Hui v The Queen
[2015] VSCA 314
•25 November 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0052
| CHI HANG HUI | Appellant |
| v | |
| THE QUEEN | Respondent |
S APCR 2015 0066
| TSAN-LUNG LIN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 November 2015 |
| DATE OF JUDGMENT: | 25 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 314 |
| JUDGMENT APPEALED FROM: | DPP v Hui [2015] VCC 150 (Judge Gucciardo) |
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CRIMINAL LAW – Sentence – Multiple drug offences under Criminal Code (Cth) – Total effective sentence of 7 years 6 months with non-parole period of 6 years imposed on Appellant Hui – Non-parole period 80% of total effective sentence – Whether manifestly excessive – Kumova v The Queen [2012] VSCA 212 applied – Appeal allowed – New non-parole period fixed of 5 years 6 months for Appellant Hui.
CRIMINAL LAW – Sentence – Multiple drug offences under Criminal Code (Cth) – Role of Appellant Lin in co-offending – Whether head sentences manifestly excessive – Saxon v The Queen [2014] VSCA 296 applied – Sentencing judge’s reasons read as a whole do not mischaracterise appellant’s role in offending – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant Hui | Mr O P Holdenson QC | Lethbridges Pty Ltd |
| For the Appellant Lin | Dr M Fitzgerald | Marich Legal Pty Ltd |
| For the Respondent | Ms K Breckweg | Commonwealth Director of Public Prosecutions |
WHELAN JA:
In March and April 2013 Chi Hang Joseph Hui (‘Hui’) and Tsan-Lung Lin (‘Lin’) committed drug offences in contravention of the Criminal Code (Cth) (‘the Code’).
On 6 October 2014, on the first day of his trial, Lin pleaded guilty to one charge of trafficking a marketable quantity of a controlled drug and one charge of possessing a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported.
Hui had indicated his intention to plead guilty in July 2014. On 27 January 2015 Hui pleaded guilty to one charge of importing a marketable quantity of a border controlled drug and one charge of trafficking a commercial quantity of a controlled drug.
Following a plea hearing on 27 January 2015, Hui and Lin were sentenced on 17 February 2015 as follows:
Hui Charge Offence Maximum Sentence Cumulation 1 Import a marketable quantity of a border controlled drug [the Code: s 307.2(1)] 25 years and/or 5,000 penalty units [the Code: s 307.2(1)] 5 years Sentence to commence 17 February 2015[1] 2 Trafficking a commercial quantity of a controlled drug [the Code: s 302.2(1)] Life imprisonment and/or 7,500 penalty units
[the Code: s 302.2(1)]6 years Sentence to commence 17 August 2016 Total Effective Sentence: 7 years and 6 months’ imprisonment Non-Parole Period: 6 years Pre-sentence Detention Declared: 683 days 6AAA Statement: 8 years and 6 months’ imprisonment with a non-parole period of 7 years [1]Under Commonwealth sentencing law, cumulation of sentences is achieved by fixing later commencement dates for the second and subsequent sentences: Crimes Act 1914 (Cth) s 19. In the case of Hui, the sentencing judge made orders directing that 18 months of the sentence imposed on charge 1 be served cumulatively with the sentence imposed on charge 2.
| Lin | ||||
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Trafficking a marketable quantity of a controlled drug [the Code:s 302.3(1)] | 25 years and/or 5,000 penalty units [the Code: s 302.3(1)] | 4 years and 3 months | Sentence to commence 17 February 2015[2] |
| 2 | Possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported [the Code: s 307.8(1)] | Life imprisonment and/or 7,500 penalty units [the Code:s 307.8(1)] | 5 years and 6 months | Sentence to commence 17 May 2016 |
| Total Effective Sentence: | 6 years and 9 months’ imprisonment | |||
| Non-Parole Period: | 5 years’ imprisonment | |||
| Pre-sentence Detention Declared: | 683 days | |||
| 6AAA Statement: | 7 years and 6 months’ imprisonment with a non-parole period of 6 years and 6 months | |||
[2]In the case of Lin, the sentencing judge made orders directing that 15 months of the sentence imposed on charge 1 be served cumulatively with the sentence imposed on charge 2.
On 3 June 2015 Hui was granted leave to appeal on the ground that the non-parole period imposed was manifestly excessive, and Lin was granted leave to appeal on the ground that the head sentences and the non-parole period were manifestly excessive.
