Cited:

Cahyadi v R [2007] NSWCCA 1

House v The King (1936) 55 CLR 499; [1936] HCA 40

Ibrahim v R [2019] NSWCCA 188

Johnson v the Queen (2004) 78 ALJR 616; [2004] HCA 15

Kliendienst v R [2020] NSWCCA 98

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17

R v Fidow [2004] NSWCCA 172

R v MAK and MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381

R v Nykolyn [2012] NSWCCA 219

R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

Regina v Cramp [2004] NSWCCA 264

Category:

Principal judgment

Parties:

Kwong Leung Cheng (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr A Moutasallem (Applicant)
Ms S Traynor (Respondent)

Solicitors:
Pinnacle Lawyers
Solicitor for Public Prosecutions NSW (Respondent)

File Number(s):

2015/158073

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

10 October 2018

Before:

Woodburne SC DCJ

File Number(s):

2015/158073

Judgment

1. BATHURST CJ: I agree with the orders proposed by N Adams J and with her Honour’s reasons.

2. PRICE J: I agree with N Adams J.

3. N ADAMS J: The applicant, Mr Kwong Leung Cheng, seeks leave to appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW), against the sentences imposed on him by Judge Woodburne SC DCJ on 19 October and 2 November 2018 in the District Court at Sydney. He is a Chinese national who travelled to Australia to participate in a Hong Kong-based criminal syndicate involved in importing, manufacturing and selling methylamphetamine.

4. The applicant stood trial, with his co-offenders Chun-Man Chan and Chun Nam So, on 21 August 2017. Some of the charges were common to all three offenders and others were not. Although there were seven charges brought against the applicant, two of these were alternative counts as can be seen as follows:

Count 1: Importing a commercial quantity of methylamphetamine with a weight of 72,517.1 grams, contrary to s 307.1(1) of the Criminal                                 Code 1995 (Cth);

Count 2: (In the alternative to Count 1) Possessing a commercial quantity of methamphetamine contrary to s 307.1(1) and s 11.1(1) of the Criminal Code;

Count 3: Taking part in the manufacture of a large commercial quantity of prohibited drug, namely 2,447.4 grams of methylamphetamine contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW);

               (A statutory alternative to Count 3 was available if the jury was not satisfied that the quantity was the large commercial quantity)

Count 4:   (In the alternative to Count 3) Supply of a commercial quantity of methylamphetamine contrary to s 25(2)/s 29 of the Drug Misuse and Trafficking Act;

Count 5:   Supply of a commercial quantity of methylamphetamine contrary to s 25(2)/s 29 of the Drug Misuse and Trafficking Act, namely                                 572.2 grams;

Count 6:   Supply of a commercial quantity of methylamphetamine contrary to s 25(2)/s 29 of the Drug Misuse and Trafficking Act, namely                                 997.2 grams;

Count 8:   Deal with the proceeds of crime, believing it to be proceeds of crime, namely, $33,215.00 of Australian currency, contrary to s                                   400.6(1) of the Criminal Code.

5. The trial proceeded until 7 November 2018 at which time the applicant was found guilty on five Counts, being 1, 5, 6, 8 and the statutory alternative to Count 3. For ease of reference I propose to refer to that alternative count as “Count 3”.

6. The proceedings on sentence were conducted on 8 June 2018 and the applicant was sentenced by Judge Woodburne SC over two days, on 19 October and 2 November 2018. He was sentenced to a total term of 20 years imprisonment with a non-parole period of 14 years. The sentence was backdated to commence from 27 May 2015 (the date of arrest) and to expire on 26 May 2035. His non-parole period will expire on 26 May 2029.

7. Count 1 was an offence against the Commonwealth, whereas Counts 3, 5, 6, and 8 were State offences. Her Honour did not impose an aggregate sentence for the State offences pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”). Rather, she imposed separate sentences for each of the five offences: Pearce v The Queen (1998) 194 CLR 610. Those sentences are set out below at [46]:

8. The applicant relies upon two grounds of appeal:

Ground One:   The primary judge erred in her application of the totality principle in relation to the sentences imposed for the multiple counts.

Particulars

a)   The primary judge misapplied the practical requirements of sentencing for multiple offences;

b)   The primary judge failed to ensure that the overall sentence imposed was a just and appropriate measure of the total criminality involved;

c)   The primary judge erred in her consideration of the common elements associated with the various offences;

d)   The degree of accumulation was too high meaning that the ultimate sentence was crushing upon the offender; and

e)   The overall sentence, considering the degree of accumulation was manifestly excessive.

