Green (a pseudonym) v R

[2020] NSWCCA 358

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Green (a pseudonym) v R [2020] NSWCCA 358

Hearing dates:

9 November 2020

Date of orders:

23 December 2020

Decision date:

23 December 2020

Before:

Meagher JA at [1]
Walton J at [2]
Beech-Jones J at [58]

Decision:

(1) Pursuant to Criminal Appeal Act 1912 (NSW), s 10(1)(b), extend the time for the applicant to seek leave to appeal.

(2) Leave to appeal against sentence granted.

(3) The appeal is dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – proceeds of crime – commercial quantity of a border controlled drug – utilitarian value of plea – Xiao error established – re-sentencing – nature and circumstances of offences – financial gain – objective seriousness of counts – subjective features – mental health issues – discount for utilitarian value of plea and co-operation with authorities – general deterrence – personal deterrence – behaviour in custody – leave to appeal granted – appeal dismissed

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes(Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Code 1995 (Cth)

Cases Cited:

Bae v R [2020] NSWCCA 35

Baladjan v R [2018] NSWCCA 304

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

DPP (Cth) v De La Rosa [2010] NSWCCA 194

Haouchar v R [2014] NSWCCA 227

Hijazi v R [2020] NSWCCA 97

Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57

Jinde Huang aka Wei Liu v R (2018) 332 FLR 158; [2018] NSWCCA 70

Kaurasi v R [2020] NSWCCA 253

Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37

LB v R [2013] NSWCCA 70

Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255

Mulato v R [2006] NSWCCA 282

O’Neile v R [2018] NSWCCA 291

R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102

R vEhrlich (2012) 219 A Crim R 415; [2012] NSWCCA 38

R v Kaldow (2004) 150 A Crim R 271; [2004] NSWCCA 425

R v Lee [2007] NSWCCA 234

R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238

R v Sukkar (2006) 172 A Crim R 151; [2006] NSWCCA 92

Robinson v R [2017] NSWCCA 315

Xiaov R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Z v R [2014] NSWCCA 323

Category:

Principal judgment

Parties:

Aiden Green (Applicant)
Regina (Crown)

Representation:

Counsel:
S Talbert (Applicant)
B Anniwell (Crown)

Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s):

2014/377075; 2015/358206

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

07 December 2017

Before:

McClintock SC DCJ

File Number(s):

2014/377075

Judgment

1. MEAGHER JA: I agree with Walton J.

2. WALTON J: On 5 January and 17 May 2017, Aiden Green (a pseudonym) (“the applicant”) pleaded guilty in the Local Court of New South Wales to two offences contrary to the Criminal Code 1995 (Cth) (“the Code”), respectively, namely:

1. count 1: engage in banking transactions relating to money or other property over $100,000 that is reasonably suspected to be proceeds of crime, contrary to s 400.9; and

2. count 2: import a commercial quantity of a border controlled drug, 12.0116 kilograms of pure methylamphetamine, contrary to ss 307.1(1) and 311.4.

3. The applicant sought that the Court when sentencing for count 1 take into account another offence, pursuant to a s 16BA schedule, namely that he possessed money over $100,000 reasonably suspected to be proceeds of crime, contrary to s 400.9(1) of the Code.

4. The sentencing hearing of the applicant was heard on 31 August 2017 before his Honour Judge McClintock SC (“the sentencing judge”) in the District Court of New South Wales. His Honour sentenced the applicant on 7 December 2017 to 15 months’ imprisonment with respect of count 1 and 9 years’ imprisonment in the case of count 2. The sentence commenced on 3 December 2015. His Honour imposed a total effective sentence of 10 years’ imprisonment with a single non-parole period of 6 years, commencing 3 December 2015 and expiring 2 December 2021.

5. By an application for leave to appeal filed 16 July 2020, the applicant sought leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by the sentencing judge. On that same date, the applicant filed a Notice of Application for Extension of Time for Notice of Appeal or Notice of Application for Leave to Appeal.

GROUND OF APPEAL

6. The applicant nominated a single ground of appeal which was expressed in the following terms:

That in determining the appropriate discount to reflect the value of the applicant’s plea of guilty in accordance with s 16A(2)(g) Crimes Act 1914 (Cth), his Honour did not have regard to the utilitarian value of the applicant’s plea of guilty.

UTILITARIAN VALUE OF PLEA

7. There was no discussion between the sentencing judge and counsel for the Crown and applicant during sentencing proceedings about the basis of any discount for the applicant’s guilty pleas (hereinafter, “the guilty plea”), aside from the applicant’s counsel's submission that a combined discount in excess of 50% for assistance and the guilty plea was warranted.

