Hiu Mei Lam v R
[2021] VSCA 241
•1 September 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0123
| HIU MEI LAM | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 August 2021 |
| DATE OF JUDGMENT: | 1 September 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 241 |
| JUDGMENT APPEALED FROM: | DPP v Lam [2020] VCC 710 (Judge Stuart) |
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CRIMINAL LAW – Appeal – Sentence – Trafficking in a large commercial quantity of a drug of dependence (methylamphetamine) – Knowingly dealing in proceeds of crime – Sentenced to 10 years and 6 months’ imprisonment with 7 years non-parole – Family hardship – Applicant Chinese citizen liable to deportation at completion of sentence – Applicant’s child an Australian citizen – Plea for mercy – Hardship exceptional.
CRIMINAL LAW – Appeal – Sentence – Trafficking in a large commercial quantity of a drug of dependence (methylamphetamine) – Knowingly dealing in proceeds of crime – Sentenced to 10 years and 6 months’ imprisonment with 7 years non-parole – Co-offender sentenced to 7 years and 4 months’ imprisonment with 3 years and 9 months non-parole – Whether principle of parity infringed – Disparity not justified – Appeal allowed – Resentenced to 8 years’ imprisonment with 5 years non-parole.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr D A Dann QC with Mr J Manning | Melasecca Kelly & Zayler |
| For the Respondent: | Ms D I Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
NIALL JA:
Charges, sentences and grounds of appeal
On 21 August 2019, the applicant pleaded guilty to two charges in an indictment filed in the County Court. Her co-offender, Veselin Orlic (‘Orlic’), pleaded guilty to the same two charges on 4 May 2020. The charges were as follows:
CHARGE 2: The Director of Public Prosecutions charges that HIU MEI LAM and VESELIN ORLIC at Chadstone and divers places in Victoria between the 18th day of October 2017 and the 3rd day of February 2018 trafficked in a drug of dependence namely methylamphetamine in a quantity that was not less than the large commercial quantity applicable to that drug of dependence.
Statement of Offence: Trafficking in a drug of dependence — large commercial quantity contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981.
CHARGE 3: The Director of Public Prosecutions charges that HIU MEI LAM and VESELIN ORLIC at Chadstone and divers places in Victoria between the 18th day of October 2017 and the 3rd day of February 2018 dealt with proceeds of crime namely Australian currency, knowing that it was proceeds of crime.
Statement of Offence: Knowingly dealing with proceeds of crime contrary to s 194(2) of the Crimes Act 1958.
Trafficking in not less than a large commercial quantity[1] of a drug of dependence is punishable by life imprisonment,[2] and knowingly dealing with the proceeds of crime carries a maximum penalty of 15 years’ imprisonment.[3]
[1]Throughout October 2017, a large commercial quantity of methylamphetamine was 750 grams, or one kilogram in a mixture: see Columns 1A and 1B, Part 3, Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981. By virtue of amendments made by s 20 of the Drugs, Poisons and Controlled Substances Miscellaneous Amendment Act 2017, from 1 November 2017 those amounts respectively became 500 grams and 750 grams. See also Haddara v The Queen (2016) 260 A Crim R 306, 324–5 [71] (Redlich, Priest and Beach JJA).
[2]Drugs, Poisons and Controlled Substances Act 1981, s 71(1).
[3]Crimes Act 1958, s 194(2).
Orlic also pleaded guilty to two charges in the indictment of being a non-prohibited person in possession of a general category handgun[4] (charges 4 and 5), and the applicant pleaded guilty to a related summary bail offence.[5]
[4]Firearms Act 1996, s 7(1). The maximum penalty is 240 penalty units or 4 years’ imprisonment.
[5]Bail Act 1977, s 30B. The maximum penalty is 30 penalty units or 3 months’ imprisonment.
Following a plea hearing — in which, to the prosecution’s surprise, Orlic disputed the period of time in which he was engaged in trafficking — the judge sentenced the applicant on 26 May 2020 to a total effective sentence of 10 years and six months’ imprisonment, with a non-parole period of seven years, in accordance with the following table:
Charge Offence Sentence Cumulation 2 Trafficking in a drug of dependence — large commercial quantity 9 years and 6 months Base 3 Knowingly dealing with proceeds of crime 3 years 1 year Summary
Offence
Committing an indictable offence whilst on bail 7 days — Total effective sentence: 10 years and 6 months’ imprisonment Non-parole period: 7 years Section 6AAA statement 13 years and 6 months’ imprisonment with 9 years and 6 months non-parole Other orders: Forfeiture and disposal; sentenced as a serious drug offender under s 89DI of the Sentencing Act 1991
At the same time, the judge sentenced Orlic to a total effective sentence of seven years and four months’ imprisonment, with a non-parole period of three years and nine months, as set out in the following table:
Charge Offence Sentence Cumulation 2 Trafficking in a drug of dependence — large commercial quantity 6 years Base 3 Knowingly dealing with proceeds of crime 2 years 8 months 4 Being a non-prohibited person in possession of a general category handgun 1 year 4 months 5 Being a non-prohibited person in possession of a general category handgun 1 year 4 months Total effective sentence: 7 years and 4 months’ imprisonment Non-parole period: 3 years and 9 months Section 6AAA statement 9 years and 6 months’ imprisonment with 5 years and 6 months non-parole Other orders: Forfeiture and disposal; sentenced as a serious drug offender under s 89DI of the Sentencing Act 1991
The applicant now seeks leave to appeal against her sentence on two grounds, formulated as follows:[6]
1 The learned sentencing judge erred by finding that the hardship imposed on the applicant’s son, as a result of her incarceration, did not amount to exceptional circumstances and enliven the discretion of mercy.
