Chong v R

[2017] NSWCCA 185

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Chong v R [2017] NSWCCA 185
Hearing dates:	7 July 2017
Date of orders:	02 August 2017
Decision date:	02 August 2017
Before:	Basten JA at [1] Harrison J at [34] Schmidt J at [41]
Decision:	(1)   Grant the applicant leave to appeal against the sentence imposed by the District Court on 14 October 2016. (2)   Allow the appeal and set aside the sentence imposed by the sentencing judge. (3)   Resentence the applicant to a non-parole period of 4 years imprisonment to date from 9 December 2015, with a balance of term of 2 years, being a sentence of 6 years imprisonment. (4)   The earliest day on which the applicant is eligible for release on parole is 8 December 2019.
Catchwords:	CRIMINAL – sentencing – leave to appeal and appeal against sentence – plea of guilty –procedural fairness – whether sentence manifestly excessive – drug offence – supply of methylamphetamine – role in drug trafficking enterprise - comparable cases – effect of Regulation reducing threshold of large commercial quantity
Legislation Cited:	Crimes Act 1900 (NSW); s 93TA Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Drug Misuse and Trafficking Act 1985 (NSW), s 25, s 25(2) Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 (NSW)
Cases Cited:	AB v R [2013] NSWCCA 273 Butters v R [2010] NSWCCA 1 Cherdchoochatri v R (2013) 277 FLR 126; [2013] NSWCCA 118 Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Govindaraju v Regina [2011] NSWCCA 255 Lam v R; Lam v R [2015] NSWCCA 87 Lowndes v The Queen (1995) 195 CLR 665; [1999] HCA 29 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242 R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 R v Falls [2004] NSWCCA 335 R v Leroy [1984] 2 NSWLR 441 R v Tak Hok Chong [2016] NSWDC 248 Regina v Shi [2004] NSWCCA 135 R v Ferrer-Esis (1991) 55 A Crim R 231 R v MacDonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34 R v Saleh, Haissan [2016] NSWCCA 216. R v Slater (2001) 121 A Crim R 369; [2001] NSWCCA 65 Saleh, Kassim v R [2016] NSWCCA 317 Stokes v Regina (2008) 185 A Crim R 74; [2008] NSWCCA 123 Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Toole, Kurt v R; Toole, Joshua v R (2014) 247 A Crim R 272; [2014] NSWCCA 318 Vaiusu v R [2017] NSWCCA 71 Wong v R (2001) 207 CLR 584; [2001] HCA 64 Wienand v R [2013] NSWCCA 202
Category:	Principal judgment
Parties:	Tak Hok Chong (Applicant) Regina (Crown)
Representation:	Counsel: Mr S Pararajasingham (Applicant) Ms N Williams (Crown)   Solicitors: CBD Criminal Defence Lawyers (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2015/362460
Publication restriction:	No
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: R v Tak Hok Chong [2016] NSWDC 248 Date of Decision: 14 October 2014 Before: Hatzistergos DCJ File Number(s): 2015/362460

Judgment

1. BASTEN JA: On 9 December 2015 the applicant was arrested at Sydney’s Central Station, being in possession of 923g of methylamphetamine with a purity of 78.5%. It was his intention to take the drug by train from Sydney to Perth.

2. He entered a plea of guilty to a charge under s 25 of the Drug Misuse and Trafficking Act 1985 (NSW). He was committed for sentence in the District Court and a hearing was conducted before Hatzistergos DCJ on 23 September 2016. He was sentenced to imprisonment with a non-parole period of 5 years and 4 months and a balance of term of 2 years and 11 months, giving an overall sentence period of 8 years and 3 months.

3. The circumstances relevant to the application for leave to appeal are to be found in the reasons of Schmidt J.

Application for leave

4. The offender sought leave to appeal on two grounds, namely procedural unfairness attending the sentencing process and a complaint that the sentence was manifestly excessive. There should be a grant of leave; it is sufficient that the former ground raises an arguable challenge to the sentencing process and the sentence imposed, for the reasons explained below.

Procedural unfairness

5. Procedural unfairness involves the denial to an offender of an opportunity to deal with material adverse to his or her interests. Justifiable claims of unfairness on sentencing where the offender has not given evidence can arise only in limited circumstances. For example, it will usually not be possible for an offender who has not given evidence of remorse to complain that the sentencing judge did not accept indirect evidence, such as statements to a psychologist. However, claims of unfairness can arise in circumstances where the judge has made a finding of fact adverse to the offender, which was not sought by the prosecutor and which therefore might reasonably not have been anticipated by the offender. Similarly, where the judge, having led the offender to believe (the offender reasonably relying upon the belief) that no such finding would be made, then makes an adverse finding, it may be held that the sentencing was procedurally unfair. [1]

   1. See, eg, Parker v Director of Public Prosecutions (1992) 28 NSWLR 282.

6. In the present case, the sentencing judge, in dealing with the objective seriousness of the offending, found that it was “clear that [the offender] arrived in Australia for the purpose of delivering the bag and to this end, arranged and paid for a rail trip to Perth himself.”[2]

   2. R v Tak Hok Chong [2016] NSWDC 248 at [28] (“Chong”).

7. The agreed facts were that the applicant had arrived in Australia on a “working holiday” visa on 17 October 2015. He had agreed with a friend that he would deliver a bag to Perth and said that he received the bag at the beginning of “the month”, presumably referring to December 2015. It was no part of the agreed facts that the arrangement to deliver the bag from Sydney to Perth had been made before he arrived in the country, or that he had come to the country for the purpose of making the delivery. Nor was that point to be sourced in any statements by the applicant in the report from a consultant forensic psychologist, Mr Watson-Munro, tendered on his behalf.

8. To obtain a visa to come to this country for the purpose of engaging in criminal activity might be seen as a serious aggravating factor. Such a finding should only be made if sought by the prosecutor and if the judge were satisfied beyond reasonable doubt as to the proposed fact. It was not a finding which might reasonably have been anticipated from a reading of the agreed facts; it was not sought by the prosecutor.

9. In these circumstances, the finding should not have been made. As it cannot be dismissed as immaterial, the complaint of procedural unfairness is made good.

10. The applicant relied upon a second unfair finding, namely as to his role in the supply of drugs.

11. On the agreed facts, the bag had been delivered to the applicant at a place he was staying in Ashfield, the arrangement being that he was to pay for the trip to Perth himself, but would be repaid on arriving in Perth. He was also “going to be bought a meal and paid a handling fee in exchange for making the delivery.” After referring to that evidence and noting the applicant’s claim that “he performed the task to pay off a drug debt”,[3] the judge observed that these were “untested self-serving statements and it is appropriate to exercise significant caution in relation to them.”[4] The judge said that he was “not satisfied as to the precise nature of any arrangement.”[5] Nevertheless, in stating his conclusions he bore in mind “the level of the offender’s involvement being somewhat more than a courier”. [6]

    3. Chong at [33].

    4. Chong at [33], referring to Butters v R [2010] NSWCCA 1 at [18].

    5. Chong at [33].

    6. Chong at [36].

12. While it was true that “the precise nature” of the arrangement was not disclosed, the statement about being taken to dinner and paid a handling fee was part of the agreed facts. The proposition that the task was being undertaken in order to repay a debt emanated from the applicant’s statements to the psychologist. It is true that the latter proposition was not the subject of testimony, nor able to be challenged in cross-examination; nevertheless, there was no evidence to support a finding that he undertook the task for profit. He claimed to have had a drug problem in the past and it was not implausible that he had acquired a debt which was unlikely to be readily forgiven.

13. Although the prosecutor was somewhat ambivalent as to the nature of the applicant’s role, he conceded that “[i]t appears that his role may be limited to that of a courier.” [7] The submissions for the applicant in the course of the sentencing hearing relied, affirmatively, on the alleged drug debt as giving rise to an element of duress. In reply, the prosecutor was asked whether he accepted that there had been non-exculpatory duress, which he said was not established by the evidence.

    7.    Tcpt, 23/09/16, p 4(13).

14. In these circumstances, it was not open to the Court to find that the role of the offender was “somewhat more than a courier”. At the least, no such finding should have been made without some prior indication to the offender that such a finding might be made.

