Lai v R

[2021] NSWCCA 217

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Lai v R [2021] NSWCCA 217

Hearing dates:

2 August 2021

Date of orders:

8 September 2021

Decision date:

08 September 2021

Before:

Bathurst CJ at [1]
Adamson J at [2]
Bellew J at [3]

Decision:

(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to an offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug – Parity principle – Whether the applicant had a justifiable sense of grievance in light of the sentences imposed upon co-offenders – Where the fact that all co-offenders were sentenced by the same judge presents a hurdle to an applicant for leave to appeal based on a complaint of unjustified disparity – Where there were distinguishing features between the respective subjective cases – No justifiable sense of grievance made out – Leave to appeal granted – Appeal dismissed

PRACTICE AND PROCEDURE – Observations as to the practice of an offender tendering a statement to a sentencing judge in the absence of giving sworn evidence – Practice to be discouraged – Material of that nature deserving of little or no weight

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

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

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Chamon v R [2020] NSWCCA 112

Ferrer-Esis v R (1991) 55 A Crim R 231

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Gwardys v R [2019] NSWCCA 62

Klomfar v R [2019] NSWCCA 61

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Pfitzner v R [2010] NSWCCA 314;

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Dennison [2011] NSWCCA 114

R v Lai; R v Po [2019] NSWDC 771

R v Ngan [2020] NSWDC 493

R v Paliwala [2005] NSWCCA 221; (2015) 153 A Crim R 451

Ryan v R [2009] NSWCCA 183

Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Weber v R [2020] NSWCCA 103

Texts Cited:

N/A

Category:

Principal judgment

Parties:

Wei Han Lai – Applicant
Regina – Respondent

Representation:

Counsel:
M C Ramage QC – Applicant
S Flood – Respondent

Solicitors:
Jeffreys Lawyers – Applicant
Commonwealth Director of Public Prosecutions – Respondent

File Number(s):

2018/146267

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 771

Date of Decision:

26 August 2019

Before:

Williams SC DCJ

File Number(s):

2018/146267

Judgment

1. BATHURST CJ: I agree with the orders proposed by Bellew J and with his reasons.

2. ADAMSON J: I agree with Bellew J.

3. BELLEW J: Wei Han Lai (the applicant) appeared for sentence in the District Court following his plea of guilty in the Local Court to a charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code Act 1995 (Cth) (the Code). That offence carried a maximum penalty of life imprisonment.

4. A co-offender, Po Wu (Wu), appeared for sentence at the same time as the applicant, having pleaded guilty to the same offence.

5. Another co-offender, Tze Yeung Ngan (Ngan), had previously pleaded guilty to the same offence, but was sentenced (by the same sentencing judge) after the applicant and Wu. At his sentence proceedings, Ngan asked the sentencing judge to take into account, pursuant to s 16BA of the Crimes Act 1914 (Cth) (the Act), an additional offence of importing a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.1(1) of the Code. [1]

   1. AB 185.

6. As set out below, the offending of all three persons arose out of the importation into Australia of 200kg of methamphetamine which was secreted in the base of each of two metal lathes.

7. The following sentences were imposed by the sentencing judge:

1. the applicant –12 years imprisonment with a non-parole period of 8 years; [2]

2. Wu – 15 years imprisonment with a non-parole period of 10 years; [3] and

3. Ngan – 14 years imprisonment with a non-parole period of 9 years and 3 months. [4]

   2. R v Lai; R v Po [2019] NSWDC 771 at [58]; AB 41.

   3. R v Lai; R v Po [2019] NSWDC 771 at [58]; AB 41.

   4. R v Ngan [2020] NSWDC 493 at [36]; AB 51.

8. The applicant now seeks leave to appeal against the sentence imposed on him, on the single ground more fully discussed below.

