Law v The Queen
[2019] WASCA 81
•21 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LAW -v- THE QUEEN [2019] WASCA 81
CORAM: BUSS P
BEECH JA
PRITCHARD JA
HEARD: 8 FEBRUARY 2019
DELIVERED : 21 MAY 2019
FILE NO/S: CACR 95 of 2018
BETWEEN: KWOK KWAN LAW
Appellant
AND
THE QUEEN
First Respondent
THE STATE OF WESTERN AUSTRALIA
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : IND 1187 of 2017 and IND 468 of 2017
Catchwords:
Criminal law - Appeal against sentence - Appellant and a co‑offender charged with the federal offence of importing a marketable quantity of a border controlled drug - Appellant and a different co‑offender charged with two counts of the State offence of offering to sell a prohibited drug to another - Appellant also charged with the State offence of possessing $154,950 cash that was reasonably suspected to be unlawfully obtained - Pleas of guilty - Total effective sentence of 10 years 6 months' imprisonment - Whether the sentencing judge made a material error of fact - Manifest excess - Parity principle - Totality principle
Legislation:
Crimes Act 1914 (Cth), s 16A, s 19(2), s 19AB
Criminal Appeals Act 2004 (WA), s 31(4)(a), s 41(3)(c), s 41(3)(d)
Criminal Code (Cth), s 11.2A(1), s 307.1(1), s 307.2(1)
Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(c)
Sentencing Act 1995 (WA), s 9AA
Result:
Application for an extension of time to appeal granted
Leave to appeal on ground 1 granted
Leave to appeal on grounds 2, 3 and 4 refused
Appeal allowed
Appellant re‑sentenced
Category: D
Representation:
Counsel:
| Appellant | : | Ms A S Rogers |
| First Respondent | : | Mr P J Urquhart |
| Second Respondent | : | Mr P J Urquhart |
Solicitors:
| Appellant | : | Abigail Rogers Barristers and Solicitors |
| First Respondent | : | Director of Public Prosecutions (Cth) |
| Second Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Abbott v The State of Western Australia [2018] WASCA 45
Barton v The State of Western Australia [2016] WASCA 196
Carlucci v The State of Western Australia [2019] WASCA 37
Dias v The State of Western Australia [2017] WASCA 49
ENR v The State of Western Australia [2018] WASCA 9
Fernandes v The State of Western Australia [2009] WASCA 227
Floyd v The State of Western Australia [2013] WASCA 33
Gaskell v The State of Western Australia [2018] WASCA 8
Hall v The State of Western Australia [2018] WASCA 151
Harding v The State of Western Australia [2015] WASCA 27
Higgins v The State of Western Australia [2019] WASCA 78
Hobby v The State of Western Australia [2009] WASCA 108
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
LAT v The State of Western Australia [2018] WASCA 215
Le v The State of Western Australia [2015] WASCA 73
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
Mousavi v The Queen [2014] WASCA 174
My v The State of Western Australia [2018] WASCA 1
Nell v The Queen [2014] WASCA 193
Ngo v The Queen [2017] WASCA 3
R v Abbas [2019] WASCA 64
R v Addison (1993) 78 A Crim R 213
R v Allpass (1993) 72 A Crim R 561
R v Clarke [1996] 2 VR 520
R v Dendic (1987) 34 A Crim R 40
R v Ng [2012] WASCA 180
R v Swan (2001) A Crim R 243
Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587
Roberts v The State of Western Australia [2014] WASCA 239
Slade v The State of Western Australia [2019] WASCA 65
So v The Queen [2014] WASCA 169
Stoysich v The State of Western Australia [2014] WASCA 208
The State of Western Australia v Charles [2016] WASCA 108
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Fung [2017] WASCSR 41
The State of Western Australian v Cairns [2006] WASCA 178
Thompson v The State of Western Australia [2019] WASCA 68
Tirkot v The State of Western Australia [2018] WASCA 41
TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
Yarran v The State of Western Australia [2017] WASCA 182
YDN v The State of Western Australia [2018] WASCA 62
JUDGMENT OF THE COURT:
The appellant has applied for an extension of time to appeal and leave to appeal against sentence.
The appellant was convicted, on his pleas of guilty in the District Court, of four offences.
The sole count in indictment 1187 of 2017 (indictment 1187) alleged, in essence, that from on or about 11 February 2016 to on or about 11 March 2016, at Perth, the appellant entered into an agreement with another person (namely Ka Chun Fung) to commit the offence of importing a marketable quantity of a border controlled drug (namely methamphetamine), and that an offence was committed in accordance with the agreement, contrary to s 11.2A(1) and s 307.2(1) of the Criminal Code (Cth) (the Commonwealth Code).
The maximum penalty for the count in indictment 1187 was 25 years' imprisonment or a fine not exceeding $900,000, or both.
Count 1 in indictment 468 of 2017 (indictment 468) alleged that on 11 May 2016, at Innaloo, the appellant and Chi Hung Lee offered to sell a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
Count 2 in indictment 468 alleged that on 13 July 2016, at Victoria Park, the appellant and Cho-Lung Chuang offered to sell a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the MD Act.
The maximum penalty for each of counts 1 and 2 in indictment 468 was 25 years' imprisonment or a fine of $100,000, or both.
Count 3 in indictment 468 alleged that, on the same date and at the same place as in count 2, the appellant was in possession of a thing capable of being stolen, namely $154,950 in money, that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (the State Code).
The maximum penalty for count 3 in indictment 468 was 7 years' imprisonment.
On 31 January 2018, Birmingham DCJ (the sentencing judge) imposed sentences of immediate imprisonment for the individual offences as follows:
(a)the count in indictment 1187: 9 years;
(b)count 1 in indictment 468: 4 years;
(c)count 2 in indictment 468: 4 years 6 months; and
(d)count 3 in indictment 468: 3 years.
His Honour reduced the length of the individual sentence for count 2 in indictment 468 from 6 years to 4 years 6 months in the application of the totality principle (ts 91 ‑ 92).
As to the count in indictment 1187, his Honour ordered that the sentence of 9 years' imprisonment be backdated to 26 August 2016 (to take into account the time the appellant had spent in custody) and that there be a minimum non-parole period of 6 years.
As to the counts in indictment 468, his Honour ordered that:
(a)the appellant be eligible for parole in respect of each of the offences charged in those counts;
(b)the sentence of 4 years 6 months' immediate imprisonment for count 2 commence upon the appellant becoming eligible for parole in respect of the offence charged in the count in indictment 1187; and
(c)the sentences for counts 1 and 3 be served concurrently with each other and concurrently with the sentence for count 2.
The total effective sentence was therefore 10 years 6 months' imprisonment with the appellant being eligible for release on parole upon having served 8 years 6 months.
The last date for appealing against sentence was 21 February 2018. The appellant did not file his appeal notice until 28 May 2018. The application for an extension of time to appeal is supported by an affidavit of the appellant's lawyer, Abigail Sian Rogers, sworn 28 May 2018. On 13 August 2018, Mazza JA referred the application for an extension of time to the hearing of the appeal.
We would grant the appellant an extension of time to appeal. The appeal should be allowed and the sentencing judge's sentencing decision should be set aside. The appellant should be re‑sentenced by this court. Our reasons are as follows.
The facts and circumstances of the offending the subject of indictment 1187
The facts and circumstances of the offending the subject of indictment 1187 were stated by the Commonwealth prosecutor (ts 41 ‑ 46) and adopted by the sentencing judge. Those facts and circumstances were, in essence, as follows.
Between October 2015 and July 2016, the Australian Federal Police and other law enforcement agencies were investigating the activities of a Hong Kong based criminal syndicate that was suspected of importing methamphetamine into Australia. During February 2016, the appellant's conversations were lawfully intercepted by law enforcement agencies, including conversations between the appellant and his co-offender, Mr Fung.
At about 2.51 pm (Western Standard Time) on 11 February 2016, the appellant asked Mr Fung to find a 'share house' for a month. The appellant also asked Mr Fung about the identification that would be required by the landlord.
Between 11 February 2016 and 12 February 2016, Mr Fung contacted the landlord of a rental property at Banda Boulevard, Canning Vale (the Banda Boulevard property). Mr Fung agreed to rent a room in the Banda Boulevard property. It was also agreed that Mr Fung would take possession of the room on 12 February 2016.
Between 12 February 2016 and 18 February 2016, there were a number of telephone conversations between the appellant and a Hong Kong based syndicate member. During the conversations:
(a)The appellant said that he had obtained the key.
(b)The Hong Kong based syndicate member confirmed the address of the Banda Boulevard property.
(c)The Hong Kong based syndicate member confirmed that 'the thing' would be received by Mr Fung.
(d)The Hong Kong based syndicate member confirmed that he would pay the appellant's living expenses.
(e)The Hong Kong based syndicate member said that 'it' would be taken from the warehouse by a company and delivered to the appellant.
(f)The Hong Kong based syndicate member said that the company would clear 'it' through Customs.
