HL v Director of Public Prosecutions (Cth)

[2017] NSWCCA 66

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	HL v Director of Public Prosecutions (Cth) [2017] NSWCCA 66
Hearing dates:	24 March 2017
Date of orders:	11 April 2017
Decision date:	11 April 2017
Before:	Basten JA at [1] Hoeben CJ at CL at [2] Walton J at [69]
Decision:	(1)   An extension of time for the filing of the application for leave to appeal against sentence be granted. (2)   Leave to appeal against sentence be granted. (3)   The appeal be allowed in part. (4)   The sentence on count 1 imposed by Norrish QC DCJ in respect of the applicant on 26 April 2013 is quashed. (5)   In lieu thereof the applicant is sentenced as follows: (i)    In relation to Count 2, the sentence imposed by Norrish QC DCJ on 26 April 2013 is confirmed. (ii)   In relation to Count 1, the applicant is sentenced to a total term of imprisonment of 12 years, commencing 12 October 2012 and expiring on 11 October 2024, with a non-parole period of 6 years to commence 12 October 2012 and to expire on 11 October 2018.
Catchwords:	CRIMINAL LAW – sentence appeal – two counts of trafficking/supplying large commercial quantity of methylamphetamine – applicant sentenced appropriately on 26 April 2013 – co-offender in a more senior role in drug supply enterprise sentenced on 20 November 2015 – error in sentencing of co-offender uncorrected – justifiable sense of grievance on part of the applicant – application of parity principle – court required to intervene – need to ensure that reduced sentence not erroneously lenient.
Legislation Cited:	Crimes Act 1914 (Cth), s 19AL Criminal Code 1995 (Cth), ss 11.5(1) and 302.2(1) Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Cases Cited:	Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Category:	Principal judgment
Parties:	HL – Applicant Director of Public Prosecutions (Cth) – Respondent
Representation:	Counsel: GD Wendler – Applicant P McGuire SC – Respondent   Solicitors: SABA Lawyers – Applicant Director of Public Prosecutions (Cth) – Respondent
File Number(s):	2010/313624
Publication restriction:	Pursuant to the Court Suppression and Non-Publication Orders Act 2010, s 7, the Court orders that there be no publication or other disclosure of information tending to reveal the identity of the applicant who shall be identified for the purposes of the proceedings by the initials HL.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 26 April 2013 Before: Norrish QC DCJ File Number(s): 2010/313624

JUDGMENT

1. BASTEN JA: I agree with Hoeben CJ at CL.

2. HOEBEN CJ at CL:

Offences and sentence

On 17 February 2012 the applicant (HL, a pseudonym) pleaded guilty to an indictment containing two separate offences, one a Commonwealth offence and the other a State offence:

Count 1 – That between 1 January 2009 and 21 January 2010 the applicant conspired with Man Kong Ho and Wai Kit Yip and others to traffic a commercial quantity of methylamphetamine, contrary to ss 11.5(1) and 302.2(1) of the Criminal Code (Cth).

Count 2 – That on or about 15 December 2009 the applicant knowingly took part in the supply of methylamphetamine, being not less than the large commercial quantity of that drug contrary to s 25(2) of the Drug Misuse and Trafficking Act1985 (NSW).

3. Both offences carry a maximum penalty of imprisonment for life. The State offence has a standard non-parole period of 15 years.

4. The quantity of methylamphetamine involved in Count 1 was 50.0954kg (impure) with an average purity of 77% and an equivalent net weight of pure methylamphetamine of 37.75kg. The commercial quantity for methylamphetamine is 0.75kg. Expert drug valuation evidence established that this quantity of methylamphetamine in New South Wales in January 2010 had an estimated street value of between $12,523,850 and $27,552,470 and an estimated wholesale value of between $8,016,000 and $10,521,000 (with the upper end of those ranges being more likely due to the high purity).

