Goh v The Queen
[2022] VSCA 24
•4 March 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0035
| KEE SEN GOH | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | T FORREST and WALKER JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 February 2022 |
| DATE OF JUDGMENT: | 4 March 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 24 |
| JUDGMENT APPEALED FROM: | DPP (Cth) v Goh (Unreported, County Court of Victoria, Judge Meredith, 11 March 2021) |
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CRIMINAL LAW – Appeal – Sentence – Attempting to possess border controlled drug in commercial quantity – Appellant recruited and coordinated others to possess 8.31 kg of heroin – Expendable mid-level functionary – Cooperation with authorities, including consenting to searches – Guilty plea – Lack of prior convictions – Deportation – Good prospects of rehabilitation – Sentence of 11 years’ imprisonment with non-parole period of 6 years and 9 months – Whether sentence manifestly excessive – Parity – Where co-offender sentenced to 7 years’ imprisonment with non-parole period of 4 years and 6 months – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S Ranjit | Papa Hughes Lawyers |
| For the Respondent | Ms R Champion | Mr S Bruckard, Solicitor for Public Prosecutions (Cth) |
T FORREST JA
WALKER JA:
On 22 February 2021, the appellant pleaded guilty before a judge of the County Court to a single charge of attempting to possess a border controlled drug (heroin) in a commercial quantity.[1] The quantity in issue was 8.31 kilograms — more than five times the commercial quantity for that drug.[2] The appellant had cooperated with the authorities and had thus assisted in the police obtaining much of the evidence against him.
[1]Contrary to Criminal Code Act 1995 (Cth) ss 11.1(1), 307.5(1), read with s 311.14.
[2]The prescribed commercial quantity for heroin is 1.5 kilograms: Criminal Code Regulations 2002 (Cth), sch 4.
On 11 March 2021, the appellant was sentenced as follows:[3]
[3]DPP (Cth) v Goh (County Court of Victoria, Judge Meredith, 11 March 2021) (‘Sentencing Reasons’).
Charge Offence Maximum Sentence Cumulation 1 Attempting to possess a border controlled drug in a commercial quantity Life imprisonment 11 years’ imprisonment Base Total Effective Sentence: 11 years’ imprisonment Non-Parole Period: 6 years and 9 months’ imprisonment Pre-Sentence Detention Declared: 764 days Section 6AAA Statement: 14 years’ imprisonment with a non-parole period of 9 years and 6 months
The appellant’s co-offender, Kee Tan, had earlier pleaded guilty to the same charge. However, Tan’s charge related to a much smaller quantity of heroin: 2.58 kilograms, being less than twice the commercial quantity. Tan was sentenced to 7 years’ imprisonment with a non-parole period of 4 years and 6 months. Tan had not cooperated with the authorities.
On 24 August 2021 McLeish JA granted the appellant leave to appeal.[4] The appeal is based on a single ground, as follows:
[4]Goh v The Queen [2021] VSCA 231 (‘Reasons for Leave’).
1. The total effective sentence and non-parole period fixed [are] manifestly excessive.
Particulars:
a.The Learned Sentencing Judge gave insufficient weight to:
i. The [appellant’s] cooperation with law enforcement agencies.
ii. The [appellant’s] plea of guilty.
iii. The [appellant’s] personal circumstances.
iv. That any period of custody would be more onerous upon the [appellant].
b.The Learned Sentencing Judge gave excessive weight to:
i. General deterrence; and
ii.Specific deterrence.
c. The sentence imposed is more severe than … was necessary to achieve the purpose for which the sentence was imposed.
Although not expressly mentioned in the ground of appeal or the particulars, in the appellant’s written and oral submissions he relied in part on a parity argument, based on the fact that the sentence imposed on the appellant’s co-offender, Tan, was significantly less than the sentence imposed on the appellant, even though Tan had not cooperated with authorities and had pleaded guilty at the same stage in the criminal process as the appellant.
In his reasons for granting leave to appeal, McLeish JA identified a number of comparable cases that had not been drawn to the attention of the sentencing judge.[5] It was these cases, in particular, that led his Honour to grant leave to appeal. His Honour said this:
This necessarily brief review, which extends to decisions which the sentencing judge did not have drawn to his attention, suffices to suggest that it is reasonably arguable that the sentence imposed in this case was inconsistent with current sentencing practices for the offence of attempting to possess a border controlled drug.[6] Although only one factor bearing on sentence, this gives rise to the possibility that something went wrong in the exercise of the sentencing discretion, so as to make the sentence manifestly excessive. That is especially so given the significant assistance the applicant was found to have given the authorities. Leave to appeal should be granted to enable these matters to be fully explored.
