Li v The Queen

[2021] NSWCCA 75

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Li v R [2021] NSWCCA 75

Hearing dates:

23 November 2020

Decision date:

23 April 2021

Before:

Hoeben CJ at CL at [1];
Bellew J at [75];
Wright J at [76]

Decision:

(1)   Leave to appeal against sentence is granted.

(2)   The appeal is dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – supply a prohibited drug on an ongoing basis – maximum penalty of imprisonment for 20 years – four matters on a Form 1 – whether sentence imposed on the applicant was manifestly excessive – whether applicant had a justified sense of grievance by reason of receiving a longer sentence than a co-offender – same judge sentencing both offenders – clear differences between applicant and co-offender – parity principles observed – no error on part of sentencing judge – appeal dismissed.

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Chamon v R [2020] NSWCCA 112

Corda v R [2014] NSWCCA 281

Dayment v R [2018] NSWCCA 132

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60

King v R [2018] NSWCCA 273

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284

Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242

Category:

Principal judgment

Parties:

Jielun Li – Applicant
Regina – Respondent

Representation:

Counsel:
M Curry – Applicant
C Young – Respondent

Solicitors:
Marsdens Law Group – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s):

2018/288002

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

19 December 2019

Before:

Robison DCJ

File Number(s):

2018/288002

JUDGMENT

1. HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by his Honour Judge Robison (the sentencing judge) on 19 December 2019 in the District Court at Sydney.

2. The applicant pleaded guilty in the Local Court to the offence of supply a prohibited drug, namely cocaine on an ongoing basis for financial reward (ongoing supply). That is an offence contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). The maximum penalty is imprisonment for 20 years and/or a fine of 3,500 penalty units. There is no standard non-parole period.

3. At the time of sentence, the applicant asked the Court to take into account a further four offences on a Form 1:

1. supply prohibited drug, namely 7g of cocaine, contrary to s 25(1) of the DMTA. This matter was certified to the District Court and had a maximum penalty of imprisonment for 15 years. There is no standard non-parole period;

2. possess prohibited drug, namely 1.05g of 3,4-Methylenedioxymethylamphetamine (“MDMA”), contrary to s 10(1) of the DMTA. This matter was on a s 166 Certificate and had a maximum penalty of 2 years’ imprisonment and/or a fine of 20 penalty units;

3. recklessly deal with the proceeds of crime, namely $10,175, contrary to s 193B(3) of the Crimes Act 1900 (NSW). This matter was on a s 166 Certificate and had a maximum penalty of 2 years’ imprisonment and/or a fine of 200 penalty units; and

4. possess a prohibited drug, namely 0.45g of Alprazolam, contrary to s 10(1) of the DMTA. This matter was on a s 166 Certificate and had a maximum penalty of 2 years imprisonment and/or a fine of 20 penalty units.

4. His Honour sentenced the applicant to imprisonment for 4 years and 3 months, commencing 19 September 2018 (the date of his arrest) and expiring 18 December 2022, with a non-parole period of 2 years and 9 months expiring 18 June 2021.

5. His Honour allowed a 25 per cent discount for the applicant’s early plea. The starting point before discount was therefore 5 years and 8 months.

6. A finding of special circumstances was made. The non-parole period represented approximately 65 per cent of the total term.

7. The applicant relied on the following grounds of appeal:

Ground 1 – The applicant has a justifiable sense of grievance by reason of receiving a longer sentence than the co-offender, Man Chun Tsang

Ground 2 – The sentence imposed upon the applicant was, in all the circumstances, manifestly excessive

FACTUAL BACKGROUND

8. The background to the offence was set out in a statement of agreed facts. His Honour summarised the facts in relation to the applicant at pp 4-8 and 13-14 of his reasons on sentence (reasons).

Ongoing supply offence

9. The ongoing supply offence related to three separate supplies of cocaine by the offenders to a person using the alias “Ellie” in August 2018, namely:

1. a supply of 55.2g cocaine for $14,000 on 6 August 2018;

2. a supply of 55.6g cocaine for $14,000 on 13 August 2018; and

3. a supply of 83g cocaine for $20,100 on 30 August 2018.

10. In summary, in 2018 a police task force conducted a controlled operation into Mr Naberezhnov and his associates. Between 2 and 6 August 2018, “Ellie” negotiated with Mr Naberezhnov to purchase two ounces of cocaine for $14,000.

