Huang v R

[2019] NSWCCA 144

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Huang v R [2019] NSWCCA 144

Hearing dates:

5 June 2019

Date of orders:

03 July 2019

Decision date:

03 July 2019

Before:

Bathurst CJ at [1];
Bell P at [2];
Hamill J at [73]

Decision:

1.   Leave to appeal granted.

 

2.   Allow the appeal.

 

3.   Quash the sentence imposed by Maiden DCJ on 20 March 2018.

 4.   In lieu thereof, sentence the appellant to an aggregate sentence in respect of Counts 1 and 2 of 10 years and 6 months, with a non-parole period of 7 years, 10 months and 14 days, commencing on 13 April 2016. The non-parole period is to expire on 26 February 2024 and the balance of the term on 12 October 2026.

Catchwords:

SENTENCING – appeal against sentence – where sentencing judge recorded that he did not accept the applicant’s evidence “beyond reasonable doubt” – whether language was merely an infelicitous, emphatic rejection of the applicant’s account or betrayed a fundamental misapprehension that the applicant needed to establish circumstances to the criminal standard of proof

 

SENTENCING – appeal against sentence – Form 1 matters – where sentencing judge arrived at a sentence for one count, discounted it for an early plea and then added a further period to the sentence to take into account Form 1 matters – whether an error in this approach

  SENTENCING – non-parole period – ratio of the non-parole period and head sentence term – accumulation of two sentences where one sentence had later commencement date – where effect of accumulation meant that the statutory ratio of 75% was exceeded and not clear from sentencing judge’s remarks on sentence whether this was intended

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 32(1), 44
Criminal Appeal Act 1912 (NSW) ss 5(1)(c), 6(3)
Drug Misuse and Trafficking Act 1985 (NSW) s 25(2)
Firearms Act 1996 (NSW) s 7(1)

Cases Cited:

Abbas v R [2013] NSWCCA 115; 231 A Crim R 413
Attorney-General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
Browne v Dunn (1893) 6 R 67; [1893] 1 WLUK
Galvin v R [2015] NSWCCA 88
GP v R [2017] NSWCCA 200
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Parris v R [2013] NSWCCA 5
Perdija v R [2012] NSWCCA 244
Pham v R [2013] NSWCCA 217
R v Bavadra [2000] NSWCCA 292; 115 A Crim R 154
R v Vougdis (1989) 41 A Crim R 125
RL v R [2018] NSWCCA 274
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Tran v R [2014] NSWCCA 85
White v R [2013] NSWCCA 242
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

Yu-Che Huang (Applicant)
Crown (Respondent)

Representation:

Counsel:
I McLauchlan (Applicant)
B Hatfield (Crown)

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

File Number(s):

2016/114387

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

20 March 2018

Before:

Maiden DCJ

File Number(s):

2016/114387

Headnote

[This headnote is not to be read as part of the judgment]

The applicant, Mr Huang, was convicted of two offences. The sentencing judge in his remarks on sentencing recorded that he did not accept the applicant’s evidence “beyond reasonable doubt”. In relation to Count 1, the applicant asked the Court to take into account further offences on Form 1 pursuant to s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentencing judge imposed a head sentence in respect of Count 1 of 14 years from which he deducted 25% for the applicant’s guilty plea and then added one year to represent the matters in the Form 1 document. Thus, a sentence of 11 years and 6 months’ imprisonment with a non-parole period of 8 years, 6 months and 25 days commencing on 13 April 2017 was imposed. In respect of Count 2, a sentence of 3 years’ imprisonment with a non-parole period of 2 years and 3 months commencing on 13 April 2016 was imposed. The sentence on Count 1 was accumulated by one year on Count 2, with an effective total sentence of 12 years and 6 months’ imprisonment and a total non-parole period of 9 years, 6 months and 25 days. On these figures, a total non-parole period greater than 75% of the total sentence was imposed on the applicant. The sentencing judge did not articulate any intention to set a non-parole period above the statutory ratio.

The applicant applied for leave to appeal against sentence. The issues on appeal were whether:

1. in relation to both counts, the sentencing judge erred in the fact-finding process undertaken in sentencing the applicant; and

2. in relation to Count 1:

1. the sentencing judge erred in his consideration of the Form 1 matters;

2. the sentencing judge erred in failing to find special circumstances; and

3. the sentence imposed was otherwise manifestly excessive.

The Court held, granting leave to appeal and allowing the appeal:

1. The sentencing judge’s remark that he did not accept the applicant’s evidence “beyond reasonable doubt” was infelicitous but, considered in the context of the remarks on sentencing as a whole, amounted to an emphatic rejection of the applicant’s account and did not betray a fundamental misapprehension that the applicant needed to establish circumstances in his favour to the criminal standard of proof: [36]-[40].

2. The sentencing judge erred in his consideration of the Form 1 matters. The Form 1 matters should have been factored into the total sentence for Count 1 before the 25% discount for the guilty plea was applied and not added thereafter: [44]-[45].