At about 2.45 am (Western Standard Time) on 19 February 2016, there was a conversation between the appellant and Mr Fung at their home address at Laggan Road, Canning Vale (the Laggan Road premises). The appellant told Mr Fung about a telephone call the appellant had received. During the telephone call, the appellant had been asked whether he had 'checked the gear'. During the telephone call, there was also a discussion about staying at 'the other rented house' if the appellant was going to be receiving 'so many things'.
At about 4.04 pm (Western Standard Time) on 25 February 2016, there was a conversation between the appellant and Mr Fung at the Laggan Road premises. During the conversation:
(a)The appellant spoke about how '180' would fit in the taxi.
(b)The appellant said they needed to rent another house.
(c)The appellant said that, once 'it' arrived, they would leave 'it' for one night then take 'it' to the other house the next day.
(d)The appellant said that, once at the other house, they would open 'it' up.
On 25 February 2016, the Australian vessel, OOCL Brisbane, departed from Hong Kong for Fremantle. On board the vessel was container number OOLU2569225651 (the Container) and within the Container was consignment number ECFMT1602037 (the Consignment).
The Consignment was addressed to Mr Fung at the Banda Boulevard property. The consignee for the Consignment was stated to be Mr Fung and the Banda Boulevard property was his specified address. The consignor for the Consignment was also stated to be Mr Fung and an address in Hong Kong was his specified address. The consignment note indicated that the weight of the Consignment was 180 kg. The broker for the Consignment was ACE International Logistics (ACE).
At about 9.52 am (Western Standard Time) on 25 February 2016, there was a conversation between the appellant and an unknown person at the Laggan Road premises. During the conversation there was a discussion to the effect that it looked suspicious if the sender and the receiver were the same.
At about 1.50 am (Western Standard Time) on 27 February 2016, the appellant and Mr Fung departed from the Laggan Road premises and travelled to the Banda Boulevard premises.
At about 10.30 pm (Western Standard Time) on 28 February 2016, the vessel, OOCL Brisbane, arrived at Patrick's Berth, Fremantle Port. Shortly afterwards, Australian Border Force officers boarded the vessel and identified the Container.
At about 6.46 am (Western Standard Time) on 29 February 2016, there was a conversation between a representative of ACE and Mr Fung. During the conversation:
(a)The ACE representative confirmed that Mr Fung's shipment had arrived the previous day.
(b)The ACE representative informed Mr Fung that he needed to sign a letter of authority for Customs clearance of the Consignment.
At about 9.53 am (Western Standard Time) on 29 February 2016, Australian Border Force officers confirmed that the Container had been offloaded from the vessel and had been transported to the Australian Border Force container examination facility.
At about 12.02 pm (Western Standard Time) on 29 February 2016, there was a telephone conversation between the appellant and an unknown person. During the conversation:
(a)The appellant asked for a Cantonese speaker.
(b)The unknown person told the appellant that he was from a Customs clearance company, that some items had been sent to the appellant from Hong Kong and that the items comprised a pallet of goods.
(c)The unknown person told the appellant that the goods had arrived on 28 February 2016.
(d)The unknown person told the appellant that a letter of authority was required so that lodgement could be facilitated.
(e)The appellant asked the unknown person if the unknown person was from ACE and the person replied, 'Yes'.
(f)The unknown person informed the appellant that the letter of authority was required for Customs clearance.
At about 2.00 pm (Western Standard Time) on 29 February 2016, the Consignment was unloaded from the Container. The Consignment comprised a single pallet holding 10 cardboard boxes wrapped in heavy duty plastic. Australian Border Force officers unwrapped the pallet and numbered each box.
At about 2.30 pm (Western Standard Time) on 29 February 2016, Australian Border Force officers conducted an x‑ray examination of the 10 cardboard boxes. Anomalies were observed in two of them.
At about 3.09 pm (Western Standard Time) on 29 February 2016, Australian Federal Police officers located a black plastic bag within one of the cardboard boxes. The black plastic bag contained a white crystalline substance. A presumptive narcotic identification test on the substance returned a positive result for methamphetamine.
At about 8.51 am (Western Standard Time) on 1 March 2016, there was a telephone conversation between the appellant and a Hong Kong based syndicate member. During the conversation:
(a)The appellant said that the 'thing' would arrive at the end of the week or the beginning of the next week.
(b)The appellant said that 'it' had been Customs cleared.
(c)The appellant said that 'it's' in the container and his colleagues had not yet removed it.
At about 1.12 pm (Western Standard Time) on 1 March 2016, Australian Federal Police officers confirmed that the Consignment contained a gross total weight of 477.9 g of methamphetamine.
Between 2 March 2016 and 3 March 2016, there were a number of telephone conversations between the appellant, Mr Fung and a Hong Kong based syndicate member. During the conversations:
(a)Mr Fung said that he had contacted the company to inquire as to the status of the goods.
(b)The Hong Kong based syndicate member instructed the appellant to contact the company and ascertain when the goods would be delivered.
(c)Mr Fung informed the Hong Kong based syndicate member that the Container had not yet been opened by Customs and that it would be inspected by x‑ray.
(d)Mr Fung informed the Hong Kong based syndicate member that he had provided his name to the company and had asked when the goods would be given to him.
(e)Mr Fung informed the Hong Kong based syndicate member that he had been told that Customs inspection of the goods would take two or three days.
(f)The Hong Kong based syndicate member asked Mr Fung if the goods were in Fremantle and Mr Fung confirmed that they were.
At about 12.32 pm (Western Standard Time) on 8 March 2016, there was a telephone conversation between Mr Fung and a representative of ACE. During the conversation:
(a)Mr Fung inquired about the goods.
(b)The ACE representative told Mr Fung that the Container was still in Fremantle for an x‑ray inspection.
(c)The ACE representative informed Mr Fung that the Container had arrived on 28 February 2016 and still had a Customs hold.
(d)The ACE representative confirmed that ACE would call Mr Fung once the Container was released and opened and the goods were ready for delivery.
At about 9.38 am (Western Standard Time) on 11 March 2016, a representative of ACE informed Mr Fung during a telephone call that the Consignment had been confiscated and would not be returned.
At about 1.39 pm (Western Standard Time) on 11 March 2016, there was a conversation between the appellant and Mr Fung at the Laggan Road premises during which they discussed that the goods had been seized and that they would not get them back.
On 29 March 2016, forensic analysis of the white crystalline substance confirmed that the substance was methamphetamine with a purity of 80.2%. The net pure weight of the methamphetamine was 383.28 g.
The facts and circumstances of the offending the subject of indictment 468
The facts and circumstances of the offending the subject of indictment 468 were stated by the State prosecutor (ts 46 ‑ 48) and summarised by the sentencing judge in his reasons. Those facts and circumstances were, in essence, as follows.
During May 2016, Western Australian police officers from the Joint Organised Crime Task Force were conducting investigations into the suspected drug‑dealing activities of the appellant, Mr Fung and Chi Hung Lee.
As to count 1 in indictment 468, on or about 7 May 2016, the appellant had telephone conversations with a woman in Sydney in relation to the supply of 1 kg of methylamphetamine to an unknown buyer in Perth.
At about 1.15 pm (Western Standard Time) on 10 May 2016, the appellant, Mr Fung and Mr Lee were at the Laggan Road premises, which was their home address. The appellant and Mr Lee had a discussion about rock sugar not looking like methylamphetamine. The appellant and Mr Fung smashed about 1 kg of rock sugar in an effort to make the substance look similar to methylamphetamine. They then repackaged the rock sugar in the same manner as methylamphetamine is typically packaged.
At about 4.35 pm (Western Standard Time) on 10 May 2016, the appellant and Mr Lee had a conversation about 'ripping off' a female in Sydney as she was not family.
At about 10.25 am (Western Standard Time) on 11 May 2016, the appellant, Mr Fung and Mr Lee travelled in a motor vehicle to the Innaloo shopping centre. Mr Fung alighted from the vehicle in the shopping centre carpark. He carried a bag containing the rock sugar that had been prepared the previous day to appear similar to methylamphetamine. Mr Fung received telephone calls from a female Perth-based buyer informing him that she had been delayed. Mr Fung made a telephone call to Mr Lee, who told Mr Fung to remain in the area until the buyer arrived.
At about 10.58 am (Western Standard Time) on 11 May 2016, Mr Fung met the buyer at the McDonald's carpark of the Innaloo shopping centre. He handed the bag containing the rock sugar/fake methylamphetamine to the buyer in exchange for $71,500 cash. Mr Fung then departed on foot. Mr Fung telephoned Mr Lee, who told Mr Fung where their vehicle was parked. The appellant, Mr Fung and Mr Lee then left the area in their vehicle.
As to counts 2 and 3 in indictment 468, at about 4.30 pm (Western Standard Time) on 13 July 2016, the appellant went to a carpark in Victoria Park. At the carpark, the appellant met Cho‑Lung Chuang. Mr Chuang gave the appellant a bag containing 3.02 kg of rock sugar which had been smashed and packaged to look like methylamphetamine. The appellant remained in the area and shortly after met another man. The appellant handed the bag containing the rock sugar/fake methylamphetamine to the other man in exchange for a bag containing $154,950 cash. Police approached the appellant and the other man. The appellant ran from the area with the bag containing the $154,950 cash. He ran through a shopping centre and into an underground carpark, where he was arrested in possession of the cash.