5. The quantity of methylamphetamine involved in Count 2 was 3.0021kg (impure) with a purity of 68.9%. Expert drug valuation evidence established that this quantity of methylamphetamine in New South Wales in January 2010 had an estimated street value of between $750,525 and $1,651,155 and an estimated wholesale value of between $480,320 and $630,420 (with prices towards the upper end of these ranges being more likely due to the high purity).

6. On 26 April 2013 the applicant was sentenced by Norrish QC DCJ in respect of Count 2 to imprisonment with a non-parole period of 3 years and 6 months, commencing 12 October 2010 and expiring 11 April 2014, with a balance of term of 2 years and 6 months expiring 11 October 2016.

7. In respect of Count 1 the applicant was sentenced to a total term of imprisonment of 12 years, commencing 12 October 2013 and expiring 11 October 2025, with a non-parole period of 6 years commencing 12 October 2013 and expiring 11 October 2019.

8. It can be seen that the sentence in respect of Count 1 was accumulated by 3 years on the sentence for Count 2.

9. The following additional matters should be noted about the sentence imposed by Norrish QC DCJ. In relation to the sentence for Count 2, his Honour said that the applicant would be eligible for release to parole on 11 April 2014. That was clearly an error, given the imposition of the sentence for Count 1.

10. In respect of the sentence for Count 1, his Honour noted that “On that date [11 October 2019] subject to the terms of s 19AL of the Crimes Act 1914 you are to be released to parole”. By reference to the terms of s 19AL, it is clear that his Honour was aware that the making of an order releasing the applicant to parole was a matter for the Commonwealth Attorney-General, not the sentencing court.

11. The sentences which his Honour imposed for Counts 1 and 2 took into account a 40% discount for the applicant’s early plea of guilty and assistance to authorities, both past and for the future. In that regard his Honour noted that the starting point for the sentence for Count 2 was 10 years imprisonment and the starting point for the sentence for Count 1 was 20 years imprisonment.

12. The applicant relies upon a single ground of appeal:

That the applicant’s sentence is manifestly excessive and the applicant has a justifiable sense of grievance having regard to the sentence received by his co-offender, Man Kong Ho, for the same offences before Tupman DCJ on 20 November 2015.

Application for an extension of time

13. There was before the Court an application for an extension of time in the following terms:

“The notice of application for leave to appeal was not given within 3 months after conviction and sentence for the following reasons:

There were 4 other co-accused associated with the applicant and sentenced by different District Court Judges one of which was not sentenced until 20 November 2015 following which delay was occasioned by the unavailability of transcripts the last part of which concerned the applicant was not received until 27 October 2016. Further the delay in obtaining all transcripts delayed counsel’s written submissions on the application.”

14. The explanation for the delay was provided by the applicant’s solicitor, Ms McKenzie, in an affidavit sworn 16 March 2017. That affidavit set out that Ms McKenzie had considerable difficulty in obtaining the sentence judgment relating to Man Kong Ho. Ms McKenzie did not receive a copy of that judgment until 12 July 2016. A further difficulty related to obtaining all of the relevant transcripts. These were not obtained until 14 October 2016. Thereafter, the application for leave to appeal against sentence and supporting documents were filed on 15 November 2016.

15. In view of the material in the supporting affidavit, the position of the Crown in this matter was that the outcome of the application for extension of time should abide the outcome of the substantive application for leave to appeal against sentence. Accordingly, the Court dealt with the matter on that basis.

Factual background

16. Although the Agreed Facts before the Court included information not only concerning the applicant and Mr Ho, but also other persons sentenced in relation to the same conspiracy, i.e. Minh Khon Nghe, Wai Kit Yip, Fung Lam and Wun Lai, the focus of the appeal was on the sentences imposed on the applicant and Ho and the parts they played in the drug supply enterprise. Accordingly, reference will be made to the other offenders only incidentally where their actions interacted with either the applicant or Ho. Tupman DCJ sentenced Ho on 20 November 2015.