3. There was nothing to suggest that the sentencing judge adverted to and intended the arithmetical consequences of the accumulation of the two sentences which resulted in the applicant being sentenced for a non-parole period greater than 75% of his total sentence. In those circumstances, the sentencing judge erred in imposing a non-parole period in excess of the statutory ratio: [51]-[53].

GP v R [2017] NSWCCA 200, considered.

4. The sentencing judge’s errors in relation to the consideration of Form 1 matters and the statutory ratio necessitated a resentencing of the applicant: [46], [60]-[63].

Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 225, applied.

Judgment

1. BATHURST CJ: I agree with the orders proposed by Bell P and with His Honour’s reasons.

2. BELL P:

Introduction

3. This is an application for leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) from sentences imposed on the applicant by Maiden DCJ (the sentencing judge) on 20 March 2018 following the applicant’s plea of guilty in the Local Court to the following two offences:

1. supply of not less than a large commercial quantity of a prohibited drug, namely 5.4 kilograms of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act1985 (NSW) (Drug Act) (carrying a maximum penalty of a fine of 5,000 penalty units or imprisonment for life (with a standard non-parole period of 15 years), or both: s 33(3)(a)) (Count 1); and

2. possess prohibited firearm contrary to s 7(1) of the Firearms Act 1996 (NSW) (carrying a maximum penalty of imprisonment for 14 years (with a standard non-parole period of 4 years)) (Count 2).

4. In relation to Count 1, the applicant had asked the Court to take into account a further five offences pursuant to s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act) on Form 1. These are as follows, noting that I have indicated in square brackets the maximum penalty each of these offences would potentially attract if tried separately:

1. deal with proceeds of crime ($1,268,875.00 in cash) knowing it was proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW) [15 years’ imprisonment];

2. supply prohibited drug (5.04 grams methylenedioxmethylamphetamine (MDMA)) contrary to s 25 of the Drug Act [fine of 2,000 penalty units on imprisonment for a term of 15 years, or both: s 32];

3. possess prohibited drug (1.11 grams cocaine) contrary to s 10 of the Drug Act [fine of 20 penalty units or 2 years’ imprisonment, or both: s 21];

4. possess ammunition without a licence contrary to s 65 of the Firearms Act [fine of 50 penalty units]; and

5. not take all reasonable precautions to ensure firearm kept safely contrary to s 39(1)(a) of the Firearms Act [50 penalty units or 2 years’ imprisonment, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case]

5. In respect of Count 2, a sentence of 3 years’ imprisonment with a 2 years and 3 months’ non-parole period commencing on 13 April 2016 was imposed. In respect of Count 1, a sentence of 11 years, 6 months with a non-parole period of 8 years, 6 months and 25 days, commencing on 13 April 2017 was imposed. The sentence on Count 1 was accumulated by one year on Count 2 with an effective total sentence of imprisonment of 12 years and 6 months with a total non-parole period of 9 years, 6 months and 25 days. The first date the applicant would be eligible for parole, on these figures, was 6 November 2025.

6. As, for the reasons contained in this judgment, I have found two errors in the sentencing judge’s approach to sentence, leave to appeal should be granted.

Grounds of appeal

7. The notice of appeal comprises two grounds:

1. his Honour erred in relation to the fact finding process undertaken in sentencing the applicant on both counts;

2. with respect to Count 1:

1. his Honour erred in consideration of the Form 1 matters;

2. his Honour erred in failing to find special circumstances; and

3. the sentence imposed was otherwise manifestly excessive.

8. Counsel for the applicant accepted that, if the Court did not uphold ground 1 of the appeal, any re-sentencing in the event that any of the complaints in ground 2 was made good should occur by reference to the findings made by the sentencing judge in his remarks on sentencing (ROS). It was the applicant’s submission that, if ground 1 of the appeal were to be upheld, this Court should remit the matter to the District Court for re-sentencing.

Factual background

9. Much of the factual background set out in the record of sentencing derived from a set of agreed facts (the Agreed Facts) from which no issue is or could be taken.

10. The Agreed Facts included that, following the grant and execution of a search warrant of premises at Wattle Street, Ultimo:

1. the applicant was observed by police to be hunched over a desk with a rolled up $20.00 note in one hand and a tin lid containing a white substance in the other hand with the applicant giving the appearance that he was snorting a drug;

2. upon being searched, the applicant was found to be in possession of $14,417.00 cash in his wallet and pocket;

3. police located in a silver tin, which matched the lid that the applicant was observed to be hunched over, a resealable bag containing a number of clear capsules with a dark powder inside and a small resealable bag containing two pink heart-shaped tablets and one green round tablet with subsequent analysis revealing the dark powder and two pink pills to be 5.4 grams of MDMA;

4. loose clear crystals were also found at the bottom of the tin which were found to be 24.5 grams of methylamphetamine with a purity of 78%;

5. also found in the bottom of the tin was a small quantity of powder, revealed to be 0.07 grams of cocaine;

6. detected on the desk at which the applicant was sitting was a Samsung Galaxy 7 box containing a set of scales and a freezer bag containing crystal substance and two resealable bags containing a white powder with subsequent analysis revealing the crystal substance to be 43.7 grams methylamphetamine with a purity of 78% and the white powder to be 1.04 grams of cocaine; and

7. underneath the desk, in a black Prada bag, was found $93,508.00 cash, 15 Star City gift cards, each with a value of $500.00, and six $1,000.00 Star City Casino chips.