Defence counsel's acceptance of the facts and circumstances of the offending
On 18 January 2018, defence counsel informed the sentencing judge that the facts and circumstances of the count the subject of indictment 1187 and the counts the subject of indictment 468, as read aloud by the Commonwealth prosecutor and the State prosecutor, were admitted (ts 49).
The sentencing judge's sentencing remarks
As to the count in indictment 1187, the sentencing judge referred to the facts and circumstances of the offending in his sentencing remarks.
His Honour said that the appellant was 'a major player' in carrying out in this State the instructions of the Hong Kong based syndicate (ts 77).
The sentencing judge found that there was 'significant premeditation and planning' in relation to the offending by the appellant, Mr Fung and the syndicate members in Hong Kong (ts 77). The duration of the offending was about one month, between 11 February 2016 and 11 March 2016. His Honour noted that the appellant was 'considered to be a mid‑level participant in an organised criminal syndicate engaged in importing large quantities of border controlled drugs into Australia' (ts 77), and was 'trusted and given responsibility for a large quantity of drugs' (ts 78).
His Honour noted that the appellant had entered Australia illegally solely for the purpose of dealing in drugs. The offending was premeditated and calculated. The appellant's motivation was financial gain. He acted with a full appreciation of his criminality. The circulation of the quantity of methamphetamine the subject of the count in indictment 1187 could reasonably be expected to have very significant consequences.
As to the counts in indictment 468, the sentencing judge referred to the facts and circumstances of the offending in his sentencing remarks.
His Honour said that the discussion between the appellant and Mr Fung on 10 May 2016 about 'ripping off' a female in Sydney, as she was not family, demonstrated the extent to which the appellant was regarded in the illicit drug community as capable of supplying 1 kg of methylamphetamine.
The sentencing judge found that the appellant had committed counts 1 and 2 in indictment 468 'purely for commercial gain' (ts 86).
His Honour accepted that the appellant did not intend to fulfil the orders the subject of counts 1 and 2 by delivering methylamphetamine. No drugs were in fact being distributed into the community. However, his Honour was satisfied that the appellant had the capacity to fulfil the orders because 'at the time … [the appellant was] … a member of a syndicate [that was] importing into this State quantities of high‑grade methylamphetamine for distribution within the community' (ts 87). His Honour elaborated:
The fact that you were able to make these transactions and people contacted you looking for the drug comes from the fact that you obviously had a position within the community and the drug-dealing industry where you were regarded as capable of fulfilling the supply.
You were a person who was trusted by people in Hong Kong to receive and distribute drugs and you must have been known as that to the extent that people contacted you to buy drugs that you were able to substitute with rock sugar instead rather than delivering the drugs, as required.
So when the question is whether you've got the capacity to fulfil … the answer to that must be yes. You elected not to do so but, in my view, may well have been required to do so later when your substitution of the product was discovered and those who had paid the money for the drug required you to make good on the deal (ts 87).
The sentencing judge observed that the appellant had 'a criminal record for trafficking in dangerous drugs in 2015 and 2010 in Hong Kong' and that he had 'charges for possession of dangerous drugs in 2006' and various other criminal convictions 'such as robbery, theft and criminal damage' in Hong Kong (ts 80). His Honour said that there were outstanding warrants for the appellant's arrest for drug trafficking in Hong Kong. His Honour noted that details of the appellant's criminal record in Hong Kong had been confirmed by the appellant through defence counsel. His Honour elaborated:
You were jailed for 18 months for 10 g of MDMA, possession of [a] dangerous drug, again MDMA and 3.5 g. There was a charge of criminal damage and a theft in criminal damage. You're being investigated for that. [You'd] spent 18 months in custody for trafficking dangerous drugs. And the 2015 trafficking charges are yet to be concluded and the 2008, 2006 charges are the ones for which you were sentenced to imprisonment (ts 80 ‑ 81).
His Honour reiterated that the appellant appeared to have 'a mid‑level role within an organisation where [he was] no doubt trusted and well regarded by those who [were] happy to ship large quantities of drugs into this country' (ts 81). His Honour said the fact that Mr Fung was only 19 years of age and that the appellant 'used him to obtain the subject property where the drugs were to be delivered perhaps goes to show where [the appellant fitted] in the organisation. That is to say that [the appellant was] the one directing Mr Fung and involving him in these proceedings' (ts 81).
The sentencing judge referred to the appellant's personal circumstances. The appellant was born in Hong Kong. He was aged 28 at the time of the offences and was 29 when sentenced. His Honour said that he reposed 'little confidence' in defence counsel's submissions as to the appellant's background, including his alleged training and occupation as a hairdresser (ts 88). His Honour noted that the appellant's father had died while the appellant was in custody in Australia. His Honour mentioned a letter written by the appellant to his Honour in which the appellant expressed his 'extreme regret and remorse' for his criminal behaviour (ts 79).
His Honour said he took into account the appellant's personal circumstances. His Honour also said he took into account the matters mentioned in the appellant's letter to his Honour and the information in a letter written by the appellant's sisters, but his Honour said he did so 'against the background of what [his Honour knew] about [the appellant's antecedents]' and, as a result, his Honour placed little weight on the material in the letters (ts 81).
The sentencing judge observed that although the appellant did not have any previous convictions in Australia, he 'certainly [could not] be said to be of [prior] good character' (ts 81).
His Honour said the appellant had pleaded guilty 'at a relatively early opportunity' and the pleas represented 'to some extent a degree of remorse and contrition' (ts 81). However, his Honour qualified his finding in relation to remorse by referring to 'the extent to which [the appellant was] seemingly prepared to put matters before the court that [were] untruthful for the purpose of sentence' (ts 81 ‑ 82). His Honour found that the appellant had sought to minimise his involvement in the offending. In particular, the appellant sought to suggest that he was 'only marginally involved because of financial need, looking after [his] family in Hong Kong' (ts 83). His Honour did not accept that suggestion. His Honour afforded the appellant a discount of 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA), for his pleas of guilty in relation to each of the counts in indictment 468. His Honour reduced the sentence he would otherwise have imposed for the count in indictment 1187 to recognise the appellant's plea of guilty.
The sentencing judge referred to the parity principle in the context of the sentence which had been imposed on Mr Fung for a count which corresponded with the count in indictment 1187. On 3 March 2017, McGrath J had sentenced Mr Fung on two counts in an indictment. One was the count which corresponded with the count in indictment 1187 and the other was another federal offence involving the importation of a border controlled drug (methamphetamine). McGrath J imposed a sentence of 5 years' imprisonment for the count which corresponded with the count in indictment 1187 and a sentence of 12 years' imprisonment for the other count. Both sentences were ordered to be served concurrently. McGrath J fixed a non‑parole period of 8 years 6 months.
In the present case his Honour said, in relation to parity as between the appellant and Mr Fung, that Mr Fung's personal circumstances were 'significantly different' from the appellant's (ts 82). Mr Fung was aged only 19 when he was involved in the transaction the subject of the count in indictment 1187. He had no relevant criminal history and he pleaded guilty at 'an early opportunity' (ts 82). As we have mentioned, his Honour said that the appellant had 'used [Mr Fung] to obtain the subject property where the drugs were to be delivered' and that the appellant was 'directing Mr Fung and involving him in these proceedings' (ts 81). His Honour also said concerning the issue of parity:
… I'm satisfied that given that you were some eight or nine years older than [Mr Fung] at the time of committing this offence, I suspect in a more trusted position with the syndicate in Hong Kong, that you have a prior criminal history before … coming to this country. Your [antecedents] are less favourable.
I'm satisfied also that you played a more significant role than your 19 year‑old assistant in relation to this transaction. And accordingly, for the purpose of parity, I should take those factors into account (ts 82 ‑ 83).
The sentencing judge's finding that the appellant had played a 'more significant role' than Mr Fung in relation to the transaction the subject of the count in indictment 1187 appears to have been based upon:
(a)the content of the conversations lawfully intercepted by law enforcement agencies, including conversations between the appellant and Mr Fung;
(b)his Honour's findings that the appellant 'used [Mr Fung] to obtain the subject property where the drugs were to be delivered' and that the appellant was 'directing Mr Fung and involving him in these proceedings' (ts 81);
(c)the appellant being aged 28 at the time of the offending and Mr Fung being aged 19 at that time;
(d)his Honour's suspicion that the appellant was in a more trusted position than Mr Fung with the syndicate in Hong Kong;
(e)the appellant (but not Mr Fung) having a criminal history before arriving in Australia; and
(f)the appellant's antecedents being less favourable than Mr Fung's.
The offences committed by Mr Fung and his sentencing by McGrath J
Mr Fung was convicted, on his pleas of guilty in the Supreme Court, of two offences.
Count 2 (Mr Fung's count 2) corresponded to the count in indictment 1187.
Count 1 (Mr Fung's count 1) alleged, in essence, that Mr Fung entered into an agreement with others to import a commercial quantity of a border controlled drug (namely methamphetamine), and that an offence was committed in accordance with that agreement, contrary to s 11.2A(1) and s 307.1(1) of the Commonwealth Code.
