Fong v The Queen

[2011] NSWCCA 283

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Fong v R [2011] NSWCCA 283

Hearing dates:

6 December 2011

Decision date:

16 December 2011

Before:

Bathurst CJ at [1]
Simpson J at [2]
Adamson J at [63]

Decision:

1. Leave to appeal granted;

2. Appeal allowed, sentence quashed;

3. In lieu thereof the applicant be sentenced to imprisonment for 5 years and three months, to commence on 18 April 2009 and expire on 18 July 2014, with a non-parole period of 2 years and 6 months, expiring on 17 October 2011.

Catchwords:

CRIMINAL LAW - application for leave to appeal against sentence - single count ongoing supply of prohibited drug - heroin - s 25A(1) Drug Misuse and Trafficking Act 1985 - Form 1 offences of supply and possession - plea of guilty - finding of special circumstances - co-offenders pleaded guilty to knowingly taking part in supply of not less than commercial quantity of prohibited drug - offence of money laundering taken into account on Form 1 against both co-offenders - error in assessment of objective gravity - error in application of proportionality principle - greater disparity between sentences warranted - leave granted - appeal allowed - applicant re-sentenced

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:

Georgopolous v R [2010] NSWCCA 246
Muldrock v The Queen [2011] HCA 39
R v Andrew John Sivell [2009] NSWCCA 286
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168

Category:

Principal judgment

Parties:

Ian Hin Lau Fong (Applicant)
Regina (Respondent)

Representation:

Counsel
A Frances (Applicant)
V Lydiard (Crown)
Solicitor
Hardinlaw Lawyers (Applicant)
DPP (Respondent)

File Number(s):

09/160547

 Decision under appeal 

Citation:

N/A

Date of Decision:

2010-11-04 00:00:00

Before:

Freeman DCJ

File Number(s):

09/160547

Judgment

1. BATHURST CJ: I agree with Simpson J.

1. SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 4 November 2010, following his plea of guilty to a single charge of supplying heroin on an ongoing basis, brought under s 25A(1) of the Drug Misuse and Trafficking Act 1985 ("the DMT Act "). That subsection prescribes a maximum custodial penalty of imprisonment for 20 years. The applicant also asked that two further offences on a Form 1 be taken into account, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act "): these were offences of supplying heroin and of possessing heroin.

1. Freeman DCJ sentenced the applicant to imprisonment for 5 years and 3 months, commencing on 18 April 2009, and expiring on 17 July 2014, with a non-parole period of 3 years, which will expire on 17 April 2012.

1. In so sentencing the applicant, his Honour allowed a reduction of 25% in the sentence he otherwise would have imposed, in recognition of the applicant's early plea of guilty: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. He found, pursuant to s 44(2) of the Sentencing Procedure Act , that special circumstances existed justifying departure from the ratio between the head sentence and the non-parole period there specified. The reduction made in the non-parole period was very considerable: on the statutory proportions, a head sentence of 5 years and 3 months would carry a non-parole period of just under 4 years.

1. The applicant stood for sentence with two co-offenders, David Chow, and Jason Wong (also known as Jian Be Huang). Chow and Wong were both charged with, and pleaded guilty to, knowingly taking part in the supply of not less than the commercial quantity of a prohibited drug (heroin). That offence also attracts a maximum penalty of imprisonment for 20 years, but, additionally, it is subject to a standard non-parole period of 10 years: see Sentencing Procedure Act , Part 4, Division 1A. Each asked that a further offence on a Form 1 be taken into account; this was an offence of dealing in the proceeds of crime ("money-laundering"), that being the sum of more than $480,000 found to be under their control at the time of their arrest.

1. Wong was sentenced to imprisonment for 7 1/2 years, with a non-parole period of 5 years; Chow was sentenced to imprisonment for 6 years with a non-parole period of 3 years.

The facts

1. The facts were put before the sentencing judge by way of an agreed statement of facts that related to each of the three offenders. The three men were involved in an organised enterprise of the supply of heroin, which operated from residential premises in Erskineville.

1. In the introductory paragraphs to the statement of facts, both Chow and Wong were said to have:

"... knowingly [taken] part in the ongoing distribution of heroin from the premises ... and [to have been] involved in all facets of the operation."

1. The applicant was said to have:

"... supplied on behalf of the distribution network and [to have been aware he was operating in a well-organised enterprise with access to large amounts of heroin. ... [and to have had] the key to [a safe] ... which contained a quantity of heroin."