In the circumstances, it is not necessary to evaluate the merits of the applicant’s parity argument, which forms part of the manifest excess ground. Along with the identification and evaluation of any relevant current sentencing practices, that will form a relevant issue at the hearing of the appeal.[7]
[5]Reasons for Leave, [39]–[43], citing Udunna v The Queen [2020] NSWCCA 304 (‘Udunna’), Hoang v The Queen [2018] VSCA 86 (‘Hoang’), Lau v The Queen [2014] NSWCCA 179, Dao v The Queen [2011] NSWCCA 183 (‘Dao’), Luong v The Queen (2013) 46 VR 780; [2013] VSCA 296 (‘Luong’).
[6]See also DPP (Cth) v Thomas (2016) 53 VR 546, 612–14 [192]–[199] and the cases cited there and at 627–30 [260]–[270] (Redlich, Santamaria and McLeish JJA); and R v Franze [2013] VSC 421, Beqiri v The Queen (2017) 270 A Crim R 523; [2017] VSCA 112, Saab v The Queen [2012] VSCA 165 and Banker v The Queen [2016] QCA 74, discussed in Schanker [2018] VSCA 94, [216]–[220] (Tate and McLeish JJA and Kidd AJA).
[7]Reasons for Leave, [44]–[45] (footnote in original).
In light of those remarks, the parties filed further written submissions concerning the appropriate use of comparable cases, and addressed those cases in oral argument.
For the reasons that follow, we would dismiss the appeal.
Circumstances of offending
The circumstances of the appellant’s offending were set out in the judgment of McLeish JA on the leave application, and we adopt his Honour’s description, which was as follows:
The [appellant] is a Malaysian national in his early thirties.
His offending came to light when, in February 2019, the Australian Border Force identified 12 suspicious inbound consignments. Of these, one was located in Sydney and nine were located at a courier service in Melbourne. Those ten consignments each contained a marketable quantity of heroin, together totalling 8.31 kilograms — more than five times the commercial quantity for that drug. The other two consignments could not be located.
The [appellant], under the direction of unidentified others, made arrangements to possess the heroin. He recruited Tan and two others, and directed them to attend the courier service in Melbourne to collect the consignments. To facilitate collection, he provided them with mobile phones (corresponding to the contact numbers of the consignees) and documentation (purporting to be authorisations signed by the consignees). The [appellant] also planned to or actually collected other suspicious consignments which had not been intercepted by authorities, but he was not charged in respect of these other consignments.
Tan was arrested at the courier service on the morning [of] 6 February 2019. As the police were departing the courier service later that day they observed the [appellant] standing at the rear of a parked car and peering in. They approached him. The [appellant] told them that the car was his; he provided the police with his name and address, and permitted them to look at his phone. The contents of his phone aroused further suspicions and the [appellant] permitted the police to search his vehicle, and ultimately his premises. Police paused the latter search after they observed a large number of mobile phones in the [appellant’s] bedroom. They returned to complete the search after obtaining a warrant. At least five of the phones matched consignee contact details.
The [appellant] was duly arrested. In his record of interview, he made significant admissions, including as to his involvement in collecting or arranging to collect other suspicious packages, although he also told some lies and minimised aspects of his offending.[8]
[8]Reasons for Leave, [5]–[9].
Judge’s sentencing remarks
After outlining the circumstances of the offending, the sentencing judge considered various mitigatory matters relevant to the sentence to be imposed on the appellant. First, his Honour addressed the appellant’s cooperation in his own apprehension. He noted that the appellant had volunteered information when questioned by police outside the courier service, and that he had consented to a search of his car, his phone and his home.[9] His Honour observed that the appellant had not attempted to leave the scene when approached by police, as he could lawfully have done, nor did he seek to destroy or withhold incriminating evidence.[10] Further, the prosecutor had accepted that the appellant provided ‘significant assistance’ to authorities in their investigations.[11] His Honour said that the appellant was ‘entitled to and will receive appropriate recognition’ for his past cooperation.[12]
[9]Sentencing Reasons, [14].
[10]Sentencing Reasons, [25].
[11]Sentencing Reasons, [13].
[12]Sentencing Reasons, [25].
Secondly, the judge recognised the appellant’s guilty plea, which occurred 14 months after the committal, thus not at the first available opportunity. His Honour considered this to be evidence of some remorse, and a desire to facilitate the course of justice by sparing the time and costs of a trial, which was in fact achieved.[13]
[13]Sentencing Reasons, [26].
Thirdly, the judge noted that the appellant lacked prior convictions and came from a relatively impoverished background. His father was a gambler, which had previously strained their relationship. The appellant had completed high school and a tertiary qualification in business management in Malaysia. He was residing in Australia and enrolled in culinary studies at the time of the offences. His Australian student visa had now been cancelled.[14]
[14]Sentencing Reasons, [27]–[30].