11. Also searched at the time of the applicant’s arrest, was a motor vehicle which, based on previous surveillance and other police records, was used by the applicant. The Agreed Facts also recorded that in this vehicle, the keys to which were in the applicant’s possession at the time of the search, was found:

1. an international Driver’s licence and a Chinese passport, both in the name of the applicant;

2. a large plastic bag containing a crystal substance underneath the driver’s seat on subsequent analysis revealed to contain 103.6 grams of methylamphetamine with a purity of 77%;

3. a Samsung container containing a clear container with a crystal substance which was subsequently revealed to be 4.53 grams of methylamphetamine;

4. a Crown Southbank receipt in the applicant’s name together with two $1,000.00 chips and one $5,000.00 chip from The Star Casino;

5. a loaded “Harrington and Richardson” five chamber 0.32 calibre revolver pistol containing five rounds of ammunition;

6. in the boot of the vehicle, a Nike backpack which in its main section contained four large parcels of a crystal substance which subsequent analysis revealed to be 777.1 grams of methylamphetamine with a purity of 78%, 1,198.5 grams of methylamphetamine with a purity of 77.5%, 224.3 grams of methylamphetamine with a purity of 77.5% and 2,000 grams of methylamphetamine with a purity of 78.5%.

7. a suitcase with more than $1 million in cash.

12. In respect of both the Nike backpack and the suitcase, the applicant’s DNA profile matched DNA mixture recovered from both items.

13. Inside a Converse shoebox was a large quantity of cash and a resealable bag containing a crystal substance which subsequent analysis revealed to be 254.9 grams of methylamphetamine with a purity of 77.5%.

14. There was also located inside the vehicle a post bag addressed to the applicant (at a Liverpool Street address) inside of which was large plastic bag containing a crystal substance which subsequent analysis revealed to be 766.8 grams of methylamphetamine with a 78.5% purity.

15. In summary, the total amount of methylamphetamine found in the vehicle was 5,329.73 grams and the total amount of cash found in the vehicle was $1,160,950.00. The combined amount of methylamphetamine found in the vehicle and the Wattle Street unit was 5,397.93 grams. This was more than 10 times the amount of 500g prescribed as the “large commercial quantity”: see s 25(2) of the Drug Act and Schedule 1 to that Act.

Sentencing hearing

16. In written submissions filed by the Crown for the purposes of sentencing, it was accepted that whilst the quantity of drugs involved was a very material consideration, it was not definitive and that the offender’s role and level of participation, state of knowledge and belief and remorse were all important factors. This was in accordance with Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [31], [54] and [129]; see also Perdija v R [2012] NSWCCA 244; Parris v R [2013] NSWCCA 5; Pham v R [2013] NSWCCA 217; White v R [2013] NSWCCA 242; Tran v R [2014] NSWCCA 85; Galvin v R [2015] NSWCCA 88.

17. The Crown submitted that the offender’s role was that of supplier of a large quantity of methylamphetamine and that the offender was at the top, or close to the apex, of a criminal enterprise supplying crystal methylamphetamine for profit. The Crown based this submission on:

• the large quantity of drugs found in the vehicle;

• the high degree of purity and packaging of the drugs in large quantities which was said to be more akin to the supply of large quantities than street-level dealing;

• the fact that the offender was in possession of a loaded revolver;

• the offender’s possession of a large quantity of cash, admitted (by its inclusion on the Form 1) to represent the proceeds of crime; and

• the location in the unit and vehicle of gift cards and gambling chips to the value of $20,500.00.

18. In defence submissions put before the sentencing judge on behalf of the applicant, it was submitted that the applicant’s role was that of a “driver” and that, on 13 April 2016, he picked the drugs and money up at 6.00am in Ultimo from a person known to him as “Ben” and drove the vehicle to where it was found in Wattle Street, Ultimo. It was also put that, in his role as a “driver”, the applicant had no plans to take the drugs, money and firearm from the vehicle but “was told” that “Ben” would collect the items later that afternoon. Later in those written submissions it was put that:

“Mr Huang instructs that he was not a principal in the operation – he was a ‘driver’ and responsible for transporting the drugs and money for another, known to him as ‘Ben’. He did not ‘own’ the drugs or money.”