THE FACTS OF THE OFFENDING

9. Anyink International Home Appliance Pty Ltd (Anyink) was established as an Australian proprietary company on 6 January 2017 and marketed itself as a dealer in used furniture. At the time of Anyink’s incorporation, Ngan and another person, Na Li (Li), were appointed as directors and secretaries. Li ceased being a director on 6 February 2017. From that date, up until the time of the offending, Ngan was the sole director and secretary. [5]

   5. Facts at [7] – [8]; AB 57.

10. Ngan arrived in Australia on 3 January 2018, although he had travelled to Australia on two occasions during 2017. [6] On 7 February 2018 he secured a lease (on behalf Anyink) of commercial premises at Kingsgrove (the warehouse). [7]

    6. Facts at [7[-[12]; AB 2 – 3.

    7. Facts at [14]; AB 3.

11. Wu arrived in Australia from Taiwan on 29 January 2018. [8]

    8. Facts at [13]; AB 3.

12. On 19 March 2018 a consignment to Anyink consisting of two lathes arrived in Sydney from Malaysia. There were no traces of any drug found in this consignment. [9]

    9. Facts at [15]-[16]; AB 3.

13. On 20 April 2018 a further consignment to Anyink, again consisting of two lathes, arrived in Sydney from Malaysia. Ngan liaised with the freight forwarder in relation to the delivery of that consignment and his phone number was listed as the contact on importation documents. [10] On the same day, as the arrival of the consignment, Wu secured a lease of residential premises in Riverwood (the Riverwood premises). [11]

    10. Facts at [17]; AB 3.

    11. Facts at [17] – [18]; AB 58.

14. On 22 April 2018 the applicant arrived in Sydney from Taiwan. He thereafter stayed with Wu at the Riverwood premises.

15. On 23 April 2018, the two lathes were intercepted by police and found to contain a total of 200kg of methamphetamine, separated into 200 individual 1kg blocks which were wrapped in vacuum sealed Chinese tea packaging. The average purity of the methamphetamine was between 80% and 80.3%, with a calculated pure weight of 160.7kg. Its street value was estimated to be between $30,068,595.00 and $80,182,920.00.

16. On 26 April 2018 Ngan attended Bunnings at Kingsgrove where he purchased tools, including an angle grinder and a power drill. [12] On the same day, Wu secured a lease of premises at Strathfield (the Strathfield premises) although he and the applicant continued to reside at the Riverwood premises. [13] Given what later transpired, the inference is that the Riverwood premises were leased with a view to using them as a “safe house” for the methamphetamine.

    12. Facts at [23]; AB 59.

    13. Facts at [24]; AB 59.

17. Wu was regularly in touch with a person known only as “David” who, on the Crown case, was a member of an organised crime syndicate based overseas and whose role it was to oversee and finance the importation. [14] Wu and David communicated through “EncroChat”, a Netherlands-based application which facilitated communication by way of secure conversations, group chats and messages, in circumstances where the contents of any such communications were later destroyed. Once destroyed, the contents were irretrievable. [15]

    14. Facts at [25]; AB 59.

    15. Facts at [26]; AB 59.

18. Between about 5:44pm and 11:08pm on 3 May 2018, Wu and David discussed a number of matters relating to the importation including the premises which Wu had rented, and the daily expenses which would be payable to him. In the course of doing so, David asked Wu for the serial number of a $50.00 note which was in Wu's possession. [16]

    16. Facts at [27]; AB 59.

19. Further discussions took place between Wu and David on 4 May 2018, in the course of which Wu was directed to go to a particular location where he later met with an unidentified person. By the provision of the serial number of the banknote which had been supplied to David the day before, Wu was given a sum of $20,000.00. [17]

    17. Facts at [28] – [29]; AB 60.

20. Wu and David had further conversations on the evening of 6 May 2018, in the course of which David directed the various procedures which were to be followed from that point onwards. [18]

    18. Facts at [30]; AB 60.

21. Police substituted the entirety of the methamphetamine which had been found in the two lathes with an inert crystalline substance, [19] following which they were delivered to the warehouse on the afternoon of 7 May 2018. Ngan was present on that occasion, and directed those delivering the lathes to remove them from the rear of the delivery truck and place them on the floor of the warehouse. Ngan then locked and secured the warehouse before leaving. Wu and David then exchanged a number of messages, in the course of which David gave Wu various instructions. [20]

    19. Facts at [20] – [22]; AB 58.

    20. Facts at [31]; AB 60 – 61.

22. Wu and Ngan subsequently entered the warehouse and commenced removing the wooden crate from the first of the lathes. Later that day, Wu and the applicant attended Bunnings at Kingsgrove where they purchased a number of tools, including a fan cooled welder arc and two welding electrodes, as well as cutting fluid solution. Wu kept David up to date with these steps through the further exchange of messages. At David’s direction, Wu provided him with photographs of what was being done. [21]

    21. Facts at [31]; AB 60 – 62.

23. On the following day, 8 May 2018, Ngan and Wu went to the warehouse. Both were carrying bags. Having arrived, they continued to break open the wooden crating around the lathes. Wu had ongoing exchanges with David in which he kept him up to date with what was taking place.