2 The principle of parity has been breached, in that the relativity between the sentences of the applicant and her co-offender Veselin Orlic is such as to engender in the applicant a justifiable sense of grievance.
[6]A third ground was abandoned:
3The learned sentencing judge erred by:
(a) finding that the applicant’s criminal liability did not derive from her participation in a joint criminal enterprise with Veselin Orlic; and
(b) sentencing the applicant for offending that was found to predate the joint criminal enterprise between her and Veselin Orlic.
As we will explain, we consider that both grounds should succeed. Leave to appeal must be granted and the appeal allowed.
As we will also explain, a major source of difficulty in endeavouring to resentence the applicant and reduce the unacceptable disparity between the applicant’s sentence and Orlic’s — it will not be possible to eliminate it entirely — is the unhappy fact that the sentence imposed on Orlic is manifestly inadequate, but no mechanism is presently available to the Court to remedy that inadequacy.
Ultimately, we consider that the applicant should be resentenced to a total effective sentence of eight years’ imprisonment, with a non-parole period of five years, in the manner set out below.[7] We acknowledge that the sentence we propose is extremely lenient, and must be seen as being at the very lowest extremity of the available range. It must be recognised that it can only be justified by a combination of circumstances unique to this case.
[7]See [67].
The offending
Although the precise quantity of methylamphetamine trafficked by the applicant cannot be determined, by any measure the applicant’s offending was very serious. To appreciate its objective gravity, it is necessary to summarise its main features.
During July and August 2017, the applicant came to the attention of Victoria Police members, then involved in another investigation. Surveillance was then conducted on premises in Ivanhoe Grove, Malvern East, where she and Orlic were then living. At relevant times thereafter, the applicant and Orlic lived together as domestic partners in a rented townhouse in Chadstone Road, Malvern East.
To investigate the applicant’s activities, police conducted Operation Webber, employing a number of different investigative techniques. Thus, between 18 October 2017 and 3 February 2018, police lawfully intercepted the mobile telecommunication services of the applicant and her driver, Yee Mun Chung (‘Chung’); conducted physical surveillance; installed tracking devices on motor vehicles; executed covert search warrants; and installed optical and listening devices at the townhouse that the applicant shared with Orlic.
Charge 2 was laid against both the applicant and Orlic on a Giretti basis.[8] The prosecution case was that the applicant and Orlic were in the business of trafficking. So far as the applicant is concerned, surveillance evidence gathered by police revealed a consistent pattern of methylamphetamine trafficking by the applicant — both purchasing and selling it — between 19 October 2017 and 3 February 2018. The surveillance evidence included recorded conversations and exchanged texts messages with customers concerning drug purchases. It also included visual observation of illicit drug dealings on 11 separate days in October 2017; 25 days in November 2017; 19 days in December 2017; 15 days in January 2018; and three days in February 2018.
[8]R v Giretti (1986) 24 A Crim R 112.
Minh Gia Ngo (‘Ngo’) was the applicant’s principal customer. The applicant made sales to him on 18 occasions. On a number of other occasions she sold to subsidiary customers, including Andy Tsai (‘Tsai’), ‘Tiger’, Fei Xing (‘Xing’), Guo Chen (‘Chen’) and Peter Nguyen (‘Nguyen’). On occasions she also purchased methylamphetamine from Ngo, Tsai and Xing and other ‘unknown’ males. Her main source of the drug was Sydney. On three occasions she arranged for her driver, Chung, to drive to Sydney to obtain methylamphetamine.
Electronic surveillance evidence obtained by police included a number of references to transactions, or offers for sale, of 250 gram quantities, and references to the trafficking of larger quantities, including a ‘tea bag’ (one kilogram). There were also references to selling ‘very big pieces’ for $110,000, and ‘half a piece’ for $50,000. Whilst, as we have mentioned, the precise quantity of methylamphetamine trafficked cannot be determined, the intercepted communications indicated sales from as little as ounces up to amounts of two kilograms.
On 11 January 2018, the applicant travelled to Queensland. From that point on there was direct evidence of Orlic’s involvement in the trafficking business. That evidence revealed Orlic counting and moving large sums of money; moving various bags containing methylamphetamine and money; collecting money; and otherwise handling and dealing in methylamphetamine.
The day after the applicant went to Queensland, 12 January 2018, investigators carried out a covert search of the applicant’s and Orlic’s residence. They found 2.2 kilograms of methylamphetamine with a purity ranging between 69 and 83 per cent, and $25,000 in cash made up of bundles of $50 and $100 notes.