19. In a psychiatric report prepared by Dr Stephen Allnutt and dated 2 March 2018 which was tendered before the sentencing judge, Dr Allnutt recounted the events relating to the offending as recounted to him by the applicant with the assistance of an interpreter. Relevantly for present purposes, Dr Allnutt’s report contained the following statements:

1. “[a]t the material time of the offending [the applicant] was working as a driver for someone he said was without a driver’s licence (‘Fatty’)”;

2. the applicant was “introduced to methylamphetamines … by a friend of ‘Fatty’”;

3. “Fatty” was a friend of a woman he had a relationship with;

4. the applicant said he became a “driver” because “they offered him money” and gave him methylamphetamines which he used for his own consumption;

5. “[i]n relation to the gun, [the applicant] said it had been placed in the car by ‘Ben’” and that “[i]t did not belong to [him]” although “[h]e was aware that there was a gun somewhere because Ben had shown it to him in February 201[6].”

20. One matter of significance which instantly emerges from Dr Allnutt’s report is that, as recounted to him, “Fatty” and “Ben” were quite different people.

21. In the course of the sentencing hearing the applicant gave evidence and was cross-examined. The key issue was whether he was just a “driver” or held a more senior role than the position of “driver” implied.

22. The applicant was fairly challenged in cross-examination as to this claim. As the sentencing judge recorded:

“It was put to the offender that it was untrue that the revolver was left in the car by Ben, and that in essence because the offender had the cash, the drugs, a loaded pistol and various drugs inside the flat and inside the car, including his own backpack in the car as well as meth[yl]amphetamine in a package under the driver’s seat and with the scales inside the unit, that he was a supplier of drugs and had control of all of those monies, and that he was lying to suggest that he only had control of it/possession for the person Ben.

In respect of that evidence I do not accept the evidence given by the offender on his oath beyond reasonable doubt.” (Emphasis added)

23. The sentencing judge did not accept the applicant’s account that he was simply a “driver”. His Honour held, towards the end of his ROS, that he was satisfied “beyond reasonable doubt” that the applicant was a dealer and was near the apex of the group of persons involved in the supply of methylamphetamines in April 2016. His Honour held that “[h]e was a man, at that time, who was 29 years of age who chose to be involved on a full-time basis in the drug industry, not as a driver, but for his own financial gain.”

24. His Honour pointed to certain evidence which was inconsistent with the applicant’s contention that he was simply a drug-using driver. That evidence included a receipt from the Crown Casino in Melbourne from early April 2016 in respect of which the applicant was cross-examined. His Honour said that the applicant’s evidence “on first glance is inconsistent with a person who has a drug use problem and is earning $2,000.00 per week, plus ice, and is a driver at the beck and call of this person Ben. It is indicative of a person who does have control of his own affairs, that is, he is able to travel to Melbourne as he chose to do so, and to gamble significant sums it would seem.” Interpolating here, at one point in his cross-examination, the applicant indicated that on one or two occasions he went to the Crown Casino, he took down $500,000. In later evidence, he said he had received winnings of $500,000 which was paid to him by a cheque in his name but that he did not know where he placed it and did not present it.

23. The sentencing judge did not accept the applicant’s evidence that he was addicted to methylamphetamine (as the applicant had suggested to Dr Allnutt). His Honour observed that there was no evidence found of any pipe, needle or other implement for the injection of methylamphetamine either in the vehicle or in the Wattle Street unit or anywhere else on the applicant’s person.

24. The sentencing judge also had regard to the applicant’s evidence as to the time at which he claimed to have met the person “Ben” on the morning of 13 April 2016 in order, on the applicant’s account, to receive the drugs and money that were subsequently found in the vehicle. The applicant had initially said that he had received a call from “Ben” at about 7.00am and at that time he was at the Ultimo unit. This evidence was inconsistent with subpoenaed material recording that certain payments were made from an External Chip Cashout Machine at the Star City Casino at 7.24am on that morning.

25. Although the sentencing judge did not advert to it in his ROS, later evidence which emerged in cross-examination of the applicant was to the effect that he stopped his car on the ANZAC Bridge at peak hour where “Ben” in another car also stopped and handed over the drugs that were ultimately found in the vehicle the keys of which were in the applicant’s possession at the time of the search.

Appeal Ground 1

28. This ground asserts that the sentencing judge erred in the fact finding process undertaken in the sentencing of the applicant.

29. This ground is built upon the passage from the record of sentencing set out at [22] above, and in particular the use of the phrase “beyond reasonable doubt”.

30. The applicant submits that to require the applicant’s evidence to be accepted as “beyond reasonable doubt” was in error and that, having rejected the applicant’s evidence to that erroneously high standard, the sentencing judge “appears to have then gone on to make various adverse findings beyond reasonable doubt, with the applicant’s evidence being effectively put aside and disregarded”.

31. It was then submitted that:

“[t]hat fundamentally-erroneous approach gave rise to numerous fact-finding errors concerning the applicant’s precise role in both Counts, as well as in his Honour’s findings regarding whether or not the applicant was drug-addicted at the time of the offending … and/or whether the applicant was remorseful for his offending.”