17. The Agreed Facts before both Judge Norrish QC and Judge Tupman were extensive and do not require replication here. The parties have extracted the relevant detail and that is sufficient for these proceedings.

18. The following facts established the nature and circumstances of the offence giving rise to Count 2.

19. In November 2009 the applicant spoke to Ho, who was an associate of his, about the sale of methylamphetamine. Ho was a resident of Hong Kong and remained there until 28 December 2009. It was clear that Ho was giving directions to the applicant.

20. The applicant conducted negotiations with a man named Lai for the sale of three kilograms of methylamphetamine at the negotiated price of $250,000 per kilogram. In conducting those negotiations the applicant was acting at the direction of Ho. The applicant was an important link between Ho and others involved in this drug supply in Australia.

21. During a number of telephone conversations between the applicant, who was in Australia, and Ho, who was in Hong Kong, they discussed the supply of drugs using coded language in which the terms “concert tickets” or “tickets” were used instead of the word “money” and the word "girls" was used instead of the word “drugs”.

22. Lai had approached the applicant in Australia and asked if he was able to supply drugs. On the afternoon of 15 December 2009 the applicant met a man named Minh Khon Nghe (Nghe), who was an associate of Lai, and they travelled to an underground car-park in the basement beneath a restaurant in Kogarah where they met a man named Choi.

23. The applicant's flatmate, a man named Liao, travelled independently to the basement car-park and there met with the applicant. At the meeting in the underground car-park the applicant was observed to be in animated conversation with Nghe. Choi handed to Nghe a grey shopping bag which Nghe then placed in his motor vehicle. Nghe left in his vehicle with the shopping bag.

24. The applicant was observed to leave the car-park with Liao and Choi, travelling in Liao's motor vehicle. After Choi was dropped off outside the car-park, the applicant and Liao continued travelling in the vehicle to Hurstville.

25. Shortly after the meeting in the underground car-park the applicant telephoned Ho and reported to him that “The tickets have been distributed to him. And then the girls were also introduced”, which was a coded report that the drugs, the subject of Count 2, had been exchanged.

26. Nghe was subsequently arrested not long after he left the underground car-park and the shopping bag in his motor vehicle was found to contain 3.0021kg of methylamphetamine.

27. The applicant and Ho then had a number of subsequent telephone conversations in which the applicant discussed his suspicions that Nghe had been arrested. They discussed the possible ramifications on others involved if the police were aware of their involvement.

28. On 21 December 2009 the applicant telephoned Ho. In that conversation Ho told him that he would come to Australia to meet Lai. Ho and his wife departed Hong Kong and arrived in Australia on 28 December 2009. On that date, the applicant met with Ho at a cafe in St Leonards and at that meeting the applicant gave Ho a mobile telephone. On 2 January 2010 the applicant met with Ho at Sussex Street, Haymarket and they travelled together and met with Lai at The Railway Hotel, Lidcombe. Ho and his wife departed Australia on 3 January 2010.

29. The following facts establish the nature and the circumstances of the offence giving rise to Count 1.

30. On 19 December 2009 the applicant had a telephone conversation with Ho, who was in Hong Kong, during which Ho told him to prepare for the importation and to expect it to arrive “early next week”. On 11 January 2010 a shipping container, which was said to contain car parts, arrived in Melbourne from Hong Kong. Subsequent inspections of that shipping container revealed that it contained over 50kg (gross weight) of methylamphetamine concealed inside 25 motor vehicle differentials.

31. The contents of the shipping container were transported from Melbourne to an industrial estate in Glendenning, Sydney and placed in a warehouse. The warehouse had been rented on 12 January 2010 by Yao, a flatmate of the applicant, at the direction and instruction of the applicant.

32. On 12 January 2010 the applicant had a coded telephone conversation with Ho during which they discussed the renting of the warehouse, keys for the warehouse and the leasing costs of $20,000.