The maximum penalty for Mr Fung's count 1 was life imprisonment or a fine not exceeding $1.35 million, or both. The maximum penalty for Mr Fung's count 2 was 25 years' imprisonment or a fine not exceeding $900,000, or both.
We have already recounted the facts and circumstances of the offending the subject of Mr Fung's count 2 and the count in indictment 1187.
The facts and circumstances of the offending the subject of Mr Fung's count 1 were, in essence, as follows.
On 25 September 2015, lawfully intercepted information captured by the Australian Criminal Intelligence Commission (ACIC) revealed that two men from Hong Kong had been recruited by an international criminal syndicate with links to a Hong Kong based triad society. The lawfully intercepted information and other intelligence revealed:
(a)The two men were to begin work upon arriving in Australia as part of a 'shore party' to facilitate the importation of border controlled drugs.
(b)The two men were Ah Ho (also known as Wai Ho Tang) and Mr Fung. They were to reside in Australia at an address organised by a 'controller' who was already in Australia.
(c)Multiple references to 'moving things' and opening/breaking down 'bricks', which appeared to be references to imported border controlled drugs being collected for distribution.
On 14 October 2015, Mr Fung spoke with a man whom he addressed as 'Vince' about a warehouse he had rented for a period of one month. The warehouse was located at 89 Argus Street, Cheltenham, Victoria.
On the previous day, that is on 13 October 2015, the Australian Border Force identified and intercepted a consignment bearing House Airway Bill (HAWB) 408682331. This consignment had been contained in air cargo sent from Hong Kong and was being held at the DHL Worldwide Express Facility in Tullamarine. The consignment comprised 13 boxes containing electric cookers and warmers.
The details of the consignment were as follows:
Consignee:
Warehouse Department
Fung Ka Chun
+610451458725
Argus Street, 3192, Cheltenham, Victoria
Australia
Consignor:
SCS Express
Flat C G‑F Phase
HK Spinners Ind, Kowloon
Lai Chi Kok, Hong Kong
On 15 October 2015, Australian Federal Police officers discovered that methamphetamine was concealed within the base of several of the electric cookers. The methamphetamine comprised 64 rectangular packages. The total weight of the packages was about 6.4 kg.
On 20 October 2015, the Australian Federal Police delivered the consignment, as part of a controlled operation, to 89 Argus Street, Cheltenham. All of the methamphetamine was removed from the consignment before delivery and was not replaced with any other substance.
At about 1.07 pm (Australian Eastern Daylight Time) on 21 October 2015, Mr Fung attended at 89 Argus Street with an unknown man. Mr Fung and the unknown man collected the consignment and drove to 2 Standard Avenue, Box Hill, Victoria.
Between about 2.00 pm and 5.30 pm (Australian Eastern Daylight Time) on 21 October 2015, Mr Fung was observed on numerous occasions walking or running between 2 Standard Avenue, Box Hill and his residential premises at 17 Howard Street, Box Hill.
On 22 October 2015, Mr Fung was in contact with an unknown person. They discussed the consignment and the fact that the consignment 'does not seem to be complete'. Mr Fung requested that the unknown person inform him of the total weight of the goods so that he could compare what had been delivered, as he was 'short'. Mr Fung also contacted DHL in order to obtain a copy of the receipt/airway bill for the consignment.
The law enforcement authorities decided not to take immediate action against Mr Fung in relation to the consignment because they believed that Mr Fung planned to be involved in further illegal activity in Perth. Investigations had revealed that the activity in Perth concerned the importation of additional border controlled drugs.
On 1 November 2015, Mr Fung and Mr Tang flew from Melbourne to Perth. They left the mobile telephones they had been using (which were being monitored by the law enforcement authorities) in Melbourne, and purchased new mobile telephones for use in Perth.
The total net weight of the methamphetamine the subject of Mr Fung's count 1 was 5,441.3 g with a purity of 78.4%. The net pure weight of the methamphetamine was 4,265.9 g.
As we have mentioned, the offending the subject of Mr Fung's count 2 and the count in indictment 1187 occurred in Perth between 11 February 2016 and 11 March 2016 (that is, after Mr Fung committed the offence the subject of Mr Fung's count 1).
On 3 March 2017, McGrath J sentenced Mr Fung.[1]
[1] See The State of Western Australia v Fung [2017] WASCSR 41.
His Honour made the following findings and observations in relation to Mr Fung's offending:
(a)The Crown submitted that his Honour should find that Mr Fung was 'a mid‑level participant in an organised criminal syndicate that was engaged in the business of importing quantities of border‑controlled drugs into the Commonwealth' [8].
(b)Mr Fung asserted, to the contrary, that he was not 'a mid‑level participant in an organised criminal syndicate'. He contended that as a result of gambling debts he became involved with people who directed him to engage in the relevant unlawful activities. Mr Fung claimed to the author of his pre‑sentence report that he had been 'threatened if [he] did not get involved with illegal drug activities'. His aim was to make a personal profit. His Honour found that the aggravating part of Mr Fung's explanation was his acceptance that he became involved with the drug industry to make a personal profit. His Honour rejected Mr Fung's claim that he was 'a mere pawn' and that he 'acted out of fear' [9].
(c)His Honour found that Mr Fung was involved in 'a multimillion dollar importation'; his role was 'pivotal as those who gave [him] instructions reposed trust in [him]'; and Mr Fung was 'a willing and active participant' [10].
(d)His Honour said that Mr Fung's role was 'significantly greater than a mere courier' and that '[t]he facts to which [Mr Fung] ha[d] pleaded guilty illuminate[d] the pivotal role that [he] played' [12].
(e)His Honour found that Mr Fung was given responsibility and was trusted. As to Mr Fung's count 1, Mr Fung rented a warehouse to which the drugs were sent; the quantity of the drugs was indicative of the trust reposed in him; Mr Fung's further actions included deconstructing the package containing the drugs; and Mr Fung made inquiries in respect of concerns about the quantity of the drugs, including demanding a copy of the receipt/airway bill for the consignment [13]. As to Mr Fung's count 2, Mr Fung also undertook various roles. He rented the share house and then 'played an important role, which is outlined by the facts which [Mr Fung] ha[d] accepted' [14]. Mr Fung was actively involved in both of the offences. His Honour said he did not need to attach descriptions to Mr Fung's role [14].
(f)His Honour said that Mr Fung's sole purpose in coming to Australia was to assist in the importation of drugs for personal profit [15].
(g)Mr Fung had no prior criminal record and was otherwise of good character. He had an unremarkable childhood.
(h)Mr Fung completed primary school and two years of secondary school. At the age of 16, he commenced employment on building sites. He was aged 19 when he committed the offences in question. His Honour took Mr Fung's youth into account as a mitigating factor.
(i)Mr Fung entered pleas of guilty at the first reasonable opportunity. The pleas demonstrated Mr Fung's willingness to facilitate the course of justice and his acceptance of responsibility for the offending.
(j)His Honour accepted defence counsel's submission that Mr Fung was remorseful for his offending. The pleas of guilty reflected Mr Fung's remorse.
(k)His Honour noted that Mr Fung's parents were 'very supportive' of him and their support would 'serve as a foundation for [his] rehabilitation'. His Honour found that Mr Fung's prospects for rehabilitation were very good. Mr Fung's incarceration in Australia may cause him some hardship as a result of his geographical isolation from his family and culture, but that factor was entirely a consequence of Mr Fung's criminal conduct and could be given only very limited weight [20].
(l)Mr Fung did not have any dependants. The impact of Mr Fung's offending and consequent incarceration upon his family was 'entirely a consequence of [his] conduct' [21].
As we have mentioned, McGrath J imposed a sentence of 12 years' imprisonment for Mr Fung's count 1 and a sentence of 5 years' imprisonment for Mr Fung's count 2. His Honour observed that the two counts were distinct acts of criminal conduct and, ordinarily, the terms would be served cumulatively. However, in Mr Fung's case, his Honour determined that the individual sentences should be served wholly concurrently. His Honour said that he was 'extremely mindful' of Mr Fung's youth and prospects for rehabilitation. As we have mentioned, his Honour fixed a non‑parole period of 8 years 6 months.
The grounds of appeal
The appellant relies upon four grounds of appeal.
Ground 1 alleges in essence that the sentencing judge erred in finding that the seriousness of the appellant's offending in relation to the count in indictment 1187 was increased by:
(a)the appellant's 'overseas record' of offending; and
(b)the appellant having had a 'more significant role' in the offending in question than his co‑offender, Mr Fung.
Ground 2 alleges in essence that the sentence for the count in indictment 1187 was manifestly excessive.
Ground 3 alleges in essence that the length of the sentence and the non‑parole period imposed by his Honour for the count in indictment 1187 infringed the parity principle having regard to the length of the sentence and the non-parole period previously imposed on Mr Fung for that count.
Ground 4 alleges that the total effective sentence of 10 years 6 months' imprisonment infringed the totality principle.
On 13 August 2018, Mazza JA referred the application for leave to appeal to the hearing of the appeal.