15. The finding made was in somewhat imprecise terms and, as has often been remarked, labels are less important than the actual conduct engaged in. However, the findings as to the applicant’s conduct did not demonstrate that he was in any material sense more involved in the drug supply than the role of courier would suggest. Assuming that some finding of more serious involvement had been accepted, the complaint of procedural unfairness is made good. Whether it had a material bearing on the sentence imposed is less clear, and, given the earlier conclusion as to the purpose in travelling to Australia, need not be determined. However, I would infer that it did.

Manifestly excessive sentence

16. As the errors identified above require that the Court resentence the offender, it is not necessary to consider whether the sentence imposed was erroneous because manifestly excessive, for some reason not revealed in the judgment.

Resentencing

17. The offence for which the applicant was convicted, namely supplying not less than the large commercial quantity of methylamphetamine, carried a maximum sentence of imprisonment for life and a standard non-parole period of 15 years imprisonment. The threshold for the large commercial quantity had been halved by the Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 (NSW), which had commenced on 1 September 2015, that is three months prior to the applicant’s offence. Before the amendment the maximum penalty for supplying an amount of less than 1kg was 20 years imprisonment with a standard non-parole period of 10 years.

18. It should be accepted that Parliament intended that the sentences imposed upon persons supplying quantities of a prohibited drug between 500g and 1kg should be increased. As the High Court said in Muldrock v The Queen:[8]

“An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased. It appears that for most, if not all, Div 1A offences, the standard non-parole period exceeds the mean non-parole period for the offence recorded in the statistics kept by the Judicial Commission of New South Wales in the period before the enactment of Div 1A. … It may be … that for some Div 1A offences there will be a move upwards in the length of the non-parole period as a result of the introduction of the standard non-parole period. This is the likely outcome of adding the court's awareness of the standard non-parole period to the various considerations bearing on the determination of the appropriate sentence. It is not because the standard non-parole period is the starting point in sentencing for a midrange offence after conviction.”

8. (2011) 244 CLR 120; [2011] HCA 39 at [31] (citations omitted).

19. The same expectation may arise with respect to the increase in the penalty for the conduct engaged in by the applicant. It does not follow that all sentences must immediately increase beyond the sentences for equivalent offending immediately prior to the amendment. Questions of general and specific deterrence will still need to be assessed in the individual case, albeit against new guideposts.

20. The quantity and purity of the drug involved are important factors in determining the objective seriousness of the offending, as is the role played by the applicant in what was undoubtedly a course of criminal conduct involving other participants.

21. It is not irrelevant that the amount involved was not far short of the amount which would have qualified as the threshold for a large commercial quantity prior to the amendment. The high level of purity (78.5%) is also a significant consideration. The prosecutor submitted that it was part of a planned or organised criminal activity, being an aggravating factor within s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). This too should be accepted, although the degree of aggravation depends upon the role played by the offender in such an activity.

22. For the reasons explained above, the appropriate finding on the evidence was that the applicant was a courier who had agreed to transport the drug from Sydney to Perth. He acknowledged that he had had contact with the person through whom the arrangement was negotiated, whilst living in Hong Kong. It was also acknowledged that he himself had been a user of methylamphetamine, at least until June 2015. Whether or not his motive for participating in the offence was indeed to pay off an existing drug debt, there was no evidence to establish that he had some greater role in the organisation of the criminal activity, or expected a payment commensurate with some role beyond that of a courier.

23. Further, although there are a number of unexplained features of his account, the prosecution did not demonstrate, nor seek to demonstrate, that he came to Australia for the purpose of engagement in the criminal offending the subject of the present charge.

24. Taking into account the applicant’s relatively minor role in the operation (albeit an indispensable role) and taking into account the fact that the offence extends to far greater levels of involvement and far higher quantities of prohibited drugs, in my view the offending fell significantly below what may be described as the middle range of objective seriousness, acknowledging the vagueness of that description.

25. So far as the subjective circumstances of the applicant are concerned, regard must be had to his lack of a criminal record and the fact that he was 22 years of age at the time of the offence. The sentencing judge accepted his expression of remorse and contrition for his conduct and also that he had “good prospects of rehabilitation and is unlikely to reoffend.”[9] There is no suggestion that this Court should not make a similar finding on resentencing.

    9. Chong at [41].

26. The sentencing judge also accepted the applicant’s evidence that he himself had had a serious drug problem, which led to the offending. In more guarded terms, the sentencing judge said that he “appears to have ceased using drugs and is now in partial remission”,[10] a qualified finding, but one which appears to have been relied upon in accepting that he had good prospects of rehabilitation.

    10. Chong at [40].

27. While acknowledging the absence of any record of previous convictions, the sentencing judge gave “little weight” to that consideration,[11] relying on a statement of Street CJ in R v Leroy to the following effect:[12]

“This Court and other criminal courts have said on many occasions that, in the drug traffic in particular, the circumstances that the accused person has a clear earlier record will have less significance than in other fields of crime. Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because their records, their past and their lifestyles are not such as to attract suspicion. It is this in particular which has led the courts to take in the case of drug trafficking a view which does not involve the same degree of leniency being extended to first offenders.”

11. Chong at [37].

12. [1984] 2 NSWLR 441 at 446-447 (Street CJ, Glass JA and Yeldham J agreeing).

28. There is some caution required before applying such a statement as to the facts arising in one case, even if common to a range of cases, as a general statement of principle. There was no suggestion in this case that the offender was “selected” by the organisers of the criminal activity because of his lack of a prior record. Indeed, what may be highly relevant with respect to drug importations may be of less relevance to transportation internally, when the mode of travel is unlikely to attract attention to the individual traveller. Why and how the applicant became involved in the activity is another question; it suffices to say that his personal circumstances were sufficient to warrant a significant degree of leniency.

29. Those circumstances included the fact that he would serve his inevitable prison sentence in a culture which was foreign to him and in which he would suffer a significant degree of social isolation, including by reason of his lack of fluency in English. His penalty will involve a degree of severity which would not be shared by other offenders.

30. There was no suggestion that the applicant was not entitled to the full discount of 25% for his early plea, nor that the finding of special circumstances was inappropriate. Both the discount and the proportion (65%) between the non-parole period and the term of the sentence adopted by the sentencing judge were appropriate, for the reasons given by him.

31. In determining the length of the sentence, I have taken into account the range suggested by the decisions relied upon by the applicant, which have been carefully analysed by Schmidt J, after allowing for the reduction in the minimum quantity. Further, it is appropriate to take into account the fact that the increased seriousness of the conduct engaged in by the applicant had resulted from a very recent change in the law. As time passes, it is likely that sentences for such conduct will increase to reflect the changed legislative regime. However, I would not accept that such changes should take place overnight; neither general nor specific deterrence require that result.

32. Taking all these considerations into account, I would fix a non-parole period of 4 years imprisonment, with a balance of term of 2 years. The overall sentence is therefore 6 years, for which the starting point, prior to the discount, was 8 years. It should commence on the day on which he was taken into custody.

33. This Court should make the following orders:

1. Grant the applicant leave to appeal against the sentence imposed by the District Court on 14 October 2016.

2. Allow the appeal and set aside the sentence imposed by the sentencing judge.

3. Resentence the applicant to a non-parole period of 4 years imprisonment to date from 9 December 2015, with a balance of term of 2 years, being a sentence of 6 years imprisonment.

4. The earliest day on which the applicant is eligible for release on parole is 8 December 2019.

34. HARRISON J: I have had the advantage of reading the judgments of Basten JA and Schmidt J in draft. Having regard to the detailed references in their Honour’s reasons to the factual background to this appeal, it is unnecessary to repeat what they have said.

34. Mr Chong complains, among other things, that the sentencing judge proceeded upon the basis that he was “somewhat more than a courier”. That finding is to be contrasted with the Crown’s concession in the Court below that “[i]t appears that his role may be limited to that of a courier.” The tension between the two positions, and the fact that his Honour did not give any indication that he proposed to discard or ignore the Crown’s concession, is relied upon by Mr Chong to support a contention that he has been denied procedural fairness.

35. I agree that Mr Chong has been denied procedural fairness.

36. It is well established that the adoption of a description of a person’s particular role in, for example, an enterprise involving the manufacture or acquisition of drugs, and their wider distribution and supply, must yield to the precise factual basis said to support the description that has been chosen. It would also appear to be well understood, in sentencing parlance, that “a courier” is generally regarded as an individual whose involvement among a range of other individuals is limited to the physical act of carrying or delivering the offending substance, unassociated with any more sophisticated or sinister responsibilities. The potential rewards for such assistance are also generally understood to be smaller, along with the corresponding level of criminality. It would generally seem to be the case that a courier in this context is to be regarded as someone on the bottom rung of the enterprise.

