Kwok v R

[2018] NSWCCA 200

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kwok v R [2018] NSWCCA 200

Hearing dates:

7 September 2018

Date of orders:

21 September 2018

Decision date:

21 September 2018

Before:

Ward JA at [1]
Bellew J at [2]
Beech-Jones J at [67]

Decision:

(1)   Leave to appeal granted.
(2)   Appeal dismissed.

Catchwords:

CRIMINAL LAW – Sentence – Appeal – Accumulation of sentences – Where applicant appeared for sentence in respect of separate counts of manufacturing a prohibited drug and supplying a prohibited drug – Where the sentencing judge ordered partial accumulation – Where applicant argued that sentences ought to have been wholly concurrent because one offence comprehended the other – Separate and distinct offending – Partial accumulation within the proper exercise of sentencing discretion – No error established

 

CRIMINAL LAW – Sentence – Appeal – Parity – Whether applicant had a justifiable sense of grievance in light of sentence imposed on a co-offender – Where the findings of the sentencing judge as to the greater role played by the applicant in comparison with that co-offender were warranted on the evidence – No error established

  CRIMINAL LAW – Sentence – Appeal – Parity – Whether applicant had a justifiable sense of grievance in light of sentence imposed upon a co-offender – Where that co-offender had asked the sentencing judge to take into account an additional offence – Where the submissions made on behalf of the applicant attempted to estimate the percentage of the sentence imposed which was referable to the additional offence – Such approach contrary to principle and authority – No error established

Legislation Cited:

Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

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
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Director of Public Prosecutions (Cth) v KMD [2015] VSCA 255; (2015) 254 A Crim R 244
Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
Kerr v R [2016] NSWCCA 218
Lowe v R (1984) 154 CLR 606; [1984] HCA 46
Postiglione v R (1997) 189 CLR 295; [1997] HCA 26
R v Lamella [2014] NSWCCA 122
Wan v R [2017] NSWCCA 261

Category:

Principal judgment

Parties:

Yuk Ho Kwok – Applicant
Regina – Respondent

Representation:

Counsel:
G Wendler – Applicant
L Crowley – Respondent

  Solicitors:
Chess Legal Pty Limited – Applicant
Commonwealth Director of Public Prosecutions – Respondent

File Number(s):

2013/185155

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

19 August 2016

Before:

Judge Lakatos SC

Judgment

1. WARD JA: I agree with Bellew J.

2. BELLEW J: On 23 July 2014 Yuk Ho Kwok (“the applicant”) pleaded guilty in the Local Court to the following offences:

1. between 5 June 2013 and 17 June 2013, at Sydney, did knowingly take part in the manufacture of prohibited drug, namely methamphetamine, in an amount not less than the large commercial quantity (count 1);

2. on about 17 June 2013, at Sydney, did supply a prohibited drug, namely methamphetamine, in an amount of 15.94kg, being not less than the large commercial quantity (count 2).

3. The offending in count 1 is contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DMT Act”). The offending in count 2 is contrary to s 25(2) of the DMT Act. Both offences carry a maximum penalty of life imprisonment with a standard non-parole period of 15 years imprisonment.

4. The applicant adhered to his pleas of guilty when he came before the District Court on 19 August 2016 and was sentenced as follows:

1. in respect of count 1, 22 years imprisonment commencing on 17 June 2016 and expiring on 16 June 2038, with a non-parole period of 14 years imprisonment;

2. in respect of count 2, 15 years imprisonment commencing on 17 June 2013 and expiring on 16 June 2028, with a non-parole period of 11 years and 3 months imprisonment.

5. There was an accumulation of 3 years in the sentences which were imposed. The total term was one of 25 years imprisonment with a non-parole period of 17 years. The applicant will be eligible for release on parole on 16 June 2030. The applicant was sentenced along with two other co-offenders, Wai Man Wan (“Wan”) and Ka Ho Choy (“Choy”). A fourth offender, Chan Heng (“Heng”) was sentenced at a later time.

6. The applicant now seeks leave to appeal on the grounds more fully set out below.

THE FACTS OF THE OFFENDING

7. The sentencing judge found the facts of the offending to be as follows (commencing at ROS 2):

On 14 May 2013 a consignment of 258 packages of what was nominated as furniture left Shenzhen in China aboard a freighter vessel and arrived at Port Botany on 25 May 2013. Between 24 April 2013 and 24 May 2013 a further offender, Mr Heng, who does not stand for sentence today, and the current offender, Mr Choy, had numerous discussions about leasing a warehouse at Unwins Bridge Road, St Peters.

Between 1 January 2013 and 3 June 2013 Mr Choy had a number of conversations with a removalist whilst receiving instructions from Mr Heng to arrange the transportation of the consignment to the St Peters warehouse. The consignment was unloaded on the morning of 3 June 2013 with Mr Choy being present and, shortly thereafter, Mr Heng arrived.

Mr Choy collected Mr Wan from the Beverly Hills premises, that is the location of the clandestine laboratory, and went to St Peters about 1 pm on 4 June 2013. For about three hours the offenders Choy and Wan moved boxes around the warehouse and finally unloaded 21 boxes into Mr Choy's vehicle, thereafter they drove to Beverly Hills.

The following day, 5 June 2013, Mr Choy drove to the Beverly Hills premises and collected Mr Wan and drove to St Peters. They were moving boxes for about an hour. Boxes were also moved by those two offenders, Mr Choy and Mr Wan, on 6 and 7 June 2013.

On 5 June 2013 Mr Kwok arrived in Australia from Hong Kong. His incoming passenger card indicated he intended to stay in a hotel in Potts Point and was visiting friends or relatives. His intended length of his stay, according to the incoming passenger card, was five days and he signed that form as having no criminal convictions.

In the early afternoon of 8 June 2013 Mr Choy met a Caucasian male who was identified and took possession of a blue pump and a cardboard box.

On the morning of 9 June Messrs Kwok and Wan were at the Beverly Hills premises. They appear to have been opening and dragging boxes and discussing amounts of money.

Telephone conversations between Mr Heng and Choy and Wan indicated that they were discussing what was needed for a laboratory including references to fridges and things not being able to fit into the car. Clearly these were conversations about setting up a large clandestine methylamphetamine laboratory.

Conversations were intercepted between Mr Wan and Mr Kwok at the Beverly Hills premises. Those offenders then went to that premises again after shopping at Hurstville, carrying shopping bags which included cardboard boxes and plastic tubs.

Throughout 10 and 11 June 2013 sounds intercepted from the Beverly Hills premises were consistent with the movement of items and the use of the lab to make the drugs. On 11 June 2013 further conversations were intercepted between Mr Kwok and Mr Wan indicating that they were continuing "the cooking process" and there was an agreement between them that they would call the person identified as, "boss number 1", or, "big boss". There were continuing telephone conversations between Messrs Choy and Wan in relation to what was needed on 11 June 2013.

The cooking process continued through 12 June 2013. From time to time during the next period Mr Wan and Mr Kwok left the Beverly Hills lab, as I will call it, and attended at hardware stores and a supermarket to purchase sundry items including a number of plastic tubs. They also made arrangements to buy a bigger fridge all in aid of the preparation of methylamphetamine. On 13 June 2013 Mr Wan attended at an appliance store and purchased a fridge as well as tubs. The fridge was delivered the following day.

On 14 June 2013 surveillance continued and captured activity consistent with Messrs Wan and Kwok continuing the cooking process. On the evening of that day Mr Kwok received a call from the person identified as "boss number 1" or the "big boss" and advised that, some, a reference to drugs, would be available on Monday, and there were conversations about drugs being of a different style and quality or quality. The cooking process continued from the 15 into 16 and 17 June 2013.

Between April and May 2013 a number of telephone conversations between Mr Heng and a further identified person were intercepted on falsely subscribed telephone services with Mr Heng making arrangements to pick that person up from the airport. After the arrival of the consignment in June 2013 that person and Mr Heng continued to communicate concerning the distribution of the drugs, resulting in that person arriving in Sydney and then being picked up by Mr Heng.

Mr Wan and Mr Kwok were arrested about 5.30pm on 17 June 2013 in a taxi cab in Beverly Hills. They were in possession of two bags which contained, on the one hand, 13 plastic clipseal bags containing approximately one kilogram of white crystal substance and three plastic clipseal bags containing one kilogram of a similar substance, that is to say, one kilogram each. They were taken to the St George Police Station and declined to be interviewed.

Police seized the following items from Mr Kwok, a falsely subscribed Nokia mobile phone, a further phone of that description, in fact three such phones, three foreign SIM cards, a little less than $3,000 in Australian currency, a further amount of $843 in Australia currency, 750 Hong Kong dollars and 797 yuan, that is Chinese currency, in a different wallet.

His arrival card for May 2013 was found in the car. There was also a Hong Kong passport in his name which contained an arrival stamp from the Brisbane airport in August 2012 and a departure stamp from Sydney airport on 29 August 2012. The incoming passenger card contained arguably false information.

An arrival stamp was also included relating to his arrival at Sydney on 9 January 2013 and his departure on 2 February 2013. Finally, the stamp indicated he had arrived in this country on 5 June 2013. As I will say later there was some significance in the earlier trips as was argued between the parties. There was a ticket itinerary, an Australian visa for three months, an airfare receipt in Hong Kong dollars and a hotel booking document for the Potts Point Hotel as well as miscellaneous receipts. Police found a number of items on Mr Wan including five mobile phones of various descriptions, three SIM cards, a quantity of Hong Kong and Australian dollars, $3,090 as to the Hong Kong dollars, $1,910 as to the Australian.