1. Heroin was packaged in the Erskineville premises, and sold on the streets of Surry Hills. Typically, the three offenders attended at the Erskineville address, arriving in separate vehicles. After, presumably, packaging the drugs, they would then leave in one car and travel to Surry Hills, where they would pick up customers, drive them a short distance, supply the drug, and take their money.

1. Section 25A of the DMT Act requires proof of a supply on three or more separate occasions during any period of 30 consecutive days. Established against the applicant were five separate supplies, on 3 April, 7 April, 9 April, 11 April and 14 April 2009.

1. The enterprise had been under surveillance, and on each of these occasions the applicant (or one of his co-offenders, as part of a joint criminal enterprise) supplied the drug to a registered police "source" who was working in conjunction with police officers.

1. On the first occasion, by prior arrangement, the applicant and Wong met the source on a Surry Hills street; they introduced themselves, and drove off with him in a vehicle. Some negotiations concerning the quantity of drug that they could supply took place. Within a short time on that date, in two separate transactions, the source paid Wong $750, and Wong handed to the source two packages of heroin, with a total weight of 0.83 grams and a purity of 65%. The applicant was present throughout, and was the driver of the vehicle.

1. During some of the discussion, the source inquired about obtaining "an eight ball". Wong told him that "an eight ball" cost $2,150, and would take about an hour to obtain. He gave the source a code to use when telephoning to placing such an order.

1. When giving the source the second package, Wong told him that it was not his usual practice to hand over the drug until immediately before the customer left the car, because, if he (Wong) became aware of the presence of police, he could "get rid of" the drug, whereas heroin addicts were more likely to retain it and therefore provide evidence that would incriminate them.

1. On the second occasion, 7 April, the source telephoned the applicant and used the code he had been given by Wong for requesting supply of an "eight ball". The applicant picked up the source. They had a conversation about the high quality of the drug being supplied. The applicant gave the source an alternative code for requesting an "eight ball". Eventually, the applicant handed the source a bag containing 3.41 grams of heroin, with a purity of 65%. The source handed him $2,150.

1. On the subsequent three occasions, a similar pattern operated. The applicant, or one of his co-offenders, was handed by the source sums of $2,150 (on two occasions) and $950 (on the last occasion) and received, respectively, 3.28 grams of heroin with a purity of 67.5%, 3.3 grams with a like purity, and 1.13 grams, also with a purity of 67.5%.

1. The scale of the operation was demonstrated by evidence discovered on execution of search warrants at various locations, including the Erskineville address. Two locked safes were in these premises. The applicant was later found to have the key to the smaller of the two safes. In that safe was 26.1 grams of heroin in packages. In the larger safe was 327.1 grams of heroin, in 5 bays. Other quantities of heroin were found elsewhere in the premises. Also in the room were the paraphernalia of a drug supply enterprise - foil, calculators, scales, disposable gloves, plastic bags, mobile telephones and "paperwork". The "paperwork" involved a small notebook, which recorded names and amounts of money, from 16 May 2008 to 17 April 2009. The transactions recorded in the notebook amounted to more than $3,000,000.

1. A search warrant at other premises leased in the name of Chow yielded more than $483,000 in cash (including a relatively small amount in foreign currency). This was the subject of the money-laundering offences taken into account in the sentencing of Wong and Chow. Also located in those premises was a ledger which showed receipt, during the period 12 July 2008 to 14 April 2009, of more than $3 million. It showed payments made to the three offenders. The payments made to Chow and Wong were very significantly greater than those made to the applicant, who received only $9,000. Chow and Wong each received in the vicinity of $110,000. However, the applicant had also received, and had the use of, a Honda motor vehicle.

1. The statement of facts also recorded that the applicant rented (in his name) a motor vehicle using Wong's credit card for payment.

1. The applicant was arrested on 18 April 2009 and has remained in custody since that date.

The proceedings on sentence

1. Although the applicant entered a plea of guilty in the Local Court on 2 March 2010, sentencing proceedings in the District Court did not take place until September 2010. A joint hearing concerning the charges against each of the three co-offenders took place on that date.

1. In respect of the applicant, before the court was a Pre-Sentence Report, a psychiatric report and some medical evidence. The applicant's mother gave evidence. The applicant did not himself give evidence, but a written statement made by him was included in the materials on sentence. Similarly, neither of the co-offenders gave evidence, although, in each case, a relative did give some oral evidence. Each co-offender also provided a written statement.