Ground Two:    The primary judge erred in not giving effect to her finding of special circumstances.

Factual background

The Commonwealth offence (Count 1)

9. The Crown prepared a Summary of Facts for the purpose of sentencing. It was not objected to and nor is there any challenge made in this Court to any of her Honour’s factual findings. The Summary of Facts is very detailed and runs to 151 paragraphs. Her Honour summarised it in some detail in her Remarks on Sentence but I do not consider it necessary to do so for the purposes of addressing the specific grounds of appeal relied upon by the applicant. Her Honour commenced her summary by stating the following:

“In 2014 and 2015 there was an international criminal syndicate operating out of Hong Kong and China which had, as its object, the importation of methamphetamine into Australia so that it could be manufactured/extracted and supplied to the Australian community with a view to the syndicate making significant profit. It was a very sophisticated and ongoing enterprise for it involved the manufacture of methamphetamine, the concealment of that drug in China in apparently legitimate product (namely, bottles of Aloe Juice Drink), which was packaged with genuine Aloe Juice Drink), the importation of the product into Australia by shipping container, the receipt of the product, the obtaining of premises to store the product, the obtaining of premises to manufacture (extract) the drug, the obtaining of chemicals and equipment to extract the drug, the retrieval of product from storage and the manufacture (extraction of it) and the making of arrangements for the supply of the prohibited drug. The evidence showed the operation of a well-organised and substantial business directed to the importation, manufacture and supply of methyl amphetamine.”

10. Her Honour was satisfied that the applicant was a member of the syndicate. On 29 March 2015, he arrived in Brisbane from Hong Kong and then travelled to Sydney. He described his occupation on his arrival card as “The Technical”. He listed the reasons for his visit to Australia as “Holiday” and “Visit friends or relatives”. Her Honour was satisfied that this was “a sham” and that the applicant had travelled to Australia from Hong Kong for the purposes of the syndicate.

11. The applicant’s role upon arrival to Australia was to assist with a pending importation of methylamphetamine (Count 1), to conduct the extraction of methamphetamine from an earlier shipment or shipments as well as from the pending shipment (Count 3), and sell the product and/or the extracted methylamphetamine (Counts 5 and 6).

12. After his arrival in Australia, the applicant was in continuous contact with his co-offender, Mr Chan. He was also the contact person for Mr Huang, the freight forwarder, with a phone number that he had obtained in Australia.

13. Context evidence was led at the trial which demonstrated that, before the applicant’s arrival in Australia on 29 March 2015, he had been in contact with Mr Chan via text message and WeChat. These messages discussed a previous trip that the applicant had taken to Australia to receive an earlier shipment. The container in that instance had been sent to the same address as the container used in Count 1. The applicant had also been the contact person for Mr Huang. The applicant did not stand to be sentenced for his involvement in the earlier shipment.

14. On 3 April 2015, Mr Chan, who was still in Hong Kong at that time, sent the applicant a text message containing the address of Kennards at Ultimo and Third Eye at Mascot. The applicant attended these storage facilities on six occasions in April and May 2015 and paid the rent for them. Bottles of Aloe Juice Drink containing methylamphetamine were being stored at those units.

15. On 20 May 2015, the applicant communicated with Mr Chan via WeChat in relation to activating a phone number. They discussed the incoming shipment. The two men used the code name “company” to refer to the freight container. On 22 May 2015, Mr Huang was contacted by the Chinese Freight Forwarder and given the delivery instructions for the shipping container, the phone number and the applicant’s name.

16. On 26 May 2015, Mr Chan contacted another co-offender known as “Fat Boy” using WeChat concerning the progress of the shipping container. As her Honour noted:

“It was not alleged against either Mr Chan or [the applicant] that they personally financed or prepared or packed the drugs or that they personally arranged for the transport of the container from China. Nonetheless, the role played by each was an important one intended to effect the successful importation of the border control drug. Their role was to travel to Australia, to be present and prepare for the arrival of the drugs and to facilitate their receipt, storage and collection.”

