DPP (Cth) v Peng
[2014] VSCA 128
•20 June 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0189
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| PO LUNG PENG | Respondent |
---
| JUDGES | NETTLE, REDLICH and PRIEST JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 6 May 2014 |
| DATE OF JUDGMENT | 20 June 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 128 |
| JUDGMENT APPEALED FROM | DPP (Cth) v Peng (Unreported, County Court of Victoria, Judge Nicholson, 13 September 2013) |
---
CRIMINAL LAW – Director’s appeal – Sentence – Importing a commercial quantity of a border controlled drug (methamphetamine) – Sentenced to 11 years’ imprisonment with a non-parole period of seven years six months – Whether plea of guilty ‘at the earliest opportunity’ – Whether anxiety caused by uncertainty about deportation mitigatory – Guden v The Queen (2010) 28 VR 288, TAN v The Queen (2011) 35 VR 109 followed – Burden of isolation in custody – Whether mitigatory – Foreign offender had come to Australia for the sole purpose of committing a very serious crime – R v Adams [2007] VSCA 37 followed, Lau v The Queen [2011] VSCA 324, Tsang v DPP (Cth) (2011) 35 VR 240 doubted.
CRIMINAL LAW – Director’s appeal – Sentence – Manifest inadequacy – Respondent’s sentence significantly lower than relevant comparators – Hili v The Queen (2010) 242 CLR 520, Ashdown v The Queen (2011) 219 A Crim R 454 cited – Parity – Sentence of co-offender toward bottom of available range – Co-offender’s sentence may not have such a constraining effect as to require new sentence that remains wholly inappropriate or disproportionate in the circumstances – Difference between conduct and level of involvement of co-offenders substantial – Respondent within category 3 in De La Rosa (2010) 79 NSWLR 1 – Nguyen v The Queen (2011) 31 VR 673 cited – Appeal allowed – Respondent re-sentenced to 13 years’ imprisonment with a non-parole period of 10 years.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr R Bromwich SC DPP (Cth) | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Respondent | Mr C B Boyce with Mr M D Stanton | Lethbridges |
NETTLE JA
REDLICH JA:
This is an appeal by the Commonwealth Director of Public Prosecutions against the sentence imposed upon Po Lung Peng for importing a commercial quantity of a border controlled drug (methamphetamine) contrary to s 307.1(1) of the Commonwealth Criminal Code.[1] Following a plea in the County Court on 2 September 2013, Peng was sentenced as follows:
[1]Schedule to the Criminal Code Act 1995 (Cth) (‘Criminal Code’).
Charge on Indictment Offence Maximum Sentence Cumulation 1 Importing a commercial quantity of a border controlled drug [Criminal Code Act 1995 (Cth) s 307.1(1)] Life imprisonment 11 years N/A Total Effective Sentence: 11 years Non-Parole Period: 7 years, 6 months Pre-sentence Detention Declared: 312 days 6AAA Statement: 12 years, 6 months with a non-parole period of 9 years Other orders: N/A
Peng’s co-offender, Taiyuan Zheng, pleaded guilty to one count of attempting to possess a commercial quantity of a border controlled drug. Three months before Peng’s plea was heard, the same judge sentenced Zheng to eight years and six months’ imprisonment with a non-parole period of five years and six months.
The Director submits that various specific errors are evident in the sentencing judge’s reasons for sentence. First, that Peng’s plea was characterised as having taken place ‘at the earliest opportunity’; second, that the delay in the matter being brought before the court was a mitigating factor; third, that her Honour took into account Peng’s uncertainty and anxiety about deportation after serving his sentence in fixing a non-parole period; and fourth, that Peng’s separation from his family would make prison more burdensome.
The Director further relies upon the discrete ground that both the head sentence and the non-parole period are manifestly inadequate. The primary argument of Peng advanced on the plea had been that the principle of parity required that he be given a sentence the same as or close to that of his co-offender Zheng. On appeal, the submission was maintained that Zheng’s sentence significantly constrained the range of sentences available to the sentencing judge and that the Director, not having appealed Zheng’s sentence, could not now contend that Peng’s sentence was manifestly inadequate.