24. Wu and Ngan then went to Bunnings at Kingsgrove, David having sent Wu photographs of crowbars, telling him to purchase them. Wu and Ngan returned to the warehouse and continued to break open the crating, with Wu continually keeping David up to date through encrypted messaging. Having removed the entirety of the crating, Wu and Ngan departed the warehouse. That evening, Wu and David engaged in a further exchange of messages, with David instructing Wu to bring a set of scales to the warehouse the following day so that “each of them” could be weighed. [22]

    22. Facts at [32]; AB 62 – 64.

25. Wu and David exchanged further messages during the morning of 9 May 2018. Ngan arrived at the warehouse at about 8:45am and waited for Wu and the applicant, who arrived shortly after 10:02am with three large suitcases. The applicant, using an angle grinder and drill, then started to open the base of the first lathe. David was kept up to date with developments through ongoing messages from Wu. Wu and Ngan then laid out a number of suitcases and bags before removing the packages from the base of the first lathe and placing them in the suitcases. Wu then left the warehouse with two of the suitcases and went to the Strathfield premises. [23]

    23. Facts at [33]; AB 9 – 10.

26. Ngan and the applicant remained in the warehouse. The applicant then started to open the base of the second lathe. Wu then returned to the warehouse, at all times keeping David up to date with what was occurring. Whilst the applicant removed the packages from the second lathe, Ngan and Wu commenced weighing them using electronic scales that Wu had retrieved from the Strathfield premises. Wu and the applicant ultimately left the warehouse carrying three cases containing some of the packages, intending to return to the Strathfield premises. Ngan remained behind to tidy up the warehouse.

27. In the course of travelling to the Strathfield premises, Wu and the applicant were arrested by police. Shortly afterwards, David sent Wu a message inquiring as to whether or not he had arrived at Strathfield. Over the next three minutes David made eight calls to Wu, all of which were unanswered. [24]

    24. Facts at [33] – [35]; AB 10 – 11.

28. Unaware that Wu and the applicant had been arrested, Ngan placed 33 packages into a suitcase and left the warehouse. He was arrested shortly thereafter. [25]

    25. Facts at [36] – [37]; AB 67.

FINDINGS OF THE SENTENCING JUDGE AS TO EACH OFFENDER’S ROLE

29. The applicant and Wu were each sentenced on 26 August 2019. Ngan was sentenced on 5 June 2020, almost 10 months later.

30. In terms of the respective roles of the applicant and Wu, the sentencing judge said: [26]

[39] The Crown's written submissions which highlight the customary matters to be considered in imposing sentence according to Pt 1B of the Crimes Act 1914 (Cth), assert that Wu played a significant role which was indicative of a position of significant trust and responsibility within the importing syndicate, over an extended period of time. It is clear and common ground that [the applicant] performed an essential but more confined role in the attempted possession of the methamphetamine.

26. At [39]; AB 37.

31. I am left to assume, in the absence of any express finding, that the sentencing judge accepted the Crown's submissions.

32. In respect of Ngan, his Honour said: [27]

[30] …[Ngan] did not, on the evidence, plan, organise, lead or have an authoritative role in the importation of the syndicate. He was apparently acting under instructions at all times, and as the evidence shows, Wu was constantly reminded that Ngan was an “outside person” who is presumably outside some form of inner circle and there were expressions that caution must be taken when dealing with matters in front of him or around him. It is clear that he was not the financier. He certainly facilitated the importation in a significant way. He was apparently not the only person in contact with the overseas controller and he did not have a stake in the drugs that were intended to be imported and would not receive any share of the intended import, but rather on his unchallenged version, would receive forgiveness of a drug related debt. There is no evidence to establish that he knew the quantity of drug to be imported. There was none of the indicia one often sees in these cases of drug ledgers consistent with him being a stakeholder or owner of the drugs. There was no evidence that he was personally going to distribute any of the drugs into the community, but that is not a matter of any great significance. His role in physically receiving instructions regarding the arrival and access to the drug consignments exposed him to the risk of being caught and is inconsistent with the role of someone in the upper echelons of the drug supply network, such as a principal or financier. In short, as [counsel for Ngan] put it, he was the name and face of the recipient to enable the overseas controller in sourcing and importing the drug and facilitating its arrival and access in Australia.