There was a Hong Kong passport in Mr Wan's name indicating that he had arrived at the Brisbane airport on 29 April 2012 and departed on 5 February 2013. There was an arrival stamp from Sydney Airport on 18 April 2013. As well there was a business college student card. That appeared to disclose, as did further enquiries that, Mr Wan was registered with the Clarendon Business College in April 2013 . However, attendance records of that college show that he did not attend any class between that date and June 2013.

Thereafter there was a search of the Beverly Hills premises, being premises at Stoney Creek Road, Beverly Hills, on 17 June 2013. That forensic examination showed that the premises were being used for drug manufacturing processes. Police seized the following items: a large quantity of white crystalline substance found in three rooms, numerous pieces of butcher's paper, three fridges in various rooms, numerous glass bowels, baking trays, et cetera, containing a white crystalline substance and liquid, flasks, colanders and like items again with white powder residue, a blue vacuum pump with an attached green plastic hose, a respirator fitted with an attached filter, a number of fans, electronic scales, digital thermometers, gloves, wax and numerous cardboard boxes as well as numerous laminated furniture panels, amongst other things.

The material there on examination tended to indicate that there had been a substance within solid wax concealed within the white laminate lengths and the equipment present was consistent with equipment used in the recrystallization, the filtration and the drying of methamphetamine salts. In addition, police seized three empty black duffle bags identical to those seized in the rear of the taxi when Messrs Kwok and Wan were arrested, various handwritten notes consistent with a furniture pack item list, hardware receipts, flight itineraries, airfare receipts and the like.

Forensic examination of the substances found in the possession of Mr Wan and Mr Kwok at the Beverly Hills premises and in the cab revealed the following: the off white crystalline material found in the 16 clipseal bags found in the possession of those two men was weighed and found to comprise 15.9409 kilograms. The purity was assessed as between 77.4% and 80.3%. The net pure weight of the drug therefore was 12.6492 kilograms. The total net weight of the crystalline material, paste, fabric and liquid containing methamphetamine found at the Beverly Hills premises or the clandestine lab was 128.6858 kilograms not including the weight of the wax in which it was packed.

Forensic analysis indicated the presence of methamphetamine of varying degrees of purity. In the final analysis the calculated pure weight of the methamphetamine at the Beverly Hills premises was 61.1547 kilograms. The facts disclose that the total admixture weight of the methamphetamine not including the blocks of wax for the manufacturing charge comprised 144.6 kilograms. The total calculated pure weight of the methamphetamine imported was 73.80 kilograms.

The facts conclude with the following information concerning the drugs: In June 2013 in New South Wales the wholesale value of 144.6 kilograms of methamphetamine was approximately $23,859,000 calculated by a reference to a nominated sum per kilogram and a percentage purity. The street value of that same drug calculated in a way which the facts disclose indicate that the value of the 144,.6 kilograms on the street would have been $89,652,000. The wholesale value of the 15.94 kilograms of methamphetamine which was found in the taxi cab in which Mr Wan and Mr Kwok were arrested is calculated at $4,074,700. The street value of that same 15.94 kilograms is calculated at $15,143,000. It may be seen so far as Messrs Kwok and Wan are concerned that the street value of the combined drugs surpasses $100 million. That is one of the features which takes this case somewhat out of the ordinary.

In terms of the conduct of Mr Heng and Mr Choy after the initial offenders Kwok and Wan were arrested, Mr Heng and Mr Choy spoke by phone on the evening of 17 June, the former, Mr Heng, instructing the latter to see if anybody was following him. The following afternoon Mr Heng drove past the Beverly Hills premises on two occasions as police were executing a search

warrant. A short time later Mr Choy telephoned Mr Heng and Mr Heng instructed him to throw away the mobile phone used to maintain contact with Mr Wan and also the mobile phone Mr Choy himself was using. He was instructed to throw away everything except "Mary paper". The facts do not disclose what that was a reference to.

Mr Heng was arrested on the morning of 9 July 2013 at Station Street Homebush. Police executed a search warrant and found a quantity of cash and other documents and things which connected him with Mr Choy. I do not need to go through those matters for this purpose. Mr Heng was arrested and taken to the Auburn police station and declined to participate in an interview.

Mr Choy was arrested on the morning of 9 July 2013 when police attended his premises at Leicester Avenue, Strathfield. His premises were searched pursuant to a warrant and there was found a black notepad with an address at Strathfield being one of the addresses viewed by Mr Heng and the two offenders, Choy and Wan, in preparation for this importation and manufacture. There were three gaol letters written by Mr Heng to Mr Choy in 2008 and 2009 and two orange fluorescent work shirts. Police located a stack of boxes containing flat pack furniture on the front porch and also at the rear of the house. That offender was arrested and taken to the Auburn Police Station and he declined to take part in a record of interview.

On 9 July police executed a search warrant at the St Peters warehouse and located a number of cardboard boxes which contained furniture items.

There were no anomalies located in those furniture items when subjected to x-ray examination. On the same day police executed a search warrant at Courallie Avenue, Homebush West. A search of those premises indicated that

there were very few items there and very little furniture. This premises was described in the telephone intercepts between Mr Heng and Mr Choy as "the other house" where Mr Heng's cousin lived. Police located a number of documents associated with Mr Choy including a copy of his passport, bond lodgement documents and the like as well as a number of implements clearly connected with the manufacturing of drugs.

Attached to the agreed statement of facts were five annexures to which I will not go in detail, which record things such as conversations between Mr Heng and Mr Choy seeking suitable premises between late April and late May 2013. Secondly, there was the lease of the St Peters warehouse and conversations between various co-offenders in furtherance of that object. Annexure C related to conversations between Mr Wan and Mr Kwok on 9 June at Beverly Hills. Annexure D contained conversations which appear to record Mr Kwok complaining about the long hours he was working at the lab and the leakage of drugs or some other chemicals which affected him, those conversations being between 11 and 13 June 2013 and the remainder of the annexures, being E, F and G, were photographs of premises, photographs of notes found in the premises and photographs of the substances which it appears Mr Kwok and Mr Wan had in their possession when they were arrested.

THE APPLICANT’S SUBJECTIVE CASE

8. The sentencing judge noted (at ROS 11) that the applicant had no criminal history in this state but had the following offences recorded against him in Hong Kong:

1. 1993 – theft and fraud;

2. 1994 and 1995 – gambling;

3. 1995 – lending money at an excessive interest rate;

4. 1995 – administering a stupefying or overpowering drug with intent to commit an indictable offence; and

5. 1995 – blackmail.

9. In respect of the matters in (iv) and (v) the applicant was sentenced to terms of imprisonment of 10 years and 6 years respectively.

10. By reference to a report of Patrick Sheehan, psychologist dated 9 June 2016, the sentencing judge recorded (commencing at ROS 16) that the applicant was 58 years of age. He was born into a poor family in Hong Kong, and was one of six siblings. The family lived in a form of public housing described as a slum. The family members were close, supportive and pro-social, notwithstanding that the immediate environs were highly anti-social and hostile. The applicant’s father died when he was 25 years old. He moved out of the family home when he was 27. He first married on that occasion and has lived independently since then.

11. His early development was normal. He attended primary school but was unable to attend high school, so he went to work. He was employed from the age of 13 years working in a clothing factory until he was 20. He attended night school for two to three years, studying remedial literacy and numeracy, which allowed him to apply for better jobs. When he was 20 years of age he became a government employee at a local correctional centre and remained there for 14 years between 1978 and 1993. He attempted to operate a business to supplement his income, but failed. He developed a gambling disorder, and was convicted in 1993 of stealing and lost his job. Throughout the following years he became involved in criminal activity to raise money, eventually serving a 9 year prison sentence.

9. Upon his release in 2004 the applicant undertook varied short term roles until 2010 when he found a role in Macau receiving commissions from casinos to bring gamblers from the mainland. He said that he unwittingly accrued a debt when he was held to account for a gambler’s unpaid debts which was said to be part of his motivation to offend as he did.

10. The applicant has been married twice. There are two daughters from his first marriage, although the applicant is estranged from both of them. He remarried in 2005 but eventually separated in 2012. There was a one child of that marriage, in whose life he has remained active. He was diagnosed with Hepatitis B in 2010. He made no reports of any acute mental illness.

11. The applicant expressed shame about his offending and said that the operation was organised by a person in Hong Kong whom he had come to meet in the gambling industry. He said that he was desperate for money to clear his debts and to leave some inheritance for his younger daughter.

12. Mr Sheehan concluded that the applicant agreed to participate in the offending in the hope of settling his debts and ensuring financial security for his daughter. He said he expressed “authentic regret” for his offending. He appeared moderately depressed and somewhat socially isolated, making his conditions of custody more onerous. His self-esteem was assessed as low, and his rehabilitation prospects were regarded as limited.

13. Also tendered in the applicant’s case was a report of Lia McInnis, psychologist, of 18 September 2014. His Honour made reference to that report (commencing at ROS 20), noting that Ms McInnis recorded that the applicant reported developing a gambling addiction during his first marriage which led him into debt.

14. In terms of the offending, the applicant told Ms Mclnnis that when he learned of his diagnosis of Hepatitis B in 2010 he began to worry that he would not live long enough to contribute to the life of his youngest daughter. He said a friend introduced him to a man who could help him make money. After the initial meeting with this man, the applicant was told he would be travelling to Australia to find affluent individuals who would travel to casinos in Macau. He told Ms Mclnnis that it was agreed he would be paid "a handsome sum" and "the training started". He described being shown and taught how to extract a substance from hardened wax by melting it down. At this time he realised that the job was not about finding business for a casino.