Factual background
On 22 September 2012, Peng, who is a Taiwanese national, arrived in Australia at Melbourne airport from Hong Kong. On the same day he activated a Telstra mobile phone service linked to a Queensland address. On 27 September 2012 he moved into rental accommodation in Reservoir, Victoria, where he told one of the other tenants, Liang Xi Lin, that he was awaiting a shipment from Taiwan which contained a machine that would keep shrimp alive in water for longer. On 11 October 2012 he purchased a black trolley suitcase.
A consignment, addressed to Peng and consisting of three wooden crates weighing approximately 100 kilograms each, was intercepted and tested by Australian Customs and Border Protection officers on 25 October 2012. The contents of the crates returned positive results for the presence of methamphetamine. Subsequent analysis revealed the presence of 29,448.3 grams of a crystalline substance containing methamphetamine, with a purity of 78.6 per cent. The total quantity of pure methamphetamine was therefore 23,154.2 grams. The Criminal Code defines a commercial quantity of methamphetamine as 0.75 kilograms. At the plea, the Court was informed that the value of the drug seized was in the range of $8,232,000 to $9,702,000, with a street value calculated to be in the range of $14,744,150 to $29,488,300.
In the following days the Australian Federal Police (‘AFP’) substituted the methamphetamine for an inert substance for the purpose of a controlled delivery. On 30 October 2012, several telephone communications from the abovementioned Telstra service were intercepted by the AFP. The first was a call to the courier company responsible for the crates, in which delivery and payment of fees was discussed, with the house in Reservoir confirmed as the delivery address. The second was a conversation between Peng and an unidentified male, regarding the expected delivery of the consignment the next day.
On 31 October, the delivery was made by an AFP member posing as a delivery driver. Peng took delivery of the consignment of crates on that day. AFP members observed Peng, with Liang Xi Lin, removing the receptacles containing the drugs from the crates and taking them inside the premises. Further intercepted phone calls were made regarding the unpacking of the consignment. On 3 November 2012, Peng and another man were observed receiving a payment of $2,417.54 via Western Union, part of which was used to repay housemates for money borrowed for the consignment fees.
Also on 3 November 2012, Peng received a call from the co-offender Taiyuan Zheng, in which a meeting in Melbourne’s Chinatown was organized. The two met on 4 November 2012 and had a meal at a restaurant together, along with another man, Yan Bin Zheng. The co-offender, Taiyuan Zheng and Yan Bin Zheng stayed the night at a hotel on Little Collins Street. A phone call from Peng to his Taiwanese contact later that evening indicated that he had arranged to take the ‘items’ to the co-offender Zheng at the hotel the next morning.
On 5 November 2012, information gained through AFP surveillance led AFP officers to observe Peng, accompanied by Lin, placing two black suitcases in the boot of a car being driven by Taiyuan Zheng. He then left the area. Later that day, surveillance revealed Peng and Taiyuan Zheng transferring the suitcases to a silver Mercedes Benz parked in the Melbourne CBD. Taiyuan Zheng then entered the Mercedes and drove away. He, along with his companion Yang Bing Zheng, were arrested shortly afterwards. Peng, and Liang Xi Lin, were arrested when the AFP executed a search warrant at the Reservoir address. During the course of that search, Peng admitted in a recorded conversation that he was the owner of the wooden boxes, that they had been sent from China, and that they contained crystal solids which he had been asked to give to someone. The co-offender Zheng stated in a police interview that a man named Tommy had asked him to travel to Melbourne to pick up two bags, and that he was to be paid $30,000. Liang Xi Lin and Yan Bin Zheng were also interviewed, but were released without charge.