17. On 28 May 2015, a shipping container containing cartons of Aloe Juice Drink was unpacked by the Australian Customs and Border Service. Testing identified liquid methamphetamine concealed in the bottles of Aloe Juice. This methylamphetamine had a potential street value of about $8,855,000.00 and a calculated pure weight of 72,517.1 grams.

The State offences

Count 3 (statutory alternative)

18. After his arrival in Sydney, the applicant rented a flat in Hurstville with another co-offender, Mr So. He attended some of the storage facilities and retrieved some of the previously imported Aloe Juice Drink bottles. On 27 May 2015, police searched the applicant’s premises and found a total amount of 2.447 kilograms methylamphetamine in buckets and containers in the kitchen. In sentencing the applicant, her Honour divided these amounts into five different “subgroups”.

19. Subgroup 3 comprised 625.4 kilograms of liquid in a pink bucket found in the kitchen containing methylamphetamine at a purity of 21.6%. Subgroup 4 comprised 1,800.7 grams of liquid in a pink bucket found in the kitchen cupboard containing methylamphetamine at a purity of 10%. Subgroup 5 was a square plastic container with a black lid containing 19.2 grams of methylamphetamine at a purity of 77.4%. Subgroup 6 comprised 1.3 grams methylamphetamine at a purity of 79.2% found in a pink bucket. Subgroup 7 comprised 0.8 grams methylamphetamine at a purity of 46.1% found in another pink bucket.

20. The total weight of the methylamphetamine found at the applicant’s flat was 2.447 kilograms, but evidence adduced at the trial established that the maximum amount of methylamphetamine that could have been extracted from this liquid was only 400 grams (this explains the jury returning the statutory alternative for Count 3). The jury had been invited by the Crown at trial to draw an inference that the bottles of Aloe Juice containing methylamphetamine had been retrieved from a facility where a previous shipment had been stored. The bottles were then emptied into buckets by the applicant and Mr So under the direction and supervision of Mr Chan. The methylamphetamine was extracted through a process of evaporation.

Count 5

21. Two bags of methylamphetamine were found in Mr So’s room, along with a set of scales which had the applicant’s fingerprints on them. These bags were found to be in the offender’s possession for the purposes of supply. They contained 231.4 grams and 340.8 grams of methylamphetamine with 80.3% purity.

Count 6

22. On 14 May 2015, police arrested a number of people in the carpark of the Moore Park SupaCenta. During this arrest, a resealable plastic bag was located which contained 997.2 grams of methylamphetamine. This methylamphetamine was identified as coming from the same batch as that found at the Hurstville premises and the applicant’s fingerprints were found on the opening edges of the bag. As her Honour noted:

“The Jury’s verdict reflects a finding that at some time prior to 15 May 2017 [the applicant] supplied the drugs to the persons who were arrested at Moore Park or at some other person or persons before the drugs were on-supplied to those persons, with [the applicant] being the original source.”

Count 8

23. During the search on 27 May 2015, police located $32,215 in the applicant’s bedroom. Her Honour was satisfied that the applicant was in possession of this cash by reason of acts he performed in connection with the drug activities of the syndicate.

Proceedings on Sentence

24. In addition to the Summary of Facts, the Crown tendered the applicant’s criminal histories, both in New South Wales and Hong Kong. A statement of Detective Sergeant Beehag dated 7 June 2018 was also tendered concerning the value of the drugs.

25. The applicant did not give evidence at his proceedings on sentence. His subjective circumstances were placed before the Court through a report prepared by Lucy Swaffield of Duffy Robilliard Psychologists dated 27 May 2018 and a letter from Zheng yun Shi of a Chaplaincy within Corrective Services (Abbot of Ding Hui Monastery) dated 13 January 2018. This letter described his religious activity in custody. There was also a letter from Jack Simpson of the Cross Roads Bible Institute Australia dated 7 June 2017 with a Certificate of Achievement, and a letter from his wife, Sau Lai Ning, dated 6 June 2018.

Remarks on Sentence

26. The applicant was sentenced over two days. Mr Chen was sentenced at the same time.

27. Her Honour summarised the matters she was required to have regard to according to Part 1B Crimes Act 1914 (Cth) and s 3A of the Sentencing Act. Her Honour’s finding of objective seriousness in relation to Count 1 was as follows:

“The objective seriousness of the offending was significant. Mr Chan and [the applicant] each travelled to Australia for the purposes of a sophisticated, well organised, international drug syndicate. The enterprise involved significant organisation, the manufacture of the methamphetamine, the concealment of the drug in the legitimate product to avoid protection and the importation of the drug into Australia via shipping container.”