32. In response to these submissions, the Crown accepted that, upon a sentencing, if there are circumstances to be taken into account in favour of the offender, it is sufficient that they be proved on the balance of probabilities, citing The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]. The Crown characterised the sentencing judge’s use of the expression “beyond reasonable doubt” in the passage set out at [22] above as “infelicitous” and submitted that “viewed in context of the sentencing remarks as a whole it is not necessarily reflective of error” and does not show that the sentencing judge applied the wrong legal test.

33. This was submitted to be so for two essential reasons: first, that in the passage upon which the applicant has fastened, the sentencing judge was commenting only upon the evidence of the applicant which amounted to a denial of what the Crown had put to him and that, in that context, his Honour’s statement that he did not accept the evidence given by the offender on his oath “beyond reasonable doubt” may be understood as an emphatic rejection of that evidence, consistent with views the sentencing judge expressed in the course of the sentencing hearing and in exchange with counsel then representing the offender.

34. Secondly, the Crown draws attention to the sentencing judge’s conclusion to which I have referred to in [23] above, namely that the Court “will and does find beyond reasonable doubt that [the applicant] was a dealer, and was, what the Crown described, near the apex of the group of persons involved in the supply of meth[yl]amphetamine at this point of time in 2016” (emphasis added). It was put that this finding necessarily involved a rejection of the applicant’s evidence.

35. The Crown submitted that the rejection of the applicant’s version of events was inevitable given the far-fetched and fanciful nature of it, the lack of any additional evidence pointing to the existence of the person he referred to as “Ben” as against the objective aspects of the Crown’s case, including the large amount of evidence pointing to his ownership of the drugs, the lack of any legitimate source of income and his involvement in high-level gambling.

36. It is unfortunate indeed that the sentencing judge used the expression “beyond reasonable doubt” in expressing his conclusion as to the veracity of the applicant’s denials of what was being put to him in cross-examination for Browne v Dunn (1893) 6 R 67; [1893] 1 WLUK 44 purposes in the passage set out in [22] above. But as pointed out in argument, however awkward, that expression, when viewed in its immediate context and the context of the ROS as a whole, is capable of being understood as an emphatic rejection of the applicant’s account, as opposed to the sentencing judge being under the fundamental misapprehension that the applicant needed to establish circumstances to be taken into account in his favour to the criminal standard of proof.

37. The relevant question for this Court is whether or not it should be so understood. In my opinion it should be understood as an emphatic rejection of the applicant’s evidence.

38. It is tolerably clear that the sentencing judge did not accept at all the applicant’s case, advanced in support of his submission on sentence, that he was merely a driver. This is plain for a number of reasons:

1. the sentencing judge’s positive finding that he was satisfied, beyond reasonable doubt, that the applicant was a dealer and near the apex of a group of persons involved in the supply of methylamphetamines (see [23] above). This conclusion was only consistent with an outright rejection of the applicant’s account. The two could not logically have stood together;

2. the sentencing judge’s findings in relation to the applicant’s visit to the Crown Casino in Melbourne, and the inconsistency of this fact with his claim to be simply a driver, paid $2,000.00 a week and at the beck and call of a person named “Ben” as his driver (see [24] above);

3. the sentencing judge’s assessment that the applicant was not an ice addict (see [25] above);

4. the sentencing judge’s statements about the inconsistency of the applicant’s evidence as to the time of his supposed collection of the drugs on the morning of 13 April 2016 (see [26] above).

39. In addition to these matters, a review of the transcript reveals the wholly implausible nature of the applicant’s evidence more generally and, although not referred to in terms in the ROS, it is clear from a review of the transcript that the sentencing judge manifested strong and in my opinion wholly justified scepticism as to the applicant’s account. Aspects of such implausibility included:

1. the fact that the applicant had told Dr Allnutt that he was a driver for “Fatty” who was a different person to “Ben” (see [20] above);

2. that he could not identify “Ben’s” address despite claiming to drive him almost every day for five months;

3. that the applicant could not identify the address in Rhodes where he claimed to live;

4. that “Ben” had taken his mobile phone away from him on the very day of the search and thus he could not identify “Ben’s” mobile phone number;

5. the implausibility of the peak-hour meeting to take delivery of the drugs occurring on the ANZAC Bridge, involving as it would have, two vehicles stopping on the bridge (see [27] above;

6. the curiosity of “Ben” meeting the applicant in a separate vehicle even though the applicant was his driver;

7. the explanation as to why the applicant’s DNA came to be found on the suitcase in which packets of the confiscated drugs were found, namely that the bag was originally the applicant’s in which he used to store his clothes and which he had then given to “Ben” who had it in his possession and used it to store the drugs on the occasion he delivered the bag back to the applicant on the morning of the search.

40. For these reasons, notwithstanding the unfortunate and confusing use of the expression “beyond reasonable doubt” in the passage set out at [22] above, I would reject Appeal Ground 1.