Ground 1 — Entry of plea of guilty at the earliest opportunity
The judge, in her sentencing remarks, referred to Peng’s guilty plea as follows:
[Counsel for Peng] said your Plea was entered at the earliest opportunity. He was only briefed prior to the Contested Committal and first saw you at that Committal. It was only at that stage that you were able to obtain full advice and confer with Counsel. On the morning of the Contested Committal discussions were entered into between the parties and you indicated a plea of guilty to the charge upon which you have been arraigned and entered a plea of guilty before this Court. The matter proceeded by way of Plea date before this Court.
I consider in the circumstances that your plea of guilty was entered at the earliest opportunity …
[Counsel for the Crown] said no evidence was given before the Court about your remorse … you wrote a letter to the Court and whilst the contents of that letter may be said to be self-serving in one sense, I accept on all the material before the Court that your plea of guilty does indicate remorse for your actions. I take that letter into account.
I am satisfied that your plea of guilty facilitates the course of justice and therefore has utilitarian consequences. I am further satisfied that the entry of that plea of guilty was significant and therefore you are entitled to a significant discount in sentence.[2]
[2]DPP v Peng (Unreported, County Court of Victoria, Nicholson J, 13 September 2013) (‘Reasons’) [57]-[60].
Peng’s plea of guilty was entered on the morning of the contested committal hearing, on 29 May 2013. He had been charged on 5 November 2012, with the brief of evidence served on 23 January 2013, and three committal mentions held on 6 March 2013, 27 March 2013 and 30 April 2013. Peng was represented by a solicitor throughout the proceedings. Although the prosecution accepted at the plea hearing that a plea entered during the committal phase was ‘an early plea’, the Director submitted that it could not be characterized as a plea entered ‘at the earliest opportunity’. The Crown had initially contended that a significant discount in sentence on account of his plea was therefore inappropriate, though that contention was not pursued on the hearing of the appeal.
Peng submits that the plea was entered shortly after he first had an opportunity to confer with counsel, who was only briefed shortly before the contested committal. His counsel, on the plea, submitted that the expression ‘earliest opportunity’ should be taken to include a plea of guilty before the accused was committed to appear before the County Court of Victoria, given the particular circumstances of the case.
The rationale behind giving a heavy discount in sentence for an early plea is that it may be taken as suggestive of an offender’s remorse, and that it has a significant utilitarian benefit in that it facilitates the course of justice.[3] The latter is a policy consideration which must always be given due weight in the instinctive synthesis. A plea of guilty at committal stage will generally be regarded as having been entered at a relatively early stage.[4] In this instance, several committal mentions, with associated preparations, had already taken place. Although Peng’s plea was entered early, it could plausibly have been entered on a number of earlier occasions.
[3]Phillips v The Queen (2012) 222 A Crim R 149, 162-3 [47]-[48].
[4]See, eg, R v Ghareeb [2003] VSCA 111, [10]; Pettersen v The Queen [2013] VSCA 185, [6].
The Director conceded in oral argument that the judge made no error as to her assessment of Peng’s remorse, in respect of which a discount in sentence was appropriate, and that the inconvenience suffered by the Crown as a result of Peng’s failure to plead sooner was comparatively minor. Further, in light of the fact that the offence with which Peng was charged attracted a maximum sentence of life imprisonment, his entry of a plea of guilty only after having had the opportunity to discuss his options with experienced counsel did not require much in the way of reduction of the discount which could be given for a plea at the earliest opportunity.
The concept of a plea attracting the maximum discount because it was proffered ‘at the earliest opportunity’ should not be eroded by an unrealistic and implausible notion of what is encompassed by that phrase. Whilst it was, strictly speaking, an error to describe the plea as given at the ‘earliest opportunity’ the error was de minimis.
Ground 2 — Delay as a mitigating factor
The sentencing judge noted in her reasons that ‘some delay’ had occurred in this case.[5] She noted further that:
[T]here are, of course, two aspects to delay. Firstly that you have had the strain of the matter hanging over your head. Secondly, the period of delay has been useful insofar as rehabilitation is concerned although that has been whilst on remand. I have already referred to that fact and have taken it into account in sentencing you in this case.[6]
[5]Reasons, [51].