THE SUBJECTIVE CASE OF EACH OFFENDER

27. At [30]; AB 50.

The applicant

33. A report of Anita Duffy, Psychologist, [28] was tendered in the applicant’s case on sentence from which I draw the following summary.

    28. AB 157 – 165.

34. The applicant was born in Taiwan on 24 July 1988 and is presently aged 33. He spent part of his formative years being cared for by his grandparents due to his own parents' work commitments, but returned to the care of his parents at the age of 7. [29] He was educated in Taipei and described his literacy as average. Having left school, he undertook compulsory military training at the age of 20, following which he was employed in the metal work industry. He also worked in the bar of a hotel. [30]

    29. AB 158 – 159.

    30. AB 159 – 160.

35. In terms of the offending, the applicant told Ms Duffy that he had incurred a significant gambling debt at a casino, which the casino owner (“George”) had insisted be repaid immediately. He asserted that, faced with threats of harm to his family if the debt was not repaid, he had been given the option of participating in the offending in order to have the debt cleared. He maintained that he was reluctant to become involved, but was fearful of repercussions to his family if he did not do so. [31]

    31. AB 161.

36. Ms Duffy reported that the applicant had expressed “deep shame and remorse” for his offending. [32] She also reported that the testing she had administered demonstrated that the applicant was suffering from depression in the extremely severe range, stress in the severe range and anxiety in the moderate range. [33] Ms Duffy also considered that the applicant satisfied the criteria for a diagnosis of a gambling disorder. [34]

    32. AB 162.

    33. AB 162.

    34. AB 164.

37. The applicant tendered a statement as part of his case on sentence [35] but did not give sworn evidence. In that statement, consistent with what he had told Ms Duffy, the applicant asserted that George had told him that if he did not repay the debt there would be “troubles to [his] family members”. In terms of his knowledge of the details of the offending, the applicant said he had thought that “there could not be such a good thing happening”. He said that he had asked George what was involved, and that George simply told him, in effect, that he would come to know in time. According to the applicant, his head was then covered with a hood, and he was driven to a factory where the hood was removed and his attention was directed to a particular piece of machinery. He said that George, having asked him about his familiarity with such machinery, had told him that there was a similar machine in Australia and that he needed him to travel there and dismantle it. He asserted that George had said to him that once that job was completed, the entire debt would be extinguished. [36]

    35. Commencing at AB 169.

    36. AB 169 – 170.

38. The applicant said that when he dismantled the base of the first lathe he saw “numerous tea packages in there, some of which were wrapped around in transparent material [with] white crystalline particles”. He said that at that point he felt that he had been “cheated” by George, and reiterated that he had become involved because George had threatened “to bring troubles” to his family. He expressed his remorse for the offending. [37]

    37. AB 171 – 172.

39. A number of testimonials were tendered in the applicant's case on sentence from his family members which made reference to (inter alia) his remorse, and the effect of his offending on his parents. [38]

    38. AB 169 – 180.

40. The sentencing judge noted that the history provided by the applicant to Ms Duffy was untested and found that there was “nothing remarkable” about the applicant's upbringing. [39] He accepted the applicant's expressions of remorse and made specific reference to the testimonial material which was tendered in the applicant's case on sentence. [40] His Honour was not satisfied that the applicant had established non-exculpatory duress arising from his asserted dealings with George. [41]

    39. At [33] – [34]; AB 36 – 37.

    40. At [36] – [38]; AB 37.

    41. At [36]; AB 37.

41. His Honour applied a discount of 25% to reflect the utilitarian value of the applicant’s plea of guilty. [42] He also made specific reference to the applicant’s good character, but noted that this was of less weight given the nature of the offending. [43] His Honour also had regard to the fact that the applicant’s conditions of custody would be rendered more onerous in light of language and cultural difficulties, along with the fact that the applicant would be isolated from his family. [44]

    42. At [42]; AB 38.

    43. At [43]; AB 38.

    44. At [43]; AB 38.

Wu

42. A report of Jason Borkowski, [45] Psychologist, was tendered in Wu’s case on sentence, from which I draw the following summary.