Ground 1: counsel for the appellant's submissions
Counsel for the appellant submitted that the sentencing judge erred in making findings of fact that:
(a)the appellant's 'overseas record' was an aggravating factor, for sentencing purposes, because the record suggested that the appellant had the capacity to source drugs from overseas; and
(b)the appellant had a more 'significant role' in the offending in relation to the count in indictment 1187 than Mr Fung.
As to the appellant's 'overseas record', counsel acknowledged that the appellant was not of prior good character, but argued that his Honour erred in placing weight on the record as an aggravating factor.
Counsel argued that the sentencing judge made an erroneous finding having regard to comments his Honour made in debate with defence counsel at the sentencing hearing. In particular, his Honour said during discourse with defence counsel that the appellant's 'overseas record' might be relevant because 'in relation to each of the offences [it was] apparent that [the appellant] enjoyed a reputation of having a capacity to supply a significant quantity of drugs' (ts 37); that 'there [were] others in the drug industry who were prepared to deal with [the appellant] on the basis that he could sell and be trusted to supply large quantities of drugs for considerable sums of money [and] they were happy to part with their money and receive that material, notwithstanding that it was sugar … [and the appellant] would only be in that position if [he] had some other reputation' (ts 37); that '[t]he reputation might extend from material that might come from overseas, given that the persons who brought the drugs here were from a similar ethnic origin' (ts 37); and that this 'does appear to be [of] some relevance … because it might assist in placing him in the relevant hierarchy in dealing with drugs by way of importing and distribution within Australia, such that it might be a significantly aggravating feature of the offending' (ts 38).
Counsel for the appellant accepted that the appellant had previous convictions in Hong Kong for drug trafficking (in relation to 10 g of MDMA) and drug possession (in relation to 3.5 g of MDMA).
However, it was submitted that the drugs the subject of the previous convictions were different in type from the drugs the subject of the current offending, and that the quantities of MDMA involved in the previous offending were 'much smaller' than the quantities of methamphetamine and methylamphetamine involved in the current offending.
Further, it was submitted that the previous offences did not place the appellant in 'a hierarchy of importing and distribution within Australia'.
As to the appellant having had a 'more significant role' in the offending in relation to the count in indictment 1187 than Mr Fung, counsel argued that his Honour erred in sentencing the appellant on the basis of findings of fact that were not open to his Honour.
Counsel for the appellant submitted that at the sentencing hearing before the sentencing judge:
(a)Defence counsel contended that the appellant should be sentenced on the basis that he was 'on the same level' as Mr Fung.
(b)The Commonwealth prosecutor informed the sentencing judge that the prosecution 'essentially put [the appellant and Mr Fung] on par' and that they were 'essentially to be treated equally' (ts 59).
(c)The Commonwealth prosecutor said that while the appellant and Mr Fung both 'undertook slightly different conduct at different times … it's hard to distinguish between the two of them' and that '[i]t [can] be seen that [the appellant is] somewhat directing Mr Fung but then Mr Fung towards the end of the facts for the Commonwealth matter certainly plays a significant role there' (ts 59).
(d)The Commonwealth prosecutor informed his Honour that, at Mr Fung's sentencing hearing, the Commonwealth asserted that the appellant and Mr Fung were on an equal footing and that 'they both played a part at a mid‑level role' (ts 60).
(e)The Commonwealth prosecutor accepted that Mr Fung's youth might be a relevant factor in deciding who, as between the appellant and Mr Fung, was 'in charge', but the prosecutor then said that 'it can also depend on personality as well as to who takes a more dominant role' (ts 63).
Counsel for the appellant noted that McGrath J had found that Mr Fung had played a 'pivotal role' in the offending in relation to the count which corresponded with the count in indictment 1187 (that is, Mr Fung's count 2) [12].
Counsel also noted that the other count for which Mr Fung was sentenced by McGrath J (that is, Mr Fung's count 1) was committed before the count in question and involved entering into an agreement with others to import a commercial quantity of methamphetamine. Accordingly, so it was submitted, the other charge for which Mr Fung was sentenced demonstrated that Mr Fung was 'already explicitly involved in the drug importation trade' when the offence in question was committed.
Counsel for the appellant submitted that the impugned finding as to the appellant having had a 'more significant role' in the offending in relation to the count in indictment 1187 than Mr Fung, was not open to his Honour having regard to the position adopted by the Commonwealth prosecutor and defence counsel at the sentencing hearing and, further or alternatively, the impugned finding was 'unsupported merely [by virtue of Mr Fung's younger age] and especially with regard to the significant other [earlier offending conduct]' for which Mr Fung was sentenced by McGrath J.
Ground 1: counsel for the Crown's submissions
As to the appellant's 'overseas record', counsel for the Crown submitted, on the basis of s 16A(2)(m) of the Crimes Act 1914 (Cth), that the sentencing judge was obliged to find that the appellant's criminal history was a relevant sentencing factor. It was submitted that it was open to his Honour to find that the appellant was a person who was known by other illegal drug distributors as a reliable supplier of illegal drugs and that the appellant was a mid‑level participant in an organised criminal syndicate engaged in the importation of large quantities of illegal drugs into Australia. It was also submitted that it was open to his Honour to find that the appellant's criminal history and his reputation as a provider of illegal drugs were indicative of his role in the criminal hierarchy and that his reputation and his role were aggravating features of the offending.
As to the appellant having had a 'more significant role' in the offending in relation to the count in indictment 1187 than Mr Fung, counsel for the Crown submitted that it was open to his Honour to make a finding of fact on that issue which differed from the submissions made by defence counsel and the Commonwealth prosecutor. His Honour gave notice to defence counsel that he was considering making the finding in question, and defence counsel either agreed with the finding or did not indicate to his Honour that the matter was in dispute. It was also submitted that it was open to his Honour to find that the appellant's role in the offending in question was 'more significant' than Mr Fung's role. The directions which the appellant gave to Mr Fung indicated that the appellant occupied a more senior role in the criminal hierarchy. Those directions were an instrumental or critical part of the importation of the illegal drugs. The importance of the directions was not diminished or altered by any later change in the relative positions of the appellant and Mr Fung within the criminal hierarchy.
Ground 1: its merits
Ground 1 alleges in substance that the sentencing judge made the following errors. First, his Honour erred in finding that the appellant's 'overseas record' of offending increased the seriousness of the appellant's offending in relation to the count in indictment 1187. Secondly, his Honour erred in finding that the appellant's role in the offending in relation to the count in indictment 1187 was 'more significant' than Mr Fung's role and, consequent upon that error, his Honour also erred in finding that the appellant's 'more significant role' increased the seriousness of his offending in relation to that count.
As to the appellant's 'overseas record' of offending, his Honour found, and was entitled to find, having regard to the information before him and the submissions made by defence counsel and the Commonwealth and State prosecutors, that:
(a)the appellant had a criminal record in Hong Kong;
(b)in 2010, the appellant was convicted and imprisoned for 18 months in Hong Kong on a charge of trafficking in a dangerous drug (10 g of MDMA);
(c)in 2006, the appellant was convicted in Hong Kong on a charge of possession of a dangerous drug (3.5 g of MDMA);
(d)the appellant had other convictions in Hong Kong for robbery, theft and criminal damage; and
(e)since 2015, there had been outstanding warrants in Hong Kong for the appellant's arrest on drug trafficking charges.
Section 16A(2)(m) of the Crimes Act provides that, in addition to any other matters, a court sentencing a person for a federal offence must take into account, to the extent relevant and known to the court, the character, antecedents, age, means and physical or mental condition of the person. A person's antecedents include his or her criminal history.
It is well established that an offender's prior criminal record, and any failure of previous sentences to achieve the purpose for which they were imposed, do not aggravate the offending in question. However, a prior criminal record invariably demonstrates that the offender was not of good character before the relevant offending. Although an offender cannot be punished again for past criminal conduct, the prior criminal record is relevant to his or her moral culpability for the offending in question and demonstrates that the offending in question was not an uncharacteristic aberration. A prior criminal record may also, in some cases, underscore the importance of personal deterrence as a sentencing factor, especially where the offender's criminal history manifests a continuing attitude of disobedience of the law. See Veen v The Queen [No 2].[2]
[2] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson & Toohey JJ).
In the present case, it is apparent from the sentencing judge's sentencing remarks (in particular, the passages at ts 80 ‑ 82 to which we have referred at [58] ‑ [66]) that his Honour took into account the appellant's 'overseas record' of offending for the following purposes. First, to support his Honour's conclusion that the appellant was not of good character before the offending in question (ts 81). Secondly, as one of the factors which, in his Honour's view, supported the rejection of the appellant's explanation that he became involved in the offending in question because he was under financial stress in Hong Kong as a result of his having provided financial assistance to members of his family (ts 80). Thirdly, as one of the factors which, in his Honour's view, supported the conclusion that only limited weight should be given to the appellant's expressions of remorse and contrition in that the appellant must have been aware before he left Hong Kong of the deleterious impact which illicit drugs have upon the community (ts 81 ‑ 82). Fourthly, as one of the factors which, in his Honour's view, supported the conclusion that the appellant had played a 'more significant role' than Mr Fung in relation to the transaction the subject of the count in indictment 1187 and the corresponding count (being Mr Fung's count 2) (ts 82 ‑ 83). Fifthly, as one of the factors which, in his Honour's view, supported the manner in which his Honour applied the parity principle in relation to the appellant compared to Mr Fung (ts 82).