[6]Ibid [70].
The Director submitted that while the history of proceedings was outlined to the Court during the plea hearing, no submissions were made at that hearing as to the relevance of delay to sentence by either of the parties, or by the sentencing judge.
By the time he was sentenced, Peng had spent around 10 months in custody. In the circumstances — particularly having regard to the time required to prepare a prosecution brief in a complex trafficking matter — this was by no means unusual or unreasonable. This is especially so given that the delay was caused, in part, by the respondent’s unwillingness to indicate at an earlier stage that he would plead guilty.[7] In oral argument, counsel for Peng conceded that no unacceptable delay had taken place in this case, and that it was not relied upon below.
[7]See Arthars v The Queen; Plater v The Queen [2013] VSCA 258, [28]-[30], [32].
Her Honour erred in taking delay into account as a mitigating factor in sentence. In circumstances where it would not have been obvious that delay might have been regarded as a mitigating factor, the Crown should have been given the opportunity to make a submission on this issue. The error may then have been avoided.
Ground 3 — Anxiety caused by uncertainty about deportation
In her reasons, the sentencing judge said:
As far as the potential for your deportation is concerned there are obvious well known pronouncement [sic] of Justice of Appeal Weinberg in Nguyen v R and the likelihood that a person will be deported after that person has completed his or her custodial sentence is entirely relevant when considering whether a Non-Parol [sic] Period should be fixed.
I take into account the anxiety and lack of certainty about what will be hanging over your head in relation to the possibility of deportation. However I have considered it appropriate to take that into account in fixing a Non-Parole Period as well as the other relevant matters.[8]
[8]Reasons, [72]-[73].
The authority purportedly relied upon by her Honour in making this statement was the proposition of Weinberg JA in Nguyen v The Queen,[9] to the following effect:
The authorities make it clear that the likelihood that a person will be deported after that person has completed his or her actual custodial sentence is entirely irrelevant when considering whether a non-parole period should be fixed.[10]
[9][2010] VSCA 244.
[10]Ibid [4].
The Director contended that her Honour misapprehended or misapplied the substance of these observations, whilst the respondent argued that the sentencing judge’s replacement of ‘entirely irrelevant’ with ‘entirely relevant’ represented a slip. Be that as it may, the authorities clearly establish that in order for a sentencing court to take into account the possibility of deportation as a mitigating factor, the judge must be satisfied not only as to the quantifiable risk that deportation will occur, but relevantly, that deportation will in fact be a hardship for the particular offender.[11] Peng’s counsel had not made any suggestion on the plea that deportation would work a hardship and there was no basis upon which the judge could have so concluded. The Crown was again denied the opportunity to make a submission on this issue, it not being apparent that Peng’s deportation could be so viewed.
[11]See Guden v The Queen (2010) 28 VR 288, 295 [28]-[29] (Maxwell P, Bongiorno JA and Beach AJA), followed in TAN v The Queen; HAH v The Queen; HAT v The Queen (2011) 35 VR 109, 140 [126].
Peng is a Taiwanese national who came to Australia for the sole purpose of the offending described above. As such, deportation at the expiry of his sentence is an inevitability; no uncertainty on that point exists. Furthermore, in a letter to the court which the sentencing judge took into account in her assessment of his remorse, Peng noted that he ‘really wish[ed] to get back soon’ to see his elderly father and teenage son, who are all the family he has and who reside in Taiwan. Anxieties about his deportation, which is a certainty, were not weighing upon him.
As such, the sentencing judge fell into error in taking the possibility of deportation into account.