    45. AB 146 – 154.

43. Wu was born in Taiwan on 23 June 1995 and is presently 26 years of age. He was raised by both of his biological parents until they separated when he was 12 years of age. Following that separation Wu stayed with his father. Although their relationship was strained, Wu remained living with his father until he came to Australia. [46]

    46. AB 147 – 148.

44. Wu left school at the age of 17, part way through the equivalent of year 12. He then undertook a period of compulsory military service, at the conclusion of which he secured employment doing air-conditioning and electrical work. He then worked for his father on construction sites for period of time before being offered work by a friend serving drinks to clients in a brothel. He continued this work until he came to Australia. He accepted that his primary reason for travelling to Australia was to commit the offence. [47]

    47. AB 149.

45. Wu said that his offending was motivated by a desire to financially assist his family. He said that he had been told that he would be given money and expenses in return for signing for, and receiving, parcels. He asserted that although the details of what he had been asked to do were not entirely clear, he thought that what was being offered to him may have involved some kind of illegal activity. He said that once he arrived in Australia he realised the real nature of the venture in which he had become involved, but said that he could not withdraw from it because he believed that he would be in danger if he attempted to do so. [48] He expressed his remorse for the offending. [49]

    48. AB 150 – 151.

    49. AB 151.

46. The results of testing administered to Wu indicated symptoms consistent with depression and anxiety. Based upon Wu’s self-reporting and the results of testing, Mr Borkowski diagnosed him as suffering from a mild to moderate major depressive disorder at the time of his offending.

47. The sentencing judge observed that the matters set out in Mr Borkowski’s report had not been adopted by Wu in sworn evidence and were to be treated “with the appropriate caution”. [50] His Honour summarised Wu’s subjective circumstances set out in the report and noted that whilst a diagnosis of a major depressive disorder had been made, it was not suggested that there was any causative link between that disorder and the offending. His Honour accepted Wu's expressions of remorse [51] and applied a discount of 25% to reflect the utilitarian value of his plea of guilty. [52]

    50. At [28]; AB 36.

    51. At [29]; AB 36.

    52. At [42]; AB 38.

48. His Honour found that Wu was a person of prior good character, but again noted that this was of less weight in light of the nature of the offending. [53] His Honour also had regard to the fact that Wu’s conditions of custody would be rendered more onerous by language difficulties and cultural differences, as well as by the fact that he would be isolated from his family. [54]

    53. At [43]; AB 38.

    54. At [43]; AB 38.

Ngan

49. A report of Alison Cullen, [55] Psychologist, was tendered in Ngan’s case on sentence from which I draw the following summary.

    55. AB 212 – AB 221.

50. Ngan was born in Hong Kong on 22 December 1995 and is presently 25 years of age. He is an only child. His mother left the family home when he was 6 years of age. He described a childhood characterised by poverty, abuse, emotional deprivation, and the presence of an alcoholic father who abused him both physically and psychologically. [56]

    56. AB 212.

51. Ngan completed the equivalent of year 10, at which time he entered a 16 month period of drug rehabilitation in a centre which he asserted was notorious for the abuse, ridicule and torture of its residents. [57] An affidavit of Ngan’s solicitor which was tendered before the sentencing judge annexed documents which generally supported the veracity of those assertions. [58]

    57. At 213.

    58. AB 224 – AB 237.

52. Ngan reported that his drug taking had commenced at around 13 years of age and had continued through his teenage years. He said that he had ceased taking drugs altogether following his first trip to Australia at the age of 21, but that he had subsequently accumulated a drug debt and was being harassed by his drug dealer for repayment. He said that his drug dealer had offered the offending as a way of clearing the debt, and that although he did not want to become involved, he “had no way not to do it”. [59]

    59. AB 214 – AB 216.

53. Ngan said that upon arriving in Australia he had been given the responsibility of carrying out the daily tasks of Anyink, including liaising with freight forwarders. He claimed that he had only discovered the gravity and nature of the offending when he signed for the consignment, and that up to that time he had been led to believe that he would be responsible for importing “contraband cigarettes”. [60]

