Chun Chieh Wang v The Queen

[2016] VSCA 292

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0152

CHUN CHIEH WANG	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGES:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	25 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 292
JUDGMENT APPEALED FROM:	DPP (Cth) v Wang (Unreported, County Court of Victoria, Judge McInerny, 8 July 2016)

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CRIMINAL LAW – Application for leave to appeal against sentence – Import a commercial quantity of a border controlled drug (methamphetamine) – Sentence 10y – Non-parole period 7y – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Turnbull Lawyers
For the Respondent	No appearance	Mr John Cain, Solicitor for Public Prosecutions

WHELAN JA:

1. On 4 July 2016 the applicant pleaded guilty to one ‘rolled up’ charge of importing a commercial quantity of a border controlled drug, an offence under s 307.1(1) of the Criminal Code (Cth). The maximum sentence prescribed for this offence is life imprisonment. On 8 July 2016 he was sentenced to a term of imprisonment of 10 years. A non-parole period of 7 years was fixed.

1. The particular offence charged was referred to as ‘rolled up’ because it covered five separate importations of methamphetamine over the period from 28 December 2015 to 21 January 2016.  A total of 3.653 kilograms of methamphetamine was imported, which is 4.87 times the threshold for a commercial quantity.  The value of the drug imported was significant.  The Crown estimate in the plea was between $1.01m and $1.4m at the wholesale level, and $3.4 to $4.6m at the street level.  The applicant’s motive was financial gain.  The amount of the gain put to the sentencing judge by his counsel, on the basis of instructions, was very low.  The sentencing judge did not accept it. 

1. The five separate importations were in consignments sent by post, two to the applicant’s address, and three to the address of a co-accused who the applicant directed to collect the consignments.  All five consignments were intercepted by Australian Border Force officers and transferred to the Australian Federal Police.  Three of the consignments were re-constituted with inert substances.  Listening devices were inserted into two of them.  These three consignments were collected by the applicant’s co-offender and taken by him to the applicant.  The listening devices recorded the applicant and his co-offender opening the consignments, discussing their contents, and referring to the need ‘to arrange the money transfer’.   

1. The applicant is a foreign national.  He was present in Australia on a student visa.  He was 29 years of age at the time of the offence and at the time of sentence.  He has no prior convictions. 

1. The applicant seeks leave to appeal on two proposed grounds.  They are:

1.The learned sentencing judge erred in the use of comparative sentences and current sentencing practices.

2.The learned sentencing judge erred by imposing a head sentence and non-parole period [which] are each manifestly excessive, considering:

(i)the emphasis and weight attributed to the nature and circumstances of the offence, general deterrence, denunciation and specific deterrence as primary sentencing considerations;

(ii)       the applicant’s early guilty plea and admissions;

(iii)      the significance of the plea of guilty to consignments 1 and 2;

(iv)      hardship on the applicant;

(v)       rehabilitative prospects.

Sentencing reasons

1. The sentencing judge referred to the relevant statutory provisions and to a prosecution summary of the facts which was tendered on the plea.  He referred to the value of the imported drugs and to the relevant sentencing principles for offences of this type as set out by Maxwell P in Nguyen v The Queen (‘Nguyen’) [1].

   [1](2011) 31 VR 673, 681–3.

1. In relation to the applicant’s role in the drug importing enterprise, the sentencing judge accepted the classification of his role by the prosecutor which was that the applicant had been a ‘key intermediary’.  The sentencing judge emphasised the importance of the analysis of an offender’s role. 

1. The sentencing judge referred to the fact that the motivation for the criminal activity was financial gain.  It was put to him, based only on instructions, that the applicant was to be paid $500 per consignment.  The sentencing judge was not prepared to accept that.

1. The sentencing judge referred to the matters put on behalf of the applicant in mitigation including the difficulties that he would have in custody, as he had language problems and would have limited contact with his family who all live abroad.  At the end of his sentence he is very likely to be deported, and the sentencing judge accepted that whatever prospect the applicant had had of settling permanently in Australia was lost. 

1. The sentencing judge accepted that the plea of guilty was made at the earliest time.  He accepted that it was ‘an indication of remorse’ and that there was utilitarian benefit to the plea.  The sentencing judge accepted that the applicant had made ‘valuable admissions’ in relation to the first two consignments. 

1. The sentencing judge referred to the fact that the applicant had no prior convictions. 

1. The prosecutor on the plea tendered a chart of cases in which various intermediate appellate courts throughout Australia had addressed sentences for offences under s 307.1 of the Criminal Code, and under the relevantly related and similar offence provided for in s 307.5, in circumstances where the volumes of drugs involved and the roles of the offenders were said to be comparable. 