11. At about 6:30pm on 6 August 2018, Mr Naberezhnov met with “Ellie”, before they met with the applicant at the Cheers Bar. “Ellie” confirmed the order of two ounces of cocaine that had been negotiated with Mr Naberezhnov. The applicant went to the Summit Apartments on George Street where Mr Tsang resided. Mr Tsang provided the applicant with 55.2g of cocaine. The applicant returned to the Cheers Bar and supplied the drugs to “Ellie”, who provided $14,000 of “buy-money” to the applicant. The applicant returned to the foyer of the Summit Apartments, where he met Mr Tsang and gave him the money.

12. Between 9 and 13 August 2018, “Ellie” negotiated with Mr Naberezhnov to purchase another two ounces of cocaine for $14,000. At about 6:30pm on 13 August 2018, Mr Naberezhnov, the applicant and “Ellie” met at the Cheers Bar. “Ellie” gave the applicant $14,000. The applicant left various personal items as security and went to Mr Tsang’s apartment. The applicant gave Mr Tsang the money and received 55.6g of cocaine hidden in two cigarette packets. The applicant returned to the Cheers Bar and supplied the cocaine to “Ellie”.

13. Between 21 and 30 August 2018, “Ellie” negotiated with Mr Naberezhnov to purchase three ounces of cocaine. At about 12:10pm on 30 August 2018, “Ellie” went to the Cheers Bar where she met Mr Naberezhnov, the applicant and Ms Siyi Wu. The applicant told her that it would cost $20,100 for three ounces. The applicant left the bar and walked to Mr Tsang’s apartment, where he was provided with 83g of cocaine in resealable plastic bags. The applicant returned to the Cheers Bar and supplied the cocaine to “Ellie”. The applicant received $20,100 in “buy-money” which he then gave to Mr Tsang at his apartment.

14. The purity of the cocaine supplied was analysed to be between 72 per cent and 75 per cent.

Form 1 offences

15. At about 6:00pm on 10 September 2018, “Ellie” met with the applicant, Mr Naberezhnov, and Ms Wu in the Sydney CBD to discuss the supply of a further three ounces of cocaine that had previously been negotiated with Mr Naberezhnov on 3 September 2018. During the conversation, the applicant indicated that the three ounces could not be supplied until after 10:00pm. “Ellie” indicated that she was not prepared to wait that long, and the applicant offered to supply her with a quarter of an ounce (7g) in the interim. “Ellie” declined the offer (supply prohibited drug).

16. On 19 September 2018, police executed a search warrant at the applicant’s unit in Liverpool Street, Sydney. On a coffee table in the lounge-room, police located $10,175 next to five mobile phones. A further two mobile phones were located in the unit (recklessly deal with proceeds of crime). Police also located 1.05g of MDMA and 0.45 grams of Alprazolam (two offences of possess prohibited drug).

Proceedings on sentence

17. The applicant was sentenced at the same time as two co-offenders, Mr Man Chun Tsang and Mr Alexander Naberezhnov. Mr Tsang and Mr Naberezhnov both pleaded guilty to a charge of ongoing supply in the same terms and facts as charged against the applicant.

18. In relation to the applicant, the Crown tendered a sentence bundle (Exhibit A) comprising copies of the charge certificate, s 166 Certificate and Form 1, a statement of the agreed facts, the applicant’s criminal and custodial histories and a Sentence Assessment Report, dated 10 October 2019 by Natalie Morini, Community Corrections Officer.

19. The applicant did not give evidence at the sentence hearing. A psychological assessment report dated 10 October 2019, from Mr Goonniah, a registered psychologist was tendered on his behalf.

20. Annexed to this judgment, is a summary of the charges and sentences imposed on each of the three offenders. The applicant’s complaint in relation to parity is confined to the sentence imposed on the co-offender, Mr Tsang.

The applicant’s subjective features

21. The applicant was born in June 1988. He was aged 30 at the time of the offending and 31 at the time of sentence. The applicant had a criminal history. On 29 March 2013, he drove with a low range prescribed concentration of alcohol and at a speed estimated to be in excess of 20km/hour over the speed limit. On 17 May 2013, he drove while disqualified from holding a licence and at a speed in excess of 45km/hour.

22. Mr Goonniah noted that the applicant reported a history of drug and alcohol issues from the age of 18. The applicant reported that he grew up in Shenzhen with his parents and younger brother. He came to Australia in 2010 and completed university degrees. The applicant had subsequently lived in China and Singapore, but before the offending was living in Sydney with his partner.

