Lam v R; Lam v R

[2015] NSWCCA 87

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Lam v R; Lam v R [2015] NSWCCA 87
Hearing dates:	9 March 2015
Date of orders:	06 May 2015
Decision date:	06 May 2015
Before:	Meagher JA at [1]; Schmidt J at [2]; Bellew at [103]
Decision:	In each case, leave to appeal be granted, but the appeal be dismissed
Catchwords:	CRIMINAL LAW – leave to appeal and appeal against sentence – whether justifiable sense of grievance as to the disparity of sentence imposed upon co-offender – leave to appeal granted – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure Act) 1999 (NSW) Criminal Code 1995 (Cth). Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 England v R; Phanith v R [2009] NSWCCA 274 GN v R [2012] NSWCCA 96 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 McLaren v R [2012] NSWCCA 284 Melikian v R [2008] NSWCCA 156 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nguyen v R [2007] NSWCCA 14 Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 R v Cramp [2004] NSWCCA 264 R v Do [2005] NSWCCA 209 R v Grube [2005] NSWCCA 140 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Shi [2004] NSWCCA 135 R v Wilson [2005] NSWCCA 219 R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 Tan v R [2014] NSWCCA 96 Tatana v Regina [2006] NSWCCA 398
Category:	Principal judgment
Parties:	Chun Kit Lam Chun Lok Lam Regina
Representation:	Counsel: Mr I Lloyd SC with Mr D Clarke (Applicants) Mr J Pickering SC (Crown) Solicitors: Chess Legal (Applicants) J Pheils – Solicitor for Public Prosecutions (Crown)
File Number(s):	2012/1717412012/171698
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Law Date of Decision: 11 April 2014 Before: McClintock DCJ File Number(s): 2012/171698

Judgment

1. MEAGHER JA: I agree with Schmidt J that the objective circumstances of the offending of each of the applicants and their respective subjective cases, as found by the same sentencing judge, were sufficiently different from those of Bing-Jie Wang to justify the disparity in the sentences each received. For the reasons her Honour gives, leave to appeal should be granted and their appeals dismissed.

2. SCHMIDT J: Mr Chun Lok Lam and his younger brother, Mr Chun Kit Lam, each seek leave to appeal sentences imposed on them by McClintock DCJ in April 2014, for an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) of supplying a large commercial quantity of a prohibited drug (namely, 2206.7 grams of methylamphetamine). That offence carries a maximum penalty of life imprisonment and/or a fine of $550,000 with a standard non-parole period of 15 years for a mid-range offence.

3. There is only one ground of appeal advanced in each case, namely, that each applicant has a justifiable sense of grievance by virtue of the disparity between the sentence imposed on him and that imposed upon the co-offender, Mr Bing-Jie Wang.

4. Both applicants had pleaded guilty and were sentenced by McClintock DCJ, after a 15 % discount as follows:

1. Chun Lok Lam - a total term of imprisonment of 6 years and 9 months to commence on 25 September 2013 and to expire on 24 June 2020, with a non-parole period of 4 years and 6 months.

2. Chun Kit Lam - a total term of imprisonment of 5 years to commence on 9 December 2013 and to expire on 8 December 2018, with a non-parole period of 3 years.

5. The methylamphetamine the subject of the offences to which the three co-offenders entered their pleas was found by Australian Federal Police on 8 May 2012 at Wolli Creek, at Mr Bing-Jie Wang’s residence. In April 2013, he pleaded guilty to two offences:

1. Possession of a substance reasonably suspected of being unlawfully imported, namely, a marketable quantity of heroin (495.8 grams pure and net weight of 694.5 grams) under s 307.9 of the Criminal Code (Cth). This offence carries a maximum penalty of 25 years imprisonment or 5000 penalty units or both.

2. Supply of a large commercial quantity of a prohibited drug, namely, 2,227.9 grams of methylamphetamine under s 25(2) and s 29 of the Drug Misuse and Trafficking Act. (This related to the same drugs in respect of which the two applicants entered their plea, although the quantity recorded was slightly different.) This offence carries a maximum penalty of life imprisonment or 5000 penalty units or both.

6. Bing-Jie Wang also asked that on sentencing, two additional offences be taken into account under s 16BA of the Crimes Act 1914 (Cth):

1. Possession of a marketable quantity of a border controlled drug (32.6 grams of cocaine) under s 307.9 of the Criminal Code.