8. The sentencing judge correctly characterised the applicant's past assistance to law enforcement as "a very significant form of co-operation" which led to a number of "significant outcomes which include convictions for persons associated with the importation and money laundering". The level of past assistance, together with future assistance, was characterised by the sentencing judge as "indeed probably [an] exceptional degree of cooperation and undertaking by the [applicant]".

9. In his remarks on sentence, the sentencing judge referred to the guilty plea of the applicant in the following way:

Both matters resulted in pleas of guilty in the Local Court and I intend to take I that into account in the manner specified relating to Commonwealth matters in terms of facilitating the course of justice. Overall. I will indicate a global figure for the discount in respect of all matters at the end of my remarks.

10. In quantifying the discount to be given for both the guilty plea and the assistance provided by the applicant, his Honour stated the following:

So far as the discount for the plea of guilty and the co-operation, as I indicated this is a Commonwealth matter. I note that as I have already indicated in my view there is very significant and unusual, indeed probably exceptional degree of co-operation and undertaking by the offender. Accordingly taking into account that and the other matters I intend to apply an overall discount of 50% in respect of those matters. In relation to future co-operation I intend to apply a discount in the vicinity of 15% which is incorporated in the above figure.

11. It may be inferred from those remarks on sentence that the discount of 50% that was applied by the sentencing judge incorporated some unquantified discount for the applicant’s plea without any attribution to the discount concerning the utilitarian value of the plea. Rather, his Honour referred to the court taking into account the plea “facilitating the course of justice”.

12. Those reasons for sentence were given at a time when the decisions in this Court in Xiaov R (2018) 96 NSWLR 1; [2018] NSWCCA 4and Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57 and Jinde Huang aka Wei Liu v R (2018) 332 FLR 158; [2018] NSWCCA 70 (“Huang”) had not been determined. Those, and subsequent decisions, hold that in sentencing for a Commonwealth offence, a discount may be given for the utilitarian value of a plea.

13. It was common ground that the sentencing judge had allowed no discount for the utilitarian value of the plea of guilty. That concession was well made. An acknowledgement of willingness to facilitate justice is not relevant to the utilitarian value of the plea: Bae v R [2020] NSWCCA 35 (“Bae”) at [57]-[58]; see also R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32(4)] (per Howie J, with McClellan CJ at CL and Simpson J agreeing).

14. In Huang, the Court held that a failure to have regard to the utilitarian value of a plea of guilty when sentencing for a Commonwealth offence amounted to an error (see also Hijazi v R [2020] NSWCCA 97 at [8]). The Crown properly conceded that error.

15. That same consideration was productive of a concession by the Crown, again properly made, as to the appropriateness of granting an extension of time: Baladjan v R [2018] NSWCCA 304 at [92] (per Bathurst CJ, with whom Hoeben CJ at CL and Fagan J agreed). Leave should be granted upon the same basis.

RE-SENTENCING

16. Having found error in the sentencing judgment, this Court must exercise the sentencing discretion afresh taking into account the purposes of sentencing and the factors that the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) requires to be considered: see ss 3A and 21A; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43] and Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255 at [60], [65], [86] and [128]. Such an exercise involves the exercise of an independent discretion with a sentence fixed which is appropriate having regard to the offender and the offence. (See also: O’Neile v R [2018] NSWCCA 291).

17. In undertaking that process, some particular considerations may be mentioned at the outset:

1. The Crown accepted that the applicant entered his pleas of guilty prior to committal. The utilitarian value of his pleas was high and, in recognition of that value, a discount of 25% should be applied to sentence in the ordinary course: Kaurasi v R [2020] NSWCCA 253 at [3] and [44].

2. Neither party challenged any of the facts found by the sentencing judge, or any other findings of the sentencing judge (other than in relation to the guilty plea). The Court may, therefore, have regard to the unchallenged findings of fact made by the sentencing judge: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9].

3. The Court may also, in the circumstances, have regard to the sentencing judge’s findings regarding objective seriousness: Mulato v R [2006] NSWCCA 282 at [46]. The appropriate sentence is to be determined on the material that was before the sentencing judge, the sentencing judge’s unchallenged findings, and any relevant evidence of post-sentence conduct: DL v The Queen at [9].

18. The applicant accepted that, even in the presence of Xiao error, satisfying
    s 5(1)(c) of the Criminal Appeal Act, the granting of a 50% discount for his guilty plea and assistance may still be considered appropriate, albeit for a different reason (utilitarian value versus a willingness to facilitate the course of justice) and that no lesser sentence may be warranted but, it was submitted, in this case a lesser sentence was warranted.