Fourthly, the judge observed that the appellant was experiencing financial difficulties while studying in Australia and working in food delivery, and was struggling to make ends meet. He was recruited into the drug enterprise at that time. The appellant’s financial difficulties were the catalyst for his offending,[15] although ultimately his actual gain was to be modest, given that an amount of $4,000 was to be split amongst the appellant and those he recruited.[16]
[15]Sentencing Reasons, [30].
[16]Sentencing Reasons, [40].
Fifthly, the judge assessed the appellant’s prospects of rehabilitation as positive, noting his productive use of time in custody and lack of prior convictions. The judge referred to a letter written by the appellant to the Court, which the judge described as illustrating the appellant’s ‘increased insight into the seriousness of and reasons for’ his offending.[17]
[17]Sentencing Reasons, [36].
Sixthly, the judge also referred to a report prepared by a psychologist, which revealed that the appellant presented with an adjustment disorder, involving persistent negative emotional states, as well as impaired judgment and functioning. However, on the plea the appellant accepted that this did not engage the Verdins principles.[18] The judge accepted that this disorder, together with the appellant’s financial difficulties, contextualised the offending. However, the judge considered that it offered little by way of mitigation, because the appellant involved himself in a serious criminal operation for financial gain, knowing that his conduct was wrong.[19]
[18]See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102 (‘Verdins’).
[19]Sentencing Reasons, [32]–[33].
Seventhly, the judge took into account that this was the appellant’s first experience of prison, and that it would be more burdensome for him because of the ongoing pandemic and his adjustment disorder.[20]
[20]Sentencing Reasons, [34].
Finally, the judge also took account of the inevitability of the appellant’s deportation, which he accepted would involve hardship to the appellant. However, his Honour considered its mitigatory weight to be modest, given the appellant’s relatively recent arrival in Australia before offending.[21]
[21]Sentencing Reasons, [35].
The judge then considered other factors relevant to sentencing that weighed against the mitigatory factors. First, his Honour described the quantity of drugs — 8.31 kilograms — as ‘not insubstantial’, and noted that it was more than five times the commercial quantity threshold.[22]
[22]Sentencing Reasons, [37].
Secondly, the judge observed that the appellant’s offending was planned, and that it involved the recruitment, direction and payment of his co-offenders. It also involved supplying them with materials to facilitate the collections. The appellant played an active role in the enterprise. That role involved a degree of agency and responsibility, even while acting under the direction of unidentified others. The appellant’s role was thus something more than a ‘mere courier or collector, such as Tan was’. The appellant performed a ‘necessary but expendable role’ in the enterprise. Nonetheless, the appellant’s financial interest in the enterprise was modest.[23]
[23]Sentencing Reasons, [38]–[40].
Thirdly, the judge accepted that, although the appellant was not aware of the precise quantity of the substance he was attempting to possess, he knew it was ‘a lot’.[24] And, given the extent of the appellant’s involvement in a complicated and clandestine operation, the judge considered the appellant’s recklessness as to the possibility that the substance he was seeking to possess was a border controlled drug to be of a ‘high order’.[25]
[24]Sentencing Reasons, [41].
[25]Sentencing Reasons, [42].
Fourthly, his Honour emphasised the seriousness of the appellant’s offending, illustrated by the maximum penalty of life imprisonment, and the importance of general deterrence in sentencing for drug importation offences.[26] He also had regard to the requirements of s 16A of the Crimes Act 1914 (Cth) (‘Crimes Act’), given that the offence was a federal offence.[27]
[26]Sentencing Reasons, [45].
[27]Sentencing Reasons, [46].
In addition to the above matters, the judge expressly and separately addressed the issue of parity. His Honour said this:
In sentencing you, I must have regard to the important sentencing principle of parity. Disparate sentences are justified where the roles pursued by co-offenders and/or their personal circumstances differ. Here, your past cooperation with investigators is significant. Tan did not cooperate in this fashion. Tan was sentenced on the basis of a significantly lower quantity of heroin than you. I have found your role involved a degree of organisation and agency which Tan’s did not. Your guilty plea occurred at a later time than Tan’s. All of these factors underscore relevant differences between the two of you.[28]
[28]Sentencing Reasons, [44].
Ultimately, after balancing the matters discussed above, the judge imposed a sentence of 11 years’ imprisonment. He fixed a non-parole period of 6 years and 9 months, which he said represented ‘the opportunity of a significant period on parole’.[29]
[29]Sentencing Reasons, [48].