15. The applicant reported to Ms Mclnnis that when he arrived in Australia he was given the address of a Beverly Hills property. He said he then met his co-offenders for the first time and commenced to undertake the process of “cooking”. He said that throughout the entire process he was following the directions of those in Hong Kong who organised the operation. The applicant reported to Ms Mclnnis that he knew about the risk associated with the venture prior to leaving, and that he understood that his actions were illegal and potentially harmful to the community, and to individuals in Sydney. However, he believed he was too far involved to withdraw from the venture, and desperately wanted the money for his daughter.

16. Other material tendered on behalf of the applicant made reference to the fact that he was undertaking English classes whilst in custody. Letters from the prison chaplain and a senior corrections officer confirmed that he was employed as a sweeper at the Long Bay Hospital and was considered to be trustworthy, reliable and remorseful. Justice Health records confirmed that he was undergoing treatment for, and monitoring of, Hepatitis B.

THE GROUNDS OF APPEAL

GROUND 1 – THE COURT ERRED IN LAW BY ACCUMULATING, BY 3 YEARS, THE SENTENCE IMPOSED UPON THE APPLICANT

The reasons of the sentencing judge

20. Having dealt with the question of the hierarchy amongst the various offenders, the sentencing judge said (at ROS 52):

I consider that partial accumulation is appropriate in relation to the offenders Messrs Kwok and Wan given that although the offences are connected, the manufacture of a drug and the supply of it are self-evidently separate criminal offences and that fact should be acknowledged by partial accumulation.

Submissions of the applicant

21. Counsel for the applicant expressly acknowledged that questions of accumulation are matters solely within the discretion of a sentencing judge. However, he submitted that the remarks of the sentencing judge set out in [20] above reflected the fact that his Honour had failed to ask himself the correct question, namely whether the sentence for one offence could comprehend and reflect the criminality of the other. It was submitted that the treatment of this issue by the sentencing judge was “insufficient”, and that his Honour had done nothing more than note that supplying an illegal drug, and manufacturing it, were disparate offences which justified an appropriate measure of accumulation.

22. Counsel for the applicant further submitted that the offending in count 2 was really a manifestation of, or an aggravating particular of, that in count 1. He submitted that the principal criminal purpose of all of the offenders was to manufacture methamphetamine for the purposes of supply, and that in those circumstances, one offence comprehended the other, to the point that the entirety of the offending could be justifiably viewed as a single course of criminality. It was submitted that by partially accumulating the sentences, the sentencing judge had erred in the exercise of his discretion, and that the sentences should have been wholly concurrent or alternatively, that the quantum of any accumulation should have been more modest than that applied by his Honour.

Submissions of the Crown

23. The Crown submitted that in circumstances where the applicant had committed two very serious offences, it was necessary that any sentence adequately punish him for all aspects of his offending. It was submitted that in these circumstances, a substantial degree of accumulation was warranted, the extent of which remained a matter for the discretion of the sentencing judge. The Crown submitted that the offending in count 1 did not, and could not, comprehend the additional criminality involved in the offending in count 2.

24. It was further submitted that his Honour’s observations at [20] above as to the disparate nature of the offending were not the sole basis upon which he determined that partial accumulation was warranted, and that it was evident from the detailed sentencing remarks that his Honour had gone to some lengths to identify the factual differences between the two offences. It was submitted that those differences necessarily had a bearing upon the degree of accumulation which was imposed.

25. It was further submitted that although the same methamphetamine was involved in the commission of both offences there was an obvious distinction between the two, both in terms of gravamen of the applicant’s conduct, and its nature. It was submitted that the two offences represented separate phases of a sophisticated drug enterprise, in the sense that:

1. manufacturing the methamphetamine involved its extraction, reconstitution and refining (a process in respect of which the applicant had particular expertise); and

2. supplying the methamphetamine involved its sale and distribution (a phase in which the applicant was the organiser and supervisor).

26. The Crown submitted that viewed in this way, the two offences involved distinct and separate criminality which fell to be reflected in some level of accumulation.

27. The Crown also pointed to the fact that in imposing sentence on the co-offender Wan, the sentencing judge had partially accumulated the sentence for the supply offence upon the sentence imposed for the manufacturing offence. The Crown specifically relied upon the fact that on the hearing of an appeal by Wan in this Court, it had been observed that by accumulating the sentences in that way, the sentencing judge had correctly recognised the separate and distinct nature of the offending: Wan v R [2017] NSWCCA 261 at [46]. The Crown submitted that this Court would reach a similar conclusion in respect of the applicant’s complaint in respect of ground 1.

Consideration

28. Obviously, when a drug is manufactured, it is manufactured for the purposes of supply. In that sense, the offending in the two counts was related. However, I am unable to accept the submission advanced on behalf of the applicant that for the purposes of sentence, one offence was comprehended by, and reflected the criminality of, the other.

29. Reference to the factual findings of the sentencing judge makes it clear that the two offences involved quite separate and distinct criminality. The applicant’s role in the manufacturing process included:

1. sourcing items required for the manufacture;

2. overseeing and supervising the cooking process over several days;

3. attending hardware stores in the course of the process to purchase sundry items necessary to complete it;

4. arranging to purchase a refrigerator; and

5. liaising with others so as to inform them of when the drug would be ready for supply.

30. It is evident that these activities were separate and distinct from those which centred upon the supply of the drug.

31. In Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41, Howie J said the following at [27]:

[27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

32. The sentencing judge was obviously mindful of these principles when determining an appropriate sentence in the present case. So much is clear from the passage of his remarks on sentence extracted at [20] above. In these circumstances I am unable to accept the submission advanced on behalf of the applicant that the sentencing judge had “asked himself the wrong question”. On the contrary, his Honour correctly concluded that the offending in the two counts was separate. Having done so, it followed that partial accumulation was required. Although his Honour did not expressly “ask” whether one offence could comprehend and reflect the criminality of the other, it is apparent that he was mindful of, and specifically considered, that very issue. His remarks on sentence bespeak no other conclusion. I am fortified in these views by the observations of this Court in Wan to which we were taken by the Crown and which are noted at [27] above.

33. The submissions of counsel for the applicant correctly recognised that accumulation, concurrence and totality are all matters which fall squarely within the discretion of the sentencing judge. An appellate Court will not interfere unless there appears to be an error of principle, or if the sentence imposed is manifestly excessive (or inadequate): Kerr v R [2016] NSWCCA 218 at [108] per Bathurst CJ. For the reasons I have expressed, no error of principle is established in the present case. Further, as noted below, a ground asserting that the sentence was manifestly excessive was abandoned at the commencement of the hearing before this Court.

34. It follows that this ground is not made out.

GROUND 2 – THE SENTENCE IMPOSED UPON THE APPLICANT WAS MANIFESTLY EXCESSIVE HAVING REGARD TO THE SENTENCE IMPOSED UPON THE APPLICANT’S CO-OFFENDER WAI MAN WAN FOR IDENTICAL OFFENCES AND THEREFORE THE APPLICANT HAS A JUSTIFIABLE SENSE OF GRIEVANCE.

GROUND 4 – THE SENTENCE IMPOSED UPON THE APPLICANT FOR THE OFFENCE OF MANUFACTURE COMMERCIAL QUANTITY OF METHAMPHETAMINE WAS MANIFESTLY EXCESSIVE COMPARED TO THAT OF THE OFFENDER CHAN HENG FOR THE OFFENCE OF AID AND ABET MANUFACTURE OF A BOARDER-CONTROLLED DRUG AND THEREFORE SUCH DISPARITY GIVES RISE TO THE APPLICANT HAVING A JUSTIFIABLE SENSE OF GRIEVANCE.

35. Given the issues raised by these grounds, it is convenient to deal with them together.

The sentences imposed upon the co-offenders

36. Wan was charged with the same offences as the applicant. In respect of the supply count, the sentencing judge imposed a non-parole period of 9 years imprisonment and an effective sentence of 12 years imprisonment. In respect of the manufacture count, and having expressed the view that it was appropriate to partially accumulate the sentences by 3 years, his Honour imposed a non-parole period of 12 years imprisonment. The total sentence was one of 21 years imprisonment with a non-parole period of 15 years imprisonment.

37. Chan Heng (“Heng”) pleaded guilty to one count of importing a commercial quantity of a border-controlled drug, namely methamphetamine (“the principal offence”) contrary to s 307.1(1) of the Criminal Code 1995 (Cth) (“the Code”). That offence carried a maximum penalty of life imprisonment. In addition, Heng asked the sentencing judge to take into account, pursuant to s 16BA of the Crimes Act 1914 (Cth), a further offence, namely that between 4 June 2013 and 17 June 2013 he aided and abetted the manufacture of a commercial quantity of a border-controlled drug, contrary to s 11.2(1) and 305.3(1) of the Code (“the additional offence”) which carries a maximum penalty of life imprisonment.

38. Heng was sentenced to 23 years imprisonment with a non-parole period of 15 years and 9 months.

The findings of the sentencing judge in respect of the applicant and Wan

39. As noted at [5] above, the applicant and Wan were sentenced together. In dealing with their respective levels of criminality, the sentencing judge said (commencing at ROS 46):

I have already referred to the role that they played. In my view, the Crown has amply demonstrated and I find beyond a reasonable doubt that each played a significant and high level role by doing the things which I have referred to. I accept the hierarchy which the Crown argues for in the hierarchy of known offenders, Mr Kwok is at the apex of the known offenders. I consider that Mr Choy and Mr Wan are at equal level, below Mr Kwok for reasons which I will explain.