Circumstances of the offending
On 25 March 2013 an express mail service package to be sent to Australia was lodged in Hong Kong. The gross weight of the package was 7.625 kg. The package contained no less than a marketable quantity of methamphetamine, a border controlled drug under the Code, the relevant threshold being 250 grams. The package arrived in Melbourne on 28 March 2013. Hui had arranged and co-ordinated the importation of this methamphetamine into Australia. (Hui charge 1: import a marketable quantity of a border controlled drug).
The package was addressed to premises in Clayton. Hui and Lin had telephone conversations in anticipation of the package’s arrival at that address.
On 2 April 2013 the package was delivered to the Clayton address and Lin took possession of it. He opened it and checked its contents. He had a telephone discussion with Hui about its condition. The discussion was directed towards establishing the extent to which the package may have been searched. Later that same day Lin conveyed the package to Hui. The quantity of methamphetamine in the package conveyed to Hui was at least a marketable quantity, the relevant threshold being 250 grams. (Lin charge 1: traffic a marketable quantity of a controlled drug).
The methamphetamine was in liquid form. Hui proceeded to process it into a crystalline form at a clandestine laboratory in Clayton South. In the course of this processing he had a number of conversations with an unidentified male in Hong Kong. It is clear from those conversations that the male in Hong Kong was the source of the methamphetamine. The two of them discussed the means by which the processing should be undertaken. It is apparent from the discussions that each of them had, or considered that they had, expertise in that regard. At one point Hui sent images relevant to the processing to the person in Hong Kong. On 5 April 2013 a search warrant was executed at the premises in Clayton South. Methamphetamine with a pure weight of 1.62 kg was located. The majority of the methamphetamine was in crystallised form. The threshold for a commercial quantity of a controlled drug is .75 kg. (Hui charge 2: traffic a commercial quantity of a controlled drug).
On the same day (5 April 2013) a search warrant was executed at premises rented by Lin at Brighton East. Five bottles containing methamphetamine were located inside a bag under the bed in his bedroom. The pure weight of the methamphetamine in those bottles was 1.565 kg. A search warrant was also executed at the Clayton address where the package previously referred to had been received. Lin shared the Clayton premises with others. In a laundry basket in Lin’s room a bottle was located which contained methamphetamine. The pure weight of that methamphetamine was 193.2 grams. Thus, the total weight of the methamphetamine found in Lin’s possession was 1.76 kg. The threshold for the offence of possession of a commercial quantity of a controlled drug reasonably suspected of having been unlawfully imported is .75 kg. (Lin charge 2: possession of a commercial quantity of a controlled drug reasonably suspected of having been unlawfully imported.)
Hui made a ‘no comment’ record of interview. Lin answered police questions saying he had suspected that the bottles contained ‘some kind of drug’ and admitting that he had received the package and handed it on to Hui. He said he and Hui had known each other for two to three years, and that they had first met in Hong Kong before Lin had come to Australia.
Sentencing remarks
The sentencing judge sentenced Hui and Lin together.[3] He commenced by summarising the circumstances of the offending. He observed that each of the offenders had been motivated by financial reward. Each had come to Australia from Hong Kong to work or study.
[3]DPP v Hui [2015] VCC 150 (‘Sentencing Reasons’).
The sentencing judge referred to the guilty pleas. The judge described Hui’s plea as a plea communicated ‘in a timely fashion’.[4] The judge observed Lin’s plea was not ‘at the earliest opportunity’.[5] The judge said that both Hui and Lin were entitled to a discount for the utilitarian value of their pleas and ‘similarly as to some remorse’.[6]
[4]Ibid [13].
[5]Ibid [15].
[6]Ibid.
The sentencing judge accepted that Hui was ‘higher in the hierarchy than Lin’.[7] He referred to a submission made that Hui had had a ‘subservient role’ to the person in Hong Kong. The judge said:
I am not satisfied that there was such a subservient relationship on the material I have read, and in my view I had insubstantial evidence to make that determination. In my view I assess Hui’s role in the criminality committed in Australia as very high, irrespective of what his role or relationship he may have had with any person in Hong Kong, with Lin somewhat lower in the order of importance but only marginally.[8]
[7]Ibid [16].
[8]Ibid [17].
The judge referred to a submission made on Lin’s behalf that his role was as a ‘delegate to Hui’. The judge said:
In my view it is clear from the conduct relative to the importation that Hui was a prime mover and you, Lin, were somewhat lower in the hierarchy, though nonetheless you played an important role in the importation.
As for the trafficking, there is little evidence which indicates that the two of you are of significant different levels of a hierarchy of importance or decision making. You Lin, were found in possession of a similar amount of drugs as Hui which constitutes the foundation of the possession charge, which carries also a maximum penalty of imprisonment for life.[9]
[9]Ibid [20]–[21].