Consideration
It is well established that, in order to establish manifest excess, an appellant must show that something went obviously, plainly or badly wrong in the exercise of the sentencing discretion.[30] The test is a stringent one. The question to be asked is whether the sentence imposed was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[31]
[30]Ayol v The Queen [2014] VSCA 151, [30] (Maxwell P), quoting Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[31]R v Abbott (2007) 170 A Crim R 306, 309–10 [13]–[15] (Maxwell P, Eames JA agreeing at 312 [22], Habersberger AJA agreeing at 312 [23]); [2007] VSCA 32.
The appellant’s submissions in support of his argument that the sentence imposed on him was manifestly excessive were directed at four distinct issues, three of which included a parity argument:
(a) the weight to be given to his cooperation with the authorities, noting that Tan had not cooperated;
(b) his early guilty plea, which he said was similar to Tan;
(c) the effect on him of deportation, which was said to be greater than the effect on Tan; and
(d) the relevance of sentences imposed in comparable cases.
In contrast, the respondent contended that the sentence imposed on the appellant was within the permissible range and that the mitigatory factors pointed to by the appellant were each referred to and adequately accounted for by the judge.
We will address each of the issues raised by the appellant in turn. We will address the issue of parity separately.
The appellant’s cooperation with the authorities
The first factor upon which the appellant relied was the ‘significant cooperation’ he had provided to the investigating authorities, which is relevant to the sentencing exercise by reason of s 16A(2)(h) of the Crimes Act. He observed that this cooperation expedited and facilitated the investigation, and bolstered the case against him. Had he chosen to depart the courier service after the police encountered him, they would have been powerless to arrest him. Instead, he voluntarily led the police to a body of incriminating evidence and so brought on his own arrest. The appellant submitted that what is known as a ‘Doran discount’ was appropriate.[32] He also submitted that the fact that, in his record of interview, he had lied and minimised his involvement was not relevant to the discount that ought to be given in relation to his cooperation, because the assistance had by that time already resulted in the police obtaining evidence against him. He further submitted that it was apparent that the appellant’s assistance to police had helped to convict Tan.[33]
[32]See R v Doran [2005] VSCA 271 (‘Doran’).
[33]See DPP (Cth) v Tan (County Court of Victoria, Judge Meredith, 15 November 2019) [10]–[12].
The Crown accepted below and on the appeal that the appellant had cooperated with the authorities and that this was a mitigating factor to be taken into account in sentencing the appellant. It is plain that the trial judge did take this matter into account. He also expressly noted, when considering the issue of parity, that Tan had not cooperated with the authorities.[34]
[34]Sentencing Reasons, [44].
In relation to the appellant’s cooperation with authorities, the respondent submitted that the sentencing judge expressly considered that factor. The respondent also submitted that the appellant’s cooperation was not the only source of evidence against him, and while it was facilitative of his apprehension and arrest, it could not be said that his offending would not have been discovered without it. In that sense, while accepting that a sentencing discount was appropriate, the respondent contended that this case was different from Doran, where the offender’s confession to police provided the prosecution with all the evidence necessary to convict him of the majority of the crimes and where, but for the appellant's admissions, it was ‘most unlikely’ that the offences would have been discovered.[35] Had that been the case here, the respondent observed, the mitigatory weight would have been greater. But, the respondent submitted, that was not the case. The offending was known, albeit that the extent of the appellant’s participation in it was not. His assistance to the authorities had not exposed previously unknown offending.
[35]Doran [2005] VSCA 271, [4] (Buchanan JA, Eames JA agreeing at [18], Nettle JA agreeing at [19]).
The respondent submitted that the appellant’s record of interview — where he told lies and minimised his offending — was relevant as part of the context in which the appellant’s cooperation with authorities was to be assessed. In that regard, the respondent submitted that in Doran cooperation was relevant not only by reason of its utilitarian benefit, but also because such cooperation reduced the need for specific deterrence, increased the prospects of rehabilitation and demonstrated genuine remorse. In the present context, the respondent submitted, it could not be said that the appellant had fully cooperated.
We accept the respondent’s submission that the appellant’s cooperation did not rise to the same level as the cooperation reflected in Doran. That case was exceptional in nature, involving as it did the accused contacting police to confess to offending that was not then known, and likely would never have become known. The appellant’s cooperation was not of that order: the importation of the drugs was known to police, and some of the evidence against the appellant came from Tan’s phone. We also accept the respondent’s submission that it was relevant, in assessing the weight to be given to his cooperation, to have regard to the fact that, in his record of interview, the appellant had told lies and sought to minimise his role in the offending. Further, we observe that the appellant’s cooperation was not of a kind that put his safety at risk by reason of informing on other persons involved in criminal activity.[36]
[36]See, eg, Haamid (a pseudonym) v The Queen [2018] VSCA 330, [24](b)(vi), [24](d), [46] (Kyrou, Niall and Weinberg JJA).
