Lim v The Queen

[2021] NSWCCA 141

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Lim v R [2021] NSWCCA 141

Hearing dates:

28 May 2021

Date of orders:

7 July 2021

Decision date:

07 July 2021

Before:

Harrison J at [1]
Adamson J at [2]
Bellew J at [3]

Decision:

(1) The time in which to file the notice of application for leave to appeal against sentence is extended to 8 December 2020.

(2) Leave to appeal against sentence is granted.

(3) The appeal is dismissed.

Catchwords:

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to a series of offences relating to drug supply – Whether the sentencing judge erred in her assessment of the role of the applicant – Whether applicant had a justifiable sense of grievance in light of sentences imposed on co-offenders – Whether sentence manifestly excessive – Where it was open to the sentencing judge to reject the applicant’s evidence as to his role – Where disparity in sentences was justified on the basis that the criminality of the applicant extended well beyond that of his co-offenders – Serious offending – Where any sentence was required to reflect both general and personal deterrence – Where applicant’s subjective case unremarkable – Sentence not manifestly excessive – Leave to appeal granted – Appeal dismissed

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Goodbun v R [2020] NSWCCA 77

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Li v R [2021] NSWCCA 75

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

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

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

Category:

Principal judgment

Parties:

Benjamin Lim – Applicant
Regina – Respondent

Representation:

Counsel:
D S Roff – Applicant
S Traynor – Respondent

Solicitors:
AKN & Associates – Applicant
Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s):

2018/267165

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

13 December 2019

Before:

Her Honour Judge Traill

File Number(s):

2018/267165

Judgment

1. HARRISON J: I agree with Bellew J.

2. ADAMSON J: I agree with Bellew J.

3. BELLEW J: Benjamin Lim (the applicant) pleaded guilty to a number of offences in the Local Court. Those offences, together with the applicable maximum penalties and the indicative sentences given by the sentencing judge, are set out in the following table provided by the Crown:

Sequence	Offence	Max penalty/ SNPP	Indicative Sentence
Seq 1	Supplying a prohibited drug on 26 July 2018 (139.1g methylamphetamine) contrary to s 25 (1) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). Form 1 offence of supplying 9.7g Methylamphetamine on 12 July 2018.	15 years	13 months
Seq 7	Supplying a prohibited drug on 30 August 2018 (158.32g methylamphetamine) contrary to s 25 (1) of the DMTA. Form 1 offences of possessing prohibited drug committed on 30 August 2018: 1. 14ml gamma butyrolactone; 2. 0.6g methylamphetamine; 3. 0.8g methylamphetamine.	15 years	1 year and 10 months
Seq 9	Supplying a prohibited drug on 30 August 2018 (9.92g methylamphetamine) contrary to s 25 (1) of the DMTA.	15 years	6 months
Seq 10	Supplying a prohibited drug on 30 August 2018 (51.48g heroin) contrary to s 25(1) of the DMTA. Form 1 offence of supplying 4.78g Methorphan on 30 August 2018.	15 years	1 year and 10 months
Seq 14	Possessing a prohibited weapon (taser) on 30 August 2018 contrary to s 7(1) Weapons Prohibition Act 1998 (NSW).	14 years SNPP 5 years	11 months
Seq 16	Dealing with property reasonably suspected of being the proceeds of crime, namely $27,685.00, on 30 August 2018 contrary to s 193C(2) Crimes Act1900 (NSW).	3 years	11 months
Seq 18	Possessing an unauthorised pistol on 30 August 2018 (imitation .45 calibre pistol) contrary to s 7(1) Firearms Act 1996 (NSW).	14 years SNPP 4 years	2 years and 9 months

4. The applicant appeared for sentence with a number of other persons including Allan So (So). Another co-offender, Dundee Wei (Wei) was sentenced on a separate occasion by the same sentencing judge.

5. The sentencing judge imposed an aggregate sentence of 7 years and 6 months imprisonment with a non-parole period of 4 years and 11 months imprisonment. That sentence incorporated a discount of 40%, 25% of which was referable to the applicant's early pleas of guilty, and the remaining 15% of which was referable to his assistance to authorities.

6. The applicant now seeks leave to appeal against that sentence on the grounds more fully considered below.

7. The applicant requires an extension of time in which to bring the application for leave to appeal, which was not opposed by the Crown.