A little later the sentencing judge referred to Lin’s role in relation to the possession charge as being ‘the trusted warehouseman’.[10]
[10]Ibid [23].
The judge set out Hui’s personal circumstances, including his demonstrated willingness to completed educational courses whilst in custody on remand which were said to reflect ‘reasonably good’ prospects of rehabilitation,[11] and the fact that he is highly likely to be deported at the end of his sentence. The judge also set out Lin’s personal circumstances, including that he currently suffers a major depressive disorder and meets the criteria for post-traumatic stress disorder, both of which were said to relate to his time spent in custody.
[11]Ibid [27].
Each of Hui and Lin were in their early 30s at the time of offending and at the time of sentence. The family of each of them reside in Hong Kong. Lin had no prior criminal history. The prosecution had no record of any prior criminal history of Hui but in submissions made on the plea his counsel informed the Court that there was a prior conviction in Hong Kong for possession of less than 3 grams of cocaine. Hui had served a short term of imprisonment on that offence. The sentencing judge said:
Although you have a prior in Hong Kong for possession of cocaine for which you were imprisoned, you have no priors for trafficking there or in Australia, and while on remand you have undertaken a significant number of courses of education which were attested to by a number of certificates tendered to the court. I take these matters into account in your favour in assessing your prospects of rehabilitation as reasonably good.[12]
[12]Ibid [27].
Hui’s appeal — submissions and analysis
The submissions made on behalf of Hui, as refined orally, were short and succinct. The non-parole period fixed was 80% of the head sentence. It was outside the usual range. No reasons had been given for a non-parole period that high and a consideration of the sentencing reasons and the other material did not reveal the existence of any factor which would warrant a non-parole period that high. Reference was made to the prior conviction in Hong Kong for possession of less than 3 grams of cocaine. The passage I have quoted where the judge referred to that matter, to the absence of any prior convictions for trafficking, and to the courses undertaken in custody, before concluding that Hui’s prospects of rehabilitation were reasonably good, was relied upon. It was submitted that that passage demonstrated that the Hong Kong matter could not have been the circumstance which led to the judge imposing a non-parole period of 80% of the head sentence.
Counsel for the Commonwealth Director of Public Prosecution (‘CDPP’), in oral submissions, conceded that the non-parole period was high and that it was difficult to see any clear reason why that should have been so. She accepted that the prosecution had not known of the prior matter in Hong Kong and that that had been volunteered. She submitted, however, that given the prior matter in Hong Kong, if the non-parole period was to be lowered it should be still towards the top of the usual range.
This Court has noted that in cases where the head sentence is under 10 years commonly the ratio between the head sentence and the non-parole period is between 60 and 75%.[13] There is, however, no ‘correct’ ratio. In Kumova v The Queen Redlich and Osborn JJA said:
Like the head sentence, determination of the non-parole period involves the application of well-settled principles and practices to the circumstances of the case. All factors are taken into account, first in determining the head sentence and then in fixing the non-parole period. The factors may be differently weighted at each stage of the exercise because there are different purposes behind each function. In fixing the proportion of the head sentence to be given to the minimum sentence there are sentencing principles in operation which, together with the individual circumstances of the case will determine the proportion which the non-parole period must bear to the head sentence. First, like the head sentence, the non-parole period must also reflect the objective gravity of the offence so that the non-parole period should constitute the minimum period of imprisonment that justice requires the prisoner to serve. Secondly, punishment is mitigated in favour of the prisoner’s rehabilitation. The benefit of the minimum term is for the purpose of the offender’s rehabilitation. Thirdly, in fixing the minimum term, the interests of the community, which imprisonment is designed to serve, must be taken into account. Those principles which inform the question of the length of the minimum period have been identified by the High Court in Power v R, Deakin v R, and Bugmy v R. Whilst different types of offending may raise different issues these underlying principles which are to be applied in every case in fixing non-parole periods, have resulted in a usual or common range of minimum sentences, expressed as a proportion of the head sentence. Whilst there is in law no correct ratio, in the majority of cases the proportion is between 60 per cent and 75 per cent, but both longer and shorter periods are found. For higher head sentences the ratio will often be higher for the reasons Redlich JA explained in Romero v R.[14]
[13]Solomano v The Queen [2013] VSCA 320 [17] and Sergi v Director of Public Prosecutions [2015] VSCA 181 [24].
[14](2012) 37 VR 538, 545 [27] (citations omitted).
