Lee v The Queen

[2018] NSWCCA 75

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Lee v R [2018] NSWCCA 75
Hearing dates:	6 April 2018
Date of orders:	27 April 2018
Decision date:	27 April 2018
Before:	Meagher JA at [1] Rothman J at [2] Garling J at [3]
Decision:	(1)   Leave to appeal against the sentence imposed by the District Court on 18 September 2015 is refused.
Catchwords:	CRIME – appeal against sentence – importing a commercial quantity of a border controlled drug –Criminal Code (Cth) s 307.1 – parity – whether there is a disparity between the sentence imposed upon the applicant and the sentence imposed upon the co-offender such as to leave the applicant with a justifiable sense of grievance – where numerous factors distinguished the criminality of the applicant and the co-offender – where the sentence imposed upon the co-offender was also discounted for assistance to authorities and his guilty plea at the earliest opportunity – no breach of principle of equal justice – no objective and justifiable sense of grievance – leave to appeal refused
Legislation Cited:	Criminal Code (Cth) Crimes Act 1914 (Cth)
Cases Cited:	Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 463 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	Sang Foo Lee (Applicant) The Queen (Respondent)
Representation:	Counsel: J Stratton SC (Applicant) L Fernandez (Crown)   Solicitors: Hunter and Braddon (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2012/179751; 2012/179835; 2012/19907
Publication restriction:	Not Applicable
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 18 September 2015 Before: Jeffreys DCJ File Number(s): 2012/179751; 2012/179835; 2013/19907

Judgment

1. MEAGHER JA: I agree with Garling J.

2. ROTHMAN J: I agree with Garling J.

3. GARLING J: Sang Foo Lee (“the applicant”) applies for leave to appeal in respect of a sentence which was imposed on him on 18 September 2015 in the District Court of NSW.

4. The applicant pleaded guilty to an offence of importing a commercial quantity of a border controlled drug, being 13.9265kg (pure weight) of heroin contrary to s 307.1 of the Criminal Code (Cth). The maximum penalty for such an offence is life imprisonment and/or a significant fine.

5. He asked the sentencing Judge to take into account pursuant to s 16BA of the Crimes Act 1914, six other offences, three of possession of relatively small quantities of cocaine, methamphetamine and MDMA, and three offences of trafficking in a marketable quantity of heroin.

6. The applicant entered a plea of guilty two days after his trial in the District Court was due to start.

7. The sentencing Judge (Jeffreys DCJ) imposed sentence on 18 September 2015. The applicant was sentenced to 12 years imprisonment with a non‑parole period of 6 years 6 months.

8. Over two years later, the applicant filed a Notice of Application for Leave to Appeal on 21 November 2017, and nominated a single ground which is:

“The fact that the co-offender Orchard was sentenced to a lesser sentence than the applicant is such that the applicant is left with a legitimate sense of grievance.”

Facts

9. It will be convenient to commence by a recitation of the essential facts relating to the offending. They were agreed for the purpose of sentence.

10. The applicant was one of five people prosecuted in relation to the importation of a commercial quantity of heroin between 3 April 2012 and 7 June 2012.

11. One of the applicant’s co-accused, Dean Thomas Orchard, pleaded guilty to attempting to possess an unlawfully imported commercial quantity of a border controlled drug, being 13.9265kg of heroin, and was sentenced on 13 June 2014 in the District Court (Woodburne SC DCJ) to 8 years 5 months with a non‑parole period of 4 years 6 months. This sentence was imposed following upon a discount of about 47%. The undiscounted sentence was noted by Woodburne SC DCJ as being 16 years.

12. Two other co-accused each pleaded not guilty and were committed to stand trial in the District Court. Following a joint trial, one co-accused was found not guilty and the other (Collins) was found guilty. He was sentenced on 3 October 2014 in the District Court (Frearson SC DCJ) to 7 years imprisonment with a non-parole period of 3 years 8 months, for the principal offence of attempting to possess an unlawfully imported quantity of heroin being 1.5kg.