2. Recklessly dealing with the proceeds of crime ($36,000) under s 400.6(2) of the Criminal Code.

7. Bing-Jie Wang was sentenced on 4 April 2013 by McClintock DCJ to a total term of imprisonment of 5 years with a non-parole period of 2 years and 6 months for his offences, the two sentences being made wholly concurrent. This sentence, it was argued on appeal, was not commensurate with the additional serious charge for which Bing-Jie Wang was sentenced. Further, it was argued that given the serious nature of the form 1 offences, there had to be a substantial increase in the sentence imposed on him (see R v Grube [2005] NSWCCA 140 at [20]).

8. In Mr Chun Kit Lam’s case it was also submitted that an additional offence under s 93TA of the Crimes Act 1900 (NSW) of deriving a material benefit from a criminal group, the maximum penalty for which was 5 years imprisonment, was taken into account on sentencing him on a Form 1. That was disputed by the Crown.

9. On 7 February 2013, Mr Corr appearing for the Crown, said that there would be no further proceedings on that charge. The Crown’s case was that the charge was not later referred to on sentencing. It was remitted to the Local Court and later withdrawn.

10. If that offence had been dealt with on a Form 1, the result would have been that a heavier sentence had to be imposed on Mr Chun Kit Lam for his offence (see Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [42]; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [23]).

Disparity in Sentencing

11. In order to determine whether there is unjustifiable disparity, and a justifiable sense of grievance, or the appearance that justice has not been done, what must be considered is what was discussed in Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [32]:

“A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error [Lowe v The Queen (1984) 154 CLR 606 at 617-618 per Brennan J; Postiglione v The Queen (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ.]. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself [(1984) 154 CLR 606 at 613.]. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight [R v Kucharski unreported, Supreme Court of Victoria Court of Appeal, 23 June 1997 at 10 per Hayne JA, Brooking JA and Ashley AJA agreeing at 11.]. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment [Lowe v The Queen (1984) 154 CLR 606 at 610 per Gibbs CJ, Wilson J agreeing at 616.]”

12. As discussed in Tatana v Regina [2006] NSWCCA 398 at [28], an offender faces considerable obstacles, when a sentencing judge is fully aware of sentences imposed upon co-offenders, the reasons for those sentences, and explains why the sentences imposed upon them, are departed from. Here the differences in the sentences imposed on the three offenders were the result of legitimate fact finding by the one sentencing judge and the exercise of discretions in relation to the utilitarian discount and the finding of special circumstances in each case. As discussed in R v Do [2005] NSWCCA 209 at [17] – [19], different findings in relation to such discounts cannot readily give rise to a conclusion that disparity has resulted.

13. For reasons which follow, in my view, disparity not been established in either case, with the result that while I consider leave to appeal must be allowed, the appeals must both be dismissed.

The offences

Chun Kit Lam

14. There had been an AFP investigation into this drug operation during which the three offenders, were implicated in drug supply, as the result of telephone intercepts, physical surveillance and fingerprints.

15. There were agreed facts tendered in each case, but not a great deal was revealed about the operation of the drug syndicate in which the three offenders were involved. None of the three offenders gave evidence on sentencing. The applicants’ mother gave evidence at their sentencing hearing.

16. Chun Kit Lam was aged 19 years at the time of his offence. He was 6 months older than Bing-Jie Wang and 20 months younger than his brother. The brothers were Chinese nationals, resident in Hong Kong, and had been in Australia for some time, on student visas. They were both arrested on 19 May 2012. Chun Kit Lam was released on bail on 26 July 2012 and Chun Lok Lam on 17 September.

17. The methylamphetamine was found at Bing-Jie Wang’s apartment, where he lived with his girlfriend. The second bedroom had been set up for drug supply. A cutting agent, table, electrical scales, resealable plastic bags, bowls, disposable gloves and other drugs not related to the charge to which the applicants entered their pleas, were found there.

18. After search of their residence at Denistone, Chun Kit Lam was found to have leased the premises at Wolli Creek. He was not living there, but knew they were being used for drug use and supply. Phone intercepts revealed that he took direction from his older brother and others and may have been involved in delivery of certain items, the contents of which were not known to police. He also passed messages between his brother and Bing-Jie Wang and others higher in the syndicate. He attended the Wolli Creek premises with his brother on 10 days between 16 April and May 2012 and was observed carrying boxes and bags out of the premises.

19. Chun Kit Lam’s fingerprints were found on only one of the bags of methylamphetamine found on execution of the search warrant at Wolli Creek. The extent of his knowledge of the quantity of the drugs found there was unknown, but his plea amounted to an admission that he knew the amount involved was substantial, his Honour concluded. It amounted to a supply of some 2.2 kilos of methylamphetamine.