23. The applicant reported that he had been unemployed for almost two years prior to his arrest and claimed to be surviving on money sent to him by his parents.

24. The applicant told Mr Goonniah that he was experiencing significant financial pressures and in July/August 2018 met some “bad influencers” who introduced him to cocaine. He became addicted and eventually commenced assisting them with selling the drug to feed his own habit.

25. The applicant said that he commenced over-thinking, worrying and becoming paranoid and that he commenced consuming alcohol and sleep medication nightly. He reported that he was also gambling.

26. Mr Goonniah opined that the applicant met the criteria for Dependence Syndrome ­- specifically cocaine and alcohol. Mr Goonniah reported that the applicant acknowledged that he was wrong to have committed the offences and said he regretted his behaviour. Mr Goonniah reported that the applicant had indicated a commitment to engage in courses, programs, psychological counselling and to remain compliant with treatment.

27. Mr Goonniah was of the opinion that there was “no likelihood” of the applicant re-offending as he did not show signs of Antisocial Personality Disorder, there was no violence or drug offences on his criminal record, he had improved his health since being incarcerated and he was prepared to engage in treatment.

28. In the Sentence Assessment Report, Ms Morini reported that the applicant outlined “AOD abuse since 18 years of age” and had maintained anti-social acquaintances since entering Australia with a commonality in drug use. The applicant reported daily cocaine use leading up to his arrest and that the offending was committed to access cocaine.

29. Ms Morini reported that the applicant had identified that he required drug, alcohol and gambling intervention to mitigate his risk of relapse and re-offending and that he had stated that he was willing to engage in services to support his abstinence.

30. Ms Morini reported that the applicant had been assessed at medium risk of re-offending according to the Level of Service Inventory - Revised (LSI-R).

Findings of sentencing judge

31. Because of the maximum penalties, the sentencing judge assessed the offending as involving “serious drug matters”.

32. His Honour found that “an offender’s role is not to be determined by the use of shorthand labels but rather by assessing what his or her involvement was in the steps taken to effect supply”. When dealing with the facts relevant to the applicant, his Honour indicated “the offender’s particular role has certainly been taken into account by me”. His Honour further indicated that he had taken into account the level of involvement of Mr Li, albeit at the level as submitted by the applicant’s counsel on sentence, Mr Tyler-Stott. Mr Tyler-Stott had submitted that the applicant was at the “bottom end of the rung” of the three offenders (Reasons 26.5).

33. In assessing the objective seriousness of the ongoing supply offence, his Honour noted what he had said earlier in relation to Mr Tsang and found it was “in the mid range of seriousness for offences of this type”. In relation to Mr Tsang, his Honour had earlier found that the ongoing supply offending involved a “substantial quantity” of cocaine and a “significant financial reward”.

34. His Honour found each offender had been motivated to some extent by greed. This was so, despite each offender being addicted to some extent, and being engaged in drug supply beyond the three occasions relevant to the ongoing supply. His Honour was satisfied that the offending was committed for financial gain.

35. In relation to the Form 1 for the applicant, his Honour found it involved “serious charges and I note the quantities involved there and the drugs involved”. His Honour ultimately found that the matters “fall by and large in the mid-range of objective seriousness” (Reasons 27.4).

36. His Honour accepted that the applicant’s criminal history was “very limited” but was satisfied it “disentitles him to leniency”.

37. His Honour was prepared to accept the applicant’s expressions of remorse to report-writers, despite it being untested and the absence of evidence from the applicant.

38. His Honour noted that the Sentence Assessment Report assessed the applicant as at medium risk of re-offending and that the applicant had insight into the intervention required “to reduce his risk of recidivism”. His Honour did not make a finding as to the applicant’s prospects of rehabilitation.

39. His Honour noted that general deterrence “looms large” in the sentencing exercise, given the need to send a message to the community about the seriousness of drug supply offences.

40. His Honour made a finding of special circumstances on the basis that it was the applicant’s first time in custody and he was somewhat isolated.

Ground 2 – The sentence imposed upon the applicant was, in all the circumstances, manifestly excessive

41. It is proposed to deal with Ground 2 first. This Court has held on many occasions that an argument relating to parity should be dealt with last because a complaint of disparity accepts that the sentencing is otherwise appropriate: Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [251]; Corda v R [2014] NSWCCA 281 at [59].

