He v R

[2016] NSWCCA 220

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	He v R [2016] NSWCCA 220
Hearing dates:	7 October 2016
Decision date:	07 October 2016
Before:	Meagher JA at [1]; Harrison J at [2]; R A Hulme J at [3]
Decision:	1. Leave to appeal granted and appeal allowed. 2. Sentences imposed in the District Court on 14 September 2015 quashed. 3. The applicant be re-sentenced as follows: Possess prohibited drug: sentenced to imprisonment for a fixed term of 12 months dating from 15 July 2014 and expiring on 14 July 2015. Import tier 1 good without approval: sentence to imprisonment for 2 years 6 months dating from 15 January 2015 and direct that the applicant be released on recognizance upon giving security in the sum of $100 without surety on the condition that he be of good behaviour after having served 1 year 6 months.
Catchwords:	CRIMINAL LAW – appeal against sentence – drug (ephedrine) importation and possession – judge erred by giving weight to the likely deportation of the applicant so as to deny him a period of parole or equivalent – error in failure to give effect to a finding of special circumstances – applicant resentenced
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) s 44 Criminal Appeal Act 1912 (NSW) s 6(3) Criminal Procedure Act 1986 (NSW) s 166 Customs Act 1901 (Cth) s 233 BAA(4) Drugs Misuse and Trafficking Act 1985 (NSW) s 10
Cases Cited:	Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 The Queen v Shrestha (1991) 173 CLR 48; [1991] HCA 26
Category:	Principal judgment
Parties:	Peidong He (Applicant) Regina (Respondent)
Representation:	Counsel: Ms J Paingakulam (Applicant) Mr T Anderson (Crown)   Solicitors: Legal Aid NSW Commonwealth Director of Public Prosecutions
File Number(s):	2014/209210
Decision under appeal	Court or tribunal: District Court Date of Decision: 14 September 2015 Before: Maiden SC DCJ File Number(s): 2014/209210

Judgment

1. MEAGHER JA: I agree with R A Hulme J and the orders as he proposes.

2. HARRISON J: I also agree with R A Hulme J.

3. R A HULME J: Peidong He ("the applicant") applies for leave to appeal in respect of sentences imposed by his Honour Judge Maiden SC in the District Court at Sydney on 14 September 2015 as set out below:

Offence	Statutory provision	Maximum penalty	Sentence
Importation of a tier 1 good (ephedrine) without approval at Padstow on 15 July 2014	S 233BAA(4) of the Customs Act 1901 (Cth)	5 years imprisonment and/or a fine of 1000 penalty units	3 years imprisonment from 15 July 2014 with release on recognizance after serving 2 years
Possess prohibited drug (ephedrine) at Homebush West on or about 17 July 2014	S 10 of the Drug Misuse and Trafficking Act 1985 (NSW)	2 years imprisonment and/or a fine of 20 penalty units	15 months fixed term of imprisonment from 15 April 2016

4. The effective overall sentence is one of 3 years from 15 July 2014 to 14 July 2017 with no parole or conditional release period.

5. The applicant was arrested, charged and refused bail for the importation offence on 15 July 2014. He pleaded guilty to both offences and was committed for sentence (erroneously in the case of the possession offence as it is not an indictable offence) on 22 April 2015. The Crown filed a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) in order that the possession offence was properly before the District Court.

6. The sentence hearing took place before Maiden SC DCJ on Friday 11 September 2015 and his Honour reserved his decision until the following Monday.

7. The applicant seeks leave to appeal on the following grounds:

1   The learned judge erred in giving weight to the likely deportation of the applicant in determining an appropriate sentence.

2   The learned sentencing judge erred in failing to give effect to his Honour's finding of special circumstances in relation to the drug possession offence.

3   The sentencing judge erred in his application of the totality principle.

4   The sentence was manifestly excessive.

8. The Crown concedes the errors asserted in Grounds 1 and 2 but maintains that no lesser sentence is warranted: s 6(3) of the Criminal Appeal Act 1912 (NSW).

Facts

9. The applicant is a Chinese citizen who came to Australia in 2012. He remained in the country after his four month tourist visa expired.