37. For better or worse, these labels or descriptions are regularly used to provide convenient, and hopefully accurate, assessments of the comparative positions of individuals concerned in sentencing for drug offences. It seems to me therefore to be very important for sentencing purposes that any concession by the Crown that an accused person falls within a particular category of criminal responsibility, and upon which an accused person would appear to have relied, should not lightly be departed from and not, as it were, without notice. Notice in that context incorporates the notion that the accused person will be given the opportunity to address the prospect that the assumption will be disregarded by the sentencing judge if that is proposed. It is very easy, in the language of a different discourse, to appreciate that Mr Chong, or someone in his position, might be thought to have altered his position to his detriment by reliance upon the expectation that the assumption would not be departed from by the sentencing judge.

38. In the present case, that alteration consisted in Mr Chong’s counsel reasonably saying nothing to convince the primary judge that Mr Chong was not somewhat more than a courier. Even though at a semantic level the difference between the two roles, finding expression in the term “somewhat more”, may not be great, the lost opportunity to address the difference is. In particular is this so, for the reasons given by Basten JA, where the inference is that a longer sentence was imposed as a consequence. The very fact that the sentencing judge made reference to Mr Chong’s role in the terms that he did certainly suggests to me that his Honour’s description was, to some extent at least, important to his conclusion.

39. I agree with the orders proposed by Basten JA.

40. SCHMIDT J: Mr Chong seeks leave to appeal the sentence imposed by Hatzistergos DCJ in October 2016, following his plea to a charge of supplying not less than a commercial quantity of methylamphetamine, 923.1 grams, contrary to s 25(2) of the Drug Misuse and Trafficking Act1985 (NSW). After a discount of 25% for a guilty plea, he was sentenced to 8 years and 3 months imprisonment, with a non-parole period of 5 years and 4 months.

41. Three grounds of appeal were advanced: a denial of procedural fairness; failure to take account of principles applying to the sentencing of young offenders; and that the sentence was manifestly excessive. The second ground was not pressed.

42. In my view, while leave to appeal must be granted, the appeal must be dismissed.

The sentencing proceedings

44. His Honour outlined the facts, which the parties had agreed, in R v Tak Hok Chong [2016] NSWDC 248 at [2] – [13]:

“[2]    On 9 December 2015, the police attached to the Transport Action Group were conducting an authorised drug detection dog operation at Central Railway Station, commencing at about 10:30 am. At 2:45 pm, the offender approached a police dog handler at the top of the escalators which separated the country and suburban platforms and asked for directions. The offender was carrying a black satchel bag over his shoulder. At that time the drug detection dog “Rachey” was nearby and working with a dog handler, Senior Constable Grand. Rachey had a change of behaviour and indicated at the offender.

[3]    Senior Constable Grand approached the offender and informed him that the dog had detected a scent of prohibited drugs in the free air space around him. The offender was advised that he did not have to say anything if he did not want to. When asked if he understood, the offender said: “No English. Hong Kong.”

[4]    Senior Constable Grand noticed that the offender appeared nervous, his skin was pale, his fingers were shaking and he was swallowing hard. On the basis of these observations and the positive indication made by the dog, Senior Constable Grand formed the suspicion that the offender was in possession of prohibited drugs.

[5]    The offender was asked to place his bag on the ground. He complied but continued to look at the bag from the corner of his eye. The offender was then informed that he was going to be searched. Inside the main compartment of the offender’s bag, police found a white plastic shopping bag. Inside the bag were four individual clear plastic bags, containing a large quantity of a clear crystalline substance. Rachey made a positive indication. The offender was then cautioned and placed under arrest. The offender told police that the bag was not his, but agreed that he had been carrying it. When asked if he knew it contained drugs, the offender replied that he was “not sure.” He also said that someone had told him to keep the bag safe and deliver it. He opened the bag when he first received it at the beginning of the month and saw that there was a white powder inside. He did not ask what was inside the bag. The offender said that he had been asked by a friend, whom he first met over the internet and then in person in Hong Kong, to deliver the bag to Perth. He said that he would be taken to dinner and paid when he returned to Sydney, but did not know how much.

[6]    The conversation with the offender was initially in English and then in Cantonese, conducted by a Cantonese speaking police officer.

[7]    The offender’s bag was subsequently seized and he was conveyed to Surry Hills Police Station. In a further search of the offender’s bag, a train ticket was located in his name for a trip departing Sydney on 9 December 2015 and arriving in Perth on 12 December 2015.

[8]    The offender participated in an electronically recorded interview with the assistance of a Cantonese interpreter. He agreed that he had taken part in a conversation at the scene which was recorded. The offender confirmed that he had been asked by a friend to deliver the bag to a relative of that person in Perth. He knew that friend by the nickname “Chicken.” He first met “Chicken” in Hong Kong, where the offender became involved in “exporting” goods to mainland China. This involved secretly transporting large quantities of goods such as milk powder or shampoo in his luggage.

[9]   The offender said that he had paid for the trip to Perth himself but he was to be repaid on arriving in Perth. He said he was going to be paid a meal and a handling fee in exchange for making the delivery. He claimed that the bag was delivered to him in Ashfield, where he had been staying. He said he was told not to open the bag but he had done so when he put his clothes in.

[10]    The offender initially told police that he did not know what the substance was but thought it looked like some kind of sugar. He said that it was only when the police searched his bag and removed the substance that he realised it was a drug. He identified a receipt dated 8 December 2015 that was found in the plastic bag as his and suggested it must have fallen inside through a little gap. He maintained that he did not know the bag contained drugs. Later in the interview he was asked whether he had touched the four packages and the offender told police that he had touched them because he had never seen drugs before and did not know what kind of drug they were. He said that he had opened the bag and pressed it.

[11]   On analysis, the substance was determined to be 923.1 grams of methylamphetamine with a purity of 78.5%.

[12]    The plastic bag and drug packaging were later analysed and a number of fingerprints were developed and determined to have been deposited by the offender. The offender’s DNA was recovered on a trace swab from the shopping bag and on the flap along the top edge of one of the bags containing the drugs.

[13]    Police obtained a copy of the offender’s bank account in Hong Kong, which was a savings account with HSBC bank. That revealed a balance, as at 11 February 2016 of HKD 8176.03.”

45. The applicant did not himself give evidence, but tendered the report of the psychologist Mr Watson-Munro, to whom, his Honour observed, he had given a history of addiction to crystal methamphetamine; had expressed remorse; and given an account of the increased “intensity of his incarceration”, because of his separation from his family and “language nuances”.

46. The applicant’s personal circumstances were reported to be that he was born in Hong Kong in 1992 and is not married and has no children. He has four siblings and is third eldest in his family. His siblings were aware of his circumstances, but his elderly parents were not.

47. The applicant completed school at age 15 and then pursued various jobs for about eight years, before becoming involved in relocating products such as shampoo and hardware, from Hong Kong to China for about a year. This brought him into contact with drug suppliers and he drifted into using ice, which continued until June 2015.

48. The applicant was then using up to two “caps” per day. That affected his judgment, perception and impulse control and resulted in high levels of paranoia and rebound depression. With escalating drug use, his financial position declined and he needed to borrow money, in addition to getting drugs on credit. This led to him incurring a substantial debt. Ultimately, he was able to cease drug use by going “cold turkey.” He was under pressure from his supplier to repay his debt, so he acquiesced to a demand to move drugs between Sydney and Perth.

49. The applicant’s mood had deteriorated since his incarceration in light of his social isolation and fear for his future. Mr Watson-Munro considered that the applicant suffers from a major Depressive Disorder, with features of Anxiety Disorder. His anxiety appears to have been heightened by concern for his family’s welfare, particularly now that a substantial quantity of drugs has been confiscated. His anxiety is reflected in high levels of agitation.

50. Mr Watson-Munro also considered that the applicant’s substance misuse disorder was in partial remission and that the intensity of his symptoms had been augmented by his social isolation and the fact that he receives no visits or support from any individual in this country. Mr Watson-Munro was concerned about the applicant’s indication that would like to end his life, which suggested that he required treatment, which he described, to deal with his anxiety.