    60. AB 216 – AB 217.

54. In a letter written to the sentencing judge which was tendered in his case on sentence, Ngan recounted a number of the matters that he had reported to Ms Cullen. [61] In sworn evidence before the sentencing judge, Ngan generally confirmed the truth of what he had said in those respects. [62] In cross-examination, the Crown challenged his assertion that he had believed that he would be responsible for importing contraband cigarettes. Ngan denied that his knowledge of what he had been asked to do went beyond knowledge of the possibility that “something illegal” might have been involved. [63] He said that he had never thought to ask whether the offending involved illicit substances [64] and that it was only when the lathes were dismantled and he saw the packages that he realised that drugs were involved. [65]

    61. AB 222 – AB 223.

    62. AB 348.25.

    63. AB 350.16.

    64. AB 350.20.

    65. AB 350.40 – AB 350.41.

55. A number of testimonials were tendered In Ngan’s case on sentence which generally spoke of his prior good character. [66] A series of certificates were also tendered, which confirmed that Ngan had undertaken a number of courses in custody since his arrest. [67]

    66. AB 238 – AB 239.

    67. AB 250 – AB 260.

56. The sentencing judge set out the essence of the report of Ms Cullen and noted that when giving evidence the applicant had confirmed the truth of the history that he had provided. [68] His Honour concluded that Ngan’s assertion that he was under the impression that he was to import cigarettes should be “treated with some scepticism”. [69]

    68. At [15] – [19]; AB 47 – AB 48.

    69. At [20]; AB 48.

57. Although not expressly stated, it is to be inferred from his Honour’s reasons that he found Ngan was remorseful. His Honour applied a discount of 25% to reflect the utilitarian value of the applicant’s plea of guilty. He also accepted that Ngan’s deprived upbringing attracted the principles referred to in Bugmy v The Queen [70] and found that in light of his age, the principles governing the sentencing of young offenders were also engaged. [71] His Honour also made reference to the additional offence that Ngan had asked be taken into account. [72]

THE GROUND OF APPEAL – There was a lack of parity between [the applicant’s] sentence and that imposed on co-offenders Po Wu and Tze Yeung Ngan

70. (2013) 249 CLR 571; [2013] HCA 37.

71. At [33]-[34]; AB 51.

72. At [1]; AB 44.

The reasons of the sentencing judge

58. I have set out the findings of the sentencing judge in relation to each offender, as to the objective circumstances of their respective offending, and their individual subjective cases. In light of the ground of appeal, it is relevant to note that when sentencing the applicant and Wu, his Honour said: [73]

I take into account considerations of parity, bearing in mind the different roles played by each offender, to which I have referred.

73. At [45]; AB 39.

59. When sentencing Ngan, his Honour said: [74]

Questions of parity obviously loom large having already imposed sentence on [the applicant] and Wu and the sentence must not be one which would give rise to a justifiable sense of grievance amongst any of the offenders.

74. At [28]; AB 50.

60. Further, in addressing the additional offence of importation which Ngan had asked be taken into account, his Honour said: [75]

In sentencing [Ngan], the Court is required to take into account the import offence pursuant to s 16BA(1) Crimes Act. The Court, while focussing on the primary offence, must give weight to the need for personal deterrence and the community’s entitlement to extract retribution. General deterrence is clearly a fundamental consideration so that the sentence acts to deter others from engaging in illicit drug activities.

75. At [25]; AB 49.

Submissions of the applicant

61. In written submissions, senior counsel for the applicant acknowledged that the sentence imposed on the applicant was less than the respective sentences imposed on each of Wu and Ngan. However, he submitted that the applicant nevertheless had a justifiable sense of grievance having regard to his role in the offending when compared to those of his co-offenders. The essence of senior counsel’s submission was that the applicant’s criminality was substantially less, and that this was not reflected in the sentence that was imposed on him.

62. In support of this submission, senior counsel pointed to the fact that:

1. the acts performed by the applicant were limited, both in number and duration;

2. the applicant had no managerial or authoritative role, with Wu and Ngan having a far greater degree of responsibility;

3. there was no evidence that the applicant was aware of the nature, purity or quantity of the drug involved;

4. there was no evidence that the applicant was to play any role in the dissemination of the drug into the community; and

5. there was no suggestion that the applicant was to share any profit derived from the venture.