10. On 14 July 2014 a consignment of electric rodent repellent devices arrived in Australia via DHL Express. It was intercepted by the authorities and found to contain 4,122.49 grams of pure ephedrine (worth an estimated $288,540 to $453,420). It was later ascertained that the applicant had been tracking the consignment on his mobile phone and computer. A controlled delivery was made at the address of the consignee on 15 July 2014. The applicant purported to be the consignee ("Mr Jony") and accepted delivery. He was arrested a short time later.

11. A search warrant was executed at the applicant's home on 17 July 2014. Various items were seized including a powdery substance which contained 400 grams (340.32 grams pure) of ephedrine (worth an estimated $23,800 to $37,400).

12. Examination of a mobile phone and a computer found in the applicant's possession revealed material suggestive of a prior interest in the importation and supply of illicit substances. One particular internet conversation was accepted by the judge to show the applicant was proposing to sell the ephedrine found at his home to another person for $15,000.

13. The applicant gave evidence in which he claimed that he was acting under instructions in taking delivery of the consignment and in trying to sell the ephedrine found at his home. He was motivated to do so in order to clear a debt that he had accrued when his electrical products business in Indonesia failed. He claimed that he and his family had been threatened but the judge did not accept this.

The applicant's personal circumstances

14. The applicant was aged 31 at the time of the offences. He had no previous convictions. He was married with one child. His wife and daughter live in China. He had been educated to a Year 9 standard. He then went to live in Indonesia where initially he helped his parents in their jewellery business. He then established his own business selling electrical goods. He lost money in this business and accrued a debt of $60,000 USD.

15. The applicant said in his evidence that he came to Australia to make money for his family and also to clear the debt. The people to whom he owed money played some role in him coming to Australia although the applicant's evidence about this was not entirely clear.

16. The applicant had participated in educational and vocational programs in custody. He had also completed a "Seasons of Growth Program" facilitated by Sister Marcia Cox, the chaplain at Parklea Correctional Centre. Various documents attesting to his participation in these programs were tendered in the proceedings.

17. The applicant said that he proposed to return to China to live with his wife and daughter after he is released from custody.

The judge's sentencing remarks

18. The sentencing judge found that the applicant was not merely a drug courier. While he was not a principal, he was "somewhere up the chain", describing him as "the person in Australia who was involved with the receipt of the drugs and had control of the operation of the actions of the delivery up until that point of time". The importation was found to involve a degree of sophistication.

19. His Honour found that the applicant was remorseful. He said that in relation to the possession offence he was "able to find special circumstances because of the continuing prospects of rehabilitation whilst in custody".

20. The judge allowed a reduction of the sentence for each offence of 25 per cent on account of the applicant's pleas of guilty.

Ground 1 – error in having regard to deportation

21. The judge said that he assumed that the applicant would be deported. He said in relation to the sentence for the possession offence:

"Clearly, upon deportation, the question of supervision by any service will not be appropriate and I propose to impose a set period of time of 15 months."

22. As indicated earlier, he imposed a fixed term of imprisonment of 15 months and partially accumulated it upon the sentence for the importation offence so that it entirely subsumed the period of release on recognizance. In other words, the applicant effectively received a fixed overall term of imprisonment of 3 years with no period of conditional release.

23. The Crown concedes that taking into account the prospective deportation of the applicant so as to deny him any period of parole or equivalent was contrary to authority: The Queen v Shrestha (1991) 173 CLR 48; [1991] HCA 26.

24. This ground should be upheld.

Ground 2 – failure to give effect to a finding of special circumstances for the possession offence

25. The judge found, pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), that there were special circumstances in relation to the possession offence for reducing the proportion of the sentence represented by the non-parole period. The basis of the finding was "the continuing prospects of rehabilitation whilst in custody". However, he did not incorporate a non-parole period in the sentence at all for the reason that gives rise to Ground 1.

26. The Crown, correctly with respect, concedes error in relation to this ground which should also be upheld.

Ground 3 – error in the application of the totality principle

27. The judge found that "there is no, or appears to be no, connection between [the two offences] factually; they appear to be independent of each other".  Later, after announcing the terms of the individual sentences and that the importation sentence would commence on 15 July 2014, he said:

"In respect of the second matter, it being unrelated to the first, this matter calls, in my mind, for some overlapping of the two matters, however as I have indicated, the question is how the second matter is to be accrued with the first and in that regard I propose to commence that 15 months to be a period of time that expires on 14 July 2017 and commencement will be on 15 April 2016."