That is not to say that the appellant’s cooperation deserved no weight at all; plainly it did. There is utilitarian value in persons assisting police in their investigations by consenting to searches that incriminate them and answering questions. It may also evidence remorse, however the nature of the appellant’s cooperation was such that the sentencing judge was entitled to moderate the weight accorded to it.
The appellant’s guilty plea
The appellant submitted that the judge had insufficiently accounted for his guilty plea, which ought to have carried added weight given pandemic–related delays, based on Director of Public Prosecutions v Bourke[37] and Worboyes v The Queen.[38] However, he accepted that the impact of the pandemic was not expressly raised on the plea, save by the indirect route of including a reference to Bourke in a footnote to his written submissions.
[37][2020] VSC 130, [32] (Jane Dixon J) (‘Bourke’).
[38][2021] VSCA 169.
In relation to the appellant’s guilty plea, the respondent accepted that that was relevant and attracted a sentencing discount, but observed that the trial judge had expressly considered this matter. The respondent accepted that the effect of the Covid-19 pandemic was not expressly considered by the judge, but pointed out that this had not been raised expressly on the plea. Further, the respondent submitted that this would not have added much by way of mitigation given the weight already attributed to the plea of guilty by the judge.
In our view it is not open to the appellant to rely upon the sentencing judge’s failure expressly to deal with the benefit of a guilty plea occurring during the pandemic in circumstances where it was not expressly raised on the plea and, in any event, we do not consider that that omission was such as to render the sentence imposed manifestly excessive. The appellant was given the benefit of his plea of guilty in the overall sentence, and the effects of the pandemic would have added little by way of additional mitigation.
The impact of deportation
The third factor on which the appellant relied was the inevitability of his deportation. He submitted that the judge unduly minimised this factor, in particular the significance of the appellant’s loss of the opportunity to pursue further education and settle permanently in Australia.
In relation to deportation, the respondent observed that the appellant came to Australia recently (in 2016) and had no family in Australia; rather, his family is in Malaysia, and he has a life to return to there. The respondent also observed that, on the plea, the appellant had accepted that his position could be contrasted with a person who had been in Australia for a longer period of time. The respondent submitted that, in the circumstances, it was open to the sentencing judge to give modest weight to this factor.
We accept the respondent’s argument on this issue. In our opinion it was plainly open for the sentencing judge to give the impact of deportation on the appellant only ‘relatively modest’ weight, given his recent arrival in Australia and the fact that he has no family here.[39] The judge did not ‘unduly minimise’ the significance of deportation for the appellant.
Parity
[39]Sentencing Reasons, [35].
As noted above, parity, while not referred to in the ground of appeal, was relied upon in the written and oral submissions as being relevant to several aspects of the appellant’s argument.
First, embedded in the appellant’s submissions on cooperation was a parity complaint. It was said that, having cooperated to the extent he did, when Tan did not cooperate at all, the disparity between his and Tan’s sentences was not reasonably open, even accounting for the greater role played by the appellant and the greater quantity of heroin for which he was sentenced, as compared to Tan.
Secondly, the appellant sought to characterise his role in the criminal enterprise as that of a ‘courier’, rather than anything more significant. On that basis, he submitted that his role and Tan’s role were not as disparate as the difference in their sentences might suggest. He submitted that both were couriers, in that they both received and delivered the packages containing the controlled substances, but did not open the packages or otherwise deal with them. He accepted that he played a somewhat greater role than Tan, but argued that he was still a courier.
Thirdly, there was an embedded parity complaint in the appellant’s argument concerning his guilty plea, in that it was said that the judge unfairly characterised Tan’s guilty plea as ‘earlier’ than that of the appellant even though each guilty plea had come at the same stage of their respective criminal proceedings, that is after a contested committal.
Finally, there was an embedded parity argument in the appellant’s argument concerning the impact of deportation, based on the fact that Tan had a wife and four children in Malaysia and so there was no real hardship in his deportation, whereas the appellant had come to Australia to undertake further education and had had an expectation of making a life here.