20. In his sentencing remarks McClintock DCJ accepted the Crown’s position that Chun Kit Lam was less culpable than his brother. He acted as his brother’s assistant in performing relatively menial tasks associated with the supply. His name on the lease exposed him to easy detection. Neither he nor his brother were principals but his plea indicated his knowledge and participation in a substantial commercial operation.

Chun Lok Lam

21. The facts agreed in Chun Lok Lam’s case were different. The common elements related to the Wolli Creek premises, where he was also a frequent visitor; what was found on execution of the search warrant; and his detection during the course of the AFP investigation.

22. He was arrested with his brother on search of their premises at Denistone.

23. Fingerprint evidence at the Wolli Creek premises also showed that he had handled one bag of the methylamphetamine and his fingerprints were also found on a box of snap lock bags and a bench there.

24. McClintock DCJ also concluded that Chun Lok Lam’s plea involved an admission that he knew that the amount of drugs involved was substantial. His Honour found that he was not the principal in the operation, but he was above Chun Kit Lam and Bing-Jie Wang. He was an intermediary, passing on messages to others in the group and directing Chun Kit Lam and Bing-Jie Wang.

Chun Kit Lam – no disparity

25. A complaint of disparity proceeds on the basis of an acceptance that the sentence is otherwise appropriate, as was acknowledged on appeal (see England v R; Phanith v R [2009] NSWCCA 274 at [22]).

26. In order to make out his appeal, Chun Kit Lam must establish that the sentence imposed upon him was not justified by any differences in the objective circumstances of his offending, compared to that of Bing-Jie Wang, or in their respective subjective cases. As discussed in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 623:

“There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or his involvement in the offence are different then different sentences may be called for but justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of a grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.”

27. An appeal such as this is not concerned with an offender’s feelings, but with objective criteria and the consistent application of the applicable sentencing principles (see Green v The Queen [2011] HCA 49; 244 CLR 462 at [31] and Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [77] - [78]). Disparity in sentencing is not simply the imposition of different sentences for the same offence, but a question of disproportion between them. Parity must be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability for their offending (see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 878).

28. Here Chun Kit Lam’s case on appeal was that the factual material led on his sentencing had revealed little as to the actual role which he and his brother had played in the drug operation in which they were involved with Bing-Jie Wang. That, of course, was information which lay in their hands, but was not dealt with in the agreed facts. On sentencing, the Crown did not contradict the submission which Chun Kit Lam then advanced that there was no evidence that he was operating at a higher level than Bing-Jie Wang. McClintock DCJ accepted that submission, concluding that objectively, his role and that of Bing-Jie Wang were similar.

29. Chun Kit Lam’s complaint on appeal was that despite the more serious charges for which Bing-Jie Wang was sentenced, he received a lighter sentence. His case was that this was not explained by their respective roles in this drug operation; or by the fact that Bing-Jie Wang had received a 25% discount for his earlier plea, while Chun Kit Lam had received only a 15% discount; or by their respective subjective circumstances.

30. Chun Kit Lam argued that principles of parity, equal justice and proportionality had required that McClintock DCJ take proper account of the more serious offence sentenced along with the matters in the Form 1 for which Bing-Jie Wang had been sentenced, with the result that the starting point for his sentence had to be lower than that of Bing-Jie Wang, “unless there’s something quite extraordinary which distinguishes their cases”. It was also submitted that there was nothing in Bing-Jie Wang’s subjective case, which so distinguished him and that McClintock DCJ had erred, when he observed in his sentencing remarks that :

“There is little in the objective circumstances that is different. I accept that Mr Wang was charged with more serious offences. It was not put to me that I should give less to Kit but rather that there should be a parity in the overall sentence. It was not put to me that the sentence should be less than that of Wang.”

31. That observation, it must be accepted, was incorrect.

32. Each of the three offenders who McClintock DCJ sentenced was young and had no prior criminal record. Each was charged with offences in respect of the methylamphetamine found at the apartment which Chun Kit Lam leased and where Bing-Jie Wang lived with his girlfriend. Chun Kit Lam and Bing-Jie Wang were both involved in this drug syndicate, at a similar level. Chun Lok Lam was higher in the drug hierarchy. In arriving at the respective sentences, his Honour had to consider not only the nature and seriousness of their respective offending, he had to have regard to each offender’s subjective circumstances, as well as other relevant considerations.