28. Her Honour then indicated that the quantity of the drugs involved necessitated a finding of “significant” objective seriousness. As she observed, 73 kilograms of pure methamphetamine was approximately 100 times the commercial quantity. Her Honour was also satisfied that the applicant was aware of the nature and extent of the operation, including the identity of the drug, the method of concealment and the means of importation.

29. In relation to the role played by the applicant in the scope of the operation, her Honour acknowledged that he had been a drug user but noted that, after his arrival in Australia on 29 March 2015, he completed a number of activities associated with the importation and manufacture of methylamphetamine. As stated above, he was the contact for Mr Chan and the Chinese freight forwarder. He also prepared for the receipt of the pending importation by clearing out storage premises. Her Honour concluded that:

“It is true that [the applicant] was a recreational drug user but I am satisfied he functioned at a high level and that drug use is not a matter which reduces his criminal culpability for this offending conduct. He was subordinate to Chan but the steps taken by him in relation to effecting the importation are properly to be regarded as important to the importation.”

30. Her Honour also observed the profit motivation for the offending, despite the fact that Mr Chan was likely to have been paid more than the applicant. She also took into account the significant deleterious consequences that this amount of methylamphetamine might have had if it had been released into the community.

31. Her Honour then summarised the facts relevant to Count 8. She indicated that although the amount was not particularly large, it was serious as it derived from activities associated with the syndicate and no other penalty apart from imprisonment was appropriate. When dealing with the appropriate sentence for this count, her Honour acknowledged that that the relevant offending had arisen out of the importation and other State charges. She acknowledged the defence submission that, as this was a “course of conduct”, the sentence could be served concurrently. At that point, the proceedings were adjourned until 2 November 2018.

32. When the proceedings resumed on 2 November 2018, her Honour had an exchange with counsel during which she indicated that, she would proceed in the “conventional fashion,” as outlined in Pearce v The Queen, by fixing appropriate sentences and then considering questions of concurrency and accumulation. She then stated that the sentences for the proceeds of crime offence would be a fixed sentence and would be served concurrently with the importation offence.

33. Her Honour then dealt with Count 3 and assessed its objective seriousness as “mid-range”. It was noted that it was a planned offence, coordinated by an international criminal syndicate and involved a joint criminal enterprise between Mr Chan, the applicant and Mr So. She also noted that it was a process of extraction, which was a less complex method of manufacture. In terms of the role played by the applicant in the manufacture, her Honour noted that:

“[The applicant] was subordinate to Mr Chan, yet he played a very significant and ongoing role in terms of the manufacture from the premises. He was, of course, the person who was directly engaged in the manufacturing process. Under the direction and instruction of Mr Chan, he obtained the necessary equipment and products. He took the necessary steps to attend various storage facilities as required. He paid rent and he took steps to retrieve the previously imported aloe juice bottles from storage so that he could embark upon the extraction process for the purposes of the enterprise. As identified when sentencing Mr So on 6 April 2018, Mr So, having been brought into the enterprise by Mr Chan, was subordinate to [the applicant].”

34. Her Honour further noted that the amount of methylamphetamine extracted was well over the commercial threshold but did not amount to the large commercial quantity. She found that the offence was in the mid-range of objective seriousness, noting that “[f]or the purpose of advancing their own interests and financial position, the offenders each travelled to Australia to engage in criminal activity organised by an international criminal syndicate.”

34. In relation to Count 5, her Honour noted that the supply was for the purposes of the applicant’s personal financial gain and involved a “relatively significant amount of a very valuable drug”. She found that the objective seriousness was in the mid-range because a more serious offence may have involved a greater amount of the drug; but militating against this was the fact that the offence was committed on behalf of an international drug syndicate.

35. Her Honour then observed that the jury’s verdict in relation to Count 6 reflected a finding that, at some time prior to 15 May 2017, the applicant supplied the drugs (either directly or through third parties) to the persons who were arrested at Moore Park. When assessing the objective seriousness of Count 6, her Honour noted that it was an organised criminal activity and the amount was just below the large commercial quantity. However, she noted that “[f]ortunately, by reason of the intervention of authorities, the drug was not released into the community and its potential destructive effect was thereby prevented.” Her Honour found that the offending was within the top of the mid-range of seriousness.