1. It was from these materials that evidence of the applicant's personal circumstances emerged.

The applicant's personal circumstances

1. In his statement the applicant expressed deep regret for his conduct, and said that he had "a renewed insight" into what he had done. He said that he was able to see things "with a clear mind", having ceased his heroin addiction. He expressed remorse. He said:

"I was a heroin addict and took part in the criminal activities in which I was charged to finance my drug addiction. I turned to heroin use due to my decline in university studies and relationship as a way to deal with the pressures of deferring university and suppressing my emotions in a failing relationship."

1. He said that he had been drug free since his arrest and would try his hardest to remain so in the future. He said that he had lost his career and his relationship because of his involvement in drugs and he wished to rehabilitate himself.

1. Neither the Pre-Sentence Report nor the psychiatric report reveals anything of particular note in relation to the applicant's background. The author of the Pre-Sentence Report began by observing that the majority of the information contained therein was based on information that had been provided to her by the applicant and remained largely unverified. Although she had been given contact details for family members, and had made efforts to do so, she had not been able to establish contact with family members.

1. The applicant was born in June 1979. He was almost 30 years of age at the time of offences. He was born in Australia to parents of Chinese heritage, the younger of two children. His older sister excelled in school, and qualified as an architect. His father worked as a chef, his mother as a legal secretary.

1. The applicant told the Probation and Parole officer that he began using cannabis and ecstasy at the age of 18, in a social context, approximately fortnightly or three weekly. He ceased cannabis use after about six months, but continued to use ecstasy for a period of two to three years.

1. He began using opiates in 2005 on a regular and escalating basis. In about 2007 he sought assistance through a Buprenorphine program, and remained stable on that medication for 12 months. He continued, infrequently, to use opiates and eventually did return to their use and abandoned the Buprenorphine. That the applicant had undertaken this course was confirmed by the medical evidence to which I have referred. The Probation and Parole officer said that he appeared to take responsibility for his behaviour, although she perceived "a level of justification" in his blaming his drug addiction for his conduct.

1. The psychiatric report was to similar effect. The psychiatrist did not offer any particular explanation by way of mitigating circumstances for the applicant's involvement in drugs. In fact, there is nothing in the evidence concerning the applicant's family history that would explain his involvement in the offence, or, indeed, in drug use.

1. The author of the Pre-Sentence Report reported positively on the applicant's progress since his arrest and incarceration. He had incurred no institutional disciplinary charges and had undertaken and completed such programmes as are available to him as an unsentenced prisoner.

1. His mother gave evidence that the applicant had done well in high school, and, although his Higher School Certificate results were not spectacular, he was admitted to an electrical engineering course at the University of Technology. However, without communicating with her, he abandoned that course at some stage. She had had some concerns that he was using drugs, although when asked he denied it. She produced a photograph, which apparently showed the applicant as being in an extremely frail, even emaciated, condition. There had been some family problems, with her mother in bad health in a nursing home, and subsequently dying. There was nothing to suggest that these circumstances had any particular impact upon the applicant.

1. He had been involved in a relationship with a woman from Malaysia, whose visa was not renewed, and who departed the country. That, perhaps, explains the reference in the applicant's statement to "a failing relationship" (although it does not explain why he said that his drug use was the cause of the failure).

1. It is evident that the applicant retains family support.

The Remarks on Sentence

1. The sentencing judge recounted, in a way that has not attracted criticism, the facts of the offences, as they applied to all three offenders. In considering the objective gravity of the offences, he took a global approach. He said:

"The Crown's submission is that this offence is above mid-range of objective seriousness because of the size of the business, the lease of premises, the hire and purchase of vehicles, the conversations and telephone calls indicating the range of customers and the capacity to supply, both claimed and demonstrated. Taking these arguments into consideration, I would find this crime as being in upper half of the mid-range of objective seriousness. This finding expressed in general terms, refers to the purely physical acts of each offender.

... having considered the actus reus , the consequences of their conduct and the mens rea of each offender, I would classify this offence as in the middle of the range of objective seriousness. There is no basis for separating out these three offenders, although that will be necessary when considering the punishment which is appropriate to each ." (ROS p6, italics added)

1. His Honour then made reference to the standard non-parole period, which he noted was "prima facie" required in the co-offenders, but not in that of the applicant.