On 3 February 2018, police executed search warrants and arrested the applicant, Orlic and Chung. In the applicant’s and Orlic’s residence police located seven ‘Green Chinese Tea’ bags, each containing a one kilogram vacuum sealed package of methylamphetamine, and one large snap-lock bag containing methylamphetamine. The total weight of illicit drugs was 7.894 kilograms, with a purity of between 82 and 83 per cent.
In Orlic’s ‘RAV4’ motor vehicle, police found a hidden hydraulic compartment, containing 796.5 grams of methylamphetamine with a purity of 80 per cent in a ziploc bag, and multiple bags of cash to a total of $367,960. Police also found a Smith and Wesson revolver; a Retay semi-automatic pistol; and ammunition. Police also searched another vehicle associated with Orlic and found a further 697.2 grams of methylamphetamine of 82 per cent purity, and $105,900 in cash.
The total quantity of methylamphetamine seized during Operation Webber on 3 February 2018 (including from Ngo) was 15.75 kilograms, with an average purity of approximately 82 per cent. Given that a large commercial quantity of methylamphetamine in a mixture was at that time 750 grams, the quantity seized is the equivalent of 21 times that quantity.[9]
[9]See fn 1 above.
When interviewed, the applicant gave ‘no comment’ answers to questions concerned with her drug trafficking activities. She has been in custody since her arrest.
The prosecution case
The indictment jointly charged the applicant and Orlic with trafficking a large commercial quantity of methylamphetamine, and knowingly dealing with the proceeds of crime, between 18 October 2017 and 3 February 2018. On the plea, as we will later discuss, Orlic successfully disputed his involvement in the applicant’s trafficking prior to 10 January 2018. For the purposes of sentence, the judge concluded that prior to that date there were two separate drug businesses being run by the applicant and Orlic. He observed that the evidence of Orlic’s participation in the applicant’s trafficking prior to 10 January 2018 was ‘scant’.
In opening the case, the prosecutor had explained the lack of more direct evidence against Orlic prior to 10 January 2018 on the basis that his telephone was not ‘off’ (that is, subject to lawful interception). But he made the prosecution’s position plain:[10]
The Crown’s position is that this was a joint criminal enterprise, that it was perhaps, if you will, in the nature of something like Clarke and Johnstone,[[11]] where not everybody plays the same role but everyone is engaged in the same joint criminal enterprise. That said, there are some distinctions that the Crown can rely on and of course the Crown’s ability to say who was where in any possible hierarchy is limited by virtue of the nature of the way in which the evidence was gathered.
In this case the Crown’s position is that [Ngo] effectively sits off to the side within this enterprise to a degree. He has his own business that’s been supplied with drugs by [the applicant] and on occasion you will see he supplies drugs to her. That fits in with the sort of arrangements that have flowed from Lao and Nguyen,[[12]] where people can have their own businesses and still be involved in the same joint criminal enterprise.
In respect of the other three [the applicant, Orlic and Chung] the Crown says they are also participants in the joint criminal enterprise. [Chung] throughout is clearly subject to the direction of [the applicant]. Occasionally, she interacts with [Orlic] but more often, [the applicant]. And she is subservient, we say, to her. In respect of [the applicant] and [Orlic], the Crown is unable to say that there is a hierarchical arrangement between the two of them. Your Honour will see and be familiar with [Nguyen][[13]] where the principle is put forward following along from the High Court decision in Olbrich[[14]] that often it’s not possible to identify a hierarchical structure. But many times, it’s not even relevant to do so when what’s to be concentrated on is the role that the individual player has and what they've actually done during the course of the offending.
Now, the Crown says that there is no hierarchical structure here but there are [the applicant], [Orlic], [Chung] subject to that, and [Ngo] with his business over here. And that’s the position that the Crown says the evidence shows. That evidence establishes — that the plea has established — the charge of trafficking in a large commercial quantity of a drug of dependence, in this case, methylamphetamine. ... But the evidence does not permit the Crown to make distinctions as to who was necessarily doing what and who was necessarily organising what within the organisation or syndicate to use the more pejorative term.
[10]Emphasis added.
[11]R v Clarke and Johnstone [1986] VR 643 (Crockett, McGarvie and Southwell JJ).
[12]R v Lao and Nguyen (2002) 5 VR 129 (Buchanan, Vincent and Eames JJA).
[13]Nguyen v The Queen [2017] VSCA 100 (Redlich, Weinberg and Osborn JJA).
[14]R v Olbrich (1999) 199 CLR 270 (Gaudron, Kirby, Hayne and Callinan JJ).
As will become clear, the judge’s finding concerning Orlic’s participation is the source of error which must result in ground 2 succeeding.
Ground 1: Family hardship
Turning first to ground 1, we consider that it has also been made out. In our opinion, the judge should have found (but did not) that the hardship imposed on the applicant’s son amounted to exceptional circumstances enlivening the discretion to extend mercy.
Although she came to Australia in 2006 when aged 17 (and has resided here since), the applicant, now aged 32 years,[15] is not an Australian citizen. She is a Chinese citizen, living in Australia on a visa. Apart from her elderly mother, however, she no longer has any ties to China.
[15]Her date of birth is 21 April 1989.