Ground 4 — Isolation in custody making prison more burdensome
In relation to the isolation suffered by Peng in custody, her Honour noted as follows:
Her Honour Judge Campton in DPP v Han Trinh, when sentencing Mr Trinh referred to the Court of Appeal pronouncements in R v Tran and other relevant known authorities where it is accepted that in sentencing it is correct to take into account that a person such as you, and in your case, has been particularly isolated in custody. Those reasons have been placed onto the record and it is accepted that you have [sic] family or relations or friends in Australia. Therefore no visits and contact with your family has been difficult. Given your father’s health and the fact that you have been in custody that is obviously a matter that has weighed on you as well.[12]
[12]Reasons, [71].
In R v Adams,[13] Vincent JA said:
[I]t would be incongruous to have regard to the separation of an offender from his family and friends in his home country as constituting a basis for the reduction of penalty in a case where the person has come to this country for the sole purpose of committing a very serious crime here.[14]
Vincent JA was obviously moved by the fact that incarceration in isolation from family is the unmistakeable consequence of a premeditated decision to travel to and commit a serious crime in a foreign land.
[13][2007] VSCA 37 (‘Adams’).
[14]Ibid [24].
More recently, in Lau v The Queen,[15] and again in Tsang v DPP (Cth),[16] citing the passage from Adams,[17] this Court has said that the separation of an offender in custody from their friends and family when they come to this country solely to offend, whilst not irrelevant, will not carry great weight. We doubt, however, that the view that such a circumstance should be treated as a mitigating factor is consistent with the observations of Vincent JA in Adams. Moreover, even if the gloss placed on Adams is correct, it seems clear that where the offender has come to this country for the sole purpose of committing a serious crime, and with the intention of thereafter returning to his homeland, little weight should be attributed to such hardship in the sentencing calculus.
[15][2011] VSCA 324, [43] (‘Lau’).
[16](2011) 35 VR 240, 278 [180].
[17][2007] VSCA 37.
The cases to which her Honour referred in her sentencing remarks appear to involve offenders who were Australian residents or citizens but who had committed an offence in a different state to the one in which they resided.[18] The hardship of isolation from family was treated as a mitigating circumstance in those cases. The sentencing remarks do not indicate that her Honour recognised that this circumstance was not to be afforded much weight in the case of a foreign offender who enters the jurisdiction for the sole purpose of committing a serious offence.
[18]It has not been possible to identify all of the cases cited.
Ground 5 — Manifest inadequacy
In accordance with the principle enunciated in DPP v Chatterton,[19] the Director accepts that it will not be enough to show specific error on the part of the sentencing judge; it must be demonstrated that the sentence imposed was manifestly inadequate.[20] In assessing the adequacy of the sentence, the delay was not to be treated as a mitigating factor, Peng’s separation from his family was to receive no more than minimal weight, and his deportation was not relevant.
[19][2014] VSCA 1.
[20]Ibid [81]: ‘It is difficult to see how a specific error, which does not of itself constitute an error of principle, can ever, in the absence of manifest inadequacy, warrant setting aside the sentence originally imposed.’
It is necessary to evaluate the objective gravity of Peng’s offending. One may start by resort to the significance of sentences for importation of drugs in a similar large commercial quantity, sentences imposed in cases of lesser gravity and the importance of relevant underlying sentencing principles.[21] It was not in issue that Peng and Zheng fell within Group 3 of the categories of offenders discussed by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa[22] and in the passages set out by Maxwell P in Nguyen v The Queen; Phommalysack v The Queen.[23]As the High Court said in Wong v The Queen,[24] fairness demands consistency so that the range of sentences applicable to those who fall into that category and current sentencing practice must be kept in mind. The cases which were said to be comparable were identified on the plea and again on appeal. They are discussed in her Honour’s sentencing remarks.
[21]Hili v The Queen (2010) 242 CLR 520; Ashdown v The Queen (2011) 219 A Crim R 454, 461 [13].
[22](2010) 79 NSWLR 1, 64-6 [267] (‘De La Rosa’).
[23](2011) 31 VR 673, 683 [35]-[36].
[24](2001) 207 CLR 584, 591 [6].