It is true that, in debate with defence counsel at the sentencing hearing, his Honour said that the appellant's 'overseas record' was relevant in the manner and to the extent we have indicated at [97] above. However, comments made by a sentencing judge during discourse with counsel in the course of counsel's submissions do not, ordinarily, have the status of findings and do not, ordinarily, have the status accorded to comments made in the judge's sentencing remarks. In the present case, we are not persuaded that his Honour's findings and comments in his sentencing remarks as to the appellant's 'mid‑level role' within the Hong Kong organisation; the trust reposed in him by those in the Hong Kong organisation who sent 'large quantities of drugs' to the appellant in Australia; and the appellant's ability (in the context of counts 1 and 2 in indictment 468) to fulfil orders for significant quantities of methylamphetamine (ts 81, 87), were based on the existence of the appellant's 'overseas record' of offending.
We are not satisfied that the sentencing judge found, as alleged in ground 1, that the seriousness of the appellant's offending in relation to the count in indictment 1187 was increased by the appellant's 'overseas record'. (His Honour also relied upon the appellant's overseas record as a basis to draw an inference concerning the appellant's role. We deal further with that aspect of his Honour's reasoning at [118] below.)
As to the appellant having had a 'more significant role' than Mr Fung in the offending the subject of the count in indictment 1187, his Honour found, as we have mentioned at [65] above, that the appellant had played a 'more significant' role than Mr Fung in relation to the transaction the subject of the count in indictment 1187. As we have mentioned, his Honour appears to have made that finding having regard to:
(a)the content of the conversations lawfully intercepted by law enforcement agencies, including conversations between the appellant and Mr Fung;
(b)his Honour's findings that the appellant 'used [Mr Fung] to obtain the subject property where the drugs were to be delivered' and that the appellant was 'directing Mr Fung and involving him in these proceedings' (ts 81);
(c)the appellant being aged 28 at the time of the offending and Mr Fung being aged 19 at that time;
(d)his Honour's suspicion that the appellant was in a more trusted position than Mr Fung with the syndicate in Hong Kong;
(e)the appellant (but not Mr Fung) having a criminal history before arriving in Australia; and
(f)the appellant's antecedents being less favourable than Mr Fung's (ts 82 ‑ 83).
The sentencing judge was not precluded by the stance taken and the submissions made by defence counsel and the Commonwealth prosecutor from deciding that the appellant had a 'more significant role' than Mr Fung in the offending the subject of the count in indictment 1187. His Honour was entitled to make his own evaluation of the information before him and arrive at his own conclusion on that issue. His Honour afforded procedural fairness to the parties (notably to the appellant) by indicating, in substance, in debate with defence counsel and the Commonwealth prosecutor at the sentencing hearing that his Honour might not accept the common position of the parties (ts 37 ‑ 39, 59 ‑ 63).
However, we are of the opinion that, having regard to the whole of the information before him, it was not reasonably open to his Honour to conclude that the appellant had a 'more significant role' in the offending in question than Mr Fung.
The matters to which his Honour had regard, in making the impugned finding (namely the matters to which we have referred at [115] above), did not, either alone or in combination, justify the relevant finding, in the context of the whole of the information before his Honour. We note, in particular, the objective facts as to Mr Fung's actions in relation to Mr Fung's count 1 and the objective facts as to the actions of the appellant and Mr Fung concerning the transaction the subject of the count in indictment 1187 and Mr Fung's count 2. The objective facts concerning the appellant's actions in relation to the count in indictment 1187 and the objective facts concerning Mr Fung's actions in relation to Mr Fung's count 1 and Mr Fung's count 2 were the most important probative factors in determining the respective roles of the appellant and Mr Fung. The personal circumstances and antecedents of each of the appellant and Mr Fung were, in the circumstances, of limited weight in evaluating their respective roles. Further, the appellant's overseas criminal history of drug offences, which involved offences committed at least eight years earlier, involving different drugs, and the fact that the appellant was older than Mr Fung, did not constitute an adequate basis to draw an adverse inference as to the appellant's role, compared to Mr Fung's role, in this offence.
Mr Fung committed Mr Fung's count 1 before he committed Mr Fung's count 2 (that is, the count which corresponds to the count in indictment 1187).
Mr Fung was sentenced before the appellant was sentenced.
McGrath J's findings in relation to Mr Fung and his offending were as follows:
(a)Mr Fung was 'a mid‑level participant' in relation to both Mr Fung's count 1 and Mr Fung's count 2 'in an organised criminal syndicate that was engaged in the business of importing quantities of border‑controlled drugs into the Commonwealth' [8];
(b)Mr Fung's claim that he was 'a mere pawn' and that he 'acted out of fear' should be rejected [9];
(c)Mr Fung was involved, in the context of Mr Fung's count 1, in 'a multimillion dollar importation'; his role was 'pivotal as those who gave [him] instructions reposed trust in [him]'; and Mr Fung was 'a willing and active participant' [10];
(d)at least in relation to Mr Fung's count 1, Mr Fung was given responsibility and was trusted;
(e)as to Mr Fung's count 1, Mr Fung rented a warehouse to which the drugs were sent;
(f)the quantity of drugs was indicative of the trust reposed in him;
(g)Mr Fung's further actions included deconstructing the package containing the drugs;
(h)Mr Fung made inquiries in respect of concerns about the quantity of the drugs, including demanding a copy of the receipt/airway bill for the consignment [13]; and
(i)Mr Fung's sole purpose in coming to Australia was to assist in the importation of drugs for personal profit [15].
The information before the sentencing judge included McGrath J's sentencing remarks in relation to Mr Fung and the transcript of Mr Fung's sentencing hearing. They were attached to the Crown's written submissions on sentence dated 10 January 2018 in relation to the appellant. However, the sentencing judge did not refer in his sentencing remarks to the findings of McGrath J which we have set out at [121] above.
Neither Mr Fung nor the Crown appealed to this court against McGrath J's sentencing decision.
We are satisfied, having regard to the whole of the information before the sentencing judge (in particular, to the objective facts as to Mr Fung's actions concerning Mr Fung's count 1, to the objective facts as to the actions of the appellant and Mr Fung concerning the transaction the subject of the count in indictment 1187 and Mr Fung's count 2, and to the fact that Mr Fung committed Mr Fung's count 1 before he committed Mr Fung's count 2) that the only conclusion reasonably open to his Honour was that:
(a)there was no material difference between the level of the appellant and Mr Fung in the drug dealing hierarchy in relation to the transaction the subject of the count in indictment 1187 and Mr Fung's count 2; and
(b)both of them had a mid‑level role within the Hong Kong organisation.
The content of the intercepted conversations, to which his Honour apparently had regard (see [115](a)] above), does not sustain a contrary conclusion. The content of the conversations is outlined at [18] ‑ [39] above. Viewed in isolation, those conversations might be thought to indicate a greater role on the appellant's part, in that he had greater contact with the Hong Kong syndicate and, to some extent, he appeared to be directing Mr Fung. However, those conversations were advanced in the context of the appellant's sentencing only. When McGrath J's unchallenged findings as to Mr Fung's offending are taken into account, the only conclusions reasonably open are those stated at [124] above.
This court can only intervene in a sentencing appeal if the primary judge made an express or implied material error of fact or law or if a miscarriage of justice has occurred. See R v Allpass;[3] R v Clarke;[4] LAT v The State of Western Australia.[5]
[3] R v Allpass (1993) 72 A Crim R 561, 562 - 563 (Gleeson CJ, Hunt CJ at CL & McInerney J).
[4] R v Clarke [1996] 2 VR 520, 522 (Charles JA; Winneke P & Hayne JA agreeing).
[5] LAT v The State of Western Australia [2018] WASCA 215 [39] (Buss P, Mazza & Beech JJA).
An error will be 'material' if, relevantly to the present appeal, the error is capable of affecting the actual sentence imposed by the primary judge. See Fernandes v The State of Western Australia;[6] Roberts v The State of Western Australia;[7] Harding v The State of Western Australia.[8]
[6]Fernandes v The State of Western Australia [2009] WASCA 227 [9] - [10] (McLure P; Owen and Wheeler JJA agreeing).
[7] Roberts v The State of Western Australia [2014] WASCA 239 [47] (Martin CJ, Buss & Mazza JJA).
[8] Harding v The State of Western Australia [2015] WASCA 27 [73] (Mazza JA; Hall J agreeing).
An error is capable of affecting an actual sentence if, relevantly to the present appeal, the nature or degree of the error has the capacity to affect the primary judge's assessment of the seriousness of the offence, having regard to the factors which the judge must take into account when sentencing the offender.
Errors of fact by a primary judge that have been held to be 'material' include, for example:
(a)In Allpass, the Court of Criminal Appeal of New South Wales held that the primary judge was in error in sentencing the offender, who had committed a sexual offence against a girl, on the basis that it was doubtful that there would be any long term consequences for the victim from the assault. The error was 'material' in that it 'would have resulted in an underestimation of the seriousness of the offence' (565 - 566).