33. Yip arrived in Australia from Hong Kong on 15 January 2010 and checked in to the Crowne Plaza Hotel at Parramatta. On that same day, the applicant met with him at Parramatta, following which he telephoned Ho to report that he had discussed the shipping container and the warehouse with Yip. The applicant and Ho discussed the approximate quantity of the concealed drugs.

34. During numerous telephone conversations between Ho and the applicant on 15 and 16 January 2010, they discussed the importation of the drugs, their probable sale price, the use of mobile telephones subscribed in false names and the unpacking and delivery of the car parts.

35. On 16 January 2010, the applicant and Liao drove to Parramatta and picked up Yip. They all then drove to the warehouse in Glendenning where Yip left a suitcase and the applicant gave Yip a street directory. On that day Lam Fung Yik (Lam) arrived in Sydney from Hong Kong and checked in to the Holiday Inn at Darling Harbour.

36. On 18 January 2010 Yip went again to the warehouse at Glendenning and left two large suitcases, which had been previously purchased by the applicant. The applicant and Ho had further conversations, during which they discussed the applicant's progress and negotiations with connections in Sydney for the delivery or purchase of the drugs.

37. On 20 January 2010 the applicant and Yip had a number of conversations and met. The following morning, the car parts were delivered and Yip and Lam were observed unloading and delivering them to the warehouse, where they dismantled them and removed a package of crystal methylamphetamine. Later that same morning the applicant told Yip that a lookout would keep a close watch and told Yip not to worry. Yip later rang the applicant to tell him the weight of some of the packages of drugs from within one of the suitcases and to inform him of developments within the warehouse.

38. After Lam was arrested, travelling in a taxi with a quantity of methylamphetamine and cash, Yip contacted the applicant to find out if surveillance of the taxi had detected it being intercepted. The applicant then contacted Liao and asked him if he had seen anything. Yip was arrested at Sydney airport before boarding a flight to Hong Kong. The suitcases carried by Lam and Yip contained the 50kg of methylamphetamine.

39. When the applicant discovered that the police were looking for him he stopped using mobile telephones. He was successful in avoiding the police for about nine months. He was ultimately arrested on 13 October 2010 and confessed his involvement in the importation. He did this in a statement to police dated 18 September 2012.

40. In that statement, the applicant provided the following information:

1. Ho gave the applicant $20,000 to pay part of the rental for the warehouse.

2. The balance of the rental amount, namely $10,000, was paid by the applicant out of his own money.

3. The applicant gave all of this money to Yao and organised for him to rent the warehouse.

4. The applicant met Yip and liaised with Yip while he was in Australia.

5. The applicant bought two suitcases for Yip and gave him $4,000.

6. The applicant received instructions from Ho and acted on those instructions by liaising with others, arranging meetings, negotiating the purchase of the methylamphetamine and negotiating its purchase price of between $200,000 and $210,000 per kilogram.

7. The applicant received instructions from Ho and acted on them by approaching Lai and commencing negotiations for a purchase price between $220,000 and $230,000 per kilogram, which had not been settled but was subject to sampling of the drugs.

8. The applicant liaised with Yip about arranging a lookout whilst the drugs were being extracted from the car parts.

9. The applicant gave instructions to Liao for the lookout to be arranged while the unpacking of the drugs took place in the warehouse.

Sentence proceedings – HL

41. Judge Norrish QC made the following findings relevant to the objective seriousness of the applicant’s conduct and his role.

42. The applicant was aware of the fact of the importation and its approximate size. This was clear from the fact that he was taking instructions from Ho and reporting back to Ho. The applicant was liaising with other persons to ensure that arrangements were in place for the on-supply of the drugs.

43. The applicant was active in arranging for the arrival and distribution of the drugs. He arranged for the leasing of the warehouse and provided part of the money. He liaised with Yip, the importer’s contact, who had travelled to Australia in order to unpack the drugs and deliver them to the applicant. He accompanied Yip to the warehouse and arranged transportation and money for him. He remained in contact with Yip during the extraction process and took steps to arrange some counter surveillance while that process was taking place.