Given the vast quantity of the drugs involved in this case, and the very limited mitigating circumstances, a sentence significantly higher than the sentence that was imposed[25] would have been in step with relevant comparators. But Peng maintains his reliance upon the sentence of his co-offender, Zheng, of eight years and six months’ imprisonment with a non-parole period of five years and six months, and the principle of parity in order to justify the sentence he received.
[25]De La Rosa (2010) 79 NSWLR 1, 64-6 [267].
Proper concern for parity of sentencing is a fundamental requirement of the rule of law and a condition of just punishment.[26] The Director submits, however, that the differences between the two men’s roles in the drug importation were of such significance that parity could only be of extremely limited relevance. The two men were convicted of different offences. Contrary to the submission made by counsel for Peng at the oral hearing, they could not have been convicted of the same offence, as Zheng’s involvement with the importation did not commence until after the AFP had substituted the drug with an inert substance, thereby precluding him from being charged with importation in the precise, rather than expansive, sense in which that word has been interpreted.[27] Hence, he was charged with attempting to possess a commercial quantity of a border controlled drug. The principle of parity remains applicable to those who form part of a joint enterprise or are otherwise connected even if they are to be sentenced for different offences,[28] but differences in the nature of the offences charged may affect the degree to which there must be parity.
[26]Lowe v The Queen (1984) 154 CLR 606, 610-11 (Mason J); R v William [2001] VSCA 130, [11] (Buchanan JA), [13] (Winneke P) (Brooking JA agreeing with both); Teng v The Queen (2009) 22 VR 706, 723 [70]; Nguyen v The Queen [2010] VSCA 180, [25] (Maxwell P, Weinberg JA).
[27]Section 307.1(1) of the Criminal Code; see R v Campbell (2008) 73 NSWLR 272.
[28]Farrugia v The Queen (2011) 32 VR 140, 147 [27]-[28].
The principle of parity requires that the sentencing relativities between co-offenders take into account the relevant similarities and differences between them.[29] The sentencing judge accepted that the role played by Peng in the drug importation scheme was far more involved and long-lasting than that of his co-offender Zheng, extending over a six week period. Peng was responsible for the importation of the drugs, and came to Australia well in advance of the shipment in order to organize it, while Zheng’s role was that of a mere courier transporting the drugs from Melbourne to Sydney, and was limited to a period of several days. Despite the fact that both offenders fall within the third group of the categories outlined in De La Rosa,[30] the differences between their conduct and level of involvement in the importation scheme remain substantial enough that parity should be of limited relevance.
[29]DPP (Vic) v Holder [2014] VSCA 61, [28].
[30]See (2010) 79 NSWLR 1, 53 [224] (McClellan CJ at CL). DPP v De La Rosa was cited with approval by this Court in R v Nguyen; R v Phommalysack (2011) 31 VR 673, 683-4 [35]-[37].
Quite apart from the relative differences in the conduct of the co-offenders, the Director also contends that the relevance of parity was further diminished by the fact that Zheng’s sentence, while not manifestly inadequate and not subject to an appeal by the Director, is nonetheless at the bottom end of the range of sentences properly available to the sentencing judge. We accept the Director’s contention in part. The sentence for Zheng, though not so inadequate as to warrant it being increased on a Crown appeal, should be viewed as lenient and toward the bottom of the range of sentences that were within a sound exercise of the sentencing discretion. But the fact that a sentence is low, as long as it is not inappropriately so, does not affect the ‘relevance of parity’ or diminish its effect on another co-offender’s sentence.
The approach required where the co-offender’s sentence is inappropriately low is different. A sentence that is manifestly inadequate will require that a co-offender’s sentence be placed toward the lower end of the range of sentences that are available. But a sentence that is viewed as excessively lenient cannot justify the reduction of a co-offender’s sentence to one that is inappropriately low. As Neave and Weinberg JJA recently concluded in Taleb v The Queen,[31] based on their review of the relevant decisions of this Court:
[T]he avoidance of an unjustifiable disparity between the sentence imposed on an appellant and a co-offender may require the reduction of the appellant’s sentence to a level which might otherwise be regarded as at the bottom end of the range, but not to the point where the offender’s sentence is wholly inappropriate or outside the range.[32]
[31][2014] VSCA 96.