The Crown submitted that the various matters the appellant relied upon in terms of parity did not have the consequence that the difference between his and Tan’s sentences was not reasonably open. The parity principle was expressly, and thoughtfully, considered by the judge, and the difference between the sentences was open because:
(e) the appellant’s offending involved a level of agency, responsibility and co-ordination, including recruiting and paying others, whereas Tan was a ‘mere courier’ or ‘collector’, who had been recruited by the appellant;
(f) the appellant was sentenced in respect of 10 packages and 8.31 kilograms of heroin, as opposed to three packages and 2.58 kilograms in Tan’s case;
(g) the judge found the appellant’s level of recklessness to be of a ‘high order’, a finding not made in respect of Tan; and
(h) the appellant indicated his intention to plead guilty 15 months after committal, whereas Tan was sentenced four months after committal, thus it was open to the trial judge to conclude that the appellant’s guilty plea had occurred later than Tan’s.
We accept the respondent’s submissions in relation to parity. There were significant differences between the appellant’s and Tan’s offending, in terms of the quantity of drugs, the number of packages, the role in the criminal enterprise and the degree of recklessness. Those differences, by themselves, justified a significantly longer sentence being imposed on the appellant. In relation to the particular issues on which the appellant relied, we make the following observations.
(i) First, as we have said, it was open to the sentencing judge to regard the appellant’s cooperation with the authorities as deserving only of a relatively modest discount.[40]
[40]Although the term ‘discount’ is commonly used, in the context of the instinctive synthesis the recognition given to the offender’s cooperation with the authorities should be seen as a moderating factor to be taken into account with all other relevant sentencing considerations: see Ooi v The Queen [2018] VSCA 78, [55] (Tate, Beach and Niall JJA).
(j) Second, although it is correct to say that the appellant and Tan each pleaded guilty at the same stage of the criminal process — that is, after committal — it is also correct to say that the appellant pleaded guilty much later than Tan, in a temporal sense.
(k) Third, we do not accept that the appellant and Tan fell into the same category, that of ‘courier’. First, we observe that it is necessary to exercise caution in proceeding on the basis of such categories.[41] Second, as the respondent submitted, the evidence was that the appellant was more than a courier; he had a degree of agency that Tan did not have and was actively engaged in recruiting Tan and others, and coordinating their roles. The sentencing judge was correct to distinguish their roles in this manner.[42]
(l) Finally, we do not consider that there is any significant difference between Tan and the appellant in relation to the effects of deportation. Although the appellant had commenced a course of study, and will not be able to make a life for himself in Australia; as the judge observed, he has family in Malaysia who are supportive of him and with whom he has a close bond. In any event, any difference between the two offenders in this regard is outweighed by the matters relating to the seriousness of the offending, set out above.
[41]R v Pham (2015) 256 CLR 550, 561 [34], 562–3 [37] (French CJ, Keane and Nettle JJ); [2015] HCA 39 (‘Pham’).
[42]Sentencing Reasons, [39].
In light of the matters raised above, in our view it was open to the sentencing judge to impose a significantly greater sentence for the appellant than for Tan.
Current sentencing practices
We turn now to consider current sentencing practices in comparable cases.[43]
[43]Consistently with the decision of the High Court in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, we have had regard to cases from other States, given that this was a federal offence. In addition, there has been said to be some difficulty in identifying an established pattern of sentences for the specific offence of possession of a border controlled drug, necessitating consideration also of sentences for importing a border controlled drug, which involves very similar conduct and carries the same maximum penalty: Schanker v The Queen [2018] VSCA 94, [224] (Tate and McLeish JJA and Kidd AJA) (‘Schanker’).
The appellant accepted that limited assistance can be obtained from comparable cases given the diversity of factual matters at play in each offence, including the quantity of drugs involved, the role the offender played in the importation and the various personal mitigatory circumstances for each different offender. However, accepting that such cases can be of some assistance, he submitted that, when regard was had to sentences imposed in comparable cases, it was apparent that sentences of more than 10 years were imposed in cases where the quantity of drugs imported was considerably greater than in his case, and/or where the offender had pleaded not guilty.
In the appellant’s written submissions he dealt with an extensive list of cases.[44] In his oral submissions he placed particular reliance on the following:
[44]Ip v The Queen [2020] VSCA 211 (‘Ip’); Udunna [2020] NSWCCA 304; Chan v The Queen [2020] NSWCCA 335; Shakhanov v The Queen [2019] VSCA 38; Kao v The Queen [2019] VSCA 84 (‘Kao’); Hoang [2018] VSCA 86; R v Phelps; R v Zalapa [2018] NSWCCA 191; DPP (Cth) v Blackman; DPP (Cth) v Jomaa [2014] NSWCCA 90; Rosales (a pseudonym) v The Queen [2018] VSCA 130; Beqiri v The Queen; Hajko v The Queen (2017) 270 A Crim R 523; [2017] VSCA 112; Tran v The Queen [2017] VSCA 346; R v Pham, Tran and Dang; Ex parte DPP (Cth) [2017] QCA 46; R v Yuan (2015) 252 A Crim R 422; [2015] NSWCCA 198; Lao v The Queen [2014] NSWCCA 179; Luong (2013) 46 VR 780; [2013] VSCA 296; Dao [2011] NSWCCA 183; R v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
(m) Chan v The Queen; Kwan v The Queen,[45] where the quantity of methamphetamine was over 108 times the commercial quantity and the relevant sentence (for one offender who pleaded guilty) was 18 years’ imprisonment with a non-parole period of 12 years;
[45][2020] NSWCCA 335.