(b)In Yarran v The State of Western Australia,[9] the offender was convicted of an offence against s 67(1) of the State Code. This court held that the primary judge had made an error of fact in finding that the offender's conduct influenced other people to attack police during a riot. The error was 'material' in that it was relevant to the primary judge's determination of a sentence that was commensurate with the seriousness of the offence.
[9] Yarran v The State of Western Australia [2017] WASCA 182 [6] (Buss P, Mazza & Mitchell JJA).
In Kentwell v The Queen,[10] French CJ, Hayne, Bell and Keane JJ explained that when a sentencing judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the determination of the sentence, mistakes the facts or does not take into account some material consideration, the appellate court does not assess whether and to what degree the error influenced the outcome. In such a case, the judge's discretion has miscarried. It is the appellate court's duty to exercise the discretion afresh, subject to the applicable criminal appeals statute, the provisions of the applicable sentencing legislation and any other statute or rule of law, as required or permitted. Their Honours did not suggest that a sentencing judge's discretion will miscarry if the judge makes an 'immaterial' error of fact or law.
[10] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42].
In the present case, the sentencing judge's erroneous finding that the appellant had a 'more significant role' than Mr Fung in the offending the subject of the count in indictment 1187, was capable of affecting the actual sentence imposed by his Honour. In our opinion, the erroneous finding had the capacity to affect his Honour's evaluation of the seriousness of the appellant's offending in relation to the count in indictment 1187, his Honour's determination of a sentence that was 'of a severity appropriate in all the circumstances of the offence'[11] and the application of the parity principle as between the appellant and Mr Fung. The error was therefore 'material' in the relevant sense. His Honour's discretion miscarried, irrespective of whether and to what extent the error actually influenced the outcome. See Kentwell [42].
[11] See s 16A(1) of the Crimes Act.
Ground 1 has therefore been made out in relation to the complaint about his Honour having found that the appellant had a 'more significant role' than Mr Fung in the offending the subject of the count in indictment 1187.
It is the duty of this court to exercise the sentencing discretion afresh. See Kentwell [42]. We consider that a different sentence should have been imposed on the appellant in relation to the count in indictment 1187.[12]
[12] See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
Where an appellate court concludes that the primary judge's discretion miscarried in respect of one component of a sentence, including, as in the present case, one of the individual sentences forming part of the total effective sentence, the whole of the sentence imposed by the primary judge should be set aside. See McGarry v The Queen;[13] The State of Western Australian v Cairns;[14] YDN v The State of Western Australia;[15] Hall v The State of Western Australia.[16] The sentences imposed on the appellant in respect of all of the counts should be set aside and the appellant re‑sentenced in respect of them.
[13] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[14] The State of Western Australian v Cairns [2006] WASCA 178 [42] (McLure JA; Buss JA agreeing).
[15] YDN v The State of Western Australia [2018] WASCA 62 [53] (Mazza, Mitchell & Beech JJA).
[16] Hall v The State of Western Australia [2018] WASCA 151 [16] (Buss P, Mazza JA & Hall J).
Ground 2: counsel for the appellant's submissions
Counsel for the appellant submitted that the sentence of 9 years' imprisonment, with a non‑parole period of 6 years, for the count the subject of indictment 1187 was manifestly excessive, having regard to the maximum sentence for the offence, the standards of sentencing customarily observed with respect to the offence, the facts and circumstances of the offending, the appellant's status as a 'mid‑level' offender (and not an organiser or part of the 'high‑tier of management'), the appellant's early plea of guilty and his personal circumstances.
Ground 2: counsel for the Crown's submissions
Counsel for the Crown submitted that the sentence of 9 years' imprisonment, with a non‑parole period of 6 years, for the count the subject of indictment 1187 was not manifestly excessive, having regard to the particular facts and circumstances in which the offence was committed, the standards of sentencing customarily observed with respect to serious federal drug offences, matters personal to the appellant, the need for both personal and general deterrence, and the factors the sentencing judge properly considered under pt IB of the Crimes Act.
Ground 2: its merits
It is unnecessary, in view of the outcome in relation to ground 1, to consider the merits of ground 2.
Ground 3: counsel for the appellant's submissions
Counsel for the appellant submitted that the sentence of 9 years' imprisonment, with a non‑parole period of 6 years, imposed on the appellant for the offence the subject of indictment 1187, compared to the sentence of 5 years' imprisonment imposed on Mr Fung for the corresponding offence (being Mr Fung's count 2), gave rise to a legitimate or justifiable sense of grievance on the appellant's part. It was submitted that the facts and circumstances of the appellant's offending and his personal circumstances, compared to the facts and circumstances of Mr Fung's offending and his personal circumstances, in relation to the common count did not warrant the disparity in the sentencing outcome.
Ground 3: counsel's submissions on behalf of the Crown
It was submitted on behalf of the Crown that there were material differences between the appellant's personal circumstances and those of Mr Fung which explained and justified the disparity in the sentences they received for the common count. Counsel referred, in particular, to Mr Fung's youth at the time of the offending; the absence of any prior criminal record for Mr Fung either in Australia or Hong Kong; Mr Fung having become involved in the distribution of drugs in Australia in order to repay a gambling debt of $30,000; and Mr Fung having been subject to some pressure, short of duress, to repay the debt. It was also submitted that the sentence which Mr Fung received on the common count must be considered in light of the overall head sentence he received, namely 12 years' imprisonment with a non‑parole period of 8 years 6 months.
Ground 3: its merits
It is unnecessary, in view of the outcome in relation to ground 1, to consider the merits of ground 3.
Ground 4: counsel for the appellant's submissions
At the hearing of the appeal, counsel for the appellant abandoned any reliance on the second limb of the totality principle and relied solely on the first limb of that principle (appeal ts 19 ‑ 20).
It was submitted that the total effective sentence of 10 years 6 months' imprisonment was disproportionate to the total criminality involved in the appellant's offending as a whole having regard to all relevant facts and circumstances and all relevant sentencing factors, including the matters of mitigation and the appellant's personal circumstances and antecedents.
Ground 4: counsel for the respondents' submissions
Counsel for the respondents submitted that the first limb of the totality principle had not been infringed. The appellant's overall criminality with respect to the offences, considered as a whole, must be evaluated in the context of what he did and his involvement over a period of time in three separate transactions with respect to large quantities of drugs or purported drugs. It was open to his Honour to exercise the sentencing discretion by ordering that the sentences for the State offences be served partly cumulatively upon the sentence for the federal offence.
Ground 4: its merits
It is unnecessary, in view of the outcome in relation to ground 1, to consider the merits of ground 4.
The result of the appeal and the resentencing of the appellant
We would grant the appellant an extension of time to appeal. Leave to appeal on ground 1 should be granted. As we have mentioned, it is unnecessary to consider the merits of grounds 2, 3 and 4. Leave to appeal on those grounds should be refused.
We would allow the appeal.
The sentencing judge's sentencing decision (including the sentences imposed, the orders for total or partial concurrency, the orders relating to the date of commencement or the backdating of the sentences and the orders with respect to parole) should be set aside.
This court has the material necessary to resentence the appellant.
The major sentencing considerations in the case of serious federal drug offences are referred to in Ngo v The Queen.[17] The major sentencing considerations in the case of serious State drug offences are referred to in Carlucci v The State of Western Australia.[18]
[17] Ngo v The Queen [2017] WASCA 3.
[18] Carlucci v The State of Western Australia [2019] WASCA 37.
The general sentencing principles (including numerous relevant provisions of the Crimes Act) in relation to sentencing an offender for a federal offence (including the fixing of a non‑parole period) are set out in R v Abbas.[19]
[19] R v Abbas [2019] WASCA 64.
The general sentencing principles (including numerous relevant provisions of the Sentencing Act) in relation to sentencing an offender for a State offence are set out in Thompson v The State of Western Australia.[20]
[20] Thompson v The State of Western Australia [2019] WASCA 68.
The nature and manner of application of the first limb of the totality principle are discussed in Abbas.
The principles concerning parity are outlined in Stoysich v The State of Western Australia[21] and Higgins v The State of Western Australia.[22]
[21] Stoysich v The State of Western Australia [2014] WASCA 208.
[22] Higgins v The State of Western Australia [2019] WASCA 78.
It is unnecessary to recount or summarise the relevant statements made in the cases we have mentioned at [149] ‑ [153] above.
We have considered the general standards of sentencing revealed by prior cases (including the prior cases relied upon by counsel for the appellant and counsel for the Crown) with at least some features comparable to the appellant's offending in relation to the count in indictment 1187. See, in particular, R v Ng;[23] So v The Queen;[24] Mousavi v The Queen;[25] Nell v The Queen.[26]
[23] R v Ng [2012] WASCA 180.
[24] So v The Queen [2014] WASCA 169.
[25] Mousavi v The Queen [2014] WASCA 174.
[26] Nell v The Queen [2014] WASCA 193.