Appeal Ground 2(a) − Form 1 matters

41. This ground of appeal focuses on the following passage in the sentencing judge’s ROS:

“In respect of the supply prohibited drug, I impose a head sentence of 14 years from which I take 25% for the plea of guilty and to that I add one year which is to represent the matters on the Form 1 document, particularly the 1.2 million dollars (approximately) in cash that was in the suitcase in the boot of the Toyota Corolla vehicle, as well as the smaller amounts of drug which was for gifts to friends and the ammunition for the pistol which is in the first matter”. (Emphasis added)

42. It was submitted on behalf of the applicant that whilst it was correct that Form 1 matters may have the potential effect of increasing the penalty to be imposed for the principal offence, “in this case [the sentencing judge] has clearly imposed an additional period of imprisonment referable to the Form 1 matters ‘as a separate penalty’.”

43. The applicant cited [43] of the judgment of the plurality in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 in support of this submission. That paragraph is in these terms:

“We are not satisfied that the Court of Criminal Appeal did err as contended. For the reasons which we have given the errors of the Court of Criminal Appeal were errors of principle made at the outset, and the effect of referring in terms to an increase in the sentence for the principal offence of between eighteen months to two years, tended to compound the initial error rather than to constitute a separate error in the application of the Sentencing Act. Just as on occasions, albeit that they may be rare ones, it may not be inappropriate for a sentencing court to adopt an arithmetical approach, it may be useful and certainly not erroneous for a sentencing court to make clear the extent to which the penalty for the principal offence has been increased on account of further offences to which an offender has admitted guilt. Here Hulme J sought to, and in our opinion did make it clear, that the additional period of imprisonment was imposed not as a separate penalty for the further offences but by way of increase of penalty for the principal offence.” (Emphasis added)

44. It is plain that Form 1 matters are matters to be taken into account on a sentencing for particular offences and that this is not to be a separate sentencing exercise in respect of each of the Form 1 matters. That this is so emerges both from a reading of ss 32-35 of the Sentencing Act, Attorney-General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 (Attorney-General’s Application) and Abbas v R [2013] NSWCCA 115; 231 A Crim R 413. It is not necessary to rehearse or restate the full discussion of principle and the proper approach to be taken to Form 1 matters in sentencing by Spigelman CJ and Bathurst CJ respectively in those two important decisions.

45. In my opinion, the sentencing judge erred in the way he took into account the Form 1 matters. This can be readily demonstrated by the fact that, had he factored any or all of the Form 1 matters into the total sentence (for example, for the purposes of deterrence), the 25% discount he applied for the early guilty plea would have been applied following the taking into account of the Form 1 matters rather than before it.

46. His Honour having erred in this regard, it will be necessary to undertake a resentencing of the applicant. In that regard, counsel for the applicant properly acknowledged, consistent with the authorities I have noted above, that Form 1 matters are capable of adding significantly to the punishment for an offence charged. I will return to resentencing after considering the remaining two aspects of Appeal Ground 2 (although, in light of the need to resentence in accordance with the principles articulated in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell), it is not strictly necessary to consider these remaining grounds).

Ground 2(b) − Special circumstances

47. This aspect of the appeal was in very narrow compass but it is necessary, in order to place it in its proper context, to note the terms of s 44 of the Sentencing Act which provides as follows:

“Court to set non-parole period

(1)   Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2)   The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(2A)    Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence.

(2B)   The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(2C)    The court need not indicate the non-parole period that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence unless it is required to do so by section 54B.

(3)   The failure of a court to comply with subsection (2), (2B) or (2C) does not invalidate the sentence.

(4)   Schedule 1 has effect in relation to existing life sentences referred to in that Schedule.”

48. As Hamill J (with whom Macfarlan JA and Button J agreed) observed in GP v R [2017] NSWCCA 200 at [15]:

“The requirement that the non-parole period be not less than 75% of the total sentence has been part of the law since the introduction of the Sentencing Act 1989. That ‘statutory ratio’, as it is often described, has been part of the sentencing law of New South Wales since 1989 although the legislation and terminology have changed from time to time. The provision, in its various forms, has provided fertile ground for appellate lawyers. The non-parole period must not be less than 75% of the total unless there are special circumstances. There is no statutory requirement that a sentencing judge must give reasons for setting a non-parole period that is more than 75% of the total sentence. However, it is generally accepted that the question of ‘special circumstances’ should be considered (and referred to) “in every case” and that reasons may be required if the non-parole period exceeds 75% of the total sentence.” (Endnotes omitted)

49. The applicant’s submission is that, although his Honour intended to set a non- parole period for each count at the 75% statutory ratio, because the sentence for Count 1 commenced one year after the sentence for Count 2, the arithmetical effect of this accumulation meant that the ratio of the total non-parole period to the total sentence period was greater than 75%. On the Crown’s calculations, it was 76.6% which equated to an additional 2 months, 10 days in prison.

50. The applicant submits that the sentencing judge “failed to take into account the effect that that accumulation would have on the ratio of the ‘total’ non-parole period imposed to the ‘total’ sentence imposed” and that the sentencing judge ought to have found special circumstances in setting the non-parole period for Count 1 so as to achieve, after accumulation, an overall ratio of 75% on the “total” sentence imposed.