Undoubtedly, the physical characteristics of these offences so far as Mr Kwok and Mr Wan are concerned mark these out as at the upper range of objective seriousness. My researches and for that matter the cases put forward by counsel in this extended sentencing hearing disclose no cases apparently considered by higher Courts which involve the quantity of drugs presently found here. There is a Victorian case to which I will make reference, and from which some analogy might be drawn but so far as I am aware the quantities involved here are the largest certainly known to me, personally, but I am not infallible but certainly the largest of any cases put before this Court for the purposes of this sentencing hearing. It is evidently clear based upon what I have said up to date that this was a planned and organised criminal activity and it was planning and organisation over and above that which would normally be found in even large manufacturing and supply cases of this kind.

Clearly enough both offenders accept that the offences were committed for financial gain; both have previous convictions, those convictions do not aggravate any appropriate sentence but simply disentitle the offenders from any leniency. Both have entered a plea of guilty at the earliest opportunity and

accordingly, that permits and indeed dictates the 25% discount for its utilitarian value. I should say, the Crown points out and I accept that the Crown case against those offenders was very strong nevertheless a trial of this magnitude might well have taken weeks, months and involved international and overseas witnesses so no doubt the utilitarian value is high and I accord the 25% by reason of that basis.

40. His Honour then returned to the issue (commencing at ROS 51):

There were no substantial arguments as I apprehend it, advanced by any of the counsel for the offenders about the issue of its hierarchy of parity. Drawing reasonable inferences from the omitted (sic) facts leads to a conclusion that in my view the Crown assessment is correct and in particular appears as I say that Messrs Kwok and Wan were recruited by members of the criminal syndicate in Hong Kong to come here to manufacture and distribute the drugs. In my view, it is self-evident that they were selected because they possessed the relevant knowledge, Mr Kwok more so than Mr Wan and also most importantly that they were sufficiently trusted by those in Hong Kong to carry out this very profitable task. Indeed, the comparative detachment of those offenders from others in Australia, including apparently Mr Choy, might well be seen as a mechanism by which the principals to this criminal enterprise maintain maximum security of information and lessen the risk that if any of those lower in the hierarchy are arrested, a lack of sufficient information is available to inculpate the principals.

As I say, in my view, the conclusion that Mr Kwok is at the top of the hierarchy of the present three offenders is also supported by the fact that he has undertaken such criminal activities previously in this country as I have found and even on his own version was trained in the extraction process in Hong Kong to provide the necessary skills to carry out his tasks here.

41. In terms of the respective criminal histories of the applicant and Wan his Honour said (commencing at ROS 11):

Mr Kwok has no New South Wales criminal history but the information is that he has the following matters on his Hong Kong criminal history. He was dealt with in 1993 for theft and fined. In 1994 and 1995 he appeared before the relevant court in Hong Kong charged with gambling and was fined on each occasion. In 1995 he was fined for lending money at an excessive interest rate in Hong Kong and most relevantly in 1995 he was sentenced to a term of ten years respectively and six years for two offences of administering a stupefying or overpowering drug with intent to commit an indictable offence and blackmail. Those sentences were concurrent.

Mr Wan has no criminal history in New South Wales history. He has a Hong Kong history which indicates two matters. In 1992 he was sentenced to 18 months imprisonment for living on the earnings of prostitution and permitting a girl under the age of 16 to resort to premises for unlawful sexual intercourse and in 2009 he was sentenced to 15 months imprisonment for aiding and abetting as person remaining in Hong Kong without authority.

42. In terms of the applicant’s subjective case, his Honour said (commencing at ROS 16):

The quantity of material was placed before the Court by Mr Kwok by his counsel, Ms Phelps. The first document is a psychologist's report of Mr Patrick Sheehan dated 9 June 2016, a document which helpfully traces the offender's background. Mr Kwok is 58 years of age. He was born in Hong Kong, one of six siblings. His family was very poor. The family lived in a form of public housing described as a slum and was close and supportive and pro social, notwithstanding that the immediate environs were highly antisocial and hostile. His father died when he was 25 years old. The offender moved out of the family home when he was 27. He first married on that occasion and has lived independently since then.

The offender maintains close ties with his mother and siblings and is sad to think he is unlikely to see his mother again by reason of her advanced years; she is now 85.

His early development was normal. Mr Sheehan noted that he attended primary school and was reasonably well adjusted. The family was unable to afford to send him to high school, so he went to work. He was employed from the age of 13 years working in a clothing factory until he was 20. He attended night school for two to three years, studying remedial literacy and numeracy. This allowed him to apply for better jobs.

When he was 20 years of age he became a government employee at a local correctional centre and continued there for 14 years between 1978 and 1993. In other words he was a corrections officer, as I understand it, in Hong Kong. The offender attempted to operate a business to supplement his income, but failed. He developed a gambling disorder. He was convicted in 1993 of stealing and lost his job. He says throughout the following years he became involved in criminal activity to raise money, eventually serving a nine-year prison sentence.

Upon his release in 2004 the offender reported to Mr Sheehan that he undertook varied short term roles until 2010 when he found a role in Macau from where he had travelled to China and received commissions from the casinos to bring gamblers from the mainland to the casinos. The clients would often lose money, they would chase their losses, and the offender would act as a go-between with loan sharks.

He reported to Mr Sheehan that he unwittingly accrued a debt when he was held to account for a client's unpaid debts. This was part of his motivation, so he said, to participate in the current offences. He said he worked in this role, that is to say, travelling to China to get gamblers to come to Macau until coming to Australia in 2013. I pause to note that if the suggestion is he was consistently so doing, the entries in his passport which indicate his coming to Australia appeared not to conform with that description of his work. Mr Kwok reported that upon his release he intends to go back to Hong Kong and find part time work. I should say that the version of how he came to be involved in this particular offence is a little at odds with the history he gave to Ms Leah Mclnnis, psychologist, whose report was also placed before the Court, that report being 18 September 2014, but I will make some further observations when I get to that report.

The offender reported a history of minimal social connections outside his employment. He said he acknowledged having associated with anti-social influences involved with gambling and other criminal activities. He does have a small group of social friends in Hong Kong who hold steady jobs.

The offender reported that he had been married twice. The first marriage lasted between age 27 and 34 years. He has two daughters by that relationship, now aged 28 and 30 years, but has become estranged from them. He maintains some contact through their mother, albeit indirectly.

The offender remarried in 2005. That was a difficult relationship as his partner was from mainland China and she apparently had trouble assimilating in Hong Kong. She was also put off by the fact that he had contracted hepatitis B. A daughter was born of that relationship in 2007, but the couple eventually separated in 2012. This offender has remained active in his daughter's life and continues to maintain contact by telephone. I note that photographs of his young daughter were placed before the Court in these proceedings.

The offender reported having been diagnosed with hepatitis B in 2010. He said he spent a significant amount of money treating the disease with traditional Chinese medicine, but is currently untreated. He made no reports of any acute mental illness. Mr Sheehan noted that the previous report by Ms Mclnnis suggested a history of gambling disorder in extended remission. He exhibits no obvious intellectual disabilities and there is no compelling evidence of a disorder of personality.

In terms of these offences, the offender expressed shame about these offences. He said that the operation was organised by a person in Hong Kong

whom he had come to meet in the gambling industry. He said that he was desperate for money to clear his debts and to leave some inheritance for his

younger daughter. Mr Sheehan records this as follows:

"He said that the nature of the operation was only revealed gradually and he was already fully committed by the time he discovered the full extent of the criminality involved. He said that not being a drug user himself he knew very little of methamphetamine. He stated that since being in custody and coming into contact with the methamphetamine users there he has come to fully understand the damaging nature of the drug and accordingly expresses regret for his behaviour."

I make the following observation about that second hand material. It is, in my view, difficult to accept that a mature man aged 58 or thereabouts did not know or had not heard of the deleterious effects of drugs of this kind.

There has been much media coverage, certainly in Australia at least, and I infer in other parts of the world, as to the scourge of drugs of this kind, and again if he did not know I find that quite remarkable in this day and age. It may well be that he did not understand the full extent of the damage it has done. It may be that this is directed towards knowing the degree of damage, but I would be most surprised if anybody who looks at television or listens to the radio would not have heard of the scourge of drugs.

The report concludes as follows:

"In summary, Mr Sheehan concluded that the offender agreed to participate in the offence in the hope of settling his debt and ensuring financial security for his daughter. He expressed 'authentic regret' for these offences. He appeared moderately depressed and somewhat socially isolated, making his conditions of custody more onerous. His self-esteem is low and his rehabilitation options are limited".

Ms Mclnnis's report of September 2014 refers to his gambling addiction and records that he reported developing such an addiction during his first marriage. That led him into debt. He said that while in gaol he rehabilitated from that addiction and reported since leaving gaol, not having gambled again, even though he is employed in Macau, clearly enough a gambling area and well known to be so.

In terms of the subject offence, the offender told Ms Mclnnis that when he learned of his diagnosis of hepatitis in 2010 he began to worry that he wouldn't live long enough to contribute to the life of his youngest daughter. A friend introduced him to a man who could help him make money. After the initial meeting with this man, the offender was told he would be travelling to Australia to find affluent individuals who would travel to the casino in Macau. Again, whilst the are some similarities, that version of events is not consistent with the extent of the version given to Mr Sheehan, the more recent psychologist.

He told Ms Mclnnis that it was agreed he would be paid "a handsome sum" and "the training started". He described being shown and taught how to extract a substance from hardened wax by melting it down. At this time he realised that the trip was no longer about finding business for the casino.