28. The Crown submitted that the judge had regard to totality and determined that there should be concurrency between the two sentences of three months (15 April 2016 to 14 July 2016). This was said to be "not unreasonable" and so the ground should be rejected. In the course of making these submissions, however, the Crown conceded that the judge was wrong to find that the offences were unrelated. It accepted that the offences involved the same substance and had a temporal connection.

29. The problem in relation to this ground derives from the errors exposed in the preceding grounds which meant that it was really not possible for there to be a proper application of the principle of totality. (Generally as to the principle, see Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57; Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15; and Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1.)

30. In the light of the applicant's success in relation to the preceding grounds it is unnecessary to say more about this one.

Ground 4 – manifest excess

31. Given the need for the Court to re-exercise the sentencing discretion in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 it is also unnecessary to determine this ground.

Re-sentencing

32. Submissions for the applicant were confined to a contention that the accumulation of the sentence for the possession offence by 21 months upon the sentence for the importation offence was excessive and yielded an overall sentence that was manifestly excessive. It was not contended that the individual sentences themselves were excessive.

33. The applicant accepted that some degree of accumulation between the sentences was appropriate given the two distinct offences but it was contended, as the Crown conceded, that they were related: they involved the same substance; occurred over the same period of time; there was a common motive; and the person with whom the applicant was communicating over the internet appeared to be involved in both.

34. The Crown submitted that the sentence assessed by the primary judge for the importation offence was appropriate as it was "consistent with the authorities provided to his Honour and any other number of cases which could have been provided". The finding by the judge that the applicant was "not merely a courier", although not a principal either, was supported by the Crown which also emphasised that the amount involved was 165 times above the allowable amount to import. It was also submitted that the judge was correct to stress the importance of general deterrence.

35. The Crown also referred to the quantity of ephedrine found in the applicant's possession (400 grams) where the prescribed indictable quantity is 25 grams and submitted that while the 15 month fixed term sentence "could be considered at the upper end of sentence for an offence of this type … it is not out of the range of sentence".

36. Finally, the Crown submitted that a total effective sentence of 3 years was "within the range for offences of this nature with these objective and subjective circumstances".

37. An affidavit affirmed by the applicant’s solicitor was read at the hearing of the application. The documents annexed indicate that the applicant has been well-behaved in custody. He is presently detained at Wellington Correctional Centre. When previously at Ivanhoe (Warakirra) Correctional Centre he was permitted to be “off complex” and was involved in community projects. He has continued with vocational programs and has not incurred any disciplinary infractions.

38. Having regard to these submissions I am prepared to accept that re-sentencing should proceed upon the basis of there being an appropriate degree of partial accumulation. I would not quantify a discount for the applicant's plea of guilty to the importation offence but, in accordance with Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 I would take it into account in mitigation along with the other favourable findings made at first instance which have not been challenged.

39. An appropriate sentence for the importation offence is one of 2 years 6 months (where the maximum penalty is 5 years) and for the possession offence is one of 12 months (where the maximum penalty is 2 years). Having regard to the principle of totality I propose that the overall sentence be one of 3 years with a minimum custodial component of 2 years. As the shorter of the two sentences it is appropriate that the sentence for the possession offence commence first. There would be no utility in specifying a non-parole period.

40. The overall effect of what I propose is that the applicant will be entitled to release forthwith upon entering into a recognizance.

Orders

41. I propose the following orders:

(1)   Leave to appeal granted and appeal allowed.

(2)   Sentences imposed in the District Court on 14 September 2015 quashed.

(3)   The applicant be re-sentenced as follows:

Possess prohibited drug: sentenced to imprisonment for a fixed term of 12 months dating from 15 July 2014 and expiring on 14 July 2015.

Import tier 1 good without approval: sentence to imprisonment for 2 years 6 months dating from 15 January 2015 and direct that the applicant be released on recognizance upon giving security in the sum of $100 without surety on the condition that he be of good behaviour after having served 1 year 6 months.

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Decision last updated: 07 October 2016