51. In GP v R, Hamill J referred to the inevitable arithmetical consequences of accumulated sentences for non-parole periods at [22] of his reasons as follows:

“Ultimately, the parties agreed that the question is whether the record of proceedings leads to an inference that the matter was considered or adverted to or not. Ordinarily, where a sentencing judge is accumulating sentences and the non-parole period is to become greater than 75% of the total sentence, it is preferable that some express comment in the remarks on sentence makes it clear that the Judge is aware of the impact of the accumulation. That was not done in this case. Both the transcript and the judgment on sentence are silent on the issue. There is a discussion of the principle of totality both in submissions and in the remarks on sentence. It is clear that her Honour appropriately and properly applied such principles in assessing the degree of accumulation in terms of the total effective sentence.” (Emphasis added)

52. I agree with Hamill J as to the desirability of a sentencing judge expressly acknowledging an awareness of the impact of accumulation. Given the consequences of inadvertence, viz. a greater period of imprisonment, this is more than simply a salutary discipline. Prisoners should not be left to wonder whether the term of their incarceration was affected by inadvertent oversight or was fully intended.

53. In the present case, there was no such commentary or other indication in the ROS to suggest that the sentencing judge adverted to and indeed intended the arithmetical consequences of his sentence which resulted in the applicant being sentenced for a non-parole period of greater than 75% of his total sentence. The absence of any such commentary, in light of the decision in GP v R and what was there clearly stated as the preferable practice, leads me, with respect, to doubt that the non-parole period was intended to be greater than the usual 75%.

54. For these reasons, I consider that the second aspect of Appeal Ground 2 is also made good.

Appeal Ground 2(c) − Manifestly excessive sentence?

55. The submissions in support of the third aspect of Appeal Ground 2 were exiguous in the extreme. Four matters were pointed to:

1. that the applicant was given a 25% discount for his plea of guilty;

2. that he did not have a criminal history;

3. that he was not found to be the “principal” or at the very apex of the group of offenders; and

4. that the applicant’s offending was not at the top of the range of objective seriousness.

56. There was no elaboration in the applicant’s written submissions as to how or why these matters, taken alone or in conjunction, rendered the 11 ½ year head sentence for Count 1, which carried a maximum penalty of imprisonment for life (with a standard non-parole period of 15 years) manifestly excessive.

57. Contrary to what is perhaps implicit in the applicant’s reference to the fourth of the matters noted in [55] above, the sentence imposed did not reflect that the applicant’s offending was at the top of the range. It did, however, reflect that it was well above the mid-range and that the applicant’s role was not that simply of a “driver”, as he had sought to contend.

58. The Crown points to the following six objective factors as supporting the sentence:

1. the quantity of drugs was over ten times the threshold for a large commercial quantity of methylamphetamine;

2. the drugs were of high purity and packaged in large quantities indicative of large-scale dealing;

3. there was a significant quantity of cash found in conjunction with the drugs (over $1.2 million);

4. the applicant was in possession of a loaded revolver;

1. the offending was clearly undertaken for substantial profit;

2. apart from the lack of a prior record the applicant had little in his favour in his subjective case;

and also makes the point that where, as here, a sentencing court has imposed sentences for more than one offence but the attack on excessiveness is focused narrowly only on one offence, a degree of artificiality is introduced into the appeal process, citing RL v R [2018] NSWCCA 274 at [60] and the cases there cited.

59. Given the specific errors that I have found as set out at [41]-[46] and [47]-[54] above, and the need for resentencing which they occasion, it is not necessary to resolve this ground of appeal.

Resentencing

60. Because of the specific errors relating to the sentencing judge’s treatment of the Form 1 matters (see [41]-[46] above) and in respect of the statutory ratio (see [47]-[54] above), it is necessary to resentence the applicant: Kentwell at [35]. This does not involve adjustment by way of correction of or for the direct and specific errors identified but must be undertaken through a re-exercising of the sentencing discretion “taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which [s 6(3) of the Criminal Appeal Act] provides”: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 at [19], endorsed in Kentwell at [42].

61. As already noted, counsel for the applicant accepted that this should occur on the basis of the findings of fact made by the sentencing judge. But that having been said, the nature of the re-exercise of the sentencing discretion necessarily means that the evidence of the appellant’s progress in custody and current mental state may also be taken into account as well as matters that were in evidence but not the subject of any findings of fact by the sentencing judge: Kentwell at [44].

62. In Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 (Lehn), Bathurst CJ, with whom Beazley P and Schmidt J agreed, considered Kentwell and s 6(3) of the Criminal Appeal Act, relevantly stating at [68]−[70] that:

“68   … The text of the section under consideration in this case, where it applies, requires a court to form an opinion as to whether some other sentence, whether more or less severe, is warranted in law. The section, as a matter of language, does not provide that if a discrete error is found, the sentence can be adjusted to take account of that error. It seems to me that if there is an error which affects the exercise of the sentencing discretion, the section requires the court to form its own view of the appropriate sentence, although, as pointed out in Kentwell at [43], not necessarily to resentence.