36. Turning to the applicant’s subjective circumstances, her Honour noted that he had no prior criminal history in Australia. However, he had a criminal history in Hong Kong which commenced when he was 16 years of age. In his mid-twenties he was convicted of several offences, including assault occasioning actual bodily harm, criminal damage and assault police and resist police officer, robbery, and burglary.

37. The applicant was born in Southern China. He reported that he had been treated differently by his mother to his siblings and only saw his father once a year. At the age of 13 he ran away from home. He started using ice at 16 years of age and methylamphetamine at around 19 years of age. He subsequently married and remained, at that time, drug free. His marriage ended in 2010 when he returned to using methylamphetamine. He had not been diagnosed with any mental health issues.

38. As for the question of remorse, it was noted that the applicant had said that he was “very sorry” and “sorry to the Australian Government” when he spoke to the psychologist preparing his report. Her Honour stated the following in relation to that “apology”:

“The status of such apology is difficult to gauge. On the one hand it is clear that this is not a statement signalling an acceptance of responsibility for the offending. [The applicant] does not accept his guilt of any of the offences for which he was found guilty. He is not contrite, nor is he remorseful for his offending and he cannot be sentenced as though he is. In making the statement that he is “very sorry”, he probably acknowledges his drug use, but he is not charged with that. As Mr Goold suggests, [the applicant’s] apology expressed to Ms Swaffield is likely an acknowledgement that he has been found guilty by the jury. The case against [the applicant was somewhat overwhelming. It is reasonable for [the applicant] to acknowledge the verdicts.”

40. Her Honour then turned to the question of the appropriate sentence and put the competing arguments as follows:

“The Crown submission put very generally is that having regard to the high degree of criminality in the commission of the offences and in the absence of mitigating factors very substantial periods of imprisonment are required to meet the purposes of sentencing, and in particular that of deterrence.

Put very generally, and on behalf of each offender, it is submitted that rehabilitation remains important and that such sentences as are imposed should not be crushing and damaging to prospects of rehabilitation. Emphasis has been placed on the fact that where there are several serious offences to be accounted for such offences were part of an ongoing criminal enterprise. On behalf of Mr Chan and [the applicant] constraint is urged on the basis of the proper application of the principles of totality. I have taken into account submissions dated 1 November 2018 filed on behalf of Mr Chan.”

41. Her Honour then went on to state the principle of totality as follows:

“The effect of the totality principle is to require a sentencer who has passed a series of sentences each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles that govern consecutive sentences to review the aggregate sentence and to consider whether the aggregate is just an appropriate. I recognise that reasonable minds might differ as to the appropriate length of the sentences and the degree of concurrence and accumulation and the total effect. I have sought to achieve a just outcome, recognising the importance of general deterrence and that the sentence is one that is not wholly crushing to the offender.”

42. Her Honour then considered the parity concerns as between the co-offenders. She then went on to observe that:

“It will be apparent that I have found special circumstances in relation to the state offences in each case, that is having regard to the accumulation of sentence as well as the need to have regard to rehabilitation and the support that might be required after a lengthy period of imprisonment.”

43. As for the standard non-parole period (“SNPP”), her Honour did not propose to impose it having regard to the circumstances of the offending and totality. She then stated the following in relation to the applicant:

“In relation to [the applicant] it is noted that I had the option of ordering in respect of the state offences an aggregate term of sentence with a single aggregate non-parole period. In the present case I have determined not to adopt that course. The intention is to hopefully to make clear the sentences and the degree of accumulation, which I can indicate I have considered, that I regard as appropriate in each case, having regard to the ultimate constraint of totality.” (Emphasis added.)

44. Her Honour then returned to the question of special circumstances and stated:

“In that regard it will be noted when the sentences are examined that the sentences for the state offences have non-parole periods in the order of 66.6 per cent whereas the sentence in the case of [the applicant] for the import offence has a non-parole period in the order of 60 per cent. The resulting overall non-parole period is one of 70 per cent. I can indicate that that is intentional.” (Emphasis added.)

45. Her Honour imposed sentences on each count the overall effect of which was a total sentence of imprisonment for a term of 20 years, with a non-parole period of 14 years. The sentence commenced on 27 May 2015 (the date of his arrest) and will expire on 26 May 2035. The effective overall non-parole period will expire on 26 May 2029.