51. Mr Watson-Munro also considered that supportive and motivational psychotherapy, ideally undertaken by a mental health practitioner who is fluent in his primary language, would be of added advantage, given the applicant’s lack of understanding of English. He observed that the likelihood of the applicant receiving this type of treatment in custody was remote.

52. Mr Watson-Munro considered, nevertheless, that given the absence of prior offending; the applicant’s clear desire, prior to him committing these offences, to relinquish his drug use; and his expressed intentions of moving forward with his life, that with support, treatment and supervision, his overall prognosis was positive.

53. The seriousness of the applicant’s offending was in issue on sentence. His Honour concluded that the objective gravity of his offence fell just below the middle range of objective seriousness: at [36]. The matters which his Honour took into account included that:

• The large commercial quantity was not at the upper range;

• The level of the applicant’s involvement was somewhat more than that of a courier;

• The applicant’s role had involved some planning on his part to transport a prohibited drug;

• The quantity involved was marginally under double the threshold for a large commercial quantity and had a high purity of 78.5%; and

• “The facts themselves lend some credence to the offender [applicant] being criminally inexperienced and not participating in any broader planning or organised activity with regard to the offending in that he approached police and was proximate to the drug detection dog whilst carrying the drugs”: at [29].

54. As to duress and profit, his Honour considered at [31] – [33] that:

“[31]   The source of the asserted duress is the conduct of persons in another country – a claim that could be easily made. Beyond this, the statements were made to a third party and were not tested in Court. The Court of Criminal Appeal has previously stated that considerable caution needs to be exercised in relying on such statements made in such circumstances, without the offender giving any evidence and the Crown not conceding it. Indeed the practice of placing material before a sentencing Judge in an attempt to minimise the objective seriousness of a crime, otherwise apparent on the face of the record, has been the subject of criticism. In the circumstances I am unable to find non-exculpatory duress.

[32]    However, even if the offender’s judgment were clouded by his previous addiction and need to repay creditors it provides little mitigation to the objective seriousness of the offence.

[33]    The offender claimed that he did not stand to gain a profit from the offending, but was “going to be bought a meal and paid a handling fee in exchange for making the delivery” and that he performed the task to pay off a drug debt. Again, these were untested self-serving statements and it is appropriate to exercise significant caution in relation to them. In the circumstances I am not satisfied as to the precise nature of any arrangement.” (footnotes omitted)

55. The fact that the drugs had been intercepted, his Honour considered, had to be viewed in light of what was said in Regina v Shi [2004] NSWCCA 135 at [34]:

“[C]ulpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentio and Becheru (1962) 63 A Crim R 402.”

56. His Honour also took the view that the applicant’s record of having no previous convictions and otherwise being of good character carried little weight in the circumstances of his offending: R v Leroy [1984] 2 NSWLR 441 at 446-478 (Street CJ). His Honour accepted, however, that the applicant had expressed remorse and contrition to the Court for his conduct, had good prospects of rehabilitation and was unlikely to reoffend: at [41]. Special circumstances were also found, resulting in the non-parole period of only 5 years and 8 months: at [54].

Was the applicant denied procedural fairness?

57. When a complaint about denial of procedural fairness is advanced, what arises to be considered is the concern of the law, “to avoid practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]. When the cases which the parties advanced are properly considered it is apparent that the applicant suffered no injustice at the sentencing hearing.

58. The complaints now advanced concern adverse conclusions which his Honour reached about the applicant’s role, his motive and the limited weight given to certain mitigating factors on which he had relied. In the circumstances, the applicant argued, he ought to have been given an opportunity to be heard on findings which aggravated his offence: Stokes v Regina (2008) 185 A Crim R 74; [2008] NSWCCA 123 at [13] - [15].

59. It was submitted that his Honour was bound by what was discussed in Cherdchoochatri v R (2013) 277 FLR 126; [2013] NSWCCA 118 at [46] - [51]:

“[46]    The applicant's evidence was plainly directed to establishing that the reason for his participation in the offence was the duress to which he claimed to have been subjected. He explicitly and unequivocally said that he made the decision to participate because of the threats to his family. It is true that his Honour did not expressly reject this. But in focusing only on financial gain, and in disregarding the applicant's evidence concerning his motivation, his Honour plainly, if implicitly, rejected that evidence.

[47]    The present issue is whether, in the absence of notice given by the Crown to the applicant that his evidence was in contest, the judge was entitled to take that course.

[48]    Counsel for the applicant relied upon two paragraphs from the decision of this Court in O'Neil-Shaw v R [2010] NSWCCA 42 (per Basten JA). Those paragraphs are in the following terms:

‘[26]   Statements of general principle must be understood in their context. Nothing in the statement set out above from Chow [see below] should be understood as inconsistent with the obligation of the sentencing judge to impose the appropriate sentence, based on the evidence properly before the court. As explained by Howie J in Palu [see below], the factual basis should be identified with particularity and disputed facts resolved by the accusatorial process upon the evidence before the court. Where the evidence was not challenged or disputed by the prosecution, and was not inherently implausible, his Honour was not entitled to reject it or fail to act on it, or at least was not entitled to do so without proper notice to the applicant that he intended to take that course.

[27]    It is a basic rule of procedural fairness that a party who does not accept the evidence of a witness should put the alternative view in cross-examination, both so that the witness may respond and so that the court has the benefit of assessing the response ... Where there has been no cross-examination of witnesses to contest their evidence 'judges should in general abstain from making adverse findings about parties and witnesses': MWJ v The Queen [2005] HCA 74; 80 ALJR 329 at [39] (Gummow, Kirby and Callinan JJ).’

[49]    The "statements of general principle" to which Basten JA referred appear in paras [23] and [24], preceding the paragraphs relied on on behalf of the applicant. The first is drawn from Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, in which Kirby P set out principles governing the functions of prosecutors and judges involved in sentencing proceedings. The fifth principle is in the following terms:

‘The foregoing rules do not oblige a sentencing judge passively, and unquestioningly, to accept facts as the basis for sentencing which are presented by the prosecution and/or the accused. The judge's sentencing discretion is to be exercised in the public interest. Even where the prosecution and the accused are agreed, they cannot fetter the judge's performance of the judicial function by their plea bargaining: see Malvaso v The Queen ... [[1989] HCA 58; 168 CLR 227]’

[50]    The second "statement of general principle" was drawn from the decision of this Court in R v Palu [2002] NSWCCA 381; 134 A Crim R 174, and is in the following terms:

"[21] It behoves the parties, especially after a 'plea bargain', to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court: Chow ... at 604-608 ..."

[51]    It is worth also noting a brief passage from the judgment of Johnson J in O'Neil-Shaw. His Honour said:

‘[50] Where affidavits are read without objection in civil proceedings, with deponents not being required for cross-examination, the rule is that such evidence should be accepted unless there is a credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence ...’

It may be that his Honour regarded that principle as also applicable in criminal proceedings. If that is so, I would venture to suggest that the principle is stated too broadly. Criminal proceedings, including (and possibly especially) sentencing proceedings, are more than interpartes litigation. A sentencing judge must have regard not only to the often competing positions of the Crown and the person the subject of the proceedings, but also to the public interest in criminal justice. That interest extends to the imposition of a sentence correctly within the appropriate range. That, in turn, extends to a proper and critical examination of all material put before the sentencing judge. A judge is not bound ‘passively and unquestioningly’ to accept an account, apparently mitigatory, of an offender's motivation for becoming involved in an offence.”

60. The distinguishing factor which may not be overlooked in this case is, of course, that the applicant did not give evidence. In the result, what was discussed in Cherdchoochatri is of little relevance in his case.

61. The applicant’s case on this appeal was that his role was that of a courier, as the Crown had accepted on sentence. That, however, was disputed. The applicant argued that in those circumstances, in fairness, his Honour ought to have given notice that he took a different, adverse view of his role before concluding, as his Honour did, that his role was somewhat more than that of a courier; it having involved some planning on his part, to transport the drug.

62. The circumstances were thus argued to be similar to those which arose for consideration in Govindaraju v Regina [2011] NSWCCA 255 at [49] - [57], where it was concluded that the applicant had been denied procedural fairness, because it was not part of the Crown case at the sentencing hearing that the applicant's role was greater than that of a mere courier and no notice was given by the sentencing judge, that she may act on the basis that the history recorded in a psychiatrist’s report was evidence capable of supporting a finding that his role was greater than that of a mere courier.