1. In specific reference to the applicant, his Honour said:

"[The applicant] was involved, either directly or as the driver, in five separate supplies to the police source. The items on the Form 1 to be taken into account are sufficient to make a measurable but not significant increase in the penalty which would otherwise have been applicable to his involvement because those are acts which are really comprehensible within the substance of the charge on which he is to be sentenced." (ROS p 7)

1. Later, after referring to some of the evidence of the applicant's personal circumstances, he said:

"[The applicant] had been involved with this distribution ring for about 12 months prior to his arrest. During this time, the Crown suggests, he was operating fully aware of his role in a well organised enterprise with access to large amounts of heroin. He was a relatively minor but important functionary, in that he usually drove the car in which the deals were conducted and from time to time actually supplied the drugs. He had access to the smaller safe which contained what might be described as immediately saleable amounts of heroin. Over the period covered by the records, he received ... less than $9,000. He did not have possession of the large sums of money under the control of Wong or Chow nor is there any evidence that he had access to the safe in which the larger quantities of heroin were stored." (ROS p 8)

1. He noted the applicant's progress towards rehabilitation since his arrest and assessed his prospects of rehabilitation as "good", provided he remained abstinent from drugs. He also noted the evidence concerning the personal circumstances of the co-offenders. Wong had been sentenced, in 1998, to two terms of imprisonment to be served by periodic detention. The order that the sentences be served in that way was subsequently cancelled by the Parole Board and Wong served full time custody for a little over 2 months. He had a "sparse" work history. He said that he had engaged in drug supply to fund his own addiction to heroin and to make some money. He had at least twice before attempted to wean himself off heroin but had failed.

1. Chow also had a significant criminal record, commencing when he was a juvenile. In 1993 he was sentenced in respect of two counts of possession of prohibited drugs and possession of money suspected of being the proceeds of crime. In December 1993, he was sentenced to imprisonment for 6 years with a non-parole period of 4 years. The remarks on sentence do not specify the offence for which this sentence was imposed.

1. In 2006 he was again charged with possession of a prohibited drug, and given the benefit of a bond under s 9 of the Sentencing Procedure Act . His response was satisfactory and the supervision, which was a condition of the bond, was terminated after six months; the bond remained current at the time of committing the present offence. Also current was a further s 9 bond entered into in March 2009 for two charges of possession of prohibited drugs. His Honour regarded the existence of the two bonds, and the fact that Chow was subject to conditional liberty at the time of committing the present offence to be a seriously aggravating feature.

The grounds of the application

1. Four grounds of appeal were proposed. They were pleaded as follows:

"Ground 1: The trial judge erred in the conclusion that having regard to the objective criminality there was no basis for 'separating out these three offenders'.

Ground 2: The trial judge erred in his approach to sentencing the applicant by adopting a two step approach where the standard non-parole period did not apply.

Ground 3: To the extent that the proportionality principles applied his Honour failed to recognise the differences in the sentencing regimes that applied between the applicant and Wong and Chow.

Ground 4: The sentence is manifestly excessive."

1. On the hearing of the application, leave was granted to amend Ground 2, so that it reads:

"The trial judge erred in his approach to sentencing the applicant by adopting the two-step approach; the mischief, identified in Markarian v R [2005] HCA 25; (2006) 228 CLR 357."

1. In written submissions, counsel for the applicant argued Grounds 1 to 3 concurrently. As I understand the written submissions, it is intended to be asserted that manifest excess (the subject of Ground 4) follows from the substance of the preceding three grounds. No submission was made that, absent the considerations raised by these grounds, the sentence imposed was outside the range legitimately available in respect of the offence to which the applicant pleaded guilty.

1. The application revolved around that passage in the Remarks on Sentence in which his Honour said that there was no basis for separating out the three offenders (see the sentence highlighted in the extract above at [36]).

1. This, it was contended, was an incorrect approach. There were, it was put, three bases for separating the applicant from the co-offenders. The first was his level of involvement in the enterprise; the second was his favourable personal circumstances particularly the absence of any criminal history (in contrast to both co-offenders); the third was the inapplicability of a standard non-parole period to the offence to which the applicant pleaded guilty.

1. The remark concerning not separating out the three offenders calls for some analysis. It was made in the context of considering the objective gravity of the offences committed by each of the three offenders. Although his Honour immediately noted that differentiation would be required when considering punishment, it seems to me that he did not so differentiate in the assessment of the objective gravity.

1. There were, in fact, considerable distinctions to be drawn between the applicant and each of the co-offenders in that respect. Important in this consideration is the manner in which the agreed facts were framed, stating that Chow and Wong were both "involved in all facets of the operation" (which was shown to be of considerable magnitude) and the omission of any such assertion against the applicant the agreed facts do draw a clear distinction between the applicant and his co-offenders in respect of the extent of their involvement in the operation. The role the offender plays in a drug distribution network is of major importance in determination of sentence. Given the agreed facts, I do not think it could accurately be said that there was no basis for separating the objective gravity of his offence from the objective gravity of the other two offences.