19. The Crown submitted that, exercising the sentencing discretion afresh, the Court would come to the view that no lesser sentence was warranted in law having regard to the matters listed in s 16A of the Crimes Act and, in the case of the applicant’s drug importation offence, the general sentencing principles concerning federal drug offences articulated in R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 at [72].

20. The Crown submitted, that, in all the circumstances, a lesser sentence than that imposed by the sentencing judge would not reflect the objective criminality of the offences nor would it reflect the need for general deterrence in respect of offences of this kind.

21. The Crown submitted that the appeal should be dismissed, pursuant to s 6(3) of the Criminal Appeal Act, on the basis that no lesser sentence is warranted in law.

The Nature and Circumstances of the Offences

22. The summary of the facts that follows is taken from the factual summary provided by the sentencing judge, as well as an agreed statement of facts.

Count 1

23. The applicant’s conduct was planned and involved a degree of sophistication and occurred over a number of transactions. The applicant’s role included the following:

1. making 25 deposits over the course of a month totalling $3,248,679, and his possession of $299,850 (conduct which the applicant asked the sentencing judge to take into account pursuant to s 16BA of the Crimes Act);

2. depositing the money into five separate business accounts;

3. making large-scale cash deposits between $25,230 and $300,000; and

4. keeping records for the transactions.

24. The money that the applicant dealt with, suspected of being proceeds of crime, was significant: deposits totalling $3,248,679 and $299,850 were in his possession.

Count 2

25. The applicant engaged in the following conduct giving rise to the offence. He:

1. was the nominated recipient of 10 consignments containing not less than a commercial quantity of methamphetamine, the 10th consignment containing 12.0116 kilograms of pure methamphetamine;

2. was the sole Director and Secretary of the company that the consignments were consigned to;

3. telephoned the consignor of the consignments on three occasions;

4. opened an account with DHL, tracked the consignments on the DHL website, and communicated with DHL in relation to the delivery of the consignments;

5. communicated with Australian Border Force in relation to the clearance of the consignments;

6. communicated with, and reported to, the Hong Kong contact in connection with the consignments of drugs;

7. signed for, received and held the consignments and their contents at his residence in Sydney;

8. communicated with others to confirm successful delivery of the consignments;

9. used a Blackberry device to communicate with others to avoid detection by law enforcement; and

10. discussed with his Hong Kong contact his suspicions with respect to a consignment containing a tracking device, discussed the removal and destruction of the device, and removed the device from the consignment.

26. Further, there was no dispute as to the sentencing judge’s findings as to the applicant’s role (which findings were amply available on the material before the Court):

1. He was engaged in a management undertaking in respect of the importation in Australia at the direction of “[redacted]”.

2. He was a trusted intermediary who acted in various executive capacities such as having full responsibility over the consignments and distributing the contents.

3. He played a pivotal and integral role in the importation.

4. He was not the principal or “mastermind” but clearly he was not a courier or low level operator – he could be described as a “lieutenant”.

27. The applicant committed the offence while on bail for count 1, which was an aggravating circumstance of the offence.

Quantity

28. Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: R v Nguyen; R v Pham at [72(d)].

29. The applicant imported 10 consignments containing not less than a commercial quantity of methamphetamine, the 10th consignment containing 12.0116 kilograms of pure methamphetamine.

30. The applicant had knowledge of the drugs imported and their quantities; he received the consignments, unpacked them, handled their contents and communicated with others over Blackberry with specific reference to kilogram weights.

Financial Gain

Count 1

31. The applicant was motivated by financial gain. He gave oral evidence that he was motivated by greed and received $35,000 as financial reward.

Count 2

32. I accept the submissions of the Crown that, whilst there was no direct and independent evidence to indicate that the applicant received a financial reward for his significant role in the importations, it is the "common sense" inference to be drawn from the circumstances of the case (R v Kaldow (2004) 150 A Crim R 271; [2004] NSWCCA 425 at [104]; R v Lee [2007] NSWCCA 234 at [32]).

33. The sentencing judge acknowledged that the applicant gave evidence about “how he became involved and issues relating to the person [redacted] and the issue of repayment of debt” (and thus partly to repay money) but did not accept his evidence that there was no financial gain. It was found that the applicant made some money “both out of the importations and the money laundering”. I note the applicant accepted that he was partly motivated by financial gain.