(n) Kao v The Queen,[46] where the quantity of methamphetamine was a little more than three times the prescribed commercial quantity and the sentence was 9 years and 8 months’ imprisonment;
(o) Beqiri v The Queen,[47] where the quantity of methamphetamine was approximately 30 times the commercial quantity and the sentence (for one of the co-offenders who was found to have played a greater role in the enterprise) was 15 years’ imprisonment with a non-parole period of 11 years; and
(p) Ng v The Queen,[48] where the quantity of methamphetamine was 1.63 times the commercial quantity and the sentence was 11 years and 3 months’ imprisonment with a non-parole period of 7 years and 3 months; and where the offender had relevant prior convictions and the Court could not conclude that his prospects of rehabilitation were good.
[46][2019] VSCA 84.
[47](2017) 270 A Crim R 523; [2017] VSCA 112.
[48][2010] NSWCCA 232 (‘Ng’).
The appellant submitted that, in light of the quantity of heroin relevant to his offending, namely 8.31 kilograms, coupled with the other relevant factors such as his prospects of rehabilitation and his lack of prior convictions, a sentence of 11 years’ imprisonment was outside the range reasonably open to the trial judge, assessed by reference to the comparable cases.
In contrast, the respondent submitted that it is an error to attribute chief importance to the weight of the drug in fixing a sentence and distinguishing between offenders. Rather, the state of the offender’s knowledge about the importation of the drug may be more important.[49] The weight of the drug, while plainly relevant, is not necessarily a ‘principal variable’ between comparable cases. The respondent’s written submissions identified a number of cases that it was submitted are informative in determining current sentencing practices for the relevant offence.[50] Each of those cases involved a guilty plea. We consider that the respondent was correct to focus on cases in which a plea of guilty had been entered, because those cases are more closely comparable to the present case than cases where the offender pleaded not guilty.
[49]Relying on Pham (2015) 256 CLR 550, 562 [35] (French CJ, Keane and Nettle JJ); [2015] HCA 39.
[50]Kev v The Queen [2015] VSCA 232; R v Tran (2013) 233 A Crim R 167; [2013] NSWCCA 136 (‘Tran’); Hoang [2018] VSCA 86; Ip [2020] VSCA 211; Kao [2019] VSCA 84; R v Onyebuchi; Ex parte DPP (Cth) [2016] QCA 143 (‘Onyebuchi’); DPP (Cth) v Thomas (2016) 53 VR 546; [2016] VSCA 237 (‘Thomas’); R v Agboti (2014) 246 A Crim R 72; [2014] QCA 280 (‘Agboti’); Ng [2010] NSWCCA 232; Webber v The Queen [2014] NSWCCA 111 (‘Webber’); Lam v The Queen [2015] NSWCCA 143 (‘Lam’).
The respondent accepted that several of the cases identified involved sentences of approximately 9 to 9 and a half years’ imprisonment,[51] but observed that those cases involved features that differentiated them from the present case, such as youthful offenders, lower quantities and/or other mitigating factors (such as the Verdins principles). The respondent pointed to Ng, Webber and Lam as cases where sentences of 11 years’ imprisonment or more had been imposed, for what was said to be less serious offending. The respondent also pointed to Wu, in which a sentence of 10 years and 6 months’ imprisonment had been imposed, but with a higher non-parole period than that imposed on the appellant in this case, again for what was said to be less serious offending. The respondent submitted that the comparable cases supported the proposition that the sentence of 11 years’ imprisonment imposed on the appellant was within the range of sentences reasonably open.
[51]Tran (2013) 233 A Crim R 167; [2013] NSWCCA 136; Hoang [2018] VSCA 86; Kao [2019] VSCA 84; Onyebuchi [2016] QCA 143; Agboti (2014) 246 A Crim R 72; [2014] QCA 280.
In Pham, French CJ, Keane and Nettle JJ said that comparable cases may also serve as ‘yardsticks’ to
illustrate (although not define) the possible range of sentences available. A court must have regard to such a decision in this way unless there is a compelling reason not to do so, which might include where the objective circumstances of the crime or subjective circumstances of the offender are so distinguishable as to render the decision irrelevant, or where the court is persuaded that the outcome itself in the other court was manifestly excessive or inadequate.[52]
[52]Pham (2015) 256 CLR 550, 559–60 [29] (French CJ, Keane and Nettle JJ); [2015] HCA 39 (citations omitted).