THE FACTS OF THE OFFENDING

8. A statement of agreed facts was before the sentencing judge. [1] Those facts may be summarised as follows.

   1. AB 101 – 105.

Sequence 1 - Supplying 139.1g of methylamphetamine on 26 July 2018

9. Between 19 July 2018 and 24 July 2018, So and an Undercover Operative (UCO) engaged in an exchange of messages which culminated in a meeting taking place between them on 26 July 2018. Following that meeting, So and the UCO travelled in the UCO’s car to a car park in Wolli Creek where the UCO stopped and counted a quantity of cash in So’s presence. [2]

   2. Agreed facts at [12] – [14]; AB 103 – 104.

10. A short time later, an Audi motor vehicle (the Audi) entered the car park. So then took a phone call, went over the Audi and entered the passenger seat. The UCO saw a male sitting in the driver’s seat of the Audi whom she recognised as Wei. So then returned to the UCO's car and was on the phone with Wei. The UCO had a short conversation with Wei in which he provided his mobile telephone number. [3]

    3. Agreed facts at [14] – [15]; AB 104.

11. Wei then drove the Audi to an apartment building in Arncliffe where the applicant lived. Wei entered the building and was seen a short time later leaving the building with the applicant, who was carrying a plastic bag. The applicant and Wei then got into the Audi and drove back to the car park in Wolli Creek where the UCO and So were waiting in the UCO’s car. So got out of the UCO’s vehicle and met with Wei and the applicant before returning to the UCO's vehicle in possession of the plastic bag which had previously been carried by the applicant. The applicant was seen pacing back and forth in front of the UCO's car before having a conversation with the UCO in which he introduced himself as “Max”. The applicant then returned to the Audi. [4]

    4. Agreed facts [16] – [19]; AB 104.

12. So then handed the plastic bag to the UCO who looked inside and saw a clear resealable plastic bag containing a white crystalline substance which was later confirmed to be 139.1g of methylamphetamine with a purity of 74%. The UCO then handed So $17,500.00. [5]

    5. Agreed facts [19] – [22]; AB 104.

13. The Form 1 offence which the applicant asked the Court to take into account in respect of this charge involved the supply of 9.7g of methylamphetamine on 12 July 2018. On that day, So had supplied a bag of methylamphetamine to the UCO which weighed less than a full ounce. When the UCO insisted on being provided with the full amount which had been negotiated (i.e. 1 ounce), the applicant provided Wei with a bag containing a crystalline substance which represented the “shortfall”. [6]

    6. Agreed facts at [4]-[9]; AB 102 - 103.

The search of the applicant’s premises

14. The remaining charges to which the applicant pleaded guilty are set out below. All of those charges arose out of items seized in the course of a search of the applicant’s premises. It is noted that in addition to the items giving rise to those additional charges, police also seized 18 mobile phones.

Sequence 7 – Supplying 158.32g of methylamphetamine on 30 August 2018

15. Police located 158.32g of methylamphetamine, contained in three separate bags, in a safe in the applicant’s bedroom. [7] The applicant asked the sentencing judge to take into account three additional matters when sentencing him for this offence, namely:

    7. Agreed facts at [23](a); AB 105.

1. possession of a prohibited drug, namely 14ml of gamma butyrolactone; [8]

2. possession of a prohibited drug, namely 0.6g of methylamphetamine; [9] and

3. possession of a prohibited drug, namely 0.8g of methylamphetamine. [10]

Sequence 9 – Supplying 9.92g of methylamphetamine on 30 August 2018

8. Agreed facts at [23](e); AB 105.

9. Agreed facts at [23](f); AB 105.

10. Agreed facts at [23](g); AB 105.

16. Police located 9.92g of methylamphetamine in a tall boy in the applicant’s bedroom. [11]

    11. Agreed facts at [23](b); AB 105.

Sequence 10 – Supplying 51.48g of heroin on 30 August 2018

17. Police located 51.48g of heroin in the safe (and elsewhere) in the applicant's bedroom. [12]

    12. Agreed facts at [23](c); AB 105.

18. The applicant asked that the sentencing judge take into account an additional matter when sentencing him for this offence, namely the supply of 4.78g of methorphan. [13]