42. The applicant submitted that his sentence was manifestly excessive when proper regard was had to his role in the offending, i.e. that he was the least important of the three offenders.

43. The applicant submitted that his subjective circumstances were by and large favourable in that he pleaded guilty at an early stage, showed remorse for his offending, had no significant previous convictions and that in other respects, he was a person of good character and was in custody for the first time.

44. The applicant submitted that it was for those reasons that the sentence imposed was unreasonable or plainly unjust and that although discrete error had not been identified, there must have been some misapplication of principle that was not overtly demonstrated in the judgment.

Consideration

45. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R A Hulme J conveniently summarised the principles relevant to this ground of appeal. His Honour stated:

“443   When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

•   Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

•   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

•   It is not to the point that this Court might have exercised the sentencing discretion differently.

•   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

•   It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

46. In Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 the High Court said:

“59   As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.

47. In summary, consideration of whether a sentence is unreasonable or plainly unjust is undertaken in a context where there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for each offence by balancing many different and conflicting features. Accordingly, sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle and this Court will not interfere in a sentence merely because it may have exercised its discretion differently.

48. Briefly stated, the applicant has not established that the sentence imposed for the ongoing supply offence, namely a non-parole period of 2 years and 9 months with an additional term of 1 year and 6 months, is manifestly excessive. The maximum penalty was 20 years’ imprisonment. There is no challenge to his Honour’s finding of the objective seriousness of the offending being in the mid-range. Nor could this finding be challenged. This was not the ongoing supply of “street level” quantities, but 193.8g of cocaine of a relatively high purity for $48,100.

49. Each offender, including the applicant, played a vital role in what was a well organised supply operation and by working together the offenders were able to reduce their individual exposure. As his Honour correctly observed “an offender’s role is not to be determined by a shorthand label but rather by assessing what his or her involvement was in the steps taken to effect supply”. This observation was consistent with what was said in Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242 at [135].

47. The Agreed Facts make it clear that the applicant was trusted by the co-offenders with large quantities of money and drugs. Significantly, during the supply on 30 August 2018, it was the applicant who discussed the price with “Ellie”.

48. The applicant also had four further offences taken into account on a Form 1. One of these offences which involved the supply of 7g of cocaine was assessed as a mid-range offence by his Honour and had a maximum penalty of imprisonment for 15 years. Accordingly, the sentence had to reflect the need for personal deterrence and retribution arising from the additional criminality involved in the Form 1 offences.

49. It is trite to observe that general deterrence and the protection of the community were important considerations in sentencing for drug supply offences of this kind: Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [109]-[110].

50. For the above reasons the applicant has failed to make out Ground 2.

Ground 1 – The applicant has a justifiable sense of grievance by reason of receiving a longer sentence than the co-offender, Man Chun Tsang

54. The applicant noted that he was sentenced to imprisonment for 4 years and 3 months with a non-parole period of 2 years and 9 months, whereas Mr Tsang was sentenced to 3 years and 4 months imprisonment with a non-parole period of 2 years. He noted that both of them were afforded a 25 per cent discount for their pleas and that his Honour made a finding of special circumstances in each case.

55. The applicant submitted that his Honour erred by imposing a longer sentence on him than that imposed on Mr Tsang. The applicant submitted that this was because the nature and extent of his involvement in the offending was much less than that of Mr Tsang. The applicant submitted that he occupied the position of the “money and drug runner” in the syndicate which was at the bottom of the hierarchy. By comparison, Mr Tsang, as the up-line supplier, occupied a significantly higher position than he did in the syndicate. The applicant submitted that although his Honour had characterised each episode of offending as falling in the mid-range of objective seriousness, his criminality and moral culpability was lower than that of Mr Tsang by virtue of the different positions which each held in the syndicate.

56. The applicant noted that the sentence imposed on him was 11 months longer than that imposed on Mr Tsang and submitted that this difference was not justifiable by a comparison of their Form 1 offences, nor was it properly justifiable by any difference in their subjective circumstances. The applicant noted that when accepting their respective expressions of remorse, his Honour expressly adopted the same view in relation to each of them.

57. While accepting that he had two prior convictions for driving offences, the applicant submitted that those driving offences which were committed in 2013, did not provide an appropriate justification for the difference in their sentences. The applicant submitted that less weight should be given to Mr Tsang’s lack of criminal history and prior good character because of the deliberate and planned criminality associated with his offending.