63. In terms of the applicant’s subjective case, senior counsel’s written submissions pointed to the fact that the applicant was a person of prior good character who, unlike Ngan, had not had any prior involvement with illicit drugs. It was further submitted that although it did not provide an excuse, it was clear that the applicant's offending had arisen out of “economic necessity” which, in turn, had arisen in part from a gambling disorder. It was also submitted that the sentencing judge had found that the applicant’s expressed remorse was genuine, and that his prospects of rehabilitation were good.

64. In oral submissions, senior counsel emphasised that Ngan had asked the sentencing judge to take into account a further offence of importing a commercial quantity of a border controlled drug, and referred to the fact that such an offence carried a maximum penalty of life imprisonment. Senior counsel pointed out that the total sentence imposed on the applicant was only 2 years less than that imposed on Ngan, and that the non-parole period was only 1 year and 3 months less. The essence of senior counsel’s submission in this respect was that, bearing in mind Ngan’s greater criminality, the sentence imposed on Ngan did not reflect his Honour having properly taken the additional offence into account, and that this circumstance fortified the applicant’s justifiable sense of grievance.

Submissions of the Crown

65. The Crown expressly acknowledged that the role of the applicant was less than both Wu and Ngan. However, the Crown submitted that the sentencing judge had clearly identified the different roles of each offender, and had closely analysed the circumstances of each individual case. The Crown submitted that in circumstances where he sentenced all three offenders, the sentencing judge had been in the best possible position to consider the entirety of the interrelationship between the objective and subjective features of each case. The Crown further submitted that his Honour was obviously cognisant of the need to have regard to principles of parity, and that there was nothing to indicate that such principles had not been applied, or had been applied in a way which indicated error.

66. The Crown further submitted that there was nothing in his Honour’s reasons when sentencing Ngan to support the proposition that he had erred in his approach to the requirements of s 16BA of the Act. The Crown pointed out, in particular, that the additional offence which Ngan had asked be taken into account was part of the venture giving rise to the offence to which he had pleaded guilty, and that any increment to be applied was to be assessed in that light.

CONSIDERATION

67. The parity principle requires that like offenders be treated in a like manner. The principle also allows for different sentences to be imposed on like offenders to reflect different degrees of culpability and/or different circumstances, and it recognises that, as between co-offenders, equal justice requires that there not be a marked disparity which gives rise to one offender having a justifiable sense of grievance. [76] The question is always one of due proportion being structured between sentences. That proportion is to be determined having regard to the different circumstances of the co-offenders and their differing degrees of criminality. [77]

    76. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28].

    77. Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26; Lowe v The Queen (1984) 154 CLR 606 at 610 – 611; [1984] HCA 46.

68. Importantly, the sense of grievance necessary to attract appellate intervention with respect to sentences which are said to be unjustifiably disparate is to be assessed by objective criteria. It does not involve a judgment about the feelings of the person who complains of the disparity. It follows from all of these considerations, this Court will refuse to intervene when disparity is justified by the differences between co-offenders. [78]

    78. Green at [31].

69. It is also necessary to emphasise that an applicant seeking leave to appeal who asserts a parity error faces a considerable obstacle where, as here, all of the offenders have been sentenced by the same judge. [79] This becomes all the more so where, as here, it is evident that the sentencing judge was specifically mindful of the need to apply the parity principle, a conclusion which is evident from his Honour’s express references to it.

    79. Chamon v R [2020] NSWCCA 112 at [35]-[36]; Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [173].

70. The submissions of senior counsel for the applicant in support of this ground of appeal centred upon three particular factors, namely:

1. the applicant’s role in the offending;

2. his subjective case; and

3. the sentencing judge’s treatment of the additional offence of importation which Ngan had asked to be taken into account on sentence.

71. As to the first of those matters, the submissions advanced by senior counsel for the applicant emphasised that the applicant’s role had been performed over a short period of time. I accept that this was so. I also accept that the applicant’s involvement in the venture was, in an overall sense, less than that of either Wu or Ngan. However, I am unable to accept what appeared to be senior counsel’s underlying submission, namely that the applicant’s role was less than significant.

72. Whilst the duration of the applicant’s involvement is obviously relevant in assessing his role, the focus must remain on what he did. [80] Accepting his account to Ms Duffy as to the circumstances in which he became involved, the applicant apparently had particular familiarity with the workings of lathes of the kind in which the packages were secreted. It was his role to apply his knowledge and expertise to the task of opening each lathe so that the packages could be removed. Whilst that role did not involve any managerial responsibility or the exercise of any authority, its importance must not be understated. Properly viewed, the applicant’s role and expertise were essential to a well organised venture of international drug trafficking. [81]

    80. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54.