44. He met with or planned to meet with potential purchasers of the drugs, in particular, Li. The quantity of the drug involved (37.75kg) was considerably in excess of the minimum commercial quantity of 0.75kg. In summary, the applicant was involved in a commercial operation designed to disseminate a large quantity of illicit drugs into the community for profit and his motivation was greed and financial reward.

45. His Honour also took into account the applicant’s subjective circumstances and some mitigating factors. The applicant had not been convicted of any previous offences. He had no mental or physical health issues. He was motivated by greed caused by gambling and business losses.

46. Because the applicant had not entered a plea of guilty at the earliest point in time, his Honour allowed a discount of 17.5%. His Honour found that the applicant’s assistance to authorities was of a high order, reliable and accurate and was directed to the ultimate prosecution of Ho, who had been arrested in Hong Kong, and was awaiting extradition to Australia. His Honour accepted that this assistance by the applicant would expose him to the possibility of reprisals. Nevertheless, his Honour noted that the assistance was limited because it was offered after the successful prosecution and sentencing of three of the co-offenders, i.e. Yip, Lam and Nghe. His Honour did not consider the assistance to be “at the top end” or “truly exceptional” and allowed 10% for past assistance and 12.5% for future assistance.

Sentence proceedings – Ho

47. Tupman DCJ made findings as to the role of Ho and the objective seriousness of his offending. The sentencing of Ho took place 2 years and 7 months after the applicant had been sentenced. Ho had fought his extradition all the way to the Hong Kong Court of Final Appeal and was not extradited to Australia until April 2014.

48. The applicant gave evidence against Ho in his sentence proceedings. Ho was sentenced for the same offences as the applicant. At the time of the offending, Ho was not in Australia but was living in Hong Kong. At the time of sentencing, Ho was aged 36 and was a citizen of both Hong Kong and Australia. He had spent some time in Australia but essentially lived in Hong Kong for most of his formative years. He had worked in Australia between 1995 and 2006. In 2000 he was arrested on a charge of supplying a commercial quantity of heroin for which he received a prison sentence with a non-parole period of 3 years and 6 months commencing 1 March 2000 and a balance of term of 18 months. He was released to parole in September 2003. In 2006 he and his family returned to Hong Kong where he operated and eventually bought the whole of a mechanics business. Through no fault of his, the business failed in 2009 leaving him with debts of about $100,000. He thereafter remained unemployed and borrowed money from associates. Ho claimed that his motivation for committing these offences was to repay those debts.

47. There were evidentiary issues between the applicant and Ho which her Honour decided in favour of the applicant. Her Honour was satisfied that he and Ho first met in 2008 and that thereafter they had maintained contact, particularly from March 2009. Her Honour was satisfied that the first meeting between Ho and the applicant in August 2008 gave rise to the beginning of their relationship and was fostered by Ho for the purpose of ultimately supplying methylamphetamine to the Australian market. Her Honour found that it was Ho’s intention that the applicant would act as his agent in Sydney for the distribution of drugs.

48. In line with the findings of Norrish QC DCJ, her Honour accepted that Ho was in a senior position to that of the applicant and gave directions to him. This was obvious after Nghe was arrested. The telephone intercepts made it clear that Ho was trying to find out what had gone wrong and was warning the applicant to be wary of police surveillance. One of his reasons for coming to Australia at the end of 2009 was to assess the extent to which the drug supply organisation had been compromised. Her Honour noted that it was not without significance that a number of meetings took place between Ho and the applicant at that time.

49. Her Honour then set out the extent of Ho’s participation in the offence in Count 1. This was largely consistent with the history and findings recorded by Judge Norrish QC. Her Honour regarded both offences as very serious, but that Count 1 was objectively more serious because of the larger quantity of drugs involved.