63. In the account which the applicant gave the psychologist, duress was the explanation which he gave for his involvement in the offending, given threats made to him and his family, if his drug debt was not paid.

64. The applicant thus argued that his Honour ought to have raised with the parties that he was minded to reject what was advanced on his behalf in relation to duress, in order to give him the opportunity to lead further evidence about that matter: R v Falls [2004] NSWCCA 335 at [35] - [38].

65. It was also submitted that while his Honour was entitled to reject his explanation in relation to duress, there was no basis in the evidence for the aggravating finding that he had arrived in Australia to supply drugs. There was also no notice given of that finding, which it was contended was not open on the evidence.

66. Further, it was argued to be contradictory to reject a portion of the account the applicant had given the psychologist, which mitigated his offending, namely duress, while also relying on another portion, to aggravate that offending, namely that he came to Australia to supply drugs.

67. In the result, his Honour ought to have raised the approach which he took to these matters with the parties. Not having done so, the applicant claimed he had been denied procedural fairness.

68. I am satisfied that these submissions cannot be accepted.

69. The difficulty with the case which the applicant advanced on appeal was that it does not accurately reflect either what was in issue on sentence, or the cases which the parties then advanced. Nor does it pay necessary regard to the consequences of the applicant having elected not to give evidence.

70. It is well established that in resolving what arises to be determined, a sentencing judge should take into account the fact that the applicant did not give evidence. This Court has repeatedly cautioned against an uncritical reliance on material contained in tendered reports, or other third party statements, where an offender does not give evidence: see Butters v R [2010] NSWCCA 1 at [18]. Whether to give evidence is a forensic decision to be made by the person being sentenced. The potential adverse consequences of such a decision are well known and do not require warning to be given by sentencing judges at the sentence hearing.

71. In the cases which the parties advanced at the sentencing, it is apparent that they bore in mind that it is well settled that in the case of supply offences, an offender’s role is not to be determined by the use of short hand labels. What is required is an assessment of the offender’s involvement in the steps taken to effect supply: Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242 at [135] applying The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [14]. General descriptions of types of participation must not obscure the assessment of what the offender actually did: The Queen v Olbrich at [19]. Where the offender’s role is not known, the court is not obliged to find facts favourable to the offender, or to accept his or her version of events: The Queen v Olbrich at [27] - [28].

72. The applicant is a Hong Kong national, who was arrested on 9 December 2015 at Central Railway Station in Sydney, in possession of a train ticket departing that day and arriving in Perth on 12 December 2015. He had entered the country on 17 October 2015, on a working holiday visa.

73. The Crown’s case on sentence was that it was not only the quantity of drugs and their very high purity, 78.5%, which was relevant on the applicant’s sentence, but also his role in the enterprise. It was accepted that there was no evidence of him being involved in sourcing or the point of supply and that his role “may be limited to that of a courier”. But, it was also submitted that the authorities indicated that such enterprises “need persons like the offender to transport their goods and to supply the drugs within the State and in this case across the country”. It was also argued to be relevant that on his own account, the applicant had been led to take receipt of the drug and to transport it, so that there was some degree of planning, organisation and involvement within the enterprise, on his part.

74. The Crown also contended that the fact that the applicant had come from a different country, to take the drug from Sydney to Western Australia, established “more than just the bare fact of being in possession of the commercial quantity”. That was not disputed by the applicant, who argued, nevertheless, that he was only a courier.

75. The applicant submitted in written submissions that he did not stand to gain a profit and that there was no evidence to suggest that he was anything other than a courier, incidental to the entire enterprise and acting at the instigation and direction of others, with travel plans, flights and accommodation arranged or are least funded by others: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [255].

76. There was but little evidence about these matters and the submission advanced was contrary to the evidence that it was the applicant who had paid for the train ticket, for which he was to be reimbursed in Perth.

77. In oral submissions it was argued that the applicant’s offending was not the result of a well-planned or organised criminal syndicate, or a career criminal, given that he had walked up to a police officer operating sniffer dogs to ask for directions. It was also submitted to be relevant that there was no allegation that he had sourced the drug or was to gain financially. It was his escalating debts and desire to protect his reputation with his family, which had motivated his singular offending. It was accepted, however, in response to a question posed by his Honour, that his reward was to be relief from his debts.

78. The applicant’s case on appeal, that his Honour departed from the parties’ common position as to his role, can thus not be accepted. In resolving the issue as to the objective seriousness of the offending, his Honour had to take into account all that the evidence revealed as to what he had done, as the parties respectively contended.

79. Indeed at [29] his Honour accepted “that the facts themselves lend some credence to the offender being criminally inexperienced and not participating in any broader planning or organised activity with regard to the offending in that he approached police and was proximate to the drug detection dog whilst carrying the drugs.” However, his Honour concluded at [35] – [36] that:

“[35] The offender submitted within the terms of s 21A(3)(a) of the 1999 Act that the drugs were intercepted and none of the drugs in relation to the offence charged were ever used, consumed or distributed into the community. That submission needs to be considered in light of what was said in Regina v Shi:

‘[34] … culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentio and Becheru (1962) 63 A Crim R 402.’

[36]    As indicated, the offender’s role involved some planning on his part to transport a prohibited drug. The quantity involved was marginally under double the threshold for a large commercial quantity and had a high purity of 78.5%. Bearing in mind that the large commercial quantity has no upper range and the level of the offender’s involvement being somewhat more than a courier, I consider that the objective gravity of the offence falls just below the middle range of objective seriousness.”

80. There was no error in his Honour’s approach to these matters.

81. The parties’ competing cases as to the applicant’s role and what he in fact did, had to be resolved in light of the agreed facts and the untested account which the applicant had given the psychologist, Mr Watson-Munro, whose report he tendered. That account went to matters such as his remorse, duress, his means, how his travels were funded and the “handling fee” he was to be paid for transporting the ice. The latter matters were relevant to his role.

82. His Honour’s conclusions about all of these matters were open on the evidence. They did not have to be raised further with the parties, before his Honour resolved what lay in issue about the objective seriousness of the offending which the applicant had admitted. They were all matters which his Honour had to take into account, when undertaking the instinctive synthesis discussed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [59] to arrive at the sentence.

83. On sentence there was also no issue that the evidence established how the applicant came to be in Australia, at the train station where he was arrested in Sydney, in possession of what he knew to be drugs, which he was about to transport by train to Perth. The agreed facts relevantly included:

• A friend, who the applicant had first met on the internet and then in person in Hong Kong, had asked him to deliver a bag to a relative in Perth;

• The bag containing the drugs had been delivered to him, where he was staying in Ashfield, at the beginning of the month, to keep safe and deliver to Perth, but he had not asked what was inside the bag;

• He had looked inside the bag and was then unsure whether the white powder he saw there was drugs, but he had been told to keep it safe and deliver it;

• It was when police searched the bag and removed the substance that he realised it was drugs;

• He later told police he had touched the four packages inside the bag because he had never seen drugs before and did not know what kind of drugs they were;

• He had paid for the train ticket, for which he was to be reimbursed in Perth; and

• He was to be bought a meal and paid a “handling fee”, when he returned to Sydney.

84. What the applicant later told Mr Watson-Munro was identified in his report to include that:

• He had been addicted to ice while living in Hong Kong, with the result that he had a significant debt to his suppliers;

• He had ceased using drugs in June 2015, but was under substantial duress, because of threats to him and his family, if the debt was not repaid;

• He had not worked since he stopped using ice;

• It was in that context that he agreed to transport ice from Sydney to Perth;

• He was then living at home, but had to stay away from home for protracted periods, because he was unable to tell his parents what was happening;

• The pressure and “loss of face” was unbearable and it was in that setting, that he acquiesced to the demand that he move the drugs between Sydney and Perth; and

• He has no support from any individuals in Australia.

85. In the face of this evidence, the applicant’s submission on appeal, that the source of his Honour’s factual finding at [28] of the judgment is unclear, cannot be accepted. His Honour’s finding at [28] was:

“The offender arrived in Australia on 17 October 2015. On his account, the bag was delivered to him in Ashfield where he was staying. Nevertheless, it is clear that he arrived in Australia for the purpose of delivering the bag and to this end, arranged and paid for a rail trip to Perth himself.”