[32]Ibid [48]. See also [52].
The logic of that was explained by Chernov JA, with whom Winneke P and Buchanan JA agreed, in Wilson v The Queen.[33] As Chernov JA said, to fix a sentence that is inappropriately low ‘would give rise to a justifiable concern in the mind of the public that there is a failure to maintain appropriate sentences’.[34] Accordingly, where the co-offender’s sentence is regarded as being excessively low, the task is not to match the prisoner’s sentence to the lenient one, but to re-sentence. The approach required in constructing the new sentence is to have regard to the sentence that was imposed on the co-offender, ‘thereby taking it into account in the broad sense in the course of exercising the sentencing discretion’. His Honour referred to R v Kucharski,[35] in which Hayne JA followed the course suggested in Pecora v The Queen[36] in the context of re-sentencing of having regard to the sentence that was imposed on the co-offender ‘but giving to it the weight which it deserves when it comes to resentencing th[e] applicant’.[37]
[33](2000) 116 A Crim R 90.
[34]Ibid 96 [20].
[35](Unreported, Victorian Supreme Court of Appeal, Hayne JA, 23 June 1997).
[36][1980] VR 499, 502-4.
[37]R v Kucharski (Unreported, Victorian Supreme Court of Appeal, Hayne JA, 23 June 1997) 10.
The principle of parity must be approached in the same way on a Crown appeal against sentence where there is a very lenient co-offender’s sentence. The co-offender’s sentence, whether low or inappropriately low, cannot justify the imposition of the sentence in question if it is manifestly inadequate. If on a Crown appeal, the sentence in question is manifestly inadequate and the prisoner falls to be re-sentenced, the co-offender’s sentence is to be taken into account in order to minimise the disparity that will be created by the new increased sentence. That outcome may be achieved by increasing the sentence to a level which is at the lower end of the range of adequate sentences. But the co-offender’s sentence may not have such a constraining effect as to require a new sentence which remains wholly inappropriate or disproportionate to the circumstances.
As the sentence stands, it is in our view manifestly inadequate. Peng played a critical and extensive role in the importation of a very large commercial quantity of a border controlled drug. His precise role in the criminal enterprise is unknown, although the Director has at all materials times accepted that he fell within category 3 of De La Rosa.[38]But, looking at the categories of offending as set out in the judgment of Maxwell P in Nguyen v The Queen,[39] and having regard to the quantity of drugs involved in this case and the significance of Peng’s role, he could well have been placed in category 2. It was not in issue that he stood to make a substantial profit from his role, though the amount was not disclosed.
[38](2010) 79 NSWLR 1, 64-6 [267].
[39](2011) 31 VR 673, 683 [35]-[36].
As the differences between the conduct and level of involvement of Peng and Zheng in the importation scheme are substantial, parity has a limited role to play. Whilst it must be taken into account in a broad sense, giving proper recognition to the relative dissimilarities in Peng and Zheng’s roles does not require that the sentence to be imposed on Peng should be at the very bottom of the available range. The Court must resentence the appellant in a way which gives full weight to the essential considerations of general deterrence[40] and the nature and circumstances of the offending in question.[41]
[40]See R v Nguyen; R v Pham (2010) 205 A Crim R 106, 126-8 [72]; Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673, [34].
[41]See, for example, the review of sentences for commercial quantity importation offences by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, 49-52 [207]-[214], cited with approval by Maxwell P in Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673, 683 [35]-[36].
We would allow the appeal, and resentence the appellant as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Importing a commercial quantity of a border controlled drug [Criminal Code Act 1995 (Cth) s 307.1(1)] Life imprisonment 13 years N/A Total Effective Sentence: 13 years Non-Parole Period: 10 years
PRIEST JA:
I agree.
---
41
25
0