1. The judge referred to the principles which apply when considering comparable cases, and quoted in that respect passages from this Court’s decision in Hasan v The Queen.[2]

   [2](2010) 31 VR 28, 38 [44], 39 [47], [49].

1. Considerable attention has been given to this issue since Hasan v The Queen, both in this Court and in the High Court.  The applicable principles have been most recently summarised in Pham v The Queen.[3]  It seems to me that the passages quoted by the sentencing judge continue to set out the correct principles.

   [3][2016] VSCA 259 [22]–[23].

1. The sentencing judge observed that the applicant was still of a ‘relative young age’.  He accepted that the applicant was an ‘appropriate candidate to effect a sentence which promotes rehabilitation’.

1. The sentencing judge said that the major considerations were general deterrence, denunciation and specific deterrence.

1. It must be observed that there are passages in the sentencing reasons which are difficult to follow, notwithstanding that the reasons are said to have been revised.  I refer in particular to paragraphs 6, 7, 10, and 15.  The quotations at paragraphs 24, 36, and 37 contain errors.  The paragraph number cited in the reference to Nguyen in paragraph 13 is wrong.  Notwithstanding that unfortunate position, the reasons are sufficiently clear.

Proposed ground 1 — comparable cases

1. In my view proposed ground 1 is not arguable.  The sentencing judge set out the applicable principles.  The applicant’s written case accepts that that is so.  The complaint made is that the reasons do not articulate how the comparative cases were used as a ‘yardstick’ and that there was an absence of explanation in the sentencing reasons.  The submission concludes:  ‘As a consequence, it is submitted that the sentence imposed was outside the range’.

1. I do not consider that there is any separate ground which is arguable concerning the sentencing judge’s treatment of comparative sentences and current sentencing practices beyond submissions properly to be made in the context of proposed ground 2. 

Proposed ground 2 — manifest excess

1. In order to establish the proposed ground of manifest excess it will be necessary for the applicant to establish that the sentence imposed is wholly outside the range of sentencing options available.  He will need to be able to demonstrate that something has gone obviously, plainly or badly wrong.  Manifest excess is a stringent ground which is difficult to make good. 

1. It might be accepted that a sentence of 10 years’ imprisonment, with a non-parole period of 7 years, for an offender who the sentencing judge described as being still of a ‘relative young age’, with no prior convictions, who pleaded guilty early, and who will serve his imprisonment in isolation from his family who live overseas, is towards the top of the range.  A review of the table of comparable cases relied upon by the Crown supports that conclusion.  Two sentences are higher (Riddell[4] and Lay[5]), but one of those (Lay) had relevant prior convictions.  Four of the sentences are close to that imposed here (Tiknius,[6] Nguyen,[7] Legault,[8] Agboti[9]) although in three of those the non-parole periods fixed were notably lower (Tiknius, Nguyen, Agboti). 

   [4]R v Riddell (2009) 194 A Crim R 524.

   [5]Lay v The Queen [2014] NSWCCA 310.

   [6]Tiknius v The Queen (2011) 221 A Crim R 365.

   [7]R v Tran; R v Tran; R v Nguyen (2013) 233 A Crim R 167.

   [8]Legault v The Queen [2014] NSWCCA 271.

   [9]R v Agboti (2014) 246 A Crim R 72.

1. In my view, however, it is not reasonably arguable that this sentence is outside the range.  I am fortified in this conclusion by the very recent decision of this Court in Nguyen v The Queen.[10]

   [10][2016] VSCA 276.

1. The offending here was particularly serious.  The amounts involved were large both in terms of volume and value.  The applicant’s role was an important one.  He was no mere courier.  He has no prior convictions but, as this Court made clear in Nguyen, prior good character is generally given less weight as a mitigating factor in this kind of offending than it might otherwise be given.  The applicant is not a youthful offender, even if he might be described as being still relatively young. 

1. In my view, the judge was right when he said that general deterrence, denunciation and specific deterrence were the major considerations relevant to the sentence.  These considerations are particularly important in relation to offenders motivated by financial reward.  As the President of this Court said in Nguyen:

The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.[11] 

[11](2011) 31 VR 673, 682 citing R v Nguyen; R v Pham (2010) 205 A Crim R 106, 126-8 [72].

1. In the circumstances, in my view, leave to appeal on proposed ground 2 should be refused. 

Conclusion

1. Leave to appeal is refused.