34. Further, as to the sentencing judge correctly observed, whilst the applicant was under some pressure to commit the offence he did not avail himself of the opportunity to seek the assistance of law enforcement to remove himself from criminal conduct.

Objective Seriousness

35. As to count 1, the maximum penalty is 3 years’ imprisonment. The sentencing judge considered the offence to be significant and at “the upper end of the range of criminality”. His Honour also took into account the “matter on the Form 1 which also is significant”. As to count 2, the maximum penalty is life imprisonment. The sentencing judge described the applicant’s conduct as “again” involving “very significant criminality”, which is to be read as a finding that the objective seriousness of count 2 was on the higher end of the range for such an offence. I accept the sentencing judge’s findings as to objective seriousness.

Subjective Features

36. The applicant is presently 41 years of age.

37. At the time of committing the count 1 offence, the applicant did not have a criminal history.

38. Additionally, the following background factors should be taken into account:

1. The applicant was born in Hong Kong and raised in Macau until 12 years of age before moving to New Zealand with his sibling and mother. He had intermittent contact with his father from this point. The applicant continues to have a close relationship with his mother, who gave evidence in his support during the sentencing proceedings.

2. The applicant attended TAFE in Australia and completed a Diploma of Business Studies in 2007. He worked with his father in Macau over a period of years and returned to Australia in 2012 where he worked within a company. When he committed the offences his wages had been cut and he was facing financial pressure.

3. In this context, he met "[redacted]" who involved the applicant in count 1. Following his arrest for count 1, the applicant was threatened by [redacted] and he agreed to being involved in count 2. The sentencing judge accepted that the applicant was under some pressure.

39. Before the sentencing judge, the applicant tendered an opinion of a clinical psychologist, Mr Sam Borenstein, dated 17 August 2017. It was his opinion that the initial offences were committed in the context of the applicant experiencing “a chronic and severe Adjustment Disorder with Mixed Anxiety and Depressed Mood”. It was submitted for the applicant that his judgment and decision making was impacted negatively by symptoms of depression and traumatic stress which, in the psychologist’s opinion, was directly connected to the commission of the offence.

40. The sentencing judge accepted that the applicant was placed under pressure not amounting to legal duress. His Honour regarded the applicant’s diagnosed psychological state as a contributing factor which would be taken into account in the overall mix of factors, even though “it did not impact significantly on general or deterrence”. His Honour also took into account his “mental health in relation to general issues” but considered that it did not contribute significantly to the commission of the offence. (His Honour also took into account the pressure placed upon the applicant to continue his criminality but only to a “very, very moderate degree”.)

41. I have taken into account the psychological evidence (of Mr Borenstein) that the initial offences by the applicant occurred whilst he was experiencing a chronic and severe Adjustment Disorder with Mixed Anxiety and Depressed Mood and that those conditions “impacted significantly on his decision making and judgment”. As to count 2, Mr Borenstein’s opinion was that there “was a direct connection between the applicant’s symptoms of depression and traumatic stress and the importation offence” and that his judgment and decision making was “impacted negatively” by the “severity of his symptoms over and above the level of depression and anxiety” which contributed to the first count.

39. Those opinions, in my view, are consistent with the findings made by the sentencing judge with respect to count 2.

40. The following further findings of the sentencing judge as to subjective factors must be taken into account, namely, that the applicant had:

1. a low risk of reoffending;

2. good prospects of rehabilitation;

3. prior good character prior to the commission of count 2;

4. expressed remorse to others; and

5. limited insight into the effects of the drugs he imported on the community.

Discounts

44. As earlier mentioned, the sentencing judge correctly characterised the applicant's past assistance to law enforcement as "a very significant form of co-operation" which led to a number of "significant outcomes which include convictions for persons associated with the importation and money laundering". The level of past assistance, together with future assistance, was characterised by the sentencing judge as "indeed probably [an] exceptional degree of cooperation and undertaking by the [applicant]".

45. His Honour remarked that the discount being applied was “generally speaking… only given when the assistance is of a very high order”.

46. The applicant submitted that the combined discount was 50%, with 15% of that being for future assistance. The remaining 35% was for the guilty plea and the assistance. Given the assessment of the assistance as at an "exceptional" level, it is likely that the component of 35% that was for a plea of guilty was, in fact below 25%, taking into account the limitations, as the sentencing judge then perceived them, in the Commonwealth sentencing law. The applicant further submitted that, even if it were to be inferred that the sentencing judge afforded a 25% discount, the Court's re-sentencing discretion is enlivened.

47. It was submitted the level of assistance provided by the applicant is reflected in the “ambit of the assistance and its consequence”. The applicant not only provided information to assist but participated in a controlled delivery.