46. The following individual sentences were imposed

Count 1:   15 years imprisonment with a non-parole period of 9 years to commence from 27 May 2020 and expire on 26 May 2029.

Count 3:    9 years imprisonment with a 6 year non-parole period to date from 27 November 2018 and expire on 26 November 2024.

Count 5:   6 years imprisonment to date from 27 May 2015 with a non-parole period of 4 years to expire on 26 May 2019.

Count 6:   8 years and 6 months imprisonment with a non-parole period of 5 years and 8 months to date from 27 May 2016.

Count 8:   Fixed term of 18 months imprisonment to commence on 27 May 2020.

The applicant’s submissions

47. The applicant submitted that the overall sentence was too high because the offences all arose from “one criminal enterprise” between the offenders. In particular, it was submitted that Counts 3, 5 and 6 had such a great overlap (because all three incidents related to the manufacture of drugs from the Hurstville unit) “that entirely concurrent sentences or significantly concurrent sentences were called for”.

48. It was further submitted that her Honour erred in setting the commencement date for Count 3 “too late” and that there was a high degree of accumulation between Counts 3 and 6. Complaint was also made that her Honour erred in commencing the sentence for Count 1 eight months after the sentence for Count 3. The nub of the applicant’s complaint was that there was little room for further accumulation given the gravity of Count 1 and the lengthy sentence imposed for it; that is, the sentence for Count 1 could have accommodated much of the criminality for the other counts.

49. Although there was no separate ground of manifest excess, it was submitted that the imposition of a 5 year non-parole period in addition to the 9 year non-parole period imposed for Count 1 was manifestly excessive, taking into account the principle that the severity of a long sentence increases over time: see R v MAK and MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [16].

50. At the hearing, it was clarified that it was not contended that any of the individual sentences were manifestly excessive; only that the overall sentence was, given the degree of accumulation. It was also clarified that the contention was not that there was “absolutely no room” to accumulate the sentences beyond the 9 year non-parole period for Count 1, but, rather, that “there was little room to do so”.

51. When addressing the common elements between the offences, counsel stated that they were close in time and that it was likely that the drugs the subject of Counts 5 and 6 were from the same batch as the other counts. This submission was based on the fact that the apprehension of the individuals selling the drugs on or about 17 May 2015 is very close in time to when police executed the search warrant at the Hurstville premises on 27 May 2015.

52. As for Ground Two, it was submitted that the fact that the applicant’s overall non-parole period was 70% of his overall sentence “watered down” her Honour’s earlier findings that his non-parole periods should be between 60 and 66.6%. It was also submitted that the imposition of a 70% non-parole period was inconsistent with her earlier findings that the non-parole periods should be either 60 or 66.6%. Complaint was made that a 70% ratio was only “mildly less” than the statutory ratio of 75%.

Crown submissions

53. In relation to Ground One, the Crown submitted that the trial judge “demonstrated a high degree of care in the practical application of sentencing for multiple offences, which was further complicated given that the sentencing involved both State and Commonwealth offences”. Further, as demonstrated by a graph annexed to the Crown’s written submissions, her Honour did give effect to the principle of totality by imposing partially consecutive sentences for the State offences and then partially accumulating the sentence imposed for the Commonwealth offence upon those sentences.

54. As for the applicant’s complaint about the degree of accumulation between Counts 3 and 6, as compared to that between Counts 5 and 6, the Crown pointed out that questions of concurrency and accumulation are questions of discretion for the sentencing judge. The ultimate question was whether the offences represented a single episode or discrete episodes of criminality.

55. The Crown pointed out that the applicant’s offending involved a number of separate acts involving the same drug: the drugs located at the Hurstville premises (Count 5) and the drugs that were found in Moore Park on 15 May 2015 (Count 6). Thus, the possession of the drugs for supply and the actual supply did not overlap with the knowingly take part in manufacture (Count 3).

56. In relation to the submission that the sentence was “crushing” given the lengthy sentence for Count 1, it was submitted that this was not such a case where the length of the sentence meant that there was little room for further accumulation. The Crown pointed out that the three additional offences to Count 1 (not including Count 8 as this was served concurrently) were serious offences that carried maximum penalties of 20 years and standard non-parole periods of up to 10 years. Further, each were objectively serious examples of offending of that kind and the applicant's case provided little by way of mitigation.