Significantly, given that the applicant has been sentenced to more than 12 months’ imprisonment, she is now liable to deportation. That consequence flows from s 501(3A) of the Migration Act 1958 (Cth), which, in combination with ss 501(6)(a), 501(7)(c) and 501CA, provides that a ‘non-citizen’ is liable to deportation if convicted of an offence and sentenced to a term of imprisonment of at least one year. Visa cancellation in the applicant’s case is thus mandatory, subject to her being able to satisfy the Minister that there is a reason to revoke the cancellation decision.
Also of significance, the applicant has a son, now aged six years, born in Australia in May 2015. He is an Australian citizen. But since there was nobody in Australia to care for him once the applicant went into custody, he was sent to China into the care of the applicant’s mother. His Chinese ‘Q2’ visa was due to expire in November 2020. The attitude of the Chinese authorities is presently unknown. Whether he will be deported back to Australia remains in the realms of speculation. Were he to be deported to Australia, however, there is no family here to care for him. Since he could not reside with the applicant in prison, foster care would be inevitable. Once her sentence expires, it is a virtual fait accompli that the applicant will be deported to China, with the very real possibility that her non-Chinese citizen son will remain behind in Australia. In our experience, a situation like this is unique.
On the plea, the applicant’s counsel submitted that the discretion of mercy was enlivened, particularly by reason of the applicant’s family circumstances. No submission to the contrary was put by the prosecutor. Yet, despite observing on the plea that ‘there’s a certain element of tragedy in all of this’, the judge in his reasons for sentence failed to find the circumstances to be exceptional. He said:[16]
Much of this is conjecture, but even if one leaves aside the question of conjecture, these are not matters which are, in my view, exceptional. Certainly, they are not matters which enliven the discretion of mercy. Nothing in the circumstances of your offending suggest a merciful disposition, nor was it said to be so.
These matters, however, are matters which I take into account because your imprisonment and your worries that I have referred to render your imprisonment more burdensome than other prisoners. Thus, I do intend to moderate the sentence that I would otherwise impose.
[16]Emphasis added.
With respect, it was not a matter of conjecture that the applicant’s visa would be cancelled, exposing her to the near inevitability of deportation. Cancellation of her visa was certain. Neither was it a matter of conjecture that the applicant’s son — an Australian citizen — had been sent to live with his grandmother in China. That was an undisputed fact. Nor was it a matter of conjecture that, should he be returned to Australia and his mother deported, the applicant’s son would have to go into foster care. No other possibility presented itself. Moreover, it was not a matter of conjecture that during his early formative years the applicant’s son would be deprived of his mother’s nurture. That was an absolutely indisputable fact. Finally, it was not the circumstances of her offending that were said to enliven the discretion of mercy. It was the circumstances of the applicant’s son vis-à-vis his mother which were important.
In this Court, the applicant’s counsel submitted that the plea for mercy ‘should be seen as irresistible’, with the effect on the applicant’s son being ‘truly exceptional’. The judge’s finding to the contrary ‘was not reasonably open’, so that ‘there is error in the sentence first imposed’.
We agree.
In Borg,[17] the Court said:
[17]Borg v The Queen [2020] VSCA 191, [48] (Priest, Beach and Niall JJA).
The relevant principles were recently discussed by this Court in Cross:[18]
[18]Cross v The Queen [2019] VSCA 310, [50]–[52] (Priest and Weinberg JJA) (‘Cross’).
Prior to Markovic, there was a school of thought that, notwithstanding that exceptional family hardship had not been demonstrated, there was still room for the extension of mercy in appropriate cases. Thus, in Carmody,[19] the applicant had pleaded guilty to being knowingly concerned in the importation of heroin with her husband. Having found that the sentencing judge had erred in the way in which he dealt with the applicant’s co-operation, necessitating the applicant’s resentence, the Court took into account the effect of the applicant’s incarceration on her four year old child. He had suffered convulsions when separated from her, but subsequently had been allowed to live with her in prison. Tadgell JA (with whom Winneke P agreed) said:[20]
[19]R v Carmody (1998) 100 A Crim R 41.
[20]Ibid 45.
I cannot regard this as a case where exceptional circumstances have been shown. Nevertheless, this Court is in a position — as the learned sentencing judge necessarily was not — to learn something, with less than satisfactory material, of the actual impact that the applicant’s incarceration has had on her son. We cannot act as though exceptional circumstances have been shown, for they have not been shown. We can, however, show some mercy, tempering the wind to the shorn lamb. I think this is a case in which to do it: compare Miceli (1997) 94 A Crim R 327 [R v Miceli [1998] 4 VR 588]. A similar attitude has been taken in the English cases of Vaughan (1982) 4 Cr App R (S) 83 and Haleth (1982) 4 Cr App R (S) 178. In each of those cases an amendment of sentence was made on appeal so as to achieve the immediate release of a prisoner in order to allow a sick child or children to be cared for.
As Markovic has since made clear, however, there is no residual discretion to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional. The Court said:[21]
[21][Markovic v The Queen (2010) 30 VR 589], 591 [5].