No reasons were expressed by the sentencing judge for fixing what is conceded to be a high non-parole period and one outside the common range. Further, as was also conceded, no reasons are discernable as to why such a high non-parole period might properly be imposed. In these circumstances, the conclusion must be drawn that the non-parole period fixed was manifestly excessive.
Hui’s appeal should be allowed. I would re-impose the same sentences but I would fix a non-parole period of five years six months. In my view imprisonment for five years six months is the minimum time that justice requires must be served having regard to all of the circumstances of the offences in this case.
Lin’s appeal — submissions
Prior to the hearing of the appeal the solicitors acting on behalf of Lin sought to rely upon two matters, which were already relied upon in support of the manifest excess ground, as separate grounds of appeal. These two matters were what was said to be an error by the sentencing judge in relation to the appellant’s role, and the suggestion that the sentence imposed on Lin was ‘insufficiently disparate’ to that imposed on Hui. Counsel for the CDPP opposed leave to rely on the proposed new grounds. She conceded that the matters put in support of the proposed new grounds would be put in any event in relation to the manifest excess ground but she submitted, as a matter of principle, that fresh grounds should not be added during the hearing of an appeal, particularly where a separate application for leave had already been heard and determined. The Court reserved its decision on this application. With the concurrence of counsel, it was indicated that if leave to add the new grounds was granted the substance of each of the grounds would then be determined. Counsel accordingly made full submissions on the proposed new grounds. Those submissions substantially overlapped with the submissions made on the manifest excess ground.
In relation to the ground of manifest excess it was submitted on behalf of the appellant Lin that he had been treated by the sentencing judge as having played ‘an important role in the importation’. It was submitted that in approaching the matter that way the sentencing judge had acted inconsistently with the principles explained in R v De Simoni[15] and in R v Newman.[16] It was submitted that the prosecution had originally charged Lin with an importation offence but that the matter had been resolved on the basis of the plea to the offence of trafficking. It was submitted that the sentencing judge had nevertheless erroneously characterised Lin’s conduct as being conduct which would have constituted the offence of importing a border controlled drug.
[15](1981) 147 CLR 383.
[16][1997] 1 VR 146.
It was also submitted on behalf of Lin that the sentencing judge had failed to adequately differentiate between Lin and Hui. Reference was made to the sentencing judge’s observation that Lin’s role was ‘somewhat lower but only marginally’. It was submitted that the sentencing judge had failed to give sufficient weight to the clear and significant differences between Hui and Lin and that what were submitted to be excessive sentences reflected that failure. It was submitted that the totality of the evidence demonstrated that Lin’s role was clearly a subordinate one and that he was acting at the direction of Hui who was the importer of the methamphetamine and the person responsible for processing it. It was submitted that Lin’s guilty plea had been at the first opportunity as it was entered as soon as the importation charge was withdrawn. Lin had no prior convictions whereas Hui did have a prior conviction for a drug-related matter.
Lin’s personal circumstances were also relied upon, and, in particular, the hardship to be endured by a person undergoing sentence in a foreign country isolated from his family. It was submitted that too little weight had been given to these matters.
On behalf of the CDPP it was submitted that Lin’s offending was very serious. It was submitted that Lin’s role in relation to the charge 1 methamphetamine was important even if ‘less than that of co-offender Hui’. Lin’s offending in relation to charge 2 was quite separate to that in relation to charge 1 and the amount of methamphetamine involved in that charge 2 offending was substantial. It was submitted that the sentencing judge had correctly characterised Lin in relation to that offending as the ‘trusted warehouseman’. It was submitted that it was inevitable that there should have been cumulation between the two sentences given the quite separate conduct, and the cumulation of one year three months was not excessive in the circumstances.
It was submitted that the sentencing judge had taken into account Lin’s personal circumstances, including his absence of prior convictions and the hardship which he would suffer by being imprisoned in a foreign country.
In relation to the submission that the sentencing judge had mischaracterised Lin’s role and had infringed the principle in De Simoni, the CDPP submitted that the sentencing judge had at several points in his sentencing remarks made clear the distinction between Hui, whose activities both pre-dated and post-dated the arrival of the package, and those of Lin whose relevant offending began when he took delivery of the importation and then conveyed it to Hui. As to the passage relied upon by the appellant where the sentencing judge had said that Lin had ‘played on important role in the importation’, it was submitted that what was said had to be viewed in the context in the rest of the sentencing judge’s reasons. It was submitted that the use of the word ‘importation’ in the context was understandable given the very close temporal association between the actual importation and Lin’s conduct which constituted the trafficking, and that that passage should not be read as suggesting Lin’s relevant conduct extended beyond receipt of the package and its delivery to Hui.