57. It was further submitted that the supply offences were first in time, then the manufacturing and then the importation. Although this was part of a “continuum of offending,” the counts reflect separate and distinct criminal acts. The Crown therefore distinguished the facts in this case from those in Johnson v the Queen (2004) 78 ALJR 616; [2004] HCA 15 (which was relied upon by the applicant), as that was a case where the common element was that the drugs imported by the appellant were part of one parcel and one transaction.

Consideration

Ground One

58. In order to succeed under this ground the applicant must establish that an error has been made in the exercise of the sentencing discretion: House v The King (1936) 55 CLR 499; [1936] HCA 40. It was not submitted that her Honour had acted upon a wrong principle, nor that she had allowed extraneous or irrelevant matters to guide or affect her. It was not contended that her Honour had mistaken the facts or failed to take into account some material consideration. There was no ground of manifest error in relation to any of the individual sentences; only a complaint that the effective total sentence was too high because of a misapplication of the totality principle resulting in a total sentence that was “unreasonable or plainly unjust”.

59. There were five particulars of error relied upon under this ground. The first complaint was that her Honour “misapplied the practical requirements of sentencing for multiple offences.” I am satisfied that this is another way of alleging that her Honour should have allowed for a greater degree of concurrence. The second complaint was that her Honour “failed to ensure that the overall sentence imposed was a just and appropriate measure of the total criminality involved.” I am satisfied that this is another way of alleging that her Honour should have allowed for a greater degree of concurrence. The third complaint was that her Honour erred in her “consideration of the common elements associated with the various offences.” Again, I am satisfied that this is another way of alleging that her Honour should have allowed for a greater degree of concurrence. The fourth particular was that “the degree of accumulation was too high meaning that the ultimate sentence was crushing upon the offender.” This particular directly alleged that her Honour should have allowed for a greater degree of concurrence. The fifth and final particular was that the overall sentence, considering the degree of accumulation, was manifestly excessive. Again, this particular directly alleged that her Honour should have allowed for a greater degree of concurrence.

60. It is well settled that the extent of accumulation and concurrence is very much a matter of discretion for the sentencing judge. As Bell and Keane JJ observed in Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [37] (footnotes omitted):

“Just as a sentencing judge is accorded as much flexibility as is consonant with the statutory sentencing regime in determining the appropriate sentence, so, too, the judge is to be accorded the same flexibility in determining the structure of two or more sentences. The Sentencing Act does not confine the approach to be taken to the structure of two or more sentences. It assumes concurrency in the absence of a direction to the contrary.”

61. The proper approach was summarised by Gageler, Nettle and Gordon JJ at [64] as follows (footnotes omitted):

“Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.”

62. In the often cited judgment in Cahyadi v R [2007] NSWCCA 1, Howie J (with whom Adams and Price JJ agreed) stated the relevant principles as follows at [27]:

“…there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

63. The applicant contends that Counts 3, 5, 6 and 8 should have been largely concurrent with Count 1. The difficulty with this argument is that it was not contended that the sentence imposed on any of these separate counts was excessive. Thus, the applicant’s submission is that all of the criminality for Counts 3, 5, 6 and 8 could have been reflected in the sentence for the importation offence. Those offences were: knowingly take part in the manufacture of a commercial quantity of methylamphetamine (Count 3), possessing a commercial quantity of methylamphetamine for supply (572.2 grams) (Count 5) and selling a commercial quantity of methylamphetamine (997.2 grams) (Count 6).

64. It cannot be said that any error is disclosed in her Honour’s finding that the criminality on the State offences warranted a significant period of additional imprisonment to the importation offence. As this court noted in Cahyadi v R, when offences are discrete and independent criminal acts, the sentence for one offence cannot usually comprehend the criminality of the other. I cannot accept the applicant’s submission that all of these offences were, in effect, just one single episode of criminality. An example of one single episode of criminality would be, for example, a prolonged sexual assault on one occasion involving discrete sexual acts.

65. Although it was open to her Honour to impose an aggregate sentence under s 53A of the Sentencing Act, she did not do so. That provision was introduced on 14 March 2012 in order to ameliorate the difficulties of applying the decision in Pearce v The Queen in sentencing for multiple offences: R v Nykolyn [2012] NSWCCA 219 at [31]. Despite the fact that it would have been simpler for her Honour to have imposed an aggregate sentence for the State offences, she elected to sentence in accordance with Pearce v The Queen for the stated reason that it would allow the applicant to fully comprehend the degree of concurrence and accumulation, which is not possible when an aggregate sentence is imposed for multiple offences: Kliendienst v R [2020] NSWCCA 98 at [85].