69   That seems to me consistent with what is evidently the purpose of the section, namely to ensure that a person whose sentence is affected by error is sentenced according to law.

70   Further, there are difficulties with the alternative approach. The instinctive synthesis approach to sentencing is now well-established. As explained by McHugh J in Markarian, it involves identifying all factors relevant to the sentencing discretion, discussing their significance and making a value judgment as to what is the appropriate sentence: at [51]. A separate adjustment of a particular component of a sentence infected by error does not seem consistent with this approach.”

63. The current case does not involve either of the examples identified by the Chief Justice of the limited circumstances where a re-exercise of the sentencing discretion may not be required (see also the discussion by RA Hulme J in Lehn at [119]−[127]).

64. It falls then to resentence the applicant taking into account the matters identified in s 21A of the Sentencing Act, sentencing principles as articulated in the authorities and the additional evidence filed on the appeal by the applicant. That evidence was extremely limited, comprising a five paragraph affidavit in which the applicant affirmed that he has been working whilst in gaol, initially in light engineering and then in the prison laundry. He asserted that he had good work records and had been given increased responsibility. He also gave evidence of his improving English, going to classes three days a week, and that he was able to speak to his family in Taiwan by phone and that they had travelled to Australia to visit him.

65. In its written submissions on appeal, the Crown submitted that the same considerations which I have set out at [58] above, going to the objective seriousness of the offences and, in particular, Count 1, meant that the Court would not necessarily reach a conclusion that any lesser sentence was warranted under s 6(3) of the Criminal Appeal Act than that which was imposed by the sentencing judge.

66. To these matters should be added the sentencing judge’s finding that the applicant was near the apex of a group engaged in the supply of prohibited drugs and the applicant’s concession that, if Appeal Ground 1 was rejected (as it has been), the Court would be entitled to act upon the sentencing judge’s findings to the applicant’s role. That finding necessarily involved a rejection of the applicant’s submission and evidence that he was merely a driver. Such a story was inconsistent with any genuine remorse on the part of the applicant but was an unsuccessful attempt to minimise the significance of his role.

67. There must also be considered as part of the re-sentencing the Form 1 matters referred to at [4] above. It must be noted, in this context, that whilst the applicant is not being sentenced separately for these offences, two of them carried very significant maximum penalties. Counsel for the applicant accepted that the Form 1 matters were serious. They are not matters simply to be noted in passing (R v Bavadra [2000] NSWCCA 292; 115 A Crim R 154) and may have the effect of increasing the sentence that would have been appropriate for the principal offence standing alone: R v Vougdis (1989) 41 A Crim R 125. An increase in what would otherwise have been the sentence may be substantial, given the requirements of specific deterrence and denunciation in respect of the offence for which the sentence is being imposed: Attorney-General’s Application at [18]. “Due recognition” must be given for the gravity of the Form 1 matters: Attorney-General’s Application at [29].

68. In the present case, the Form 1 matters are particularly serious, two of them in particular carrying lengthy maximum terms, thus adding considerable complexity to the sentencing process.

69. On the other hand, the following important subjective factors, were called in aid on behalf of the applicant, and I accept all as relevant here:

• his relatively young age – he was 30 at the time of his arrest;

• he was a foreign national who came to Australia at the age of 27 and became unlawful in 2015;

• he has been in custody ever since his arrest on 13 April 2016;

• he entered pleas of guilty to all matters on the indictment and admitted his guilt with respect to the Form 1 matters at the earliest opportunity;

• his absence of any prior convictions, either in Australia or Taiwan.

70. No additional s 21A matters going to either mitigation or aggravation was pointed to by either side.

71. I would impose an aggregate sentence pursuant to s 53A. I do not find special circumstances for the purposes of s 44 of the Sentencing Act and the non-parole period will be 75% of both the individual indicative sentences and the aggregate sentences. For the purpose of s 53A(2)(b) I would indicate the following individual sentences I would have imposed if an aggregate sentence were not imposed:

1. Count 1 – 3 years, reduced by 25% for the plea of guilty, resulting in a sentence of 2 years and 3 months with a non-parole period of slightly more than 18 months.

2. Count 2 – 11 years, reduced by 25% for the plea of guilty, resulting in a sentence of 8 years and 3 months with a non-parole period of approximately 6 years.

72. I propose an aggregate sentence of 10 ½ years with a non-parole period of 7 years, 10 months and 14 days. The sentence will commence on 13 April 2016 and the first date that the applicant would be eligible for parole would be 27 February 2024.

73. HAMILL J: I agree with Bell P.

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Amendments

09 July 2019 - Change made to coversheet, Counsel appearing for Crown changed from H Roberts to B Hatfield.

Decision last updated: 09 July 2019