We have concluded that the established common law position should be reaffirmed. Our reasons may be summarised as follows:
1. Reliance on family hardship — that is, hardship which imprisonment creates for persons other than the offender — is itself an appeal for mercy.
2. Properly understood, therefore, the purpose and effect of the ‘exceptional circumstances’ test is to limit the availability of the court’s discretion to exercise mercy on that ground.
3. Accordingly, there can be no ‘residual discretion’ to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional.
4. The effect on the offender of hardship caused to family members by his/her imprisonment raises different considerations, to which the ‘exceptional circumstances’ test has no application.
The Court observed that: first, it is almost inevitable that imprisoning a person will have an adverse effect on the person’s dependants;[22] secondly, the primary function of the sentencing court is to impose a sentence commensurate with the gravity of the crime; thirdly, to treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order that innocent persons suffer less; and, fourthly, to treat an offender who has needy dependants more leniently than one equally culpable co-offender who has none would defeat the appearance of justice and be patently unjust.[23] For these reasons, it is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account.[24]
[22]Ibid 591 [6].
[23]Ibid 592 [7].
[24]Ibid.
Applying the principles from the authorities set out in the passage immediately above, we consider this to be an exceptional case.
As the Court observed in Cross,[25] it is almost inevitable that children of an imprisoned mother will suffer some hardship, and without more, the mere hardship from such separation could not amount to exceptional circumstances. In the present case, however, the applicant’s child, then aged two years, was separated from his mother and sent to another country — where he is not a citizen — and has remained there on a temporary visa in the years since. He will be destined to grow up without maternal care, attended by uncertainties about where he will reside. If he remains in China, he will have no ability to have personal contact with his mother during his formative years, and limited (or no) ability to have contact with his mother via electronic means. If he returns to Australia, he will inevitably be placed in foster care with no family or personal connections in this country. To that extent, he will be deprived of the vicarious maternal care provided by his grandmother.
[25]Cross, [53].
If it be assumed that the applicant’s earliest parole on the current sentence will be around February 2025, the applicant’s son will then be about nine years old. Given her visa status, however, absent some extraordinary executive action his mother will not be released into the community, but will be held in immigration detention until the expiry of her head sentence (and her almost inevitable deportation). The applicant’s son therefore faces years deprived of his mother, with the added burden flowing from the anxiety occasioned by the uncertainty attaching to the status of their respective citizenships. All of this, in our view, amounts to exceptional circumstances, justifying mercy.
In light of the judge’s error, we consider that the sentencing discretion has been re-opened.
As part of any resentencing exercise — and separate from, but allied to, family hardship — this Court will need to take into account: first, the fact that the applicant remains in a state of anxiety during her incarceration that she will be deported upon completion of her sentence; and, secondly, that deportation — which appears to be almost certain — will amount to an additional punishment, because it will destroy any opportunity to continue to reside in this country.[26]
[26]See Guden v The Queen (2010) 28 VR 288; Konamala v The Queen [2016] VSCA 48; Da Costa v The Queen (2016) 307 FLR 153; Magedi v The Queen [2019] VSCA 102, [46]–[48]; Akot v The Queen [2020] VSCA 55, [34]; Hatzis v The Queen [2021] VSCA 43, [27].
Ground 2: Disparity
In our opinion, there was nothing in the circumstances of the offending, or in the respective circumstances of the applicant and Orlic, which justified the disparity between their sentences. Ground 2 must therefore succeed. Leave to appeal must be granted, the appeal allowed and the applicant resentenced.
Resentencing the applicant will, however, be problematical. The unhappy fact is that the judge imposed a manifestly inadequate sentence upon Orlic, but — given that the Director did not appeal against Orlic’s sentence — that glaring inadequacy cannot be remedied by this Court. In light of the fact that the principle of parity cannot operate in such a way as to permit a manifestly inadequate sentence upon the applicant, the Court’s only option — one that is quite unpalatable, given that it is an affront to one’s innate sense of fairness — is to an extent reduce the applicant’s sentence, but not to an extent that would result in its complete alignment with Orlic’s.
As we have indicated, the major source of difficulty in this case stems from the fact that Orlic’s counsel was permitted to advance a submission — one that the judge accepted — that Orlic had a lesser role than the applicant in the trafficking embraced by charge 1. At the heart of that submission was the proposition that Orlic had a lesser role than the applicant in the drug trafficking business because his activities in the business were of shorter duration than the applicant’s. Notwithstanding that the judge accepted and acted upon that submission, in our view it is one that does not withstand scrutiny.
In his sentencing remarks, when addressing Orlic, the judge said that it was
necessary for me to determine whether the Crown has proven the duration of your participation, Mr Orlic, in Ms Lam’s business of trafficking in methylamphetamine.
At the time of your plea, it was made plain to me that the plea was made on the basis of a contested fact, namely, the duration of your participation in Ms Lam’s, business. She, like you, has been charged on the basis of the case of R v Giretti (1986) 24 A Crim R 112. The Crown case, as I have already said, involves an allegation that you were party to her business enterprise over that whole period from 18 October 2017 to 3 February 2018.