13. A fifth co-offender (Mr Romeo) having pleaded guilty, was sentenced in the District Court on 16 January 2015 by Haesler SC DCJ for attempting to possess an unlawfully imported quantity of heroin, being 3.6kgs. He was sentenced to a term of imprisonment of 5 years 7 months with a non-parole period of 2 years 10 months.

14. Investigations undertaken by the NSW Crime Commission and the NSW Police Force concentrated on arrangements being made by the applicant and a number of other males in Thailand, Singapore and Malaysia regarding the importation of a shipping container, including its packing and the essential surrounding arrangements with respect to its arrival in Australia.

15. The telephone calls which were intercepted made it plain that the applicant was intimately involved in the importation, including giving instructions to others as to what they should do and when, in order to prepare the drugs for importation.

16. The container commenced its journey in Bangkok and was transhipped in Singapore. On 29 May 2012, the container arrived in Australia and was examined by law enforcement authorities in Brisbane. Two cardboard boxes identified with handwritten numbers were found immediately inside the container doors. This accorded with the details which were discussed in the various telephone calls which had been monitored. Examination of the two cartons revealed a significant number of blocks of compressed white powder which had been carefully wrapped and packed into two separate bags, one a black backpack.

17. Presumptive illicit substance testing conducted upon the white power indicated a positive reaction to the presence of heroin. The combined gross weight of the packages of powder was 20.25kgs. A controlled operation was commenced. An inert substance was substituted for the heroin and the delivery of the consignment continued.

18. When the applicant returned to Sydney from Singapore on 1 June 2012, upon a covert inspection of his luggage, a copy of the original Bill of Lading for the container was found together with the packing list and an invoice.

19. At about 9.30pm on the following day, Mr Orchard commenced his night shift as the Team Leader at the Patrick Stevedores Container Terminal at Port Botany. Mr Orchard and his team were responsible for the movement of the container. Early on the morning of Sunday 3 June 2012, Mr Orchard unlawfully accessed the container to look for the two marked cardboard boxes. The following day, Mr Orchard removed a black backpack from one of the boxes which contained the inert substitute substance. He placed it ultimately in his vehicle, having disguised it. On 5 June 2012, Mr Orchard handed over the black backpack to another co-accused.

20. The applicant was arrested on 7 June 2012. When interviewed, the applicant said that he was a conduit or middleman between overseas individuals and those in Australia. His role was simply to receive messages and forward them on to people he did not know. He agreed that he had travelled overseas to collect the Bill of Lading. He gave other obviously false information.

21. The pure weight of the heroin seized in the consignment was 13.9265kg. The wholesale value of the total heroin seized was about $5.5M.

Remarks on Sentence

22. His Honour recited the nature of the charge and those on the s 16BA Form which he was being asked to consider. He noted that the applicant had been in custody since 7 June 2012, and noted that it would be appropriate to commence any sentence on that day.

23. He further noted that the applicant’s trial was listed to commence on 21 July 2014, and that he had pleaded guilty to the offence on the Indictment on 23 July 2014. His Honour accepted that the plea of guilty was motivated by a willingness to facilitate the course of justice and was an indication of contrition. He took that plea of guilty into account when imposing sentence, although his Honour did not quantify the resultant discount.

24. His Honour noted the sentences imposed on the three other co‑offenders with respect to their roles in the same importation.

25. His Honour turned to consider the role which the applicant played in the importation. He found, most favourably to the applicant, that he was not satisfied beyond reasonable doubt that the offender had contact with people in Australia. He was not satisfied beyond reasonable doubt that the offender’s role was any greater than organising the packaging of the container in Thailand and collecting the Bill of Lading.

26. The sentencing Judge was satisfied that, because of a gambling debt which the applicant owed, he was participating in the importation by reason of “non‑exculpatory duress”. His Honour held that he was entitled to have regard to this matter as a mitigating factor on penalty. His Honour found that there were real threats towards the applicant and his family, the existence of which he accepted.

27. His Honour again referred to the sentences imposed on the applicant’s co‑offenders, citing the need to consider “… questions of parity and proportionality”.