50. Her Honour set out her findings as to the position of Ho as follows:

“The offender here was significantly involved on those occasions in the supply of illegal drugs and played an important role in both the supply and trafficking of those drugs which had been imported. It is clear that he was not the person entirely directing the supply or behind the importation, and that is clear from the fact that he often had to report to others or seek confirmation from others. However, for both offences, on my finding he was monitoring HL and others from Hong Kong and I do accept the Crown’s description that he was often directing HL about what steps should next be taken in both the first supply and the subsequent conspiracy to traffic.” (Sentence Judgment, 14.4)

53. Her Honour found that Ho had engaged in the offences for financial gain. Her Honour found that the level of Ho’s involvement in the offences was much higher than would be expected of a person who was simply spontaneously and somewhat reluctantly involved in the offending. Her Honour regarded the role of Ho in the offences to be the main focus of the sentence. She assessed his role as important and pivotal to the offending and assessed it as greater than that of the applicant. Her Honour noted that when things went awry, he personally came to Sydney from Hong Kong to assess what had occurred and to prevent a recurrence.

54. Her Honour accepted that there was no evidence that Ho was a user of drugs but there was some evidence that he had a gambling addiction when he committed the offence in 2001. In relation to that prior offending, her Honour took into account that there had been a substantial period between his discharge from prison and his involvement in this offending, i.e. five years. Her Honour took into account a number of very supportive references and endorsements of Ho which were placed before her.

55. Although Ho did not enter a plea of guilty at the earliest point in time, her Honour accepted that the plea was early and having regard to that and limited assistance which he had provided to authorities, her Honour allowed a total discount in his favour of 25%.

56. Despite the similarities between the offending of the applicant and Ho, her Honour concluded that a longer sentence should be imposed on Ho because of his more senior role. There was, however, one matter of distinction which her Honour took into account. Her Honour identified that issue as follows:

“There is another difference which I will take into account when determining the appropriate sentences for this offender. Not only has he been in custody since 2010 in Hong Kong, which I will take into account by back-dating his sentence, but I also take into account the nature and circumstances of his incarceration in Hong Kong. I accept that it was onerous and that he was assaulted in custody in large part because he was not part of a gang or Triad. The evidence from prison officers in Hong Kong would appear to support that. The circumstances of his incarceration were harsh and that is a matter that I will take into account in setting the appropriate sentence.” (Sentencing judgment, 25.2)

57. Her Honour then took as her starting point, before the application of any discounts, imprisonment for 24 years for the Commonwealth offence and 12 years for the State offence. After applying the discount of 25%, this produced head sentences of 18 years and 9 years respectively for those offences.

58. Her Honour then went on to say:

“There would normally be some partial accumulation because these are separate offences. I do note, however, the approach of Judge Norrish when sentencing [HL], which was in effect to make the sentences concurrent with each other. I do not understand that there has been any appeal against that sentence to suggest that that was incorrect.

Because I am, to a large extent, setting the penalties for Mr Ho with significant regard to those imposed by Judge Norrish on [HL], I propose to adopt the same approach, even though to some extent it may be somewhat contrary to the principles enunciated by the High Court in Pearce's case. In the end however, no matter how the overall sentence is determined, the Court must always be satisfied then on a consideration of overall criminality the total sentence is appropriate.” (Sentence judgment 25.8 - 26.3)

59. Her Honour then set a non-parole period of 6 years for the State offence and 10 years for the Commonwealth offence. Both sentences were to be served concurrently and were to commence on 5 September 2010.

60. The formal orders made by her Honour were:

1. In respect of Count 2 (the State offence) imprisonment for a non-parole period of 6 years commencing 5 September 2010 and expiring 4 September 2016 with a balance of term of 3 years expiring 4 September 2019.

2. In respect of Count 1 (the Commonwealth offence) a term of imprisonment of 18 years to commence 5 September 2010 and expire 4 September 2028 with a non-parole period of 10 years to expire 4 September 2020.