58. The applicant submitted that his sense of grievance in respect of the longer sentence imposed on him was heightened by the finding of special circumstances in favour of Mr Tsang, which involved a more favourable departure from the statutory ratio than that allowed for him, i.e. 60 per cent compared to 64.7 per cent.

59. The applicant submitted that when all relevant, objective and subjective considerations were properly taken into account the applicant’s sense of grievance was justified in that the parity principle had not been properly observed. The applicant submitted that the difference between the sentences imposed on him and on Mr Tsang did not produce a result which rationally reflected the relevant difference in the circumstances of their offending and the subjective circumstances of each of them.

Consideration

60. In Chamon v R [2020] NSWCCA 112 the principles of appellate restraint in relation to parity were summarised by R A Hulme J at [35]-[37] (Hamill and Wilson JJ agreeing in relation to his Honour’s statement of legal principles):

“35   This Court has observed that “considerable obstacles” are placed before an applicant contending error on a parity basis where a sentencing judge is fully aware of the sentences imposed upon co-offenders and the reasons for those sentences, and provides reasons for departing from those sentences: Tatana v R [2006] NSWCCA 398 at [28] (Howie J, Sully and Latham JJ agreeing).

36   In Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [173], this Court implicitly endorsed a proposition that it will be cautious and not overly willing to intervene where the same judge sentenced an appellant and the co-offender, recognised the importance of the parity principle and gave effect to it.

37   In Lloyd v R [2017] NSWCCA 303, I observed (at [95]), with the agreement of Payne JA and Garling J, that a differentiation between sentences imposed upon co-offenders was a discretionary assessment by the judge who had the facts and circumstances of the offences and each offender in mind in the one sentencing exercise. That observation is apposite in the present case. I went on to say (at [96]-[97]:

“It is a basic principle of appellate review of sentencing that ‘there is no single correct sentence’ and ‘judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies’: Markarian v The Queen (2005) 228 CLR 357 at 371 [27]; [2005] HCA 25 (Gleeson CJ, Gummow, Hayne and Callinan JJ). That observation may be translated to a review of the degree to which a sentencing judge has differentiated the sentences imposed upon co-offenders sentenced in the one sentencing exercise.

In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion?”

61. As Johnson J observed (Simpson AJA and RA Hulme J agreeing) in King v R [2018] NSWCCA 273 at [114]:

“114   The Court is not concerned with whether the Applicant actually feels a sense of grievance (a subjective test) but rather whether any disparity (or lack of difference) between sentences engenders a justifiable sense of grievance and an appearance of injustice to “that impassive representative of the community, the objective bystander”: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 613 (Mason J); Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at 474-475 [31] (French CJ, Crennan and Kiefel JJ).”

62. In Dayment v R [2018] NSWCCA 132 per R A Hulme J (Payne JA and Fagan J agreeing) observed at [62]:

“62   ... It is not for this Court to second guess the manner in which the primary judge differentiated between two offenders in the sentences imposed. Intervention will only be justified if the degree of the disparity in the sentences cannot be justified as a proper exercise of the judge’s discretion.”

63. The applicant and Mr Tsang were sentenced by the same judge on the same date. His Honour specifically noted during his reasons, shortly before delivering the sentence for the offenders, that the principles of parity were relevant and that he was mindful of those principles (Reasons 28.9).

64. Mr Tsang was sentenced [after a 25 per cent discount for his plea of guilty] to a non-parole period of 2 years’ imprisonment, with an additional term of 1 year and 4 months. The difference in head sentences between Mr Tsang and the applicant was 11 months.

65. There are three areas of difference between the applicant and Mr Tsang which impact the question of parity: i.e., role, subjective case and the Form 1.

66. In relation to role, his Honour was satisfied that Mr Tsang’s role in the syndicate hierarchy was that of an “up-line supplier” and “warehouser”. There was no finding as to Mr Tsang being the principal of the organisation. The Crown submissions as to role and hierarchy were in the context of submitting that each offender played a vital role in the activities of the criminal syndicate.

67. His Honour found, consistent with the authority of Paxton v R that:

“[t]he Court needs to be mindful that when it comes to supply offences, an offender’s role is not to be determined by the use of shorthand labels but rather by assessing what his or her involvements was in the steps taken to effect supply and that needs to be carefully considered as well” (Reasons 22.5).