However, he did not know the nature of the substance he was learning to extract from the wax. Having never used illicit drugs himself, he was initially unaware that the substance he was working with was an illicit drug. He reports that as the time to leave for Australia came nearer, he realised that the trip he was about to take had "criminal elements" and there was a risk of being caught. He reports speaking to the man who was organising this and was reassured that he would not get caught. He was told that if he were to get caught, they had enough money to ensure he would not have any problems he may encounter.

Mr Kwok reported to Ms Mclnnis that he travelled to Australia and when he arrived here he was given the address of a Beverly Hills property. He said he met his co-offenders for the first time and commenced the procedure of removing the substance from the wax as he had been shown in Hong Kong. He says that throughout the entire process he was following the directions of the men in Hong Kong who organised the operation. The offender reported to Ms Mclnnis that he knew about the risk associated with the venture prior to leaving. He understood his actions were illegal and potentially harmful to the community and individuals in Sydney. However, he believed he was too far involved to pull out of the venture and also desperately wanted the money for his daughter.

He was assessed using various psychological tests and assessments, and returned unremarkable results, although it is fair to say Ms Mclnnis found him to be in the low range for risk of reoffending.

The offender also wrote a letter to the Court dated 29 December 2014. He says, so far as this offence was concerned, that he committed it to ensure his daughter's future. He also said that a friend introduced him to her. Some male person who asked him to come to Australia to work for him and he said:

"At the beginning, I didn't know what type of work that was and I was not a chemical technician either. During the whole of the process, there was no need to make or use any chemicals. I was required only to listen to the person's instructions about to heat up the wax and separate the amphetamine from inside the wax."

Again, a version somewhat different from the earlier versions given to the professionals.

The offender indicated that he wished to return to Hong Kong and to his family, and he is very regretful. Ms Phelps also relied upon letters from his ex-wife, Ms Ah Ying, dated respectively March 2015 and August 2013, and his mother, Mei Liu, dated 31 December 2014. They express surprise about this particular offender and indicate that he is truly remorseful and regretful so far as his expressions to them are concerned. His mother has indicated that her son has not disclosed why he became involved in this offending. Finally, there are three or four other documents which were relied upon by Ms Phelps on behalf of her client. A letter from a person identified as, "Kit", an English teacher apparently in the custodial setting, dated 29 January 2015, which in the case of the offender, is attempting to have or gain access to English classes whilst in custody. Letters from the Reverend Peter Baines, prison chaplain, dated 11 April 2016, and David Turner, Senior Corrections Officer at the Long Bay Hospital, both of which confirm that this offender is working as a sweeper at the Long Bay Hospital. He is considered to be trustworthy, reliable and remorseful. He is a trusted person as assessed both by Reverend Baines and Mr Turner.

Finally, the Justice Health records confirm the treatment and/or at least

attendances received by the offender for his hepatitis B condition and the

current monitoring of that condition.

43. In terms of Wan’s subjective case, his Honour said (commencing at ROS 23):

There was a psychologist's report under the hand of Flora Truong, dated 4 June 2015, and that contains the following material of relevance. The offender told her that he accumulated a debt of some HK$500,000, that is to say an equivalent to A$84,000, in gambling debts at Macau Casinos, betting on horses and sports. He said there were significant difficulties in him repaying his debt. He was offered employment by the person to whom he owed the debt, Mr Wong. The offender disclosed his criminal history in Hong Kong. He told Ms Truong he was 41 years old, born in Hong Kong, the middle child in a family of six. His father worked as a gardener and the family struggled financially. He had an unremarkable childhood. He moved out of home at 25 years of age and has had three or four non-serious relationships before he was married at age 30. Some five years later, the offender was divorced. There are two children of that union, a son aged ten years and a daughter aged eight years. They have lived with their mother in China. It appears that the offender regularly provided child support of about A$1,000 per month, to his ex-partner for the support of the children and he regularly travelled back and forth, to and from China, to visit them prior to his incarceration.

The offender has had another serious relationship lasting three to four years with a Chinese woman. There are no children of that relationship. The offender attended school in Hong Kong and left in Year 9 equivalent. There were no further studies after that. He performed poorly and struggled academically. He has worked in a variety of jobs, including being a mechanic

for five years and working in a number of roles in hospitality, including being a

waiter and as a member of the kitchen staff, and in restaurants. For some four

or five years, the offender worked in the construction business operating cranes. He said that established a number of relationships during work and expressed that his friends had often influenced him greatly, particularly with regard to career changes. He says he believes he is a skilled worker and identified that despite learning difficulties, he was always to learn and pick up skills quickly.

The offender said that he arrived in Australia in 2013 on a student visa. He enrolled in an English course. He could not remember the name of the College. His understanding of English is poor and he has not worked in this country. As I have earlier indicated, the agreed facts indicate that whilst enrolled in the Clarendon Business College, he attended no lectures at all, so the records show. He told Ms Truong, the psychologist, that apart from smoking and social drinking, he had no substance abuse history. He reported a serious gambling problem which commenced when he was 20 years of age. He enjoyed baccarat at the casino and betting on horses and sports. Apparently, this led to significant gambling debts when he was 30 years of age. It became a chronic major issue for him. He gave a history of some perhaps unremarkable injuries and no physical injuries as a youngster and no psychiatric history. He indicates that he is reported feeling anxious and depressed when first gaoled. The offender identified to Ms Truong, a structured routine in gaol. He works manufacturing earphones and exercises daily. He studies English and has been given homework. He keeps to himself but occasionally meets Cantonese or Mandarin speaking inmates, with whom he can converse.

After testing by Ms Truong, the offender met the diagnostic criteria for gambling disorder. In the event, Ms Truong concluded that the offender's vocational history and self-reported criminal record, suggest that he lacked critical thinking skills. She thought his history suggested he is very trusting and easily persuaded, and also capable of being manipulated by others.

Furthermore, he appeared to have poor impulse control, as indicated by his gambling problems. He reported that he has never been involved in drugs and, "identified being remorseful of his actions". Finally, Ms Truong concludes:

"In my opinion, a major contributing factor to this alleged offence, has been his character. He comes across as easily manipulable and very trusting, and according to his account, he follows the directions of others unquestionably. Another significant factor has been his self-reported fear for the safety of his family, following threats by those other in the syndicate ranks, should he not continue once he discovered that they were operating a drug syndicate."

Once again, that reference to threats and fears, only comes from this source and is of a secondary nature. I have to say that I am unable to accept that it is true or in fact credible.

The findings of the sentencing judge in respect of Heng

44. In dealing with the facts of Heng’s offending, his Honour said (commencing at ROS 2):

On 14 May 2013, 258 packages of furniture were shipped from China and arrived at Port Botany on 25 May 2013. The facts proceed under a number of headings:

THE CONDUCT OF THIS OFFENDER AND MR CHOY IN LEASING A WAREHOUSE FOR THE CONSIGNMENT AND FINDING PREMISES FOR THE CO-OFFENDER. WAN

The facts in that regard state as follows: That between 24 April 2013 and 24 May 2013 this offender and Mr Choy had numerous discussions about the leasing of a warehouse at Unwins Bridge Road, St Peters and also in relation to finding suitable premises for the co-offender Wan.

In April 2013 this offender answered an advertisement in the Chinese newspaper regarding the St Peters warehouse and telephoned a real estate agent, Ms Mary He. He introduced himself as David. The facts indicate thatDavid is a name by which the co-offender, Choy, went, but not usually, this offender. He asked Ms He to see the warehouse, went to see the warehouse, said he liked it and paid a $500 deposit.

Between 26 April 2013 and 3 June 2013 the offender had numerous conversations with Ms He and Mr Choy relating to the lease of the warehouse. He used a falsely subscribed telecommunications service with his contact with the real estate agent, Ms He, and a further falsely subscribed service in his contact with Mr Choy. There were a number of contacts between them to which I need to refer because they were raised in the contested facts hearing.

On 26 April 2013 the offender and Ms He agreed to start the lease of the warehouse from 1 June 2013. The offender told Ms He that a container he was expecting containing flat boxes and furniture was coming and also he said that when he went overseas he would send his partner to make a payment. Some three days later on 29 April the offender spoke with Ms He and asked her to get to the warehouse early because the container might be coming a week earlier. A couple of days later on 1 May 2013 the offender picked up Mr Choy, they both travelled to the St Peters warehouse. He instructed Mr Choy on the telephone to the effect of "dress like he was working" and both were observed, that is, this offender and Mr Choy, wearing fluorescent orange and blue shirts. They travelled to St Peters, met Ms He and her neighbour and Mr Choy was introduced as Michael. In subsequent conversations the offender represented himself to Ms He as David and on other occasions Michael.

The offender initially told Ms He that he would collect the warehouse keys on 10 May 2013. He telephoned her that day and said he could not get there because he was on the way to the airport to catch a flight. The facts indicate that in fact the offender did not leave the Sydney metropolitan area that day and the statement appears to be an incorrect one or perhaps a false one.

About 13 May 2013 the offender picked up Mr Choy and together they went to the St Peters warehouse to collect the keys. The lease was signed with a weekly rent and a bond of $5,500 in the name of the lessee, David Chau. The offender paid Ms He an additional $5,000 in cash. There was further evidence about the issue of payment to which I will return.