The appeal

61. The applicant submitted that he had a justifiable sense of grievance in that he had received unequal justice. The basis for the submission was that although Ho had a more senior role in the offending, the difference in their sentences did not reflect that fact. The applicant noted that the reason for the discrepancy was the mistake which Tupman DCJ made when for reasons which remain unexplained, she believed that the sentences imposed by Norrish QC DCJ were wholly concurrent, when they were accumulated by 3 years. No appeal by the Crown has been brought despite that error on the part of her Honour. Accordingly, the sentence imposed on Ho by Tupman DCJ is to be regarded as correct and therefore the start point against which the sentence imposed on the applicant has to be assessed.

62. The applicant submitted that a difference in the head sentences of 3 years and in the non-parole period of 1 year did not adequately reflect the difference in criminality between himself and Ho.

Consideration

63. The error in the judgment of Tupman DCJ in incorrectly stating that Norrish QC DCJ had imposed concurrent sentences on the applicant was compounded by her Honour’s unwillingness to apply Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 and the principle of totality. Had her Honour properly applied the principle of totality, the sentence would have provided for some accumulation between these two quite separate instances of offending. Accordingly, intervention by this Court is required to ensure that the principle of parity is observed.

64. In reaching this conclusion, I wish to make it clear that this in no way adversely reflects upon the sentence imposed by Judge Norrish QC. His Honour took into account all relevant sentencing principles and appropriately accumulated the sentences for the two offences. It is not surprising that no appeal was brought in respect of the sentences imposed by his Honour until after the sentencing of Ho.

65. That this Court should intervene on the basis of the parity principle was made clear by the observations in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 where the plurality (French CJ, Crennan and Kiefel JJ) said:

“32   A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment.

33   There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J and less explicitly but to like effect by Dawson J, with whom Wilson J agreed. It has also been answered in the affirmative in a number of cases in the Court of Criminal Appeal of New South Wales. On the other hand, as Simpson J correctly pointed out in R v Steele, the existence of a discretion, where unjustified disparity is shown, to reduce a co-offender's sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be, as Street CJ put it in R v Draper, "an affront to the proper administration of justice". Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one. Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences.” [Footnotes omitted.]

66. The significant qualification to the adjustment downward of an otherwise appropriate sentence where the principle of parity has been successfully invoked, as set out in [33] of Green v The Queen; Quinn v The Queen, needs to be kept in mind. An appropriate acknowledgement of the parity principle, together with a recognition of the appropriateness of the sentence originally imposed by Norrish QC DCJ, would be achieved if the accumulation of the sentences for the two offences was reduced from 3 years to 2 years.

67. That some intervention is necessary is obvious from the findings by both sentencing judges as to the superior role of Ho in both offences. Although some modification of any intervention can be justified by the harsher conditions experienced by Ho for almost 4 years while he was imprisoned in Hong Kong, further intervention on the basis of the parity principle is necessary. To impose any lesser sentence on the applicant than that proposed would be to impose a sentence which was erroneously lenient.

68. Accordingly, the orders which I propose are:

1. An extension of time for the filing of the application for leave to appeal against sentence be granted.

2. Leave to appeal against sentence be granted.

3. The appeal be allowed in part.

4. The sentence on count 1 imposed by Norrish QC DCJ in respect of the applicant on 26 April 2013 is quashed.

5. In lieu thereof the applicant is sentenced as follows:

1. In relation to Count 2, the sentence imposed by Norrish QC DCJ on 26 April 2013 is confirmed.

2. In relation to Count 1, the applicant is sentenced to a total term of imprisonment of 12 years, commencing 12 October 2012 and expiring on 11 October 2024, with a non-parole period of 6 years to commence 12 October 2012 and to expire on 11 October 2018.

69. WALTON J: I agree with the reasons and orders proposed by Hoeben CJ at CL.

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Decision last updated: 11 April 2017