28. His Honour then imposed the sentence.

Remarks on Sentence – Mr Orchard

29. As Mr Orchard is the person whose sentence is said to give rise to a justifiable sense of grievance on the part of the applicant, it is appropriate to examine it with some care.

30. Mr Orchard was sentenced by Woodburne SC DCJ on 13 June 2014. Her remarks were made available to the sentencing Judge in the applicant’s case, during the proceedings on sentence.

31. Mr Orchard pleaded guilty to an offence contrary to s 307.5(1) and 11.1(1) of the Criminal Code of attempting to possess a commercial quantity of a border controlled drug, namely 13.9265kg of heroin. The maximum penalty for that offence is life imprisonment and a very large fine. Although the offences were expressed differently as between the applicant and Mr Orchard, the maximum penalties were the same. They can be regarded as similar offences.

32. As earlier discussed, Mr Orchard played a central role in the importation, namely, removing the drugs from the shipping container and passing them on to a co-offender. For his role, he was to be paid $200,000.

33. Her Honour recognised that Mr Orchard was not the instigator or organiser of the importation but rather was approached by reason of his trusted and responsible position of employment at the stevedoring company which gave him access to goods imported in containers into Australia on ships. Her Honour noted that he was not the intended beneficiary of the drugs but rather that his role was to access the container, collect the drugs and deliver them to another co-offender.

34. Her Honour concluded that Mr Orchard performed the role of a critical intermediary which indicated a significant degree of criminality. He provided an essential link in the chain between the importation and intended distribution of a significant quantity of heroin.

35. Her Honour described Mr Orchard’s conduct as involving a breach of trust which was fundamental to an assessment of Mr Orchard’s criminality. She found that the degree of moral culpability attached to Mr Orchard’s attempted possession ought be assessed as high.

36. Her Honour determined that the combined discount to be allowed for Mr Orchard’s plea of guilty and assistance which he provided to the authorities should be “… in the order of 47%”. Her Honour went on to describe a particularly strong subjective case which was made on behalf of Mr Orchard.

37. Her Honour, having weighed all of the relevant factors, determined that but for Mr Orchard’s plea of guilty and assistance, a sentence of 16 years would have been appropriate. Her Honour then allowed for the discount and arrived at the term of imprisonment which imposed, namely, a term of 8 years 5 months, to date from 6 June 2012 with a non-parole period of 4 years 6 months. This made Mr Orchard eligible for parole on 5 December 2016.

Applicant’s Submissions

38. The applicant submitted that Mr Orchard’s role involved a greater degree of criminality than did his role. He submitted that, objectively, his own role in the enterprise was not as significant. As well, he noted that he had in his favour a finding of non-exculpatory duress.

39. The applicant submitted that there was no marked difference in the subjective cases of Mr Orchard and himself.

40. In writing, the applicant, somewhat concisely, submitted that:

“The ultimate sentence imposed on the applicant of 12 years imprisonment with a non-parole period of 6 years 6 months, compared with the ultimate sentence of the co-offender Orchard of 8 years imprisonment with non‑parole period of 4 years 6 months, was such as to leave the applicant with a legitimate sense of grievance: Lowe v The Queen (1984) 154 CLR 606.”

41. The submission was not otherwise expanded upon.

42. Orally, senior counsel for the applicant submitted that whilst there was a discrepancy in the sentence imposed, even having regard to the differences relied upon by the Crown, the Court would nevertheless be persuaded that the discrepancy was not justified. In particular, senior counsel drew attention to a somewhat generous allowance made in Mr Orchard’s favour with regard to the assistance provided. However, this does not help the applicant since the allowance in fact made, if “corrected” (notionally) by this Court would, without more, reduce the discrepancy. As well, the parity principle must operate on the sentence actually imposed.

43. Ultimately, senior counsel submitted that this Court would hold that whilst some discrepancy ought to be recognised, the discrepancy here was simply too great.