33. Chun Kit Lam’s case was that his sentence should have been less than that of Bing Jai Wang given, amongst other things, the other offences for which he was being sentenced. The result was, it was argued, that Chun Kit Lam had been left with a justifiable sense of grievance at the heavier sentence imposed upon him.

34. The Crown did not concede that McClintock DCJ had erred in the sentence imposed on Chun Kit Lam, despite the erroneous reference to the case that had been advanced for him on sentencing; or that a basis for that claimed sense of grievance had been established.

35. Its case was that the sentencing exercise for Bing-Jie Wang has in fact commenced with a higher total sentence than that imposed on Chun Kit Lam, as he has submitted ought to have occurred. Chun Kit Lam’s real complaint, it was argued, in those circumstances was that concurrent sentences had been imposed on Bing-Jie Wang. For reasons explained by McClintock DCJ, there has been no error in that conclusion.

36. The Crown’s submissions must be accepted.

37. As discussed in Tan v R [2014] NSWCCA 96 at [38] - [41], where one sentencing judge has sentenced co-offenders, an appeal court must be cautious before concluding that differing sentencing outcomes have resulted in a justifiable sense of grievance. Gross, marked or glaring disparity must be shown in order for this ground of appeal to be established (see England v R; Phanith v R at [61] - [67]). No such disparity here exists.

38. The maximum penalty for Chun Kit Lam’s offence was life imprisonment and for a mid-range offence, a 15 year standard non-parole period applied. These were both statutory guideposts which also had to be taken into account in this sentencing exercise (see Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).

39. Chun Kit Lam’s sentence commenced with a considerably lower sentence than that imposed on Bing-Jie Wang. While not referred to in the sentencing remarks, McClintock DCJ began that sentencing exercise with a sentence of 5 years and 11 months (not the 5 years and 7 months calculated by the Crown by reference to a 10% discount), with a non-parole period of 3 years and 6 months. After a 15% discount, he was sentenced to a total term of 5 years, with a non-parole period of 3 years.

31. By comparison, the starting point for Bing-Jie Wang’s sentence was considerably higher , namely a higher sentence of 6 years and 8 months, with a non-parole period of 3 years and 4 months. After a 25% discount, the sentence imposed upon him was 5 years, with a non-parole period of 2 years and 6 months.

32. The sentence imposed in Bing-Jie Wang’s case had been partly the result of the application of the principal of totality, and partly the result of the findings as to of special circumstances and discount partly the result of the conclusion that the sentences imposed upon him should be made completely concurrent.

33. Those conclusions were not challenged on appeal by the Crown. They were, however, challenged by Chun Kit Lam, on this appeal.

34. As to totality, his Honour took the view that the sentences he imposed on Bing-Jie Wang should be served concurrently, the offences for which he was being sentenced being all part of the same criminality, notwithstanding that different drugs were involved and a different sentencing regime applied to the offences. He considered that the two offences were effectively on the same side of the coin in supplying drugs as a commercial venture.

35. The question of whether sentences should be served concurrently involves discretionary considerations, which must be resolved by a sentencing judge by reference to the principles discussed, for example, in R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52]; Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 and Nguyen v R [2007] NSWCCA 14.

36. The case here advanced for Chun Kit Lam did not establish that McClintock DCJ erred in the conclusions which he reached as to those considerations, or that the result did not properly reflect the totality of the criminality for which he was being sentenced (see R v Wilson [2005] NSWCCA 219 at [38]).

37. Overall, the supply offences to which Bing-Jie Wang entered pleas were more serious and warranted a greater overall sentence than that imposed on Chun Kit Lam, particularly given that two other offences had to be taken into account on a Form 1 in Bing-Jie Wang’s case. That was why McClintock DCJ’s overall starting point for Bing-Jie Wang’s offence was higher, that is, 6 years and 8 months, rather than 5 years and 11 months.

38. By comparison, the conclusions reached by McClintock DCJ in Chun Kit Lam’s case were not only the result of a consideration of his offending and subjective circumstances, but also partly the result of the application of the principle of parity and the different findings reached as to special circumstances and discount.

39. His Honour’s parity considerations resulted in a considerably lower starting point for Chun Kit Lam, than that adopted for either Bing-Jie Wang or his brother.

40. His Honour had regard to certain similarities between Bing-Jie Wang and Chun Kit Lam, including their age and that they were both addicted to methylamphetamine. There was evidence that they were both under some financial duress, although McClintock DCJ had doubts about that in Bing-Jie Wang’s case, given what was found at his apartment, which included a BMW provided for his use. Addiction to drugs is generally not, however, of itself, a matter of mitigation at sentence (see R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [178]). They were also both found to be remorseful, at low risk of re-offending and with good prospects of rehabilitation, Bing-Jie Wang being found to have a “very low risk” of re-offending.

