Lee v The Queen

[2017] NSWCCA 156

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Lee v R [2017] NSWCCA 156
Hearing dates:	23 June 2017
Decision date:	30 June 2017
Before:	Hoeben CJ at CL at [1]; R A Hulme J at [2]; Wilson J at [48]
Decision:	1. Leave to appeal against sentence granted and appeal upheld. 2. Quash the sentence imposed in the District Court on 19 August 2016 and in lieu impose a sentence of imprisonment for 3 years to date from 31 March 2016. The applicant is to be released on recognizance on 30 December 2017 after serving 1 year and 9 months upon giving security by recognizance in the sum of $100 without surety that he will be of good behaviour for the balance of the term of the sentence.
Catchwords:	CRIMINAL LAW – appeal against sentence – importation of an unspecified quantity of methamphetamine contrary to s 307.3 of the Criminal Code 1995 (Cth) – gross weight of item 3.2 kg but actual quantity of drug unknown – sentencing judge made finding that the offender must have been aware it was a significant quantity – whether breach of De Simoni principle – marketable quantity of methamphetamine only 2 g – sentencing judge did err by taking into account the fact it was a significant quantity – sentencing judge did not just make finding in relation to what offender intended to import – appeal allowed
Legislation Cited:	Criminal Appeal Act 1912 (NSW) s 6(3) Criminal Code 1995 (Cth) s 307 Criminal Code Regulations 2002
Cases Cited:	Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Nguyen v The Queen [2016] HCA 17; 256 CLR 656 R v Lee [2007] NSWCCA 234 R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 The Queen v De Simoni [1981] HCA 31; 147 CLR 383
Category:	Principal judgment
Parties:	Hing Nong Lee (Applicant) Regina (Respondent)
Representation:	Counsel: Mr F Coyne (Applicant) Ms J Single (Crown)   Solicitors: Crowther Sim Lawyers Commonwealth Director of Public Prosecutions
File Number(s):	2014/351017
Decision under appeal	Court or tribunal: District Court Date of Decision: 19 August 2016 Before: Hock DCJ File Number(s): 2014/351017

Judgment

1. HOEBEN CJ at CL: I agree with R A Hulme J and the orders which he proposes.

2. R A HULME J: Hing Nong Lee (“the applicant”) was found guilty by a jury of an offence against s 307.3 of the Criminal Code 1995 (Cth) of importing methamphetamine, a border controlled drug.

3. Against a prescribed maximum penalty of imprisonment for 10 years and/or a fine of 2000 penalty units ($340,000 at the time of the offence) her Honour Judge Hock imposed a sentence of 6 years with a non-parole period of 3 years 6 months.

4. Her Honour specified the commencement date of the sentence as 31 March 2016 which has the effect that the applicant will become eligible for release on parole on 30 September 2019.

5. The applicant seeks leave to appeal against the sentence on the following grounds:

1   Her Honour erred in the weight given to the gross weight of the seized drugs to determine sentence.

2   Her Honour erred in finding that the applicant “was aware that the item contained a substantial quantity of a border controlled drug”.

4   The total sentence is, in all the circumstances, manifestly excessive.

6. Ground 3, which asserted that her Honour erred in finding that the applicant was the “importer” of the substance, was abandoned at the hearing of the application.

Facts

7. A parcel described as containing a tea tray was sent to Australia from China in July 2014. It was inspected by Australian Border Force on 22 July and found to contain three plastic bags with a gross weight of 3.2 kg. The substance within the bags contained methamphetamine but it was destroyed before purity testing could be carried out.

8. On 23 July 2014 the applicant booked a flight to China departing on 24 July and returning to Sydney on 12 August.

9. The parcel was addressed to Bee See Tan, a cousin of the applicant. He asked her to receive the package as he would be overseas. He offered her payment of $4000 but she declined. She had no knowledge of the drugs secreted within the parcel.

10. There was a controlled delivery on 31 July 2014 and Ms Tan took receipt of the parcel. The applicant had instructed her to contact “Sam” to collect it and she did. Later that day, the applicant told her to call “Sam” again and tell him not to collect the parcel.