Also, we have considered the sentencing outcomes in a range of cases involving offering to sell a prohibited drug to another, contrary to s 6(1)(c) of the MD Act. Counts 1 and 2 in indictment 468 involved offending of that kind. See, in particular, Hobby v The State of Western Australia;[27] TXT v The State of Western Australia;[28] The State of Western Australia v Doyle;[29] Le v The State of Western Australia;[30] ENR v The State of Western Australia;[31] Tirkot v The State of Western Australia;[32] and Slade v The State of Western Australia.[33] None of those cases is truly comparable to the appellant's offending.
[27] Hobby v The State of Western Australia [2009] WASCA 108.
[28] TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266.
[29] The State of Western Australia v Doyle [2017] WASCA 207.
[30] Le v The State of Western Australia [2015] WASCA 73.
[31] ENR v The State of Western Australia [2018] WASCA 9.
[32] Tirkot v The State of Western Australia [2018] WASCA 41.
[33] Slade v The State of Western Australia [2019] WASCA 65.
As to count 3 in indictment 468, we have considered the sentencing outcomes in a range of cases involving offending against s 417(1) of the State Code. See, in particular, The State of Western Australia v Charles;[34] Barton v The State of Western Australia;[35] Dias v The State of Western Australia;[36] My v The State of Western Australia;[37] Gaskell v The State of Western Australia;[38] Abbott v The State of Western Australia;[39] and Carlucci. There are some features comparable to the appellant's offending in some of those cases, but there are also distinguishing features.
[34] The State of Western Australia v Charles [2016] WASCA 108.
[35] Barton v The State of Western Australia [2016] WASCA 196.
[36] Dias v The State of Western Australia [2017] WASCA 49.
[37] My v The State of Western Australia [2018] WASCA 1.
[38] Gaskell v The State of Western Australia [2018] WASCA 8.
[39] Abbott v The State of Western Australia [2018] WASCA 45.
As to the count in indictment 1187, after taking into account:
(a)the applicable statutory sentencing framework;
(b)the maximum penalty;
(c)all relevant facts and circumstances (including that there was no material difference between the level of the appellant and Mr Fung in the drug dealing hierarchy in relation to the transaction the subject of the count in indictment 1187 and Mr Fung's count 2 and that both of them had a mid‑level role within the Hong Kong organisation, but disregarding the sentencing judge's erroneous finding of fact referred to in our disposition of ground 1 and his Honour's other findings that were underpinned by the erroneous finding);
(d)such of the matters set out in s 16A(2) of the Crimes Act as are relevant and known to the court;
(e)the seriousness of the offending;
(f)the particular importance of personal and general deterrence as sentencing factors;
(g)the general standards of sentencing revealed by prior cases with at least some features comparable to the appellant's offending;
(h)all matters of mitigation;
(i)the issue of parity as between the appellant and Mr Fung (including McGrath J's findings in relation to Mr Fung and Mr Fung's count 2); and
(j)all other relevant sentencing factors,
we would sentence the appellant to 6 years 6 months' imprisonment.
The difference between that sentence, and the sentence imposed on Mr Fung for Mr Fung's count 2, reflects the fact that Mr Fung pleaded guilty at the first reasonable opportunity, whereas the appellant pleaded guilty at a relatively early opportunity, but not at the earliest reasonable opportunity, and was therefore entitled to less credit on that account. In addition, Mr Fung had the benefit of other mitigating factors. Mr Fung was youthful and significantly younger than the appellant. Mr Fung was found to be genuinely remorseful, whereas the sentencing judge made a qualified finding as to the appellant's remorse. Further, Mr Fung had better prospects of rehabilitation than the appellant. Although an offender's personal circumstances and antecedents do not carry the same weight in mitigation in the case of drug‑dealing offences compared with other offences, given the importance of personal and general deterrence in relation to drug‑dealing offences, those differences warrant a modest additional disparity, in the present case, in addition to that attributable to the timing of the pleas of guilty, in the sentence imposed on the appellant compared to that imposed on Mr Fung. At the hearing of the appeal, counsel for the appellant accepted that some difference in the sentencing outcome would be warranted by virtue of those factors.[40]
[40] Appeal ts 16.
Pursuant to s 19AB of the Crimes Act, and after taking into account all relevant facts and circumstances and all relevant principles relating to the fixing of a non‑parole period, we would fix a non‑parole period of 4 years' imprisonment in relation to the count in indictment 1187.
The re‑sentencing of the appellant must necessarily include re‑sentencing for the State offences in counts 1, 2 and 3 in indictment 468. Counsel for the respondents submitted that, in sentencing the appellant for those offences, the sentencing judge had regard to the sentence he imposed for the offence charged in indictment 1187, and to totality considerations, and consequently imposed sentences for the State offences which counsel for the respondents asserted were 'extraordinarily lenient'.[41] Counsel for the respondents submitted that, in those circumstances, any reduction in the sentence imposed for the count charged in indictment 1187 would necessitate an increase in the individual sentences imposed for the offences charged in indictment 468.
[41] Appeal ts 22.
This court expressly invited counsel for the appellant to make submissions in respect of the individual sentences imposed for the offences charged in indictment 468 and in respect of the accumulation of those sentences, in the event that this court decided to set aside the sentence imposed for the count in indictment 1187.[42] Counsel for the appellant did so.[43]
[42] Appeal ts 20, 28.
[43] Appeal ts 20 ‑ 21, 29.
We would, like the sentencing judge, afford the appellant a discount of 20% for each of his pleas of guilty, pursuant to s 9AA of the Sentencing Act, in respect of counts 1, 2 and 3 in indictment 468.
As to counts 1, 2 and 3 in indictment 468, after taking into account:
(a)the applicable statutory sentencing framework;
(b)the maximum penalties;
(c)all relevant facts and circumstances;
(d)the seriousness of the offending;
(e)the particular importance of personal and general deterrence as sentencing factors;
(f)the general standards of sentencing revealed by prior cases with at least some features comparable to the appellant's offending;
(g)all matters of mitigation; and
(h)all other relevant sentencing factors,
we would impose a sentence of 5 years' immediate imprisonment for count 1, 5 years 6 months' imprisonment for count 2 (reduced from 7 years' imprisonment in the application of the totality principle) and 3 years' immediate imprisonment for count 3.
In the re‑sentencing of the appellant, higher sentences than those imposed by the sentencing judge are required for the offences charged in counts 1 and 2 of indictment 468. Those offences arose from the appellant's offers to sell 1 kg of methylamphetamine and slightly in excess of 3 kg of methylamphetamine. Of course, what the appellant intended to supply, and what he did in fact supply, was not methylamphetamine but rock sugar. However, the offence of offering to sell a prohibited drug, contrary to s 6(1)(c) of the MD Act, is complete upon the making of an offer to sell or supply a prohibited drug, where the offeror intends that the offer should be regarded by the offeree as genuine.[44]
[44] Floyd v The State of Western Australia [2013] WASCA 33 [13] (McLure P; Newnes & Mazza JJA agreeing); R v Dendic (1987) 34 A Crim R 40; R v Addison (1993) 78 A Crim R 213; R v Swan (2001) A Crim R 243.
A lesser sentence is warranted for each of counts 1 and 2 than would have been imposed had the appellant both offered, and actually intended, to sell methylamphetamine, because no drugs were in fact made available for distribution into the community on either occasion. However, the fact that the appellant knew that what he would supply was rock sugar, and not methylamphetamine, is only one of the factors relevant to the assessment of the seriousness of the offence of offering to sell a prohibited drug to another.[45]
[45] Tirkot v The State of Western Australia [2018] WASCA 41 [53]. See also Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587 [56] (Buss JA; McLure P agreeing).
The appellant offered to sell a very substantial quantity of methylamphetamine in the case of each of counts 1 and 2. The offers were regarded as genuine by the offerees, who were each prepared to, and did, pay a significant sum of money for the 'methylamphetamine'. These were not isolated offences. His Honour found that the appellant had the capacity to fulfil the orders.
We consider that the appropriate total effective sentence for the appellant, having regard to:
(a)the overall criminality involved in all of the offences, viewed in their entirety;
(b)all relevant facts and circumstances, including those referrable to the appellant personally;
(c)the total effective sentences imposed in prior cases with at least some features comparable to the appellant's overall offending; and
(d)the issue of parity as between the appellant and Mr Fung (including McGrath J's findings in relation to Mr Fung, Mr Fung's count 1 and Mr Fung's count 2),
is 10 years 6 months' imprisonment.
Pursuant to s 19(2) of the Crimes Act and s 41(3)(c) and (d) of the Criminal Appeals Act:
(a)the new individual sentence for the count in indictment 1187 is to be taken to have taken effect on 26 August 2016;
(b)the new individual sentences for counts 1 and 3 in indictment 468 are to commence on 26 August 2020; and
(c)the new individual sentence for count 2 in indictment 468 is to commence on 26 August 2021.
The appellant is to be eligible for parole in respect of each of the counts in indictment 468.
The appellant will be eligible for release on parole upon having served 8 years 6 months in custody calculated from 26 August 2016.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KL
Associate to the Honourable Justice Buss21 MAY 2019
24
39
6