The offender told Mr Choy to go to the warehouse to ensure it was empty and "to make sure there is no camera or nothing". Choy was told to pretend that he was measuring the floor space. On 17 May 2013 Mr Choy did as he was instructed and reported back to the offender. After being told by Ms He that the warehouse was empty on 20 May the offender called Mr Choy and told him to check the warehouse. He instructed him to "make it look normal" and "just wear your work clothes". Choy did as he was instructed and reported back to the offender, stating that he had checked the inside and outside and all was clear. The offender asked him if he could see inside the windows and Mr Choy advised that the windows were very clear and would need to be covered.

On 31 May 2013 the offender asked Ms He to collect money for the rent of the warehouse on Monday 3 June and on that day Mr Choy made a payment of rent to Ms He's neighbour.

Under the heading:

CONDUCT OF OFFENDER AND CHOY IN THE IMPORTATION, ARRANGING COLLECTION OF CONSIGNMENT AND TRANSPORTING CONSIGNMENT TO THE ST PETERS WAREHOUSE

Are contained at the following facts:

Between 1 June 2013 and 3 June 2013 Mr Choy had a number of conversations with a removalist whilst receiving instructions from this offender to arrange for the transportation of the consignment to the St Peters warehouse.

On 1 June 2013 Mr Choy spoke to the removalist, made some arrangements concerning the moving of a shipment of furniture, advised the removalist that his "boss" was not concerned about the cost. He also said that his boss was angry "last time" as there had been a stuff up. The following day Mr Choy telephoned the removalist and said he had just received a call from "his boss" who wanted Mr Choy to double check that everything was prepared. There were further conversations in which Mr Choy referred to "his boss".

Mr Choy drove his vehicle to the address at Mascot, he stayed seated there wearing his fluorescent work shirt. A short time later he met removalists and together loaded the consignment onto the truck. Later Mr Choy in convoy with the removalist truck drove to eastern Mascot. At about the same time the offender drove west in the same street in Mascot, directly passing Mr Choy and the removalist truck. A short time later the offender drove his vehicle into the complex at St Peters. About eight minutes later he made a call to Mr Choy when he parked adjacent to the St Peters warehouse complex. A short time later the real estate agent Ms He arrived outside the warehouse and telephoned the offender. There was discussions about the rent and whether David had called her. The offender told Ms He that David was 30 minutes away and advised he would be at the warehouse unloading the truck and asked her to come back later. When this call was made he was seated in his van at the entrance of the warehouse complex. About midday the offender was seated in his van at the St Peters warehouse complex. The facts indicate that he was watching Mr Choy and the removalist arrive and enter. He then drove off, some minutes later he returned to the entrance of the warehouse, driving the van and was observed using his mobile phone. He spoke to Mr Choy about calling Ms He and arranged to meet her later. I should say that there was a contest about what it was precisely the offender was doing and most particularly whether he was monitoring what Mr Choy was doing. I will return to that contest shortly. About one hour later Mr Choy and the two removalists unloaded the consignment. Mr Choy was seen using a mobile phone and both the offender and Choy were using new telecommunications services unknown to the police. When the unloading was complete Mr Choy appeared to take several photographs of the consignment boxes. He drove to the offender's premises and they met in front of the offender's premises and both appeared to look at photographs. Once again there was a contest as to that particular fact.

Moving then to the next heading in the so-called agreed facts.

THE CONDUCT OF THE OFFENDER. MR CHOY AND MR WAN IN THE IMPORTATION. SEPARATING THE BOXES WITH DRUGS AND TRANSPORTING THEM TO THE CLANDESTINE LABORATORY AT BEVERLEY HILLS

On 4 June 2013 authorities began the lawful interception of two telephone services, one used by Mr Choy and the other by the offender, both subscribed in false identities and at false addresses. They were new numbers so that facts indicate used by the offenders when communicating with each other. In mid-morning that day Mr Choy drove a van which had previously been driven by the offender to Beverley Hills. He there collected Mr Wan and both went to St Peters. Mr Wan signed a new lease at Beverley Hills on 2 June 2013. About 1pm the offender telephoned Mr Choy and the latter informed him that he and Wan had just arrived at the warehouse. They stayed in the warehouse moving boxes for the next three or so odd hours and afterwards on the way to Beverley Hills Mr Choy phoned the offender and told him they were heading back and there appeared to be some missing. Mr Choy then drove directly to the offender's premises and there was a conversation between them about what was missing. Some minutes later Mr Choy telephoned the offender and advised that Mr Wan had spoken to "his people" and there was still more coming and "Hong Kong said not to worry". The offender gave directions to Mr Choy to ask Mr Wan to take everything he needed. Mr Choy told the offender would take two trips at least and arrange to use the offender's van. On 5 June 2013 authorities lawfully intercepted Mr Choy's falsely subscribed mobile service number which was used only to communicate with Mr Wan and also a falsely subscribed service used by Mr Wan. In the mid-morning of 5 June 2013 Mr Choy drove to Beverley Hills, collected Mr Wan and went to St Peters warehouse where they moved boxes for about an hour and loaded thirty one boxes into Mr Choy's vehicle. They drove to Beverley Hills and unloaded those boxes. In conversations between Messrs Choy and Wan they referred to the difficulties occurring on this occasion rather than "like last time" and reference was made by Mr Choy to "Mike" not wanting anyone to know where the warehouse was. During the unloading of the container Mr Choy telephoned the offender and told him they would need at least two cars. The offender told Mr Choy not to say anything on the phone and asked him to call the offender when Mr Choy was finished. In the early afternoon of 5 June 2013 the offender telephoned Mr Choy and the latter told him that there was a problem and that there were "too many, too long and too big the thing" an apparent reference to the size of the items on the container. There was a discussion between them about requiring extra people to help and there were further discussions where the offender directed Mr Choy not to do anymore and told him to come back because he, Mr Heng wished to speak to Mr Choy. Over an hour later Mr Choy with this offender being present telephoned Mr Wan and discussed using a big truck to move the goods. References were made to ones which were available and not available, an apparent reference to missing items. Mr Choy told Mr Wan that the offender had said to ignore the other container and there was further discussions about leaving some and separating others. The following day 6 June Mr Choy went to Beverley Hills and collected Mr Wan. They arrived at the St Peters warehouse and for a period of time continued to move boxes.

They loaded 24 boxes into Mr Choy's vehicle and then drove to Beverley Hills and unloaded them there. On the way they discussed whether a fridge would fit into the van and they also discussed needing to check if anything was damaged. The following day 7 June 2013 Mr Choy went to Beverley Hills premises and collected Mr Wan. Once again they went to the St Peters warehouse, moved some boxes, loaded 26 boxes into Mr Choy's vehicle. The offender then telephoned Mr Choy and the latter Mr Choy told him he was driving with Mr Wan to Beverley Hills.

CONDUCT OF OFFENDER AND CHOY IN AIDING AND ABETTING THE MANUFACTURE OF METHAMPHETAMINE AND KWOK AND WAN IN THE MANUFACTURE AND SUPPLY OF METHAMPHETAMINE

The following facts are listed.

On 5 June 2013 Mr Kwok arrived in Australia from Hong Kong. The incoming passenger card indicated his intention to stay at a hotel at Potts Point. He said he was visiting friends and/or relatives. His intended length of stay was five days and he indicated he had no criminal convictions on the incoming passenger card. On 6 June 2013 the offender rang Mr Choy regarding the presence of a Caucasian and gave Mr Choy directions to leave after five or ten minutes. There was further discussion about meeting the Caucasian and missing him. In the course of the conversation there was reference to "they" leaving at that stage or leaving the beach or the intended point of meeting. On 7 June 2013 there was a conversation between this offender and Mr Choy when the latter and Mr Wan were transporting the last of the boxes to Beverley Hills. The offender reminded Mr Choy not to forget about a meeting at the beach, apparently involving the Caucasian. There was a further conversation that day between Mr Choy and the offender indicating that he, a reference perhaps to the Caucasian was not there. He had waited for some minutes, there was further discussions as to whether they could reschedule the meeting in essence. On the afternoon of 8 June 2013 Mr Choy met a Caucasian male, a Mr Greg Katsoturhis and took possession of a blue pump and a cardboard box. On the morning of 9 June 2013 Messrs Kwok and Wan were at the Beverley Hills premises. They were observed and/or heard opening and dragging boxes and discussing amounts of money. There were telephone conversations between this offender and Mr Choy and Mr Wan discussing what was needed for the lab, including references to a fridge and things not being able to fit into the car. Conversations between Messrs Wan and Kwok and the attendance at the Beverley Hills premises were also referred to in the facts. In the afternoon of 9 June 2013 the offender telephoned Mr Choy and asked whether he wanted to do it tonight. He told Mr Choy to come to his house and get the van and also to come inside because he had something to give Mr Wan. An hour later Mr Choy collected the van from Mr Heng's premises. He went to Beverley Hills and Messrs Choy and Wan unloaded nine boxes on that occasion. Around 10 and 11 June 2013 sounds were intercepted from the Beverley Hills premises, consistent with movement of items and use of the drug lab. On 10 June 2013 Mr Wan telephoned Mr Choy about the fridge and Mr Choy said that he was waiting for the offender to call since the offender was arranging for the truck. Mr Choy then telephoned this offender and relayed that conversation. There were arrangements about the moving of the fridge the following day. On 11 June 2013 this offender hired a utility from a service station at Strathfield and drove to Mr Choy's premises. Later he and Mr Choy left those premises with a large fridge and arrived at Beverley Hills.

Both men unloaded the fridge with the assistance from Mr Wan and carried it into an enclosed porch of the premises when Mr Choy and the offender departed. On 11 June 2013 further conversations were intercepted between Messrs Kwok and Wan regarding the cooking process. There were discussions about whether the person referred to as "fat boy" which the facts indicate was Mr Choy gave directions as to how the drugs should be prepared. There was discussion as to showing people samples.