48. The Crown submitted that the overall discount of 50% that was applied to the applicant's sentence was appropriate and an overall discount exceeding 50% was not warranted in this case.

49. It was further submitted by the Crown that the Court has stated on numerous occasions that discounts for pleas and assistance of more than 50 per cent should be granted very exceptionally, if at all, in a case where there is no evidence that the offender will spend the sentence or a substantial part of it in more onerous conditions than the general prison population: R v Sukkar (2006) 172 A Crim R 151; [2006] NSWCCA 92; R vEhrlich (2012) 219 A Crim R 415; [2012] NSWCCA 38; LB v R [2013] NSWCCA 70 at [62]; Haouchar v R [2014] NSWCCA 227 at [37]; Robinson v R [2017] NSWCCA 315 at [39].

50. In Z v R [2014] NSWCCA 323, McCallum J (with whom Garling J agreed) said (at [27]):

[27] The view has been expressed and endorsed in this Court that, in general a single, combined discount should be given for both a plea of guilty and assistance and that such a discount should not normally exceed 50 percent: SZ v R [2007] NSWCCA 19; 168 A Crim R249 at [3] per Howie J; Simpson J agreeing at [1]; at [53] per Buddin J. Buddin J ventured the view that a combined discount exceeding 50 per cent should be reserved for an exceptional case (at [53]).

51. A number of findings by the sentencing judge are appropriate in that respect. I will mention those findings below together with some further observations arising from the material before the Court. The sentencing judge:

1. accepted that the applicant's level of assistance was significant;

2. accepted that the applicant was deeply concerned about his safety and that his concern was realistic;

3. recognised a significant amount of endangerment to the applicant and his family both in custody and on release. The applicant has an ongoing concern about a threat to himself and his family, and continues to speak of his fear of reprisal attacks. However, there has been no actual materialisation of that risk. The applicant’s classification in custody would suggest the corrections authorities consider the risk to be lower and manageable at that level of security;

4. recognised that the applicant's inevitable time served in protective custody would be more onerous that in the general goal. However, the evidence before this Court indicates that in custody he has been housed in less strict classifications. There is no evidence that, as those custody arrangements have materialised, the applicant’s time in custody has been significantly more onerous that the general prison population.

52. I consider that, having regard to the aforementioned principles, a discount of greater than 50% should not be given for the applicant’s plea and his past and future assistance to authorities, notwithstanding that a discount of 25% is warranted for the utilitarian value of the plea and the level of assistance provided was significant. The circumstances of this case are not exceptional so as to warrant a greater discount. Nor would such a discount accord with the principles of sentencing, having regard to the objective seriousness of the drug offences in this case.

Deterrence

53. The sentence to be imposed on the applicant is one in which general deterrence must figure prominently: DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [260]. Regard must be given to the significant adverse effects of drug distribution in the community and the circumstances of the offending in this matter. Personal deterrence should also feature in sentencing.

Behaviour in Custody

54. In his evidence on re-sentencing, the applicant deposed:

1. He has worked continuously while in custody, initially as a cabinet maker and later in various other positions, including clerical roles. Earlier this year, he undertook grounds and parks maintenance work for the Snowy Valley Council.

2. Even though he had previously undertaken tertiary studies in business and marketing, he has undertaken other courses in custody.

3. He has had no disciplinary breaches in custody and has assisted other inmates as an interpreter in communicating with gaol management.

4. His health is reasonable and he has stopped taking antidepressant medication.

55. He has support from his mother, even though his offending has estranged him from other family members. His mother has not visited him, because she lives a long distance away, and the applicant worries about her health.

CONCLUSION

56. In all of the circumstances, having undertaken the process required by Kentwell v The Queen, and having regard to the objective seriousness of the offences and the need for general deterrence, I am satisfied for the purposes of s 6(3) of the Criminal Appeal Act that a sentence no less than that which was imposed by the sentencing judge in this case is warranted and should have been passed. Leave to appeal should be granted but the appeal should be dismissed.

ORDERS

57. I propose the following orders:

1. Pursuant to Criminal Appeal Act 1912 (NSW), s 10(1)(b), extend the time for the applicant to seek leave to appeal.

2. Leave to appeal against sentence granted.

3. The appeal is dismissed.

58. BEECH-JONES J: I agree with Walton J.

Amendments

23 December 2020 - Redaction made at [26(1)], [33] and [38(3)] in conformity with non-publication order made by Campbell J on 25 August 2020.

Decision last updated: 23 December 2020