66. In circumstances where her Honour correctly stated the principles and explained why she allowed for the extent of accumulation and concurrence she did, there is no complaint about the length of any individual sentence; the criminality on each count was distinct, albeit part of the same criminal enterprise; and that no specific error has been identified, I am not satisfied that any House v The King error has been established.

63. This ground fails.

Ground 2

68. The applicant contends for error in the manner in which her Honour varied the statutory ratio following a finding of special circumstances. Section 44(1) of the Sentencing Act relevantly provides that, when sentencing an offender to imprisonment for an offence, the court must first set the non-parole period, being that portion of the sentence which the offender is required to serve in custody. Section 44(2) then provides that:

(2)  The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

69. As Spigelman CJ observed in R v Simpson (2001) 53 NSWLR 704 at 719-720; [2001] NSWCCA 534 at [73], as a practical matter, there are unlikely to be many cases in which the Court of Criminal Appeal will interfere with respect to a finding concerning special circumstances unless the non-parole period is found to be manifestly inadequate or manifestly excessive. His Honour later observed the following in relation to complaints about the degree of departure from the statutory ratio in Regina v Cramp [2004] NSWCCA 264 at [31]:

“In my view the size of such an adjustment raises so many matters of a discretionary character that this Court should be very slow to intervene.”

70. Turning to the present sentences, her Honour made a finding of special circumstances in relation to the state offences, having regard to the need for accumulation of the sentences and the need to have regard to rehabilitation and the support that might be required after a lengthy period of imprisonment. The specific complaint under this ground is that her Honour did not give effect to this finding of special circumstances because although the ratio for the individual State offences was 66.6%, the resulting overall non-parole period was one of 70%. The difficulty with this complaint is that after her Honour noted this she stated “I can indicate that that is intentional”. One of the two reasons for finding special circumstances was the need to take into account the effect of accumulation; that is, it was only by making the larger variations to the ratio for the State offences that her Honour was able to arrive at her intended ratio of 70% for the total sentence.

71. Although there can be no doubt that her Honour intended the ratio between the total head sentence and total non-parole period to be 70%, that is not to say that there will not be cases in which a sentencing judge makes a finding of special circumstances that is not reflected in the final sentence. In Ibrahim v R [2019] NSWCCA 188, for example, the sentencing judge had made a finding of special circumstances and then sentenced the applicant to an effective total sentence in which the ratio of the non-parole period to the total sentence was approximately 74.1%. At no stage did the sentencing judge state that it was his intention to make such a minimal variation. Bathurst CJ (with whom Price and I agreed) stated this at [68]:

“The Crown submitted that there was an adjustment to the statutory ratio. However, the adjustment after accumulation was taken into account was marginally more than one month. To adopt the words in R v Sutton [2004] NSWCCA 225 at [30] and El-Ahmad v R [2015] NSWCCA 65 at [50] the reduction made “a mockery of a finding of special circumstances.”

72. What occurred in Ibrahim v R can be contrasted with what happened in the applicant’s sentence: there is no uncertainty in this matter as to whether the ultimate structure of the applicant’s total sentence reflected her Honour’s expressed intention.

73. In circumstances where the extent of variation is a matter quintessentially for the sentencing judge, that there is no requirement to vary the statutory ratio even if special circumstances are found and that her Honour expressly stated that the result was what she intended, I am unable to identify any error in the manner in which her Honour dealt with the issue of special circumstances. In any event, this Court has held that a finding of special circumstances does not mean that the sentencing judge is obliged to vary the statutory ratio at all: R v Fidow [2004] NSWCCA 172 at [22]

74. Overall, her Honour’s reasons were careful and thorough. I am satisfied that her Honour addressed the matters of totality and special circumstances in a way that precludes the complaints now being made being established. Despite this, the applicant was convicted of serious offences carrying a life sentence. I would be prepared to grant leave to argue these grounds but dismiss the appeal.

ORDERS

75. The orders I would propose are:

1. Leave to appeal against sentence granted.

2. Appeal dismissed.

Decision last updated: 02 October 2020