1. Further support for that conclusion is to be found in the significant difference in the financial rewards received by the co-offenders (in excess of $100,000) compared with those received by the applicant ($9,000, together with the use of a motor vehicle). Aggravating the objective gravity of Chow's offence was the commission of the offence while on conditional liberty. Also relevant were the very serious money-laundering offences on the Form 1 in respect of both Wong and Chow, compared with the two Form 1 offences to which the applicant admitted his guilt, and which his Honour considered called for "a measurable but not significant increase in" penalty. Another distinction, not relevant to objective gravity, but relevant nevertheless, is the criminal histories of both Wong and Chow, compared with the absence of any such history in the applicant.

1. Although it was never expressly so stated, it seems to me that the argument advanced on behalf of the applicant depends on that part of the decision of the High Court in Postiglione v The Queen [1997] HCA 26; 289 CLR 295 (at 301-2), which extended the "parity principle" ( Lowe v The Queen [1984] HCA 46; 154 CLR 606) to proportionality between sentences imposed on co-offenders whose culpability and personal circumstances are not necessarily comparable.

1. What the High Court said was:

"Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and different degrees of criminality." (p 302)

1. Treating the three offenders as equivalent in objective gravity led to a further matter, said to amount to error. This was this Honour took a forbidden two-step approach to sentencing.)

1. Counsel referred to authorities of this Court to the effect that, where no standard non-parole period is applicable to an offence, it is neither necessary nor desirable for a sentencing judge to make an express finding of where on a scale of objective gravity a particular offence lies. Those authorities include R v Andrew John Sivell [1009] NSWCCA 286 and Georgopolous v R [2010] NSWCCA 246. There are others to similar effect. The submissions went on:

"30. It is apparent that his Honour commenced from the proposition that the objective criminality was comparable but there were subjective factors which warranted a distinction in penalty. Whilst the latter was no doubt correct the former has infected the sentencing exercise and the extent to which proportionality is relevant in the outcome."

Resolution

1. It is true, also, that the finding as to where the offence lay in the mid-range of objective seriousness appears to apply to each of the offenders. The sentences were imposed at the time when R v Way [2004] NSWCCA 131; 60 NSWLR 168 was thought to state the law applicable to sentencing where a standard non-parole period has been prescribed. That is no longer the case: see Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154. But, even before the decision in Muldrock , it was well recognised that to specify where an offence to which no standard non-parole period is applicable lies in a notional range of objective gravity is conducive to error: see, for example, R v Sivell ; Georgopolous v R .

1. In my opinion the error asserted cannot be substantiated. The Remarks on Sentence make it perfectly clear that his Honour was well aware that the standard non-parole period applied to the offences of which Wong and Chow admitted their guilt, and not to that charged against the applicant. There is nothing in the Remarks on Sentence that suggest that a two step approach to sentencing was taken. A finding of objective gravity is required in all cases.

1. The remaining ground, Ground 3, (which is really an aspect of Ground 1), however, cannot be so easily dismissed, particularly in respect of the sentence imposed on Chow. For convenience, I set out below a table showing the sentences:

Applicant	Wong	Chow
Total sentence	5 years 3 months	7 years 6 months	6 years
Non-parole period	3 years	5 years	3 years

1. I conclude that the Wong sentence can be put to one side. The total sentence was significantly greater than that imposed on the applicant, as was the non-parole period. That sentence adequately reflects the differences between the two offenders.

1. That is not the case, however, with respect to the sentence imposed on Chow. Although Chow's involvement was greater, and his personal circumstances significantly less mitigatory than those of the applicant, his head sentence was longer than that of the applicant by only 9 months (14%) and the non-parole period identical. The difference between the two called for a greater disparity.

1. The difficulty, however, is that the offence committed by the applicant was serious and called for significant punishment. Without the "proportionality" issue it could not be said to be manifestly excessive. I would therefore reduce the non-parole period but only by a relatively small margin.

1. The orders I propose are:

1. Leave to appeal granted;

2. Appeal allowed, sentence quashed;

3. In lieu thereof the applicant be sentenced to imprisonment for 5 years and three months, to commence on 18 April 2009 and expire on 18 July 2014, with a non-parole period of 2 years and 6 months, expiring on 17 October 2011.

1. The applicant was eligible for consideration for release on parole from 17 October 2011.

1. ADAMSON J: I agree with Simpson J

**********

Decision last updated: 22 December 2011