68. While the Crown had submitted that Tsang was “further up the hierarchy”, it also submitted that each offender played a vital role. The Agreed Facts identified that the applicant was trusted alone with both large quantities of money and drugs and that he had discussed the pricing of the drugs with “Ellie”. In circumstances where, having made an assessment of their roles and determined both Mr Tsang and the applicant’s offending was in the mid-range of objective seriousness, it is clear that his Honour was not satisfied that Mr Tsang was “significantly further up the hierarchy” as had been submitted on behalf of the applicant.

69. Insofar as the respective subjective cases are concerned, Mr Tsang had a significantly more compelling subjective case than did the applicant. Relevant considerations were:

1. Mr Tsang had no criminal history in Australia where as the applicant did;

2. Mr Tsang tendered character references and his Honour could “comfortably conclude” that he was otherwise a person of good character. No such finding was made in relation to the applicant who tendered no material of that nature;

3. Mr Tsang was assessed in his Sentence Assessment Report as being at a “low risk” of re-offending and his Honour found that Mr Tsang was in fact unlikely to re-offend. No such finding was made in favour of the applicant by his Honour;

4. his Honour found that Mr Tsang had good prospects of rehabilitation and this became a component of the finding of special circumstances. No such finding was made in relation to the applicant; and

5. Mr Tsang had gained employment while in custody, had undertaken courses such as “EQUIPS” and his Honour considered him “a model prisoner”. There was no similar material in the applicant’s case;

70. In relation to the contents of the Form 1, Mr Tsang had only two offences on his whereas the applicant had four. Mr Tsang had a charge of “supply a prohibited drug” in relation to 7.14g of cocaine located by police in his bedroom. This had a maximum penalty of 15 years’ imprisonment. There was also a s 166 Certificate matter of “recklessly deal with the proceeds of crime” in relation to $83,120 in cash in Mr Tsang’s bedroom. This had a maximum penalty of 2 years’ imprisonment and/or a 200 penalty unit fine.

71. Importantly, his Honour determined Mr Tsang’s Form 1 supply offence to be at the “low end of the scale” for objective seriousness. This was in marked contrast to his Honour’s findings in relation to the applicant’s Form 1 supply matter in which an actual offer to supply was made to “Ellie” by the applicant and found to be in the mid-range.

72. In summary, despite a similar finding as to objective seriousness for the principal offence, there was a considerable difference in the subjective cases of the applicant and Mr Tsang and the applicant had a more serious matter on his Form 1. In those circumstances, the difference between the sentence imposed upon the applicant and the sentence imposed upon Mr Tsang was well open to his Honour in the exercise of his discretion. This is particularly so when the sentencing judge referred to the principles of parity having relevance in the proceedings. When an objective standard is applied to the assessment of this ground, it cannot be said that the applicant has a legitimate sense of grievance when consideration is given to the sentence imposed on Mr Tsang.

73. This ground of appeal has not been made out.

Proposed orders

74. The orders which I propose are:

1. Leave to appeal against sentence is granted.

2. The appeal is dismissed.

75. BELLEW J: I agree with Hoeben CJ at CL.

76. WRIGHT J: I agree with Hoeben CJ at CL.

Annexure

Applicant	Tsang	Naberezhnov
Charge	Supply prohibited drugs on an ongoing basis (193.8g of cocaine, 3 individual supplies) s25A(1) DMTA	Supply prohibited drugs on an ongoing basis (193.8g of cocaine, 3 individual supplies) s25A(1) DMTA	Supply prohibited drugs on an ongoing basis (193.8g of cocaine, 3 individual supplies) s25A(1) DMTA Supply large commercial quantity of a prohibited drug (2.2835kg of MDMA) s25(2) DMTA Supply prohibited drug (95.5g of MDMA) s25(1) DMTA
Form 1	Supply prohibited drug (7g cocaine); Possess prohibited drug (1.05g MDMA); Recklessly deal with proceeds of crime ($10,175); Possess prohibited drug (0.45g Alprazolam).	Supply prohibited drug (7.14g cocaine); Recklessly deal with proceeds of crime ($83,120).	Supply prohibited drug (28g of cocaine); Supply prohibited drug (85g of cocaine).
Age at offence	30 years (D.O.B 04.06.1988)	33 years (D.O.B 19.07.1985)	26 years (D.O.B 05.07.1992)
Discount	25%	25%	25%
Sentence	4 years 3 months. NPP 2 years 9 months.	3 years 4 months. NPP 2 years.	4 years 6 months. [Indicative for s25A in aggregate sentence].

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Decision last updated: 23 April 2021