41. It was also necessary for his Honour to consider the significant differences in other aspects of the offenders’ backgrounds.

42. Bing-Jie Wang had a very disadvantaged background, having been forced from home when aged 15 years. On his mother’s evidence Chun Kit Lam had a comfortable, relatively privileged upbringing. Bing-Jie Wang was found to be suffering a major depressive disorder and Chun Kit Lam to be suffering some psychotic symptoms. In the result, special circumstances were found in each case.

43. Bing-Jie Wang was sentenced first. McClintock DCJ thus had to consider the question of parity, when sentencing Chun Kit Lam. His Honour explained that he considered that in all of the circumstances, Chun Kit Lam would have a justifiable sense of grievance, if there were a significant disparity between his sentence and that imposed on Bing-Jie Wang. His Honour also observed, however, that Chun Kit Lam’s subjective case was not as compelling as that of Bing-Jie Wang, because he did not suffer the deprivation that Bing-Jie Wang had suffered.

44. There was no error in those views being taken. They accorded with the evidence.

45. The finding of special circumstances in Bing-Jie Wang’s case resulted in a non-parole period fixed at 50% of the total sentence. In Chun Kit Lam’s case that finding resulted in a non-parole period fixed at 60% of the total sentence. As discussed in R v Cramp [2004] NSWCCA 264 at [31], the size of an adjustment for special circumstances raises so many matters of a discretionary character, that this Court “should be very slow to intervene” on an appeal such as this.

46. The finding as to special circumstances for Bing-Jie Wang rested on evidence that a large number of factors had affected his maturation, including his lack of early parental affection, assistance, guidance, what would otherwise be regarded as warm family life. He was not wanted by his relatives in China, was sent to Australia, where he was also not wanted and, his Honour found, became a kind of refugee from family life. He had no guidance and a reduced ability to comprehend issues of criminality and a reduced capacity to resist criminal temptation and the temptation of the quick and easy reward which accommodation and transport provided him. In the result, his Honour concluded that there was a significant need for rehabilitation and longer than usual supervision after release in his case, with the support of the Probation and Parole Service, as well as ongoing psychological guidance, if he was not to relapse into further offending. This evidence was also relevant to an assessment of Bing-Jie Wang’s moral culpability for his offending.

47. Chun Kit Lam did not challenge his Honour’s conclusions as to his own circumstances, which were also found to warrant a finding of special circumstances and were relevant to an assessment of his moral culpability for his offending.

48. These findings reflected the conclusions his Honour reached about the offenders’ respective subjective circumstances and need for supervision, once released on parole. There was no suggestion that his Honour erred in reaching these conclusions, other than in the overall result, which left Chun Kit Lam in the position where he must serve a longer non-parole period of some 3 years, rather than the 2 years and 6 months which Bing-Jie Wang must serve, before becoming eligible for parole.

49. Chun Kit Lam’s circumstances were markedly different to those of Bing-Jie Wang. He did not have a deprived background. McClintock DCJ found, however, that Chun Kit Lam was significantly immature, his mother’s evidence demonstrating that he was ill equipped to come to Australia alone, at such an early age. His Honour adopted a similar approach to his youth and the question of general deterrence as he had in Bing-Jie Wang’s case, although to a lesser degree, given that Chun Kit Lam was 6 months older than Bing-Jie Wang. He accepted, however, that Chun Kit Lam was also vulnerable and not capable of mature consideration.

50. In evidence in Chun Kit Lam’s case, was a psychologist’s report, which noted that he had a significant drug addiction and had been arrested, after having completed two years of business studies in Australia, despite having a relatively poor command of English. Chun Kit Lam reported that he had not lived with his brother when he came to Australia and had experienced difficulty with separation from his family and adjusting to life here. He had drifted into a pattern of alcohol abuse, to the point of blackout and then drug abuse, to the point of profound impact on his judgment. He was found to have symptoms of major depression and anxiety, consistent with his circumstances, which required treatment.

51. While his Honour considered that, in combination, Bing-Jie Wang’s offending was more serious than and arose from a similar role and status to that, of Chun Kit Lam, he also considered that Chun Kit Lam’s background did not exhibit the same level of deprivation. He found there was no explanation for how he had become involved in this offending, apart from his addiction and his relationship with his brother.