86. Contrary to the applicant’s submissions, that he arrived in Australia for the purpose of delivering the bag was entirely open on the agreed facts and on what Mr Watson-Munro’s report revealed as to what the applicant had him. That was the case which the Crown advanced. It was not put in issue by the applicant. Whether or not the applicant had some other purpose for coming to Australia was irrelevant and not touched on by the evidence or submissions advanced.

87. His Honour’s finding about the purpose of the applicant’s entry into Australia, did not preclude him rejecting the applicant’s case that he had agreed to deliver the drug from Sydney to Perth, because of duress. Relevant to that question was the concession that his reward was to be the forgiveness of the debt he had told Mr Watson-Munro about.

88. As discussed in Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215 at [44] – [46]:

“[44]    There have been a number of cases where an offender claims on sentence that his or her involvement in a drug importation or supply offence was the product of threats to self and family, with the threats sometimes coupled with the demand by those making the threats that involvement in the drug supply or importation is required to discharge an existing debt. Whether an offender's claim of this type is accepted depends, of course, on the facts of the particular case.

[45]    Speaking generally, sentencing courts are entitled to approach claims of this sort with a significant degree of circumspection. Claims may be easily made concerning the alleged conduct of persons in another country which is said to have applied pressure upon an offender: Anna Le v R [2006] NSWCCA 136 at [32]. It has been said that verification of a spurious claim of duress may prove difficult: R v Z at 492 [22].

[46]    A careful and close assessment of evidence adduced to support such a claim should be made, with the onus of proof upon the offender kept firmly in mind.”

89. That was how his Honour approached this sentencing task. As to duress, he observed at [31] – [33]:

“[31]    The source of the asserted duress is the conduct of persons in another country – a claim that could be easily made. Beyond this, the statements were made to a third party and were not tested in Court. The Court of Criminal Appeal has previously stated that considerable caution needs to be exercised in relying on such statements made in such circumstances, without the offender giving any evidence and the Crown not conceding it. Indeed the practice of placing material before a sentencing Judge in an attempt to minimise the objective seriousness of a crime, otherwise apparent on the face of the record, has been the subject of criticism. In the circumstances I am unable to find non-exculpatory duress.

[32]    However, even if the offender’s judgment were clouded by his previous addiction and need to repay creditors it provides little mitigation to the objective seriousness of the offence.

[33]    The offender claimed that he did not stand to gain a profit from the offending, but was “going to be bought a meal and paid a handling fee in exchange for making the delivery” and that he performed the task to pay off a drug debt. Again, these were untested self-serving statements and it is appropriate to exercise significant caution in relation to them. In the circumstances I am not satisfied as to the precise nature of any arrangement. (citations omitted)”

90. In arriving at the sentence, his Honour also had to bear in mind that in Regina v Shi, Wood CJ at CL, with whom Spigelman CJ and Simpson J agreed, emphasised at [34] the importance of sentencing judges giving consideration to:

“… the well-recognised principle that the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentiu and Becheru (1992) 63 A Crim R 402.”

91. The applicant also contended that in undertaking the sentencing exercise, his Honour gave insufficient weight to the fact that the drugs had been intercepted by police, so that no harm resulted from his offending and his communication difficulties, which he concluded did not give rise to justifiable complaint.

92. Conclusions about the weight to be given to particular factors relevant to the sentence imposed, fall to sentencing judges and will not lightly justify intervention on appeal: Vaiusu v R [2017] NSWCCA 71 at [29]. In any event, the views which his Honour took about those matters were entirely open on the evidence.

93. As discussed in AB v R [2013] NSWCCA 273 at [292], if the drugs had been disseminated into the community, that would have constituted a significant aggravating factor in the applicant’s case. The absence of that factor did not, however, translate it into a mitigating factor. To the contrary, where police operations have the result that drugs are not actually disseminated, the offender’s moral culpability for the offence is not thereby reduced.

94. His Honour had to approach the applicant’s communication difficulties in the way discussed in R v Ferrer-Esis (1991) 55 A Crim R 231 at 239 by Hunt J, with whom Gleeson CJ and Lee CJ at CL agreed:

"There were a number of subjective facts which the judge took into account. The respondent is incarcerated in a foreign country, living amidst a foreign language and a foreign culture. He is isolated from any outside contact. However, with all due respect to views to the contrary which may have been expressed by others, I do not consider that very much weight should be given to that particular circumstance.

The fact is that any person who comes to this country specifically and quite deliberately to commit a serious crime here (as did the respondent) has no justifiable cause for complaint when, as the inevitable consequence of the discovery of his crime, he is obliged to remain incarcerated in this country, with its language and culture foreign to him, isolated from outside contact."

95. In fact, his Honour did take the applicant’s difficulties into account, in arriving at his finding of special circumstances. At [42], his Honour explained his conclusions by reference to the applicant’s age, good prospects of rehabilitation, limited education, lack of qualifications, lack of family support, isolation, his psychological issues and inability to communicate effectively with other inmates and staff.

96. In the result, this ground of appeal must be dismissed.

Was the sentence manifestly excessive?

97. I am also satisfied that the second ground has not been established.

98. The maximum penalty imposed for the applicant’s offence is now life imprisonment and the standard non-parole period for a mid-range offence is 15 years. His Honour’s starting point for the applicant’s sentence was 11 years, reduced by 25% for the early plea, with the result of a total sentence of 8 years and 3 months imprisonment. On the applicant’s case, however, despite his Honour accepting his case that objectively, his offence fell below the mid range, the sentence imposed upon him should have been lower, given his role, the quantity of the drug involved in his offence and his subjective circumstances.

99. In resolving what lies in issue on this ground, it must be remembered that an appellate court may not substitute its own opinion for that of the sentencing judge, merely because it would have exercised the sentencing discretion differently: Lowndes v The Queen (1995) 195 CLR 665; [1999] HCA 29 at [35]. As discussed in Markarian v The Queen at [25]:

“As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King … itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentence allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentence not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as ‘manifest excess’, or in a prosecution appeal, as ‘manifest inadequacy’.”

100. In Wong v R (2001) 207 CLR 584; [2001] HCA 64 it was explained at [58]:

“... appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. It follows that for a court to state what should be the range within which some or all future exercises of discretion should fall, must carry with it a set of implicit or explicit assumptions about what is, or should be regarded as, the kind of case which will justify a sentence within the specified range. It is those assumptions that may reflect or embody relevant principle, not the result.”

101. In Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6] it was observed that manifest excess:

“… is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.”

Changes in the regulatory regime

102. One of the difficulties with the case which the applicant advanced, was that it did not pay necessary regard to the consequences of changes in the regulatory regime.

103. The quantity of drugs involved in a particular offence is not the principal determinant on sentencing, even though there is a gradation of seriousness related to quantity, which is reflected by the increase in penalty as the quantity of the drug becomes a commercial, or large commercial quantity: R v MacDonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34 at [33].

104. Nevertheless, in this sentencing exercise, account had to be taken of the fact that some months before the applicant committed his offence, the trafficable quantity of methylamphetamine was reduced from 1kg to 500g by the Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 (NSW), which commenced on 1 September 2015. But for that change, the applicant’s offence would have attracted a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.

105. This development followed the analysis of sentencing in relation to the supply of methylamphetamine which was undertaken by R S Hulme AJ, with whom Basten JA and Button J agreed, in Toole, Kurt v R; Toole, Joshua v R (2014) 247 A Crim R 272; [2014] NSWCCA 318. There his Honour noted at [78] that a number of the cases referred to were decided before Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and thus had to be approached with caution. I will return to the other authorities which R S Hulme AJ considered and summarised, but note that his Honour at [118] observed:

“There is one further matter to which I should advert. The courts cannot be unconscious of the increase in frequency of offences involving trafficking in amphetamines. Statistics published by the Bureau of Crime Statistics confirm that that is the case, the rate of offences per 100,000 of the population having roughly doubled over the last 10 years. Clearly the weight to be given by the courts to deterrence should also markedly increase and result in a commensurate increase in sentences. However, I have not found it necessary in considering this ground to place weight on this factor.”

106. The result of the subsequent regulatory amendment was that the applicant’s sentence had to be arrived at, taking into account that the standard non-parole period and the maximum penalty for his offence had been significantly increased. That undoubtedly reflected a view that such offending should attract a heavier penalty: R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172 at [38].