It was submitted that the sentencing judge was entitled to reach the conclusion that Lin’s role was ‘somewhat’ or ‘only marginally’ lower in the hierarchy than Hui. It was submitted that whilst Hui’s two charges addressed overlapping conduct, that was not the case in relation to Lin’s two charges.
Lin’s appeal — analysis
In Saxon v The Queen Weinberg JA (with whom Santamaria JA agreed) said:
In considering that first issue, the Court should not engage in overzealous scrutiny by seeking to discern whether some inadequacy in the reasons may be gleaned from the way in which those reasons are expressed. Self-evidently, a sentencing judge’s reasons are not to be read as though they are the words of a statute. Nor, it should be said, are they to be trawled over as though they reflect the language chosen by an appellate court. They must be read as a whole, fairly and not perversely. They must also be read in full recognition of the fact that such reasons are often delivered ex tempore, without the opportunity, or inclination, to pause over every word chosen.[17]
[17][2014] VSCA 296 [47] (citations omitted).
The reasons in this case were not delivered ex tempore, but otherwise Weinberg JA’s observations are pertinent in this case. The appellant Lin’s submissions that the sentencing judge mischaracterised his role are based upon a single phrase in the sentencing reasons, that phrase being ‘you played an important role in the importation’. When the reasons are read as a whole the significance attached to that phrase dissipates. The sentencing judge also said:
For these purposes it will suffice to summarise the facts in this way. On 28 March 2013 a package from Hong Kong arrived in Melbourne by mail. Hui had co-ordinate the posting, delivery and the content of that package with unknown persons in Hong Kong. This was the basis of his charge 1. On 2 April, Lin took delivery of the package, opened it and took to Hui. This was Lin’s charge 1.[18]
[18]Sentencing Reasons [4].
Later, he said:
You, Hui, arranged and co-ordinated the importation at the Victorian end. You, Lin, took delivery of the importation and then conveyed it to Hui, knowing he would process the product.[19]
[19]Ibid [7].
Finally, after describing the contacts between Hui and the unknown person in Hong Kong (amongst other things), the sentencing judge turned to Lin and said:
Lin, your movement of the drug involved no less than 250 grams, being a marketable quantity of a controlled drug.[20]
[20]Ibid [12].
Reference made by the sentencing judge to Lin having had a role ‘in the importation’ is explicable by the close temporal connection between Hui’s conduct and Lin’s conduct. The sentencing judge, however, made it clear, when the reasons are read as a whole, that Lin was not involved in any of the arrangements for the importation and that his offending conduct began when he took possession of the package in Australia.
As to the complaint that the sentencing judge had insufficiently differentiated between Lin and Hui, in my view that is also without substance. The sentencing reasons reveal a careful analysis of the activities of the two men. On the one hand Hui arranged the importation and undertook the processing of the methamphetamine in charge 1. But Lin also had an important role to play in relation to that methamphetamine. He took possession of the package and passed it on to Hui knowing that Hui would process it. Of greater significance, Lin committed an entirely separate offence concerning the separate methamphetamine found under his bed and in his laundry basket which was the subject of charge 2. The conclusions which the sentencing judge reached as to their respective roles were conclusions clearly open to him in my view.
As has been repeatedly emphasised by this Court, manifest excess is a strident ground which is difficult to make good. An appellant must show that something has gone obviously, plainly or badly wrong. The sentence must be clearly outside the range of sentencing options available.
Counsel for Lin handed the Court a folder of what were said to be comparable cases.[21] Little was said by way of submission about the cases. I have reviewed them. I can find nothing in them which would suggest the sentences imposed here are outside the range of options available.
[21]R v Liang [2009] VSCA 18; Liang v The Queen [2011] VSCA 148; Nguyen v The Queen [2011] VSCA 139; Lam v The Queen [2011] VSCA 140; DPP (Cth) v Thai [2014] VSCA 122; Ludwig v The Queen [2015] VSCA 35.
In this case, given the offending conduct and the seriousness of the offences as reflected in the maximum penalties, the sentences imposed on Lin are not wholly outside the range of sentencing options available. In my view the appeal on the manifest excess ground should be dismissed.
Lin’s — proposed new grounds
Given my conclusions on the matters sought to be raised in the proposed new grounds, which were also relied upon in the context of the manifest excess ground and which I have already addressed, leave to rely on the proposed new grounds should be refused.
Conclusion
The application for leave to rely on the proposed new grounds of appeal should be refused. The appeal should be dismissed.
PRIEST JA:
I agree with Whelan JA.
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