52. The result of all of these conclusions was a sentence imposed on Chun Kit Lam which began at a considerable lower starting point than that adopted in Bing-Jie Wang’s case, for his supply offence. Because of the higher utilitarian discount Bing-Jie received, as well as the conclusions reached in relation to the findings of special circumstances, the result was that the sentence imposed on Chun Kit Lam was longer. He must serve 6 months longer than Bing-Jie Wang, before he becomes eligible for parole.

53. There was no error in that result, given the relevant differences between the two offenders. It reflects relevant differences which form the basis of qualitative and discretionary judgments made in each case (see Green at [31]-[32]).

54. Even if it were to be concluded that the overall sentence imposed upon Bing-Jie Wang was too low, of itself, that would not necessarily be a sufficient basis on which to uphold this appeal.

55. The discretion to reduce a sentence to a less than an adequate level, if it exists, does not require Chun Kim Lam’s sentence to be reduced on appeal to a level which would be “an affront to the proper administration of justice”, given the offence for which he was sentenced (see Green at [33]).

56. The non-parole period imposed on Chun Kit Lam is the minimum period of actual incarceration that he must spend in full-time custody, having regard to all the elements of punishment, including rehabilitation, the objective seriousness of his crime and his subjective circumstances (see Power v The Queen [1974] HCA 26; (1974) 131 CLR 62 at 628–629). That period must adequately reflect his moral culpability for his offending (see GN v R [2012] NSWCCA 96 at [12]; McLaren v R [2012] NSWCCA 284 at [28] - [29]).

57. The result of the exercise of the sentencing discretion in Chun Kit Lam’s case was plainly not a heavy sentence, given the seriousness of his offence and his moral culpability for that offending, involving as it did, his part in the operation of this significant drug syndicate, which included his admitted involvement in the supply of a large commercial quantity, over 2.2 kilos, of methylamphetamine. The quantity of the drugs involved was one consideration in this sentencing exercise, as was the role which Chun Kit Lam played. That not much was known about his role did not oblige McClintock DCJ to find facts favourable to Chun Kim Lam, although his Honour plainly did take a view which favoured him (see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] - [28]).

58. Further, his Honour had to bear in mind, as discussed in R v Shi [2004] NSWCCA 135, Wood CJ at CL, at [34] the importance of giving consideration to:

“… the well-recognised principle that the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentiu and Becheru (1962) 63 A Crim R 402”.

68. As the result of the 15% discount which Chun Kit Lam received for his plea and the finding in relation to special circumstances, which also permitted an adjustment downwards of the non-parole period in his case, he must serve a minimum term of only 3 years imprisonment, before he becomes eligible for release on parole for this serious offence. The total term which he must serve, if not then released, is 5 years.

69. Had Chun Kit Lam entered his plea at the earliest opportunity, as Bing-Jie Wang did, he would have received the same 25% discount Bing-Jie Wang received. He would then have been eligible to be released on parole after 2 years and 8 months, with a total term of 4 years and 5 months. That comparison further demonstrates that, in reality, the sentence imposed on Chun Kit Lam did not result in a marked disparity to that imposed on Bing-Jie Wang for his offence, which can have left him with a justifiable sense of grievance, because justice has not been done in his case.

70. The sentence imposed on Chun Kit Lam was not a heavy one. Where a parity appeal depends on a sentence imposed on a co-offender, which is submitted to be inadequate, a claimed sense of grievance may not be regarded as being legitimate (see Green at [106]). In such a case this Court is not bound to intervene, if the result would be to produce a sentence disproportionate to the objective and subjective criminality involved in the appellant’s offence (see Youkhana v R [2011] NSWCCA 37 at [49]).

71. In my view, in this case, even if error had been established, further reducing Chun Kit Lam’s sentence would result in an entirely inadequate sentence, disproportionate to the objective and subjective criminality involved.

72. In the result I consider that leave to appeal should be granted, but this appeal should be dismissed.

Chun Lok Lam - no disparity

73. The same conclusion must follow in relation to Chun Lok Lam’s application for leave to appeal.

74. His case was also that the sentence imposed upon him was so severe, when compared to that imposed on Bing-Jie Wang, that he had been left with a justifiable sense of grievance. The disparity in the two sentences was also argued not to have been justified by differences in their age, background, criminal history, general character, or the part which he played in this criminal enterprise or his criminal conduct.

75. It was also submitted to be relevant that there were no Form 1 offences taken into account in Chun Lok Lam’s case. It was, however, accepted that his offence was more serious than that committed by his brother or Bing-Jie Wang, given his more senior role in this drug supply operation. Still, it was argued, the sentence imposed upon him was too high, with the result that it appeared that justice had not been done in his case.