Crown’s Submissions

44. The Crown submitted by way of a starting point, that it was appropriate to note that the applicant was sentenced for a different offence to that of Mr Orchard, and that his involvement in the criminal enterprise was higher than that of Mr Orchard. As well, the Crown submitted that there were significant differences between the cases which were sufficient to explain, and justify, the ultimate discrepancy in the sentences imposed.

45. The Crown noted the following differences:

1. a different offence was charged: Mr Orchard was charged with attempting to possess a commercial quantity of heroin, whereas the applicant was charged with importing a commercial quantity of heroin;

2. the applicant asked the Court to take into account six offences pursuant to s 16BA of the Crimes Act. Mr Orchard had no additional offences;

3. the applicant’s discount for plea of guilty was not quantified, but would not have been nearly as significant as that of Mr Orchard which was identified as being 47%;

4. the ratio of non-parole period to full-term, the Crown pointed out, was almost identical, being 54.2% in the case of the applicant and 53.5% in the case of Mr Orchard;

5. the Crown compared the roles each played in the enterprise to which earlier reference has been made; and

6. the period of involvement of the applicant was 8 to 9 months, whereas the period of involvement of Mr Orchard was 2 months.

46. The Crown also noted that, although the applicant and Mr Orchard were sentenced by different Judges, when the applicant was sentenced, Jeffreys DCJ had before him the sentence imposed by Woodburne SC DCJ on Mr Orchard and the Remarks on Sentence.

Discernment

47. The parity principal, upon which the applicant relies, is an aspect of equal justice which requires that there be consistency in punishment. Where there is unequal treatment under the law, there is a likelihood that public confidence in the integrity of the administration of justice will be eroded: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR at 610-611 per Mason J; Green v the Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 463 at [28] and [30] per French CJ, Crennan and Kiefel JJ.

48. There is no such thing as perfect consistency in sentencing. Necessarily, that is because the function of imposing a sentence on an individual has an evaluative and a discretionary character. In those circumstances, an appellate court will be ordinarily reluctant to intervene.

49. A court will not intervene simply because there is a discrepancy. Such a discrepancy has to be of a sufficient kind as to engender, objectively speaking, a justifiable sense of grievance. Put differently, it must appear that justice has not been done: Lowe at 610 per Gibbs CJ (Wilson J agreeing), at 613 per Mason J, 623-624 per Dawson J; Green at [31] per French CJ, Crennan and Kiefel JJ and at [105] per Bell J.

50. The consideration which the Court has is not just to the head sentence, but to all components of the sentence including the non-parole period and the total effective period that both offenders will serve.

51. Prior to the imposition of the identified discount with respect to Mr Orchard, which was a most significant one, he would have received a sentence of 16 years. The sentence imposed on the applicant, even allowing for a modest discount to take account of his plea for guilty which was quite late, was sufficiently differentiated from the notional starting point of the sentence imposed on Mr Orchard to reflect the different criminality involved in their respective roles in the importation, and the different period of time over which their conduct continued.

52. Indeed, it may have been arguable that such difference between the sentences treated the applicant more favourably given his lengthy involvement in the importation and the persistence of his role, compared with the much shorter time in which Mr Orchard was involved.

53. The real discrepancy in the effective sentences occurs by reason of the significant discount allowed to Mr Orchard. That discount was adequately explained by the sentencing Judge as reflecting the earliest possible plea of guilty, and significant assistance to authorities which impacted upon Mr Orchard’s well-being and safety whilst in custody.

54. There was no such similar assistance provided by the applicant, and on any view his plea of guilty was very late in the proceedings. This factor alone provides a sufficient reason why the sentences, ultimately imposed, are different. There is no reason to suppose that the applicant has an objectively ascertainable justifiable sense of grievance, nor to suppose that justice does not appear to have been done.

55. The differences in sentence are clearly explained by the circumstances applicable to each of them, and there has been no breach of any principle of equal justice.

56. In my view, although time ought to be extended, leave to appeal ought be refused.

Orders

57. I propose the following order:

1. Leave to appeal against the sentence imposed by the District Court on 18 September 2015 is refused.

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Decision last updated: 27 April 2018