On 11 June 2013 this offender telephoned Mr Choy and advised that "old man" just messaged and said it was very important for Mr Choy to call Mr Wan and find out what he wanted. I note that this is the first and only reference in the agreed facts to the person referred to as old man. That was an identity which became a large part of the contested facts and as I say I will turn to that shortly.

There was an agreement between them that they should call boss number 1 or big boss. Mr Kwok received a call from a person referred to as thus. There were discussions between Messrs Kwok and Wan about meeting at 1 o'clock. There was a discussion about Mr Wan and Mr Choy, the latter asking what was needed and arranging for a meeting in the city. After this there was a telephone conversation where Mr Choy telephoned the offender and told him that Mr Wan had called and wanted to meet at 1pm at the city.

The offender told Mr Choy to make sure he was not late because it was very important. Mr Choy asked the offender whether he should wear work clothes again and the offender said that he should. A short time later the offender telephoned Mr Choy and told him that when he saw Mr Wan the next day the latter would give him something and instructed Mr Choy to go home and called him the offender, after he had received it.

The cooking process at Beverley Hills continued throughout 12 June 2013. From time to time the men involved Mr Wan and Mr Kwok left the premises going to hardware stores to obtain sundry items to assist in that process. In the early afternoon of 12 June 2013 Mr Choy telephoned the offender and confirmed receipt of something from Mr Wan. The offender told Mr Choy to go to "Choy's other house" where the offender's cousin lived and press 12 and then meet there.

When Mr Choy arrived at the Courallie Avenue premises at Homebush he telephoned the offender, there was a conversation about which unit he was to come into and he was given instructions by the offender. When inside the premises the offender spoke to Mr Choy about "doing the test" and "having a very good week". On the afternoon of 12 June 2013 Messrs Wan and Kwok returned to Beverley Hills. There were further noises consistent with the cooking process.

On that evening Mr Kwok received a telephone call from boss number 1 or big boss. There was discussion about the quality of the drug and it not being of the same quality as last time. On 14 June 2013 the surveillance continued and captured further cooking activity apparently undertaken by Mr Wan and Mr Kwok. On 17 June 2013 Mr Kwok left the lab with two sports bags, a brand called Cabrelli. Mr Wan picked him up in a taxi. They were soon arrested and were found to be in possession of 2 kilograms of methamphetamine in various bags.

OFFENDER'S INTERCEPTED TELEPHONE CONVERSATIONS

The following facts appear. Between April and May 2013 a number of telephone conversations between Mr Heng the offender and Van Louaneviseth, a person I will refer to without any disrespect as Mr Van, were intercepted on falsely subscribed telephone services with arrangements for Mr Heng to pick up Mr Van from the airport. There was a conversation on 29 April 2013 where the offender told Mr Van there was a delay to around June or late May 2013. I interpolate to say that the shipment bearing the furniture and the drugs arrived in this country on 25 May 2013.

There was a further conversation on 12 May 2013 in which the offender informed Mr Van that it was sometime this month. On 14 May 2014 they again spoke about Mr Van coming to Sydney and staying. Some seven days later on 21 May the offender confirmed he had picked Mr Van up from the airport. On 24 May 2013 Mr Van was observed entering the Courallie Avenue premises. After the arrival of the consignment in June 2013 Mr Van and this offender continued to communicate concerning the distribution of drugs.

I should say this is also one of the issues where there was a contest. It was the offender's version in evidence that he gave that he was undertaking a separate drug deal involving cocaine and not any of the drug which was the subject of this importation. I will return to that particular contention shortly.

Mr Van arrived in Sydney, was picked up by this offender. On 11 June the offender advised him that "sometime this week" that it was "up to the final stage already today".

The following day 12 June 2013 after Mr Choy had given the offender something from Mr Wan to test, the offender advised Mr Van that "the test looked all right" and Mr Van asked how much. The following day 13 June the offender and Mr Van discussed how long it would take and when Mr Van would arrive in Sydney. There was a discussion about both of them throwing away their phones. On 14 June 2013 there was a discussion between the offender and Mr Van on their legitimate mobile services relating to when the latter Mr Van would arrive at the airport.

On 17 June 2013 Messrs Wan and Kwok were arrested in a taxi cab in Beverley Hills. As I say they were in possession of two bags containing three plastic clip sealed bags which contained approximately 1 kilogram of a white crystal substance and three plastic clip sealed bags containing approximately 1 kilogram of a similar substance. They were taken to St George Police Station and declined to be interviewed.

Police seized a number of items from Mr Kwok, a number of falsely subscribed mobile phones, a quantity of cash Australian, Hong Kong and Chinese, an arrival card, a Hong Kong passport which disclosed Mr Kwok had entered this country in August 2012, in January 2013 and in June 2013. Mr Wan was also found to be in possession of five mobile phones, a quantity of Australian and Hong Kong money as well as a passport in his name which indicated that he had arrived in this country in April 2012 and also in April 2013. He had a business college student card.

Mr Wan was registered with the Clarendon Business College in April 2013. As it happens, attendance records showed he did not attend any classes between that date and June 2013 when he was arrested. The Beverley Hills premises was searched on 17 June 2013 by police officers and they there found a large quantity of white crystalline substance as well as in effect, a laboratory designed to extract the drug from the wax in which it was contained within the furniture.

In addition police seized three empty black duffel bags identical to those seized in the taxi in which Mr Wan and Mr Kwok were arrested. There were packing lists, numerous hardware, a flight itinerary for Mr Wan and other associated documents.

FORENSIC EXAMINATION OF SUBSTANCES FOUND IN THE POSSESSION OF MESSRS KWOK AND WAN ITEMS AT BEVERLEY HILLS PREMISES AND DRUG VALUE

The facts contain the following. Off-white crystalline material found in the 16 clip sealed bags in the taxi with Mr Kwok and Mr Wan were found to be 15.9409 kilograms of methamphetamine of a purity of between 77.4 and 80.3 purity. The calculated pure net weight was 12.6492 kilograms. The total net weight of the crystalline material, paste, fabric and liquid contained in the methamphetamine found at Beverley Hills was 128.6858 kilograms not including the weight of the boxes in which they were found.

Forensic analysis indicated the presence of methamphetamines in varying degrees of purity. The calculated pure weight of methamphetamines found at Beverley Hills was 61.1547 kilograms. The total admixture of methamphetamines not including the wax for the manufacturing charge was 144.6 kilograms. The total pure weight was 73.80 kilograms.

The facts continue that in June 2013 the wholesale value in New South Wales of 144.6 kilograms of methamphetamine was approximately $23,859,000 calculated at a rate which is there set out and a purity which is there set out. The street value was calculated at approximately $89,652,000 again calculated via a formula given in the facts. The wholesale value of the 15.94 kilograms found on Messrs Kwok and Wan was $4,064,700 and the street value of that drug $15,143,000.

CONDUCT OF MR HENG AND MR CHOY AFTER THE ARREST AND MESSRS KWOK AND WAN ARE THE FOLLOWING FACTS

Mr Heng and Mr Choy spoke by telephone on the evening of 17 June 2013 the former instructing latter to have a look if anybody was following him.

The following afternoon the offender drove past the Beverly Hills premises on two occasions as the police were executing a search warrant. A short time later Mr Choy telephoned this offender and this offender instructed him to throw away the mobile phone he had used to contact Mr Wan and also the mobile phone Mr Choy was then using. He was also instructed to throw away everything except what was termed "the Mary paper" which apparently was a reference to the lease of the St Peters warehouse.

THE ARREST OF MR HENG AND THE SEARCH OF THE PREMISES AND THE VEHICLE ARE THE FOLLOWING FACTS

At 7am on 9 July 2013 police attended Mr Heng's premises at Station Street, Homebush. He was arrested and a search warrant was executed. Found in those premises was $60,000 in cash, some realestate.com.au searches in relation to three premises at Croydon. A registration certificate for the van and the name Mr Choy, a copy of Mr Choy's driver's licence, Medicare card and debit card and one Cabrelli black overnight bag which the facts note was identical to the bags which Mr Kwok and Wan used to carry the 15 or so of kilograms in the taxi when they were arrested.

There was also a number of vacuum sealed bags, fluorescent work shirt and The offender was arrested and taken to the Auburn Police Station and declined to participate in an interview. Mr Choy was arrested on the morning of the same day at premises at Leicester Avenue, Strathfield. His house was searched and there was a number of letters and other items as well as two fluorescent work shirts found at his residence.

On the same day, 9 July 2013 police executed a search warrant at the St Peters warehouse and located a number of cardboard boxes which contained furniture items, no anomalies were apparent when those items were x-rayed.

45. In terms of Heng’s role, the sentencing judge said (commencing at ROS 49):

In my view, it was clearly a commercial enterprise by the offender. I say that I do not blame him on a human level but the fact of the matter is when you look at it and how much assistance or facilitation in the course of justice actually occurred one can say that apart from the fact that an item, and a serious one it should be said, was surrendered and that must be taken into account, the other so-called assistance amounts to very little and I have a real doubt as to whether or not it was a genuine attempt.

46. His Honour continued (at ROS 51):

I am satisfied beyond a reasonable doubt that this offender took part with his co-offenders in a previous importation and to that extent this therefore was not an isolated incident but, as the Crown submits, part of a sophisticated system of trafficking in prohibited drugs.

Counsel for the offender submitted that there is a lack of cogent evidence to establish beyond a reasonable doubt that the offender has previously been involved in such conduct. It is conceded his record of prior convictions or conviction particularly does not assist him.