76. The justifiable sense of grievance on which Chun Lok Lam’s case depended was explained by reference to the statement of facts tendered at his hearing, which recorded the prosecution’s view that he was in a position above his brother and Bing Jie Wang. On appeal, it was submitted that the prosecution had not established an evidentiary basis for that view.

77. These submissions should also not be accepted.

78. It is well settled that an offender’s role and the level of criminality involved in a particular drug offence is more important in determining a sentence, than the quantity of drugs involved, which is not the sole or even principal determinant of a sentence, but an important one (see Melikian v R [2008] NSWCCA 156 at [42] and R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 at [33]). The sentence imposed on an offender must reflect what he did. Where an offender’s role is not entirely known, however, the Court is not obliged to find facts favourable to the offender, or to accept his or her version of events (see Olbrich at [27] - [28]).

79. Here McClintock DCJ was certainly entitled to proceed on the basis of what was in the agreed facts, as well as the answer to the question he asked, as to Chun Lock Lam’s role. When asked what Chun Lock Lam submitted as to his role, the answer was that he was “somewhere above Wang and Kit, how far above well, there’s just no evidence as to that”.

80. It was also argued that Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104 obliged McClintock DCJ to assess the criminality of Chun Lok Lam by reference to his involvement in the steps taken to effect the drug supply, not by labels attached to him. Contrary to this approach, in submissions, McClintock DCJ put to the Crown:

“CORR: There’s certainly the degree of exploitation and they’re not - as I said they are not the generals or the colonels or whatever, but they’re--

HIS HONOUR: No. No, you’ve got a minder, a gofer and an NCO.

CORR: Yes but without those people it all falls down, your Honour.”

81. This was submitted to be inconsistent with what his Honour had earlier observed in his sentencing remarks in Bing-Jie Wang’s case:

“Having said that, as I say, the state of the law does not require me to make a definitive determination. His role was significant and his role was clearly pivotal in the potential distribution of large amounts of illegal substances. I do not accept that he was a mere minder which was the submission faintly advanced during the sentence hearing.”

82. In Chun Lok Lam’s case the agreed facts included that he was not residing at the Wolli Creek premises, but that he was a regular visitor there. He was observed carrying bags out of the premises on some occasions and fingerprints were found on a bag of drugs and other items associated with drug supply found in the premises. It was also agreed that:

“14.   The extent of Lok’s knowledge of the quantity of the drugs involved is unclear although, by his plea of guilty, there is an admission that he knew the amount involved was substantial.

15.   In terms of hierarchy, it is the prosecution’s position that Lok’s role was not that of the principal. It is the prosecution’s view that Lok was in a position above Kit and Wang. Lok’s role was as an intermediary included passing on messages from others in the group, and directing Kit and Wang.”

83. It was also conceded for Chun Lok Lam on sentencing that his role was somewhat above that of his brother and Bing-Jie Wang, but that there was no evidence as to how far above them he was. The Crown accepted this, submitting that Chun Lok Lam was not “Big”, nor was he at the lowest level of this hierarchy.

84. His Honour referred to these matters and observed that:

“The general principles in respect of sentencing for offences such as these are well known. I note the general purposes of punishment. There’s a very significant need for general deterrence in the usual case. The distribution of drugs such a(sic) methamphetamine reeks an untold(sic) damage on the hapless users of the substance. The very fact of the effect on the offender amply demonstrates its corrosive dangerousness.

The principle is that an offender is to be sentenced on the material available (see Olbrich v the Queen [1999] HCA 54, 199 CLR 270). There is little detail as to the precise role of the offender and even less regarding his actual state of knowledge. However it is clear that he played an active and continuous role in the operation to supply, albeit that it was of less significance than the principals.”

85. There were no errors in his Honour’s conclusions as to these matters, notwithstanding the exchanges he earlier had with counsel during submissions about Bing-Jie Wang and his role.

86. His Honour accepted that in terms of parity, Chun Lok Lam should have been dealt with more leniently than Bing-Jie Wang, given the single offence which he faced. However, his Honour considered that this was counterbalanced by Chun Lok Lam’s role, which required that he should be dealt with more severely.

87. In all of the circumstances, there was no error in these conclusions. Chun Lok Lam’s offence was objectively a very serious drug offence, involving as it did, the supply of over 2.2 kilos of methylamphetamine, by a drug syndicate in which he was admittedly involved at a more senior level than either his brother or Bing-Jie Wang, as was agreed in the tendered facts and conceded in submissions.