107. That underscores the caution with which the cases on which the applicant relied on this appeal must be approached. Further, when such comparisons are sought to be drawn, the wide range of gravity, objective circumstances and differences in the subjective circumstances of the respective offending, which impact upon the range over which the sentencing discretion can be exercised, must also be borne in mind: see R v Slater (2001) 121 A Crim R 369; [2001] NSWCCA 65 at [52], albeit there in the context of the offence of murder.

108. The cases relied on to demonstrate that the sentence imposed upon the applicant was manifestly excessive were not drawn to the sentencing judge’s attention. Had they been, what was decided in Toole, would also have arisen to be considered.

The authorities

109. In Toole, grounds of appeal of both disparity and manifest excess failed and the appeal was dismissed: see [149].

110. The sentencing judge had found that the Toole brothers’ drug offences were premeditated and reasonably sophisticated; that both were directly involved in transactions themselves and also in directing the activities of others; that Joshua had a role higher than that of Kurt, with Joshua handling larger and wholesale quantities, having cash in the bank and his activities involving less leg-work than Kurt's; that Joshua operated more in the capacity of an overall supervisor of Kurt and others and directing Kurt, more than the other way around; and that Kurt was involved in more transactions, had a somewhat more significant criminal history and was on conditional liberty, having been placed on a bond only shortly before the commission of the offences.

111. What was involved in the individual occasions of supply over a two month period, was found to indicate that both offenders were supplying dealers lower in the chain of supply.

112. In Kurt’s case, the quantity of methylamphetamine, it was observed, "just scrapes into the large commercial quantity range and that, of course, is highly relevant to his culpability in terms of the sentence to be imposed": at [23] - [28]. He was involved in 26 transactions involving 1,005.5g of methylamphetamine

113. In Joshua’s case, there were five separate transactions reflected in the 6,048.8g of methylamphetamine. Joshua was thus charged with roughly six times the quantity that was the subject of the charge against Kurt: at [53]. That was then six times the amount of the bottom of the large commercial range, for which there is still no upper limit.

114. R S Hulme AJ observed at [84]:

“Joshua was a principal (even if his supplier in Sydney might have had a more extensive range of customers). His offences were premeditated and his offending had occurred over a period of months and he dealt in a quantity appreciably above the maximum commercial and minimum large commercial quantity. Except for quantity, I would rank Joshua's criminality as at or very close to the top of that contemplated by the statutory provisions applicable to the supply of a large commercial quantity. If one is permitted to make the comparison, his criminality was a long way above the mid-range for an offence involving a commercial quantity.”

115. Joshua was sentenced to imprisonment for 13 years, with a non-parole period of 8 years, after a 25% discount for his plea. On appeal, at [100], his Honour concluded that “the sentence imposed on Joshua was not manifestly excessive. Indeed, by comparison with some, it is low”. The comparison referred to was explained at [99]:

“[99]   Recognising the limitations a summary table imposes - for example the table that follows does not record the presence or significance of a Form 1, or prior convictions, or findings as to objective seriousness - it is nevertheless useful to compare the sentences imposed on the Applicants with the results in the cases just referred to and a deduced or stated undiscounted starting point:

Name	Role	Qty	Sentence	Discount	Starting Point
Ehrlich	One of a number of principals	1.615 kg	6.5y/4.8y	35%	10y.
Aoun	Wholesaler	3.36 kg	12y/7y	25% (probably)	16y
Paxton	Ran one-man multidrug supply operation	2.314kg	16y/12y	20%	20y
Mahmud	Warehouse keeper	1.78kg	9y/6.5y	17.5%	11y
Efstathiadis	Part of network	1.9kg	14y/10y	10%	15.5y
Wang	More than mere courier	1.464kg	16y/12y	Nil	16y
Ly	In business of supply	1.101kg	12y/8y	25%	16y
Joshua	Principal	6.04	13y/8y	25%	17.3y
Kurt	Wholesaler/right hand man	1.005	9.75y/6y	25%	13y

116. Kurt’s supply offence resulted in a sentence of 9 years and 9 months with a non-parole period of 6 years. Before discount, the starting point was “about 13½ years”: at [102]. R S Hulme AJ took the view at [101] that “given that the quantity of methylamphetamine with which he was involved was only just above the bottom of the large commercial range, it is probably also relevant to have regard to the statutory provisions relevant to a commercial quantity.”

117. After again referring to the decided cases, at [115] his Honour said:

“[115] Again, despite its limitations, a table may be useful:

Name	Role	Qty	Sentence	Discount	Starting Point
Paredes	Intimately involved	1kg	7.5/4.5y	10%	8.3y
Lawson	Mid level dealer	907gm	9/5.5y	?	?
Radi	Possessor	991gm	10/7y	Nil	10y
Sciberras	Dealer	474gm	8/5y	25%	10.7
Blair	Courier/storeman	371gm	7/5.25y	Nil	7y
Amurao	"Well up"	175gm	7.5/4.3y	30%	10.5y
Kurt	Wholesaler/right hand man	1.005gm	9.75y/6y	25%	13y

118. In Lam v R; Lam v R [2015] NSWCCA 87 two brothers, Messrs Chun Kit Lam and Chun Lok Lam, also sought to appeal sentences imposed upon them for the supply of a large commercial quantity of methylamphetamine. They, too, failed.

119. The quantity involved in their offending was much greater than that which the applicant supplied, being 2,206.7 grams. The appeal was advanced on the grounds of disparity with the sentence imposed on a co-offender, Mr Wang, who had been sentenced to a term of imprisonment of 5 years, with a non-parole period of 2 years and 6 months, after a 25% discount for a plea. The Lam brothers’ sentences, before discounts to each of 15%, were 7 years and 11 months and 5 years and 9 months respectively, by comparison to 6 years and 8 months, the starting point for Mr Wang’s sentence prior to his discount. On the analysis in Toole, these were all low sentences.

120. Mr Wang’s sentence was for two offences, the methylamphetamine supply offence and an offence of heroin possession, which attracted a maximum penalty of 25 years imprisonment, with two other offences taken into account on a form one, namely possession of a marketable quantity of cocaine and recklessly dealing with the proceeds of crime ($36,000). Chun Kit Lam’s sentence included an offence of deriving a material benefit from a criminal group, under s 93TA of the Crimes Act 1900 (NSW), taken into account on a Form 1.

121. The Lam brothers were Chinese nationals resident in Hong Kong, who had been in Australia for some time on student visas. They and the syndicate they were involved in had come under police surveillance. The methylamphetamine was found at Mr Wang’s apartment, together with drug supply paraphernalia and other drugs. Agreed facts were tendered with the sentencing judge accepting the Crown’s position that Chun Kit Lam was less culpable than his brother and that they were both involved in a substantial commercial operation.

122. Mr Wang and Chun Kit Lam were found to have less senior roles in the drug supply operation than Chun Lok Lam, who was found to be an intermediary, the Crown accepting that he was not a principal.

123. A complaint of disparity proceeds on the basis of an acceptance that the sentence imposed on the applicant is otherwise appropriate: Lam at [25]. The claimed disparity was not established in either case.

124. All three of these offenders were, like the applicant, found to be young, with no prior convictions, a history of drug addiction, remorseful, at low risk of re-offending and with good prospects of rehabilitation. In the case of the older Lam brother, Chun Lok, his subjective case was not found to be as compelling as those of the other two offenders. There were also considerable differences in subjective factors, as between the Lam brothers and Mr Wang, whose background was considerably deprived, by comparison to theirs. In the result, non-parole periods fixed at 60% of the head sentence for Chun Kit, 67% of the head sentence for Chun Lok and 50% of the head sentence for Mr Wang, were imposed.

125. The appeals failed because it was found that the sentences imposed on both Lam brothers were not heavy, given their role in a significant drug syndicate and the quantity of the methylamphetamine involved in their offences.

126. In Wienand v R [2013] NSWCCA 202, another parity appeal failed. Mr Wienand’s offence involved supplying 1,848.6 grams of methamphetamine in four transactions. Mr Wienand was the middle man between his co-offender Mr Hill and the principal, AM, who was the head of the supply chain. Mr Hill received no financial benefit for the first two transactions, $1,000 for the third and $1,500 for the fourth. Mr Wienand was to receive $3,500 for the last transaction alone.