And, as the respondent submitted, their Honours also cautioned against attributing chief importance to the weight of the drug in fixing sentences and distinguishing between offenders.[53] Nonetheless, as Bell and Gageler JJ observed, the quantity of the drug remains relevant to an assessment of the seriousness of the offence.[54]
[53]Pham (2015) 256 CLR 550, 562 [35] (French CJ, Keane and Nettle JJ); [2015] HCA 39. See also 564 [45] (Bell and Gageler JJ).
[54]Pham (2015) 256 CLR 550, 564 [45] (Bell and Gageler JJ); [2015] HCA 39.
The cases to which the parties referred us demonstrate the range of matters relevant to the seriousness of the offence of attempting to import a border controlled substance. The kinds of conduct which can be engaged in as part of the offences of possessing (or importing) border controlled drugs vary widely, ranging from minor spontaneous assistance to careful execution and oversight of a sophisticated organisational plan. The weight of the drugs involved (and its relation to the commercial quantity) may also vary considerably. And it is trite to observe that the personal circumstances of offenders, and the factors that they can call upon in mitigation, vary significantly.
It is true that, in many cases where sentences of more than 10 years’ imprisonment have been imposed for this offending, the quantity of the imported substance has been higher (relative to the commercial quantity) than the quantity in the appellant’s case. However, that is not universally the case.
(q) In Ng, for example, the quantity of drugs was 1.63 times the commercial quantity, and the sentence was 11 years and 3 months’ imprisonment.[55]
[55]Ng [2010] NSWCCA 232, [2], [27] (McClellan CJ at CL).
(r) In Thomas the quantity for the offender Wu was 5.29 times the commercial threshold and the sentence was 10 years and 6 months’ imprisonment.[56]
(s) In Webber the quantity was 1.1 times the commercial threshold, and the sentence was 11 years’ imprisonment.[57]
(t) In Lam the quantity was 1.9 times the commercial quantity, and the sentence was 11 years’ imprisonment.[58]
[56]Thomas (2016) 53 VR 546, 605-6 [170], 615 [204] (Redlich, Santamaria and McLeish JJA); [2016] VSCA 237.
[57]Webber [2014] NSWCCA 111, [3], [8], [39] (Fullerton J).
[58]Lam [2015] NSWCCA 143, [1]-[2], [84] (Hoeben CJ at CL).
Of course, in some of those cases the role of the offender might have been more serious than the appellant’s role; and in some cases the offender may have been unable to point to the same mitigating features as the present appellant. But those are factors in the fixing of a just sentence.[59] They do not compel a conclusion that the appellant’s sentence was manifestly excessive. Indeed, in our opinion the comparable cases reveal that the sentence imposed by the judge was comfortably within the existing range of sentences that have been imposed in the past for this offence in comparable (but of course not identical) circumstances.
[59]DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 450 [68] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41. See also 453–4 [81]–[84] (Gageler and Gordon JJ).
Conclusion
None of the matters raised by the appellant in support of his appeal, when considered separately or in combination, have persuaded us that the sentence imposed on him was manifestly excessive.
In our opinion the sentence imposed by the sentencing judge, while stern, was within the range of sentences open to a judge to impose in the reasonable exercise of sentencing discretion. This was serious offending and the appellant’s moral culpability was high. Offending of this kind requires giving real weight to general deterrence and public denunciation, consistently with the maximum penalty of life imprisonment.[60] The appellant’s involvement was significant, rather than at the lower level, although we accept that he was not a key figure in the operation, as his expected financial gain revealed. The quantity of drugs involved was well above the commercial quantity threshold, and was greater than the quantities involved in Ng, Thomas and Lam, which attracted similar sentences.
[60]Schanker [2018] VSCA 94, [229] (Tate and McLeish JJA and Kidd AJA).
The appellant was able to call in aid his cooperation with authorities. He was sentenced on the basis that the cooperation was of significant assistance, albeit not rising to the level of the assistance given in Doran. The other mitigatory features he relied upon also carried weight, including the plea of guilty, the likelihood of deportation and the appellant’s remorse and good prospects of rehabilitation. Whilst the combination of these mitigatory factors carried weight, in our view the sentence imposed, given the overall circumstances of offending, gave adequate expression to their combined weight. It follows that the appellant has failed to demonstrate that the sentence imposed was wholly outside the range of sentencing options available to the judge and the appeal must be dismissed. We are fortified in this conclusion by the comparable cases to which we have referred.
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