47. When sentencing Heng, his Honour said the following in terms of parity (commencing at ROS 44):

In terms of parity, the Crown submits that the offender should be regarded at least on par as Mr Kwok although clearly they had different parts in this enterprise. The sentence she submitted should be towards the upper end of the scale. In terms of the time in custody, the offender was arrested on 9 July 2013, and was released to parole before that on 9 February 2011 and became involved in this criminality in April 2013, that is some two years later. He was on parole when these offences were committed. His parole was revoked and the balance of parole expired in early December 2014. The remainder of time in custody since 3 December 2014 has been solely attributable to this offence. The Crown argues that the sentences should be cumulative upon the earlier sentence and not backdated to the date of the offender's arrest. As it happens, I will commence the starting date of the sentence I will impose shortly, one year after his arrest to reflect partial accumulation. Counsel for the offender submitted that there should be an entire backdating until the date of arrest. I have arrived at a compromise position which in my view, reflects issues of totality.

Submissions of the applicant

48. Counsel for the applicant submitted that the differing sentences imposed upon the applicant and Wan arose from the fact that the sentencing judge had erroneously placed excessive emphasis upon what he saw as the established hierarchy of offenders, at the apex of which he had placed the applicant. Counsel submitted that a full and proper appreciation of the respective roles of the applicant on the one hand, and Wan on the other, made it clear that such roles were “symbiotic”, to the point that any differences were “titular”. In support of that submission, counsel for the applicant pointed to the following factors:

1. Wan sought, located and signed and the lease for the Beverly Hills property, transactions in which the applicant played no part;

2. Wan was in constant communication with Heng and Choy when setting up of the enterprise;

3. Wan and Choy attended the St Peters warehouse and retrieved the boxes containing the product that was eventually manufactured into methamphetamine;

4. Wan had a significant planning role in the manufacturing process;

5. Wan purchased and assembled laboratory equipment used in the manufacturing process;

6. Wan participated in the manufacture of 149.7kgs of methamphetamine;

7. Wan liaised with other members of the syndicate who resided overseas as their contact point and, in that role, relayed messages to the applicant;

8. Wan’s role was to make contact with the Australian buyers of the methamphetamine; and

9. Wan had travelled to Australia for the sole purpose of dealing in illegal drugs, had arrived in Australia some six weeks prior to the consignment containing the material that would become methamphetamine, and had therefore significantly advanced the criminal enterprise even before the applicant had arrived in Australia.

49. It was submitted that in all of these circumstances the only difference between the applicant and Wan was that the applicant appeared to have fulfilled the role of the “cook”, a process in which he had assisted and directed Wan. It was submitted that this difference was counterbalanced by Wan’s earlier activities setting up the criminal enterprise well before the arrival of the applicant in Australia, and that in these circumstances the respective roles of the applicant on the one hand, and Wan on the other, reflected equal levels of criminality when viewed holistically and objectively. Counsel for the applicant further submitted that there was a specific unjustified disparity arising out of the respective sentences imposed for the offence of supply upon the applicant and Wan, in circumstances where they were arrested together in possession of the drug.

50. Counsel for the applicant then turned to what he submitted was an unjustified disparity between the sentence imposed upon the applicant and that imposed on Heng. Counsel submitted that although, if the sentence were “deconstructed”, it would be open to infer that the greater part of the sentence may have been a reflection of the objective gravity of the principal offence, the sentence necessarily incorporated punishment for the additional offence. It was submitted that if it were to be assumed that the sentence imposed was apportioned 50% in respect of the principal offence and 50% in respect of the additional offence, it would follow that the sentence for the additional offence was significantly less than that imposed upon the applicant. It was submitted that in these circumstances, the applicant had a justifiable sense of grievance.

Submissions of the Crown

51. The Crown submitted that the conclusions reached by the sentencing judge as to the respective roles played by the applicant and Wan were amply supported by the facts, and that the sentence which had been imposed upon the applicant was justified because his position was clearly more senior, and his role clearly greater, than that of Wan.

52. The Crown took particular issue with the submission advanced on behalf of the applicant that the roles played by the applicant and Wan were “symbiotic”. The Crown submitted, in particular, that the applicant:

1. had come to Australia for that specific purpose, and for the associated purpose of executing the arrangement that the other subordinate syndicate members had setup;

2. possessed the knowledge and expertise to extract, reconstitute and refine the methamphetamine;

3. was responsible for setting up the laboratory;

4. had instructed Wan what to do;

5. was responsible for teaching Wan the manufacturing process;

6. had liaised directly with his superiors and, in doing so, had exercised a degree of autonomy;

7. had organised and planned the supply; and

8. had confirmed the supply order with the Hong Kong syndicate, with Wan being responsible for carrying out the order and performing the actual handover.

53. It was submitted that when viewed in this way, the applicant could have no justifiable sense of grievance and that the sentences imposed reflected the fact that his role was greater than that of either Wan or Heng.

54. To the extent that the applicant submitted that he had a justifiable sense of grievance arising from the sentence imposed on Heng, the Crown submitted that the applicant’s position was both misconceived and contrary to principle. The Crown pointed out that Heng was sentenced for the principal offence (i.e. the importation of a commercial quantity of border controlled drug) and had asked the sentencing judge to take into account the additional offence (i.e. aiding and abetting the manufacture of a border-controlled drug). The Crown submitted that it was no part of the role of the sentencing judge to determine an appropriate sentence for the additional offence. It was further submitted that the sentencing judge was obviously aware of the correct approach to be taken, having stated on several occasions that the additional offence would be taken into account on the usual basis.

Consideration

55. The parity principle requires that like offenders be treated in a like manner. However, the principle also allows for different sentences to be imposed on like offenders to reflect different degrees of culpability, and/or different circumstances: Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 at [28] and the authorities cited therein. The principle also recognises that equal justice requires that as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance. It is not simply a question of imposing different sentences for the same offence, but rather a question of proportion being structured between those sentences. That is a matter which is determined having regard to the different circumstances of the co-offenders, and their different degrees of criminality: Postiglione v R (1997) 189 CLR 295; [1997] HCA 26 at 301; Lowe v R (1984) 154 CLR 606; [1984] HCA 46 at 610-611.

56. The applicant’s submissions as to the asserted disparity between the sentences imposed upon himself and Wan concentrated on the fact that Wan had arrived in Australia prior to the applicant and had, during that period, engaged in a number of preparatory steps directed towards establishing the enterprise. That much is clear. However, what is also clear is that once the applicant arrived, he assumed what was clearly a supervisory role in which Wan was his subordinate. This was reflected, principally, in the fact that the applicant was the “cook” and trained Wan in that role.

57. The mere fact that Wan took preparatory steps prior to the applicant’s arrival in Australia does not lead to the conclusion that his role was greater. Whilst Wan’s role was not insignificant, it remains the case that without the applicant’s arrival and subsequent involvement, the enterprise would never have become operational. On the evidence, the applicant travelled to Australia specifically for the purpose of manufacturing and supplying large quantities of methamphetamine. In order to perform his role, the applicant necessarily had to have the skills required to extract the methamphetamine, and prepare it for supply.

58. It is also clear that the applicant was responsible for liaising with members of the syndicate in Hong Kong, and that he acted in accordance with their instructions. Importantly, in terms of the offence of supply, it was the applicant who confirmed the order for the supply of 16 kilograms, and planned and arranged the circumstances in which the supply was to take place.

59. I am also unable to conclude that there is a specific and unjustified disparity, between the respective sentences imposed upon the applicant and Wan in relation to the supply count. Quite apart from the applicant’s activities leading up to the time of his arrest, the evidence established that it was he and not Wan who had confirmed the order for the supply with the syndicate members in Hong Kong. That necessarily rendered his criminality greater than that of Wan in respect of that offending.

60. It follows that in my view, his Honour’s conclusion that the applicant’s role was greater than that of Wan was soundly based, and led to the necessity to impose a greater sentence upon the applicant than Wan. It follows that the applicant’s complaint of disparity in this regard is not made out.

61. The sentencing judge was required to sentence Heng for the principal offence. He was not required to determine any sentence for the additional offence. It is evident from his Honour’s remarks that he was well aware of the correct approach. Such approach, as it applies to Form 1 offences which are taken into account on sentence, was set out by Spigelman CJ in 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 at [39]:

[39] The sentencing court is sentencing only for the "principal offence". It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a "discount" for the use of the procedure. This is not sentencing for the principal offence.

62. It is clear that a similar approach is to be adopted for the purposes of s 16BA of the Crimes Act 1914 (Cth): R v Lamella [2014] NSWCCA 122 per Price J at [48]; Director of Public Prosecutions (Cth) v KMD [2015] VSCA 255; (2015) 254 A Crim R 244.

63. The applicant’s submission that there is an unjustified disparity between the sentence he received, and that which was imposed upon Heng, relied upon an attempted “unravelling” of Heng’s sentence, in an effort to determine what portion of it may have been referable to the principal offence, and what proportion may have been referable to the additional offence. Such an approach is contrary to the authorities cited above. It was not part of the task of the sentencing judge to determine an appropriate sentence for the additional offence. The submissions of counsel for the applicant invited this Court to engage in an analysis of Heng’s sentence which was simply not permissible.

64. For all of those reasons, this ground is not made out.

65. It is noted that ground 3 of the application which asserted that the sentence was manifestly excessive was abandoned at the hearing

CONCLUSION

66. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

67. BEECH-JONES J: I agree with Bellew J.

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Amendments

27 February 2019 - Corrections to [2](i) and [36]

Decision last updated: 27 February 2019