127. Mr Wienand’s subjective circumstances were unlike those of the applicant. Mr Wienand was not a young offender, although he had no record of drug offending and only minor convictions otherwise, his most serious offence being a breach of an apprehended violence order.

128. The objective seriousness of Mr Hill’s offence was found to be below, but not far below the mid-range. The starting point of his sentence was 12 years and Mr Wienand’s 10 years and 8 months, even though Mr Wienand was higher in the drug hierarchy and had achieved higher remuneration for his participation.

129. On appeal, Mr Hill’s sentence was reduced from a non-parole period of 4 years with a balance of term of 2 years to a non-parole period of 2 years and a balance of term of 1 year, given the sentencing judge’s failure to take into account his strong subjective case. That reflected a starting point of 6 years, prior to a discount of 50% for assistance.

130. Mr Wienand’s discount was 25%. The result was that while he had been sentenced to a non-parole period of 5 years and 6 months for his offending and Mr Hill only 2 years, no unjustified disparity was found.

131. In Saleh, Kassim v R [2016] NSWCCA 317 a plea was entered to an offence of supply of 2kg of amphetamine in 2013. The appeal in respect of disparity was not pressed in relation to the co-offender Mr Saleh Haissan, his sentence having been increased on appeal in R v Saleh, Haissan [2016] NSWCCA 216. Rather, it was pressed in relation to his other co-offender JK.

132. These offenders had also become the subject of a police investigation, which revealed that Kassim Saleh had introduced his uncle Haissan to an intermediary JK, who introduced him to a supplier from whom he tried to source 2kg of methamphetamine.

133. Haissan Saleh was 43 at the time of his offending. He had a considerable record, including offences of violence and dishonesty, but this was his first custodial sentence. He was sentenced to imprisonment for a non-parole period of 3 years and 6 months and a balance of term of 1 year and 2 months, a total of 4 years and 8 months, after a 25% discount for count 1 and a 10% discount for count 2, plus an additional 20% discount for both counts for assistance. The indicative sentences for the two charges for which he was sentenced were explained in R v Saleh, Haissan at [3] to be:

“(1)    for count 1 (supply of approximately 1 kg), a non-parole period of 2 years 7 months and a balance of term of 11 months (overall 3 years 6 months); and

(2)    for count 2 (knowing concern in supply of 2 kg), a non-parole period of 3 years 1 month and a balance of term 1 year 1 month (overall 4 years 2 months).”

134. It was concluded on appeal that the starting point for Hassain Saleh’s sentence was very significantly below sentences which have generally been passed for offences of this type and gravity, discussed in Toole at [86] – [99]. He was found to be effectively a middle man or procurer of two wholesale quantities from separate up-line suppliers: at [20]. It was also found that the discount given to Hassain Saleh for assistance was excessive. It was thus reduced from 20% to 10% for both counts: see [17] – [18].

135. With combined discounts for the plea and assistance, reduced to 35% for count 1 and 20% for count 2, the total aggregate sentence imposed on Haissan Saleh was increased to 9 years and 4 months with a non-parole period of 7 years and a balance of term of 2 years and 4 months. The indicative sentences were increased to:

“For count 1, a non-parole period of 4 years with a balance of term of 1 year 4 months (total 5 years 4 months);

For count 2, a non-parole period of 6 years with a balance of term of 2 years (total 8 years).”

136. For the drug supply offence (count 1) that was a starting point of 6 years and 2 months with a balance of term of 2 years, before the 35% discount: at [24].

137. For reasons which it is not necessary to explain, JK’s charge concerned the supply of 7.977 kg of methamphetamine. He was found to have been active in locating the supplier who facilitated the transaction by which another co-offender, Mr Zolfonoon, would acquire multiple kilograms of methamphetamine. JK was 20 at the time of the offence and was sentenced to 3 years imprisonment with a non-parole period of 1 year and 3 months, after a 40% discount for an early plea and assistance.

138. JK was a regular cocaine user, but he did not expect to be paid for effecting the introductions he made and did not believe that by making them, he was involved in the buying and selling of drugs. He was found to have had no role in actual supply and no role in any hierarchy of supply in the commercial dealing of drugs. He was also found to be outside the enterprise of both the seller and the purchaser, merely being acquainted with each. Those circumstances explain the low sentence imposed upon him.

139. Kassim Saleh was aged 26 at the time of his offending. He had formed a close relationship with his uncle Hassain. His offence was found to be objectively more serious than that of JK. He expected to obtain personal benefit from the transaction which he facilitated at his home and attended, whereas JK did not. Kassim Saleh had built up a successful bricklaying business employing up to nine people and helped support members of his family in identified ways. He had a record of minor drug possession offences in 2005 and 2013, but his subjective circumstances were found to be less powerful than those of JK.

140. Kassim Saleh entered a late plea and was sentenced to a term of 4 years and 11 months imprisonment with a non-parole period of 3 years. The amount of his discount is not specified in Saleh, Kassim v R, but it must have been substantially less than that which JK received, given that it was late and he gave no assistance. His appeal was dismissed. If he had been given a 10% discount, the starting point for Kassim Saleh’s sentence is likely to have been 5 years and 5 months.

The applicant’s penalty is not manifestly excessive

141. As earlier discussed, the sentence imposed on the applicant had to reflect not only the drugs involved in his supply, but also what he actually did, as well as his subjective circumstances and the need for deterrence to feature in his sentence, for the reasons discussed in Toole at [118]. The comparisons now relied on do not establish that the sentence imposed upon him for his offending was, in the result, manifestly excessive.

142. The total amount of methylamphetamine Kurt Toole supplied was not significantly greater than that which the applicant supplied, but his role in the enterprise he conducted with his brother Joshua, was certainly greater. The applicant’s role was less than that of either the Lam brothers, or Mr Wienand, or Hassain or Kassim Saleh, who were each also involved in greater supply.

143. The applicant’s role was not as significant as that of Kurt Toole, although it is relevant that the drug syndicate in which the applicant was involved required the applicant to come from Hong Kong to Australia, to transport the methylamphetamine involved in his offence, across the country. It is apparent that by what the applicant agreed to do, in return for the forgiveness of his debt, was that he became an essential cog in the wheel of its distributions in Australia.

144. The applicant’s inexperience in the role which he had agreed to play was, however, revealed not only by his lack of prior record and his apparently limited means, but also by the circumstances in which he came to be arrested, when he approached a police officer conducting a drug dog operation, at the train station. The naivety involved in that conduct was properly taken into account by the sentencing judge.

145. His Honour also properly concluded that the applicant, not having given evidence, could not be found to have agreed to transport the drugs as the result of duress. While the size of his drug debt is unknown, its forgiveness reflected that the applicant was to receive more for his participation than merely a meal and an unspecified handling charge, for agreeing to transport the drug.

146. It is when all of these matters are considered in light of the increased penalties introduced for the applicant’s offending by the 2015 regulatory amendments, that it cannot be concluded that the sentence imposed upon him was manifestly excessive. The comparisons sought to be drawn on this appeal do not support a different conclusion.

147. It may not be overlooked that Kurt Toole’s sentence commenced at about 13 years and 6 months and the applicants at 11 years, prior to discount. There is thus in reality but little disparity between the sentence imposed on Kurt Toole and that imposed on the applicant, when the differences in the amounts they respectively supplied, namely 1,005.5g as opposed to 923.1g, the differences in their roles, what they respectively did and the change in the sentencing regime, are all taken into account.

148. The Lam brothers’ offending was unarguably more serious than that which the applicant committed, given their respective roles in the commercial drug operation in which they each participated and what was supplied. Given the analysis undertaken in Toole, however, theirs were undoubtedly lenient sentences for their respective offending. When that is considered together with the amendment to the sentencing regime, it cannot be concluded that the sentence imposed on the applicant was manifestly excessive.

149. The same conclusions must be reached in relation to the comparison sought to be drawn with the sentences imposed on Mr Wienand and Kassim and Hassain Saleh. Given what they each supplied, their respective roles, the starting points for their respective sentences and the impact which the change in the sentencing regime had on the applicant’s sentence, that his sentence was manifestly excessive is not established.

150. In the result, I consider that the applicant has not established that the sentence imposed upon him was manifestly excessive.

Orders

151. The orders I would make are:

1. Leave to appeal granted.

2. Appeal dismissed.

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Endnotes

Decision last updated: 02 August 2017