11. On 1 August 2014 the applicant brought forward his return flight to 5 August 2014. This change coincided with him learning from Ms Tan that the parcel had arrived. The applicant was arrested at his home later that day.

12. The applicant was committed for trial on 23 July 2015 for the index offence as well as for an offence of possessing a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine. He was found guilty of the former and not guilty of the latter at a trial in April 2016. There was a sentence hearing on 15 July 2016 and the judge imposed sentence on 19 August 2016.

13. During the sentence hearing, counsel for the applicant took issue with a submission by the Crown that his client was motivated by the hope of financial reward by way of a "substantial profit". He submitted that "the evidence in this case was that he stood to gain some $2000 to $4000". The judge concluded that the applicant's "motivation for committing this offence was financial gain but the amount that he was to receive was unable to be determined, certainly beyond reasonable doubt."

Grounds 1 and 2 – errors in relation to weight/quantity

14. Grounds 1 and 2 concern the following portion of the sentencing remarks:

“While not determinative two of the important factors in the sentencing exercise in respect of offences such as this are the weight of the drug and the role of the offender.

As to the former, as stated earlier, the gross weight of the drug was 3.2 kilograms. However, due to a misunderstanding the drugs were destroyed before they could be tested for purity. However, quite clearly, the offender was aware that the item contained a substantial quantity of a border controlled drug.”

15. Her Honour appears to have accepted a submission by the Crown that "given the gross weight of the substance and the effort and cost the offender undertook to import it … he must have been aware that he was planning to import a substantial quantity of methamphetamine". Counsel for the applicant took issue with the first part of that submission, arguing that "there is no evidence that there was any significant cost attributed to him to import it". He did not take issue with the "substantial quantity" submission.

16. In written submissions, counsel for the applicant had argued that "the highest it can be put is that the total weight of a substance including packaging was around 3 kg and initial testing showed that it contained an unknown quantity of methamphetamine".

17. In this Court, counsel for the applicant submitted that “very little reliance should have been placed on the quantity of the seized drugs in the sentencing exercise”. It was also said that the evidence in the trial was that the applicant did not pack or send the parcel, and had not seen it either before or after it was sent.

Consideration

18. The issue raised by the applicant in these two grounds is whether her Honour erred by concluding there was "a substantial quantity of a border controlled drug" by basing that conclusion on the gross weight of the substance imported. An issue raised by the Court was how her Honour took into account her finding that the applicant was aware there was “a substantial quantity”.

19. Given all of the circumstances surrounding the importation, it is inconceivable that the actual amount of (pure) methamphetamine was trivial or insubstantial. If it was, for example, why would the applicant offer his cousin $4000 to take delivery while he was absent from the country? Moreover, assume that the methamphetamine purity in the admixture was a modest 10 per cent, the quantity would be 320 grams which is well within what might be called “a substantial quantity”. (It was likely more than that.)

20. There is no merit in the applicant’s submission under Ground 1 that her Honour erred by reasoning from the gross weight of the substance that there was a substantial quantity of methamphetamine.

21. Offences concerning the importation (and exportation) of border controlled drugs and plants are contained within Sub-div A of Div 307, Pt 9.1 of Ch 9 of the Criminal Code. There are offences concerning commercial quantities, marketable quantities and unspecified quantities.

22. The Criminal Code Regulations 2002 provides in Sch 4 a list of substances which are a “border controlled drug” and specifies their prescribed commercial and marketable quantities.

23. In relation to methamphetamine, the offences in Sub-div A of Div 307, Pt 9.1 of Ch 9 of the Criminal Code, prescribed quantities and maximum penalties are:

S 307.1 - Import or export commercial quantity (0.75 kg) – life imprisonment and/or 7500 penalty units

S 307.2 – Import or export marketable quantity (2.0 g) – 25 years imprisonment and/or 5000 penalty units

S 307.3 – Import or export unspecified quantity (where the defence in s 307.3(3) of lack of commercial intent is not made out) – 10 years imprisonment and/or 2000 penalty units

S 307.4 – Import or export (where no defence of lack of commercial intent is available) – 2 years imprisonment and/or 4000 penalty units

24. Generally speaking (there are some qualifications but they are not presently relevant), Commonwealth drug offences rely on purity to determine the quantity and hence the applicable offence: s 312 of the Criminal Code.