It is the Crown case that your criminal liability arises from your participation in her business as a result of your engagement with her in a joint criminal enterprise. As I have said, [Orlic’s counsel], on your behalf contented that your criminal involvement did not commence until 11 January 2018 and that thereon your participation is conceded, there being, to use [Orlic’s counsel’s] words, ‘an abundance’ of evidence of your participation from that time until your arrest on 3 February 2018'.
Thus, your participation in her business is said by [Orlic’s counsel] to have commenced 12 weeks into the 15 week period of trafficking by Ms Lam.
Care must be taken in assessing the Crown case because both you and Ms Lam were living in a de facto relationship and living together at the Chadstone Road address. There is a temptation to approach this issue on the basis that you must have been aware of her business throughout this period of time. Awareness of, is not participation in a Giretti-type trafficking business.
Whilst it is true that there are a number of conversations recorded between Ms Lam and Mr Ngo suggesting that you were participating in her business, being on 25 October 2017, 27 October 2017, 1 November 2017, 19 November 2017, 28 December 2017, and 29 December 2017. However, there are also clear statements made by both Ms Lam and Mr Ngo that Mr Ngo is separately sourcing methylamphetamine from you, Mr Orlic. The inference being that you, Mr Orlic, were running your own trafficking in methylamphetamine business parallel to but distinct from Ms Lam’s.
On the plea, only two possibilities presented themselves. Either Orlic was part of a methylamphetamine trafficking business as part of a joint enterprise with the applicant (as was the prosecution case), or he was running a drug trafficking business in parallel with the applicant, supplying the same principal customer (as was Orlic’s case).
In our view, it was not open to the judge to distinguish between the positions of the applicant and Orlic in the way that he did. Error has been demonstrated.
It is noteworthy that, although the prosecutor before the sentencing judge had unwaveringly maintained that the applicant and Orlic were involved together in a joint criminal enterprise throughout the whole of the period embraced by charge 2, counsel for the respondent in this Court — whilst purporting not to resile from the position adopted by the prosecution on the plea — contended that the judge’s finding concerning the duration of Orlic’s offending was open to him. The thrust of these submissions may be gleaned from the following passage of discussion in this Court:
[RESPONDENT’S COUNSEL]: No. Because it was the applicant’s business and it was clearly her business in that she is the one who is captured on all the surveillance devices, communicating with Ngo or Chung, the other two co-accused. Mr Orlic doesn’t appear on any of those devices or observations. So in terms of role, it was open to his Honour to make the finding that it was her business, that he then joins.
[JUDGE]: But you resile from the position taken by the prosecutor before the judge?
[RESPONDENT’S COUNSEL]: I accept the finding that his Honour made.
[JUDGE]: So is that an answer? Is that yes or no an answer to my question? You do resile? Or you don’t resile?
[RESPONDENT’S COUNSEL]: I don’t resile but I accept the finding. And it was open to his Honour to make that finding, based on that material that she is the driving force in all of those transactions and all of those dealings from October to January … And it’s only when she goes to Queensland that Mr Orlic then appears.
[JUDGE]: So the position that was put by the prosecutor to the judge below based on the material, is one that shouldn’t have been put.
[RESPONDENT’S COUNSEL]: No, it was one that the prosecutor believed was agreed to and then tried to defend the position and was unsuccessful in doing so.
[JUDGE]: There’s something … unsatisfactory about the change of position.
[RESPONDENT’S COUNSEL]: He didn’t change his position.
[JUDGE]: No, no. The change of position here from what was put to the judge.
[RESPONDENT’S COUNSEL]: I’m not resiling from the position. I’m accepting the finding that the judge made.
Notwithstanding the position adopted by the respondent in this Court, we do not accept that it was open to the judge to make the impugned finding.
It is true that there was little in the way of direct evidence prior to 10 January 2018 to establish that Orlic was involved in a trafficking business with the applicant. There was, however, a deal of circumstantial and other evidence which supported an inference that he was involved in the business throughout the whole of the charged period.
First, simple logic dictates that it is unlikely that two people living under the one roof in a de facto relationship would both be running illicit drug trafficking businesses independently one from the other during the same period, particularly in circumstances in which the principal customer for each business was the same customer.
Secondly, as the prosecutor put to the judge — relying on Tripodi,[27] Ahern[28] and Tsang[29] — ‘there is reasonable independent evidence on the whole of the evidence of [Orlic’s] participation in the joint criminal enterprise where upon the acts and utterances of other co-accused in his absence are admissible against him’. In our view — properly understood — a number of intercepted communications involving the applicant and others were capable of establishing that Orlic was involved in the trafficking business with the applicant during the disputed period pursuant to the kind of Tripodi reasoning now sanctioned by s 87(1)(c) of the Evidence Act2008. The judge should have so found.
[27]Tripodi v The Queen (1961) 104 CLR 1.
[28]Ahern v The Queen (1988) 165 CLR 87.
[29]Tsang v DPP (Cth) (2011) 35 VR 240.