88. Those conclusions were reflected in the starting points for the two sentencing exercises: 7 years and 11 months in Chun Lok Lam’s case (not 7 years and 6 months which the Crown wrongly calculated by reference to a 10% discount) and 6 years and 8 months in Bing-Jie Wang’s case.

85. Those starting points reflected the differences in the nature and seriousness of the respective offences; the offenders’ respective moral culpability for their offending; and their different subjective circumstances. They also reflected the application of the totality principle in Bing-Jie Wang’s case and the parity principle in Chun Lok Lam’s case. The results reflected the different discounts for the pleas entered, as well as his Honour’s different findings as special circumstances.

86. As I have discussed in relation to Chun Kit Lam, the conclusions which his Honour reached as to the concurrent sentences imposed on Bing-Jie Wang, as the result of the application of the totality principle, have not been shown to have involved error and are, of themselves, not a proper basis on which a justifiable sense of grievance can rest, in Chun Lok Lam’s case.

87. After a 15% discount, Chun Lok Lam’s sentence was reduced to 6 years and 9 months, with a non-parole period of 4 years and 6 months. Had he received a 25% discount, if his plea had been entered earlier, as Bing-Jie Wang’s was, his sentence would, however, have been 5 years and 11 months with a non-parole period of only 4 years.

88. By comparison, Bing-Jie Wang’s sentence after a 25% discount, was a total term of 5 years, with a non-parole period of 2 years and 6 months.

89. In Chun Lok Lam’s case, the sentence imposed also reflected a finding of special circumstances which resulted in a non-parole period which represented 67% of the total sentence. In Bing-Jie Wang’s case the ratio was 50%. It was not suggested that these conclusions involved error, or as to the ultimate outcome, a sentence which was argued to be too high in Chun Lok Lam’s case.

90. McClintock DCJ did not find Chun Lok Lam’s subjective circumstances to be as compelling as those of either his brother, or those of Bing-Jie Wang, given that he was older than they and more mature. He also had not suffered the deprivations which Bing-Jie Wang had.

91. Chun Lok Lam was considerably older than his two co-offenders. His Honour found that he had excelled at school and came to Australia, where he pursued business studies for 3 years. He came from a stable background, had been close to his grandparents and significantly affected by the death of one of them. Like his brother, he did not have a scaffolding of support here and gradually lost contact with his family, apart from his brother.

92. A psychologist’s report was also tendered in his case. It outlined how he had come to use ice, when aged 20, becoming addicted to the point where his judgment had been affected. He claimed that he had accrued a substantial debt as a result, was subjected to threats and developed anxiety and depression. The report noted that he had a stronger command of English than his brother and that he had ceased drug abuse while in custody. He had also been diagnosed with a major depressive illness, which was at least partly reactive to his circumstances in Australia, the death of his grandparent and his involvement with and addiction to drugs.

93. None of this evidence revealed any error in his Honour’s conclusions as to the nature and seriousness of Chun Lok Lam’s offending, his moral culpability for his offence, or the impact of his subjective circumstances. The higher sentence imposed upon him, than that imposed on the other two offenders, reflected the relevant differences between them and their offending, the conclusions which his Honour reached in relation to parity, discount and the finding of special circumstances in Bing-Jie Wang’s case. It was plainly open to his Honour to conclude that a higher sentence had to be imposed on Chun Lok Lam, than his two co-offenders, having regard to all of those matters.

94. There were no errors shown in any of his Honour’s conclusions as to these matters. In the result, it must be concluded that no basis has been established for the justifiable sense of grievance on which this appeal depended.

95. Further, like in his brother’s case, even if it was concluded that the sentence imposed on Bing-Jie Wang were inadequate, it could not be concluded that Chun Lok Lam had a legitimate sense of grievance.

96. For his very serious offending, the sentence imposed upon Chun Kit Lam, requires him to serve a non-parole period of 4 years and 6 months, before he becomes eligible for release on parole. Given all the elements of punishment earlier discussed, the objective seriousness of his offence and his moral culpability, the sentence imposed for that offending could not be further reduced, without producing a sentence disproportionate to the objective and subjective criminality involved in his offence.

97. In the result, while to leave to appeal should also be allowed in this case, I consider that the appeal must be dismissed.

Orders

102. For these reasons, I would order in each case that leave to appeal be granted, but the appeal be dismissed.

103. BELLEW J: I agree with Schmidt J.

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Decision last updated: 06 May 2015