    81. Klomfar v R [2019] NSWCCA 61 at [40]; Gwardys v R [2019] NSWCCA 62 at [43].

73. As far as the applicant’s subjective case is concerned, the primary submission which appeared to be advanced on his behalf was that the sentencing judge had attached insufficient weight to the subjective factors on which he relied. Such a submission necessarily recognises that some weight was given to those factors, in circumstances where matters of weight are within the discretion of a sentencing judge[82] and where no specific challenge was made to any finding which his Honour reached.

    82. Ryan v R [2009] NSWCCA 183 at [33].

74. Generally speaking, the applicant’s subjective case was unremarkable. Whilst he was a person of prior good character, the sentencing judge was correct to find that this was of less significance given the nature of the offending. [83] Moreover, to the extent that the sentencing judge took into account the applicant’s isolation from his family as a mitigating factor, that approach was, with respect, generous. The evidence supported a conclusion that the applicant had come to Australia specifically for the purposes of engaging in this offending. His incarceration is the inevitable consequence of the discovery of his crime. In those circumstances, he has no justifiable cause for complaint stemming from the fact that he now finds himself isolated from his family. [84]

    83. At [43]; AB 38 and see generally R v Paliwala [2005] NSWCCA 221 at [20]-[25]; (2005) 153 A Crim R 451.

    84. Ferrer-Esis v R (1991) 55 A Crim R 231 at 239 per Hunt CJ at CL.

75. As to the third matter upon which senior counsel relied, the sentencing judge specifically acknowledged when sentencing Ngan that in taking into account the additional charge of importation, he was required to give greater weight to the need for personal deterrence, and the community’s entitlement to extract retribution for a serious offence. [85] Far from reflecting error, that approach was in accordance with authority. [86]

    85. At [25]; AB 49.

    86. 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 [42]; R v Dennison [2011] NSWCCA 114 at [51].

76. In taking the importation offence into account, and in determining the degree of increment to be applied, his Honour was entitled to have regard to the fact that the drug which was the subject of that offence was obviously the same drug which had been secreted in the two lathes upon their arrival in Australia, and which was later removed and substituted. The only additional criminality in which Ngan had engaged in respect of the importation was his liaising with the freight forwarder after the consignment had arrived. Any increment to be applied as a result of taking that additional offence into account was to be assessed in that context.

77. Moreover, and bearing in mind the focus applied by senior counsel for the applicant to the sentence imposed on Ngan, the sentencing judge was required, in determining that sentence, to apply his instinctive synthesis to the entirety of the relevant factors, both objective and subjective. Importantly, in relation to Ngan’s subjective case, it is apparent that his Honour had regard to two particular factors. The first was Ngan’s deprived upbringing which, his Honour concluded, justified the application of the principles in Bugmy, and reduced Ngan’s moral culpability. The second was Ngan’s youth. Those factors were significant. They played no part in the applicant’s subjective case and served as important distinguishing factors.

78. For all of these reasons, the ground of appeal has not been made out.

79. Finally, as I have noted, both the applicant and Wu chose to tender, in their respective cases on sentence, a statement to the sentencing judge. Each did so in the absence of giving sworn evidence. In circumstances where such a practice appears to be increasingly adopted in sentence proceedings in the District Court, it is timely to reiterate the observations of Whealy J (as his Honour then was) in R v Elfar:[87]

The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports – R v Palu. In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so.

87. [2003] NSWCCA 358 at [25] (citations omitted); Ipp JA and Davidson AJ agreeing.

80. Those observations have since been consistently reiterated by this Court. [88] There is, in my view, no utility in adopting the practice of tendering a statement in the absence of sworn evidence, in circumstances where this Court has made it abundantly clear that little or no weight should be attached to its contents. It follows that in my view, such a practice is to be strongly discouraged.

    88. See for example Pfitzner v R [2010] NSWCCA 314 at [33]; Weber v R [2020] NSWCCA 103 at [63].

ORDERS

81. I propose the following orders:

1. Leave to appeal is granted.

2. The appeal is dismissed.

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Endnotes

Decision last updated: 08 September 2021