Thirdly, and most significantly, from the moment that police commenced to carry out electronic surveillance of Orlic, the evidence thereby harvested plainly established that he was an enthusiastic participant with the applicant in the ongoing drug trafficking business. Thus, the evidence established that between 10 January and 3 February 2018, albeit that they performed different roles, Orlic’s and the applicant’s offending was joint in nature. Indeed, Orlic appears to have had direct control of the cash from the business throughout January 2018, the evidence revealing him handling and counting money. On the day of the arrests, the drugs and cash were in Orlic’s control, in that he had direct control over the relevant vehicles, and had placed the bags in the garage shortly before police arrival.[30] He also had possession of the handguns. It is extremely unlikely that Orlic would not have had a similar involvement in the business immediately prior to 10 January 2018, when he first became subject to direct electronic surveillance. The overwhelming probability is that his role in the business did not abruptly and dramatically change overnight. As it was colourfully put by the prosecutor on the plea, Orlic did not go ‘from zero to hero’ when 11 January dawned.
[30]See [18] and [19] above.
But even were Orlic running a methylamphetamine trafficking business in tandem with the applicant’s business for part of the period with which charge 2 was concerned, it was not contended by his counsel — nor could it have been — Orlic had not trafficked in less than a large commercial quantity of the drug upon merger. Indeed, even could it sensibly be concluded that Orlic was running a parallel business prior to 10 January 2018, there is nothing to suggest that it was qualitatively or quantitatively different to the applicant’s.
It is important to note also that — duration aside — Orlic acknowledged through his counsel that he did not have a subservient role to the applicant in the drug trafficking business. Thus, Orlic’s counsel on the plea submitted that Orlic
wants to acknowledge that [the applicant] was very good to him, very kind to him, very nice. She is not his boss. There is no question of him being subservient. We’ve acknowledged that. Once he’s in the [joint criminal enterprise] he performs his role. It’s a slightly different role in terms of what he did, than what she did, but it’s an important role and they shared the money. So he’s not suggesting that he’s on a wage, and that’s in a sense a point of parity between them, that they shared it in, certainly in that January period at all events.
Quite apart from the judge’s finding about the duration of Orlic’s involvement in the trafficking business, unacceptable disparity in the sentences imposed on the applicant and Orlic is readily identifiable in the individual sentence imposed on each of them on charge 3, dealing in the proceeds of crime. On that charge, the applicant was sentenced to three years’ imprisonment, one year of which was ordered to be served cumulatively with the sentence on charge 2; whilst Orlic was sentenced to two years’ imprisonment, eight months of which was ordered to be served cumulatively with the sentence on charge 2.
This obvious disparity cannot be justified.
The prosecution case — and the plea — proceeded on the basis that there was no distinction to be made between the roles of the applicant and Orlic with respect to the offending to which charge 3 related. It related to the same money and the same duration of offending, in circumstances where there was no hierarchy in which Orlic was subservient to the applicant.
Indeed, Orlic, through his counsel accepted that he did not fall to be sentenced differently to the applicant in relation to charge 3. So much is clear from the following exchange in the course of the plea:
HIS HONOUR: But the bottom line to it is, this is a – whilst I understand the money side of things is very much part and parcel of the drug dealing, because it’s … all bound up, there needs to be some cumulation, I would have thought, by dent of the sheer size of the quantity of money. Now that brings another question. If you’re successful in relation to your client’s limited role, that also impacts upon the quantities of money that – I’ll start that again.
[ORLIC’S COUNSEL]: No, it doesn’t, Your Honour. I think, I think - - -
HIS HONOUR: It doesn’t, because it’s all in relation to what was seized.
[ORLIC’S COUNSEL]: I believe that the quantity of money - - -
HIS HONOUR: Is all in - - -
[ORLIC’S COUNSEL]: - - - relates to money that is found.
HIS HONOUR: Yes.
[ORLIC’S COUNSEL]: And for which he’s liable.
HIS HONOUR: Yes, all right. Forget what I just said.
[ORLIC’S COUNSEL]: No, no. He doesn’t, he doesn’t get any reduction for that.
HIS HONOUR: Yes, yes. Yes, forget what I just said.
Although, as we have said, the respondent’s counsel sought to justify the disparity in sentences on charge 2, she did not attempt to do so with respect to the sentences on charge 3. She orally submitted that, notwithstanding the exchange set out immediately above, the judge may
after having heard all the submissions and ultimately reached the conclusion that Orlic was involved for a lesser period of time [in the trafficking], somehow in his mind, justified that as a reason to reduce the sentence. But this isn’t a charge that was dependent upon establishing when the funds came to be in possession. The possession charge is complete on the day of arrest, so it’s difficult for me to stand here and defend the difference in that sentence.
In our view, given their potential effect on the total effective sentence and non-parole period, the unjustifiable disparity in the individual sentences and orders for cumulation on charge 3 alone leads to the conclusion that the sentencing discretion has been unravelled.
Turning to the authorities, Dawson and Gaudron JJ described the principle of parity in the following way in Postiglione:[31]
Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.[32] In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error.[33] Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen,[34] recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’.[35] If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
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 their different degrees of criminality.
[31]Postiglione v The Queen (1997) 189 CLR 295, 301–2 (citations as in original).
[32]See Lowe v The Queen (1984) 154 CLR 606 at 610–611, per Mason J.
[33]Lowe v The Queen (1984) 154 CLR 606 at 617–618, per Brennan J.