25. In this case, although there was an importation of 3.2 kilograms of a substance containing the drug, it was by reason of the failure to determine the purity of methamphetamine that the charge was brought under s 307.3.

26. It would have been erroneous for her Honour to take into account a matter that would have rendered the applicant liable for a more serious offence than that for which he was found guilty; for example, importing a marketable or commercial quantity of the drug: The Queen v De Simoni [1981] HCA 31; 147 CLR 383.

27. The High Court recently in Nguyen v The Queen, [2016] HCA 17; 256 CLR 656 (Bell and Keane JJ at 666-7 [28]; Gageler, Nettle and Gordon JJ at 676 [60]) referred to the principle in The Queen v De Simoni by reference to the judgment of Gibbs J at 389:

"[A] judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."

28. The written submissions for the Crown (at [30]) implicitly alluded to the principle in The Queen v De Simoni by referring to a possible range of quantity up to the marketable quantity threshold:

“It is not difficult to imagine a range of potential prosecutions under s 307.3. It could include an importation where the amount was just shy of a marketable quantity; or to the other extreme an importation of a very small quantity of a border controlled drug, say 1 or 2 grams imported in a birthday card or a situation such as the present where it can be proven that there had been an importation of a border controlled drug but the precise quantity cannot be measured. This offence carries a maximum sentence of ten years imprisonment. There will always be cases with differing criminality. The quantity of substance imported is one of the factors to be considered in assessing criminality.”

29. The problem with that submission, however, is the failure to notice that the marketable quantity threshold is only 2 grams.

30. Counsel for the applicant took the position that her Honour erroneously took into account that the amount of methamphetamine imported was 2.0 grams or more. On the other hand, in oral submissions, counsel for the Crown very skilfully sought to persuade the Court otherwise.

31. First, counsel for the Crown pointed out (correctly) that there is no maximum quantity of drug for the purpose of the offence in s 307.3; in fact the prosecution is not required to prove any particular quantity, merely that there was a border controlled drug (or plant) that was imported.

32. Secondly, Parliament had allowed for a prosecution under s 307.3 where there was an importation of less than the marketable quantity but the offender intended, or mistakenly contemplated, that the quantity was of a marketable or even commercial quantity. An inference to this effect was said to arise from the provision of the commercial intent defence in s 307.3:

“(3) Subsection (1) [the offence making provision] does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.”

33. It was submitted that where the quantity of drug is less than the prescribed marketable quantity (2 grams for methamphetamine) it would be unusual for there ever to be an intention to sell. So, by providing for this defence, Parliament was conscious of the fact that a prosecution could be brought under s307.3 where the contemplation or intention was to import a larger quantity.

34. The third step in the argument sought to focus upon the sentencing judge's use of the word "aware" in the expression of her finding that "the offender was aware that the item contained a substantial quantity of a border controlled drug". It was submitted that this indicated that her Honour was conscious that she could only take into account that the quantity was less than the marketable quantity but regarded it as relevant that the applicant thought the amount he had imported exceeded that amount.

35. It was at this third step that the argument broke down. Nowhere in the proceedings on sentence or in her Honour's sentencing remarks was anything said about the need to ensure the applicant was not sentenced on the basis that the amount imported was 2 grams or more. No reference was made to the prescribed marketable quantity, the need to distinguish the offences from those in s 307.1 and s 307.2 involving commercial and marketable quantities, or the need to ensure there was no infringement of the principle in The Queen v De Simoni.

36. It is, of course, important when reviewing a sentencing judgment not to scrutinise minutely in search of error. In this case, however, the reasoning of the judge seems clear. In the passage in question (above at [14]), her Honour said (relevantly) that the weight of the drug and the role of the offender, while not determinative, were two of the important factors in the sentencing exercise. She proceeded to discuss each of those two factors. In relation to weight she referred to the gross weight of 3.2 kg, the fact that purity testing was not carried out but then expressed her finding that that the applicant was aware there was "a substantial quantity".

37. As I have said, this finding as to the applicant's awareness was clearly open. However, if her Honour was mindful of the fact that she could not take into account that a quantity of 2 or more grams was imported it would be expected that she would say so. The only conclusion is that she took into account that the importation was of an actual quantity that was "substantial"; and by that term it must be that her Honour had in mind 2 grams or more, likely considerably more.