[34](1984) 154 CLR 606.
[35]Lowe v The Queen (1984) 154 CLR 606, esp at 610, per Gibbs CJ; at 613, per Mason J; and at 623, per Dawson J.
As we have indicated, we regard the sentence imposed on Orlic to be inadequate. That confronts the Court with a quandary when it comes to the applicant’s resentencing. In Fletcher,[36] the Court discussed the dilemma that arises when a co-offender has received an inadequate sentence in the following terms:
One question not specifically addressed in Postiglione, or indeed in the High Court’s earlier decision in Lowe v The Queen[37] is what should happen where one offender has been given a wholly inadequate sentence, and a co-offender appeals against his own sentence on the ground of disparity. The dilemma which confronts the court is that the sentence imposed upon the applicant may be entirely appropriate, but there has, nevertheless, been a breach of the principle of equal justice.
According to Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria,[38] that dilemma is generally resolved by recognizing that the principle of parity does not require a court sentencing an offender to impose what, in its view, is a manifestly inadequate sentence merely because such a sentence has been imposed upon a co-offender.[39]
Nonetheless, even a manifestly inadequate sentence imposed upon a co-offender should not be entirely ignored. Where the disproportion between the sentences is manifestly, and not merely arguably, excessive, the sentence, though otherwise within range and appropriate, may be reduced to avoid the feeling of injustice felt by the co-offender. It should never be reduced, however, to a point where the new sentence is itself manifestly inadequate.[40]
[36]Fletcher v The Queen [2011] VSCA 4, [30]–[32] (Weinberg JA and King AJA) (citations as in original).
[37](1984) 154 CLR 606.
[38]2nd edition (1999).
[39]R v D’Ortenzio [1961] VR 432, 433 and R v Charles [1979] VR 8. See also R v Tisalandis [1982] 2 NSWLR 430, 439, where Moffitt P observed, in effect, that a single error should be corrected, not doubled. To the same effect is R v Cox (1991) 55 A Crim R 396, 401 which held that an appeal court will not interfere where the consequence of reducing a higher sentence is that there will be two inappropriately low sentences rather than one. Again, see R v Reardon (1996) 89 A Crim R 180.
[40]R v Goldberg [1959] VR 311; R v D’Ortenzio [1961] VR 432, 433; R v Mitchell [1974] VR 625 and R v Pecora [1980] VR 499, 502-3.
So far as their respective personal circumstances are concerned, Orlic was aged 24 years at the time of offending, and 27 at sentence, while the applicant was 28 at the time of offending, and 31 at sentence. Each pleaded guilty at the earliest reasonable opportunity, and both were treated as if they had no criminal history. In different ways, both had experienced hardship, trauma and addiction.
The judge — somewhat generously, it might be thought — considered Orlic to be ‘a relatively youthful man’. Orlic, the judge thought, had ‘excellent’ prospects of rehabilitation, whilst he considered that the applicant’s were ‘guarded’. The judge described Orlic as ‘genuinely remorseful’, and as having ‘complete insight into [his] offending and the consequences of it’, but did not make similar findings with respect to the applicant. Further, the applicant was isolated in prison, with no family or other support in Australia, whilst prior to the current pandemic, Orlic’s family had been visiting on a weekly basis.
Of significance, Orlic is an Australian citizen. Unlike the applicant, he does not face deportation. Nor does he face any difficulties such as those encountered by the applicant and her son by reason of their differing citizenship. Moreover, the applicant has the benefit of other features not applicable to Orlic — it is unnecessary to discuss them — which otherwise mitigate the sentence to be imposed upon her.
Ultimately, we consider there was no justification for the judge imposing disparate sentences on the applicant and Orlic. If we were unrestrained by principle, we would have proposed — consistently with innate conceptions of fairness and justice — that a sentence completely mirroring Orlic’s be imposed upon the applicant on charges 2 and 3. As we have said, however, Orlic’s sentence is inadequate. In those circumstances, although there must be some amelioration of the sentence now to be imposed upon the applicant in order to recognise the dictates of the principle of parity, her sentence cannot be reduced so as to place it in complete equipoise with Orlic’s. To do so would be to contemplate the imposition of another manifestly inadequate sentence.
The sentence that we propose should be seen to be the product of the unique circumstances attending this case. It should not be viewed as setting a benchmark, let alone providing guidance more generally as to sentencing practice for similar offending.
Conclusion
As we have indicated, we would grant leave to appeal, allow the appeal and resentence the appellant.
Balancing, as best we are able, the circumstances of the offence and those of the applicant, and taking into account all features of aggravation and mitigation, we would resentence the applicant according to the following table:
Charge Offence Sentence Cumulation 2 Trafficking in a drug of dependence — large commercial quantity 7 years and 6 months Base 3 Knowingly dealing with proceeds of crime 2 years 6 months Summary
Offence
Committing an indictable offence whilst on bail 7 days — Total effective sentence: 8 years’ imprisonment Non-parole period: 5 years Section 6AAA statement 13 years and 6 months’ imprisonment with 9 years and 6 months non-parole
We would confirm all other orders made by the sentencing judge.
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