38. None of this should be taken to be a criticism of the sentencing judge as it is any easy error to fall into. No-one drew her Honour’s attention to the fact that the marketable quantity of methamphetamine was as low as 2 grams. The submissions for the both parties appear to have been oblivious to the issue. Even the written submissions in this Court (see the Crown’s above at [28]) appear to have be made without noticing it.

39. This ground must be upheld. That has the effect that it is unnecessary to deal with the other grounds because the Court is required to re-exercise the sentencing discretion afresh in order to determine whether a lesser sentence was warranted and should have been passed: s 6(3) Criminal Appeal Act 1912 (NSW); Kentwell v The Queen [2014] HCA 37; 252 CLR 601.

Resentencing

40. A relevant matter to take into account is the sentencing judge’s finding that the offender was “the importer”. This was the subject of Ground 3 which was abandoned. The judge said:

“As to the offender’s role he was the importer. As such he tracked the progress of the parcel en route to Australia, he involved his cousin to collect the parcel, he gave her instructions once it was delivered and provided the delivery address to the exporter. I note he returned to Australia on learning that the package had been delivered, although there was other evidence that he returned home because of concerns about what was happening at his house.”

41. The label "importer" was a shorthand description of the applicant's offending. It was more important, however, for her Honour to consider "the involvement of the offender in the steps taken to effect the importation": R v Lee [2007] NSWCCA 234 at [27] (McClellan CJ at CL, Howie and Hall JJ agreeing). That is what her Honour did and I agree with her Honour’s finding.

42. Whilst it is necessary to have regard to the quantity imported as being less than 2 grams, it is undoubtedly the case and a highly relevant matter that the applicant’s intention was that a far more substantial amount of the drug be brought into the country. His moral culpability is greater for that reason.

43. There was no complaint about the manner in which the sentencing judge referred to and took into account the applicant’s subjective case and other matters pertaining to the assessment of sentence. It will suffice to quote from her judgment:

“I come now to matters personal to the offender who is 36. He was 34 at the time of the offence. He has prior criminal convictions for driving matters in 2010 which are not presently relevant. However, it is well established that lack of convictions is a matter that has less weight in offences such as these.

The offender did not give evidence on sentence. However, a pre-sentence report, a psychological report and testimonials were tendered on his behalf.

Drawing on that material the offender was born in Malaysia and is the second eldest of four children. Two of his siblings died prematurely due to leukaemia, there being a family history of that disease. He gained trade qualifications as a mechanic in Malaysia and worked there in that occupation. At 27 he moved to Australia. He worked as a mechanic here and his employer remains supportive of him. He is married with one son now aged five. He is apparently a loving and caring father.

According to the pre-sentence report the offender is a permanent resident of Australia. It was submitted that if he were to be sentenced to a term of imprisonment for longer than 12 months, which must inevitably be the case, he is at risk of having his visa cancelled. I have taken this into account because of his state of uncertainty about this will weigh more heavily on him while he is in prison. Even though the offender maintains his innocence, in view of his employment history and the support of his family, church members and his employer, he would appear to have reasonable prospects of rehabilitation.”

44. Other matters relevant to the assessment of sentence include the important need for general deterrence in drug importation offences (see R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at [72](g), (h) and (i)) and the guidepost of the maximum penalty of 10 years imprisonment.

45. I assess the appropriate sentence as being one of 3 years. There should be an order releasing the applicant on recognizance after having served 1 year and 9 months.

46. The sentence will date from 31 March 2016.

Orders

47. I propose the following orders:

1.   Leave to appeal against sentence granted and appeal upheld.

2.   Quash the sentence imposed in the District Court on 19 August 2016 and in lieu impose a sentence of imprisonment for 3 years to date from 31 March 2016. The applicant is to be released on recognizance on 30 December 2017 after serving 1 year and 9 months upon giving security by recognizance in the sum of $100 without surety that he will be of good behaviour for the balance of the term of the sentence.

48. WILSON J: I agree with R A Hulme J.

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Decision last updated: 30 June 2017