    13. Agreed facts at [23](d); AB 105.

Sequence 14 – Possessing a prohibited weapon

19. In the course of the search of the applicant’s premises, police located a black hand held Taser on top of the applicant’s bed. [14]

    14. Agreed facts at [24](d); AB 105.

Sequence 16 – Dealing with the proceeds of crime

20. Police located a total of $27,685.00 in cash, part of which was in the safe in the applicant’s bedroom, and part of which was in a bag containing documents in the applicant’s name. [15]

    15. Agreed facts at [24](b); AB 105.

Sequence 18 – Possessing an unauthorised pistol

21. Police located a replica black handgun with an empty magazine. [16]

THE GROUNDS OF APPEAL

GROUND 1 – THE SENTENCING JUDGE ERRED IN HER ASSESSMENT OF THE ROLE OF THE APPLICANT

16. Agreed facts at [24](a); AB 105.

The sentence proceedings

22. In the course of giving evidence before the sentencing judge, the applicant described his role in the supply of prohibited drugs as that of a “housekeeper”. [17] When cross-examined, he was asked: [18]

    17. AB 581.20 – 582.2.

    18. AB 587.14 – 587.29; AB 588.45 – 589.14.

Q. Mr Lim so you've described yourself as a housekeeping in relation to these offences and what do you mean by that?

A. So along the lines of a housekeeper is some things get left at your house and you get a call and you bring it to point A to point B, that's it.

Q. So is it your evidence that you never purchased any drugs for on-selling and that you kept them at your premises?

A. Well that's that housekeeper thing – job. It’s just you sit on the – where the product is and that's it. I don't have any say, any say of weighing(?) or drop, anything to do with that, just looking after and getting – receiving messages or a phone call, that's it.

Q. And so you weren’t involved in the sale of drugs from that premises, [xxxxx]?

A. I wasn't involved – what do you mean like I wasn't directing, I was organising, no I wasn't.

…

Q. So in terms of your requirements as a – what you describe as a housekeeper, you're saying that you have control of various items including up to $27,000 worth of cash?

A. Yes.

Q. And in order to do the housekeeping you say that you needed to have 18 mobile phones?

A. 18 mobile phones.

Q. Yes that's what you've agreed in your facts, that there was 18 mobile phones?

A. Throughout my life, yes I've had 18 mobile phones.

Q. And they found in your house [xxxx] on – –

A. Yeah through my life. Throughout my life yes. They're not all recent phones.

Q. They were all seized?

A. Yes I understand they were all seized but they were throughout my life. So you're talking about phones that dated back from basically when I was a kid.

23. The applicant was later asked: [19]

    19. AB 590.1 – 591.16.

Q. Your role in relation to those drugs would be to provide them to people for supply?

A. No. As I told you a housekeeper's job is just to sit, and watch, and get a message, not to organise, and not to direct any supply.

Q. So in relation to the supply on 12 July, is that what you say that you were doing?

A. 12 July, you've got to jog my memory, when was this? In what time was this?

Q. So on 12 July there was a supply which occurred nearby to your house with Allan So and Dundee Way [sic], were you contacted by Way [sic] – –

A. Yes.

Q. – – in relation to about 10 grams of ice?

A. Ten grams of ice, yes, yes, yes.

Q. So on that day you were acting as the principal of that transaction, weren't you?

A. No.

Q. You were directing the transaction to the UCO?

A. No, no, I've not once talked or met the UCO. I don't even know her name, all I know it's a her, from my brief.

Q. But it's the case in the facts that you spoke to the UCO and introduced yourself as Max on 26 July at the Wolli Creek Woolworths car park?

A. I was at the car park, I don't recall having a conversation with her.

Q. Moving onto that second transaction on 26 July it's the case that you were directing that again, a significant amount of drugs, 139 grams. You came to the car park with Mr Way [sic]?

A. I'm going to stop you there, directing is – I'm not a director, I told you already, that my role is just to sit and watch over the drugs, and get a call, or a message.

Q. As the housekeeper?

A. No direct – I am not giving directions, I’m not giving orders, I'm not organising anything.

Q. What do you get paid for your role as a housekeeper?

A. As I say, if the product gets left there, and it's been moved, I get a percentage out of that product.

Q. Is it a set percentage?

A. No. Let's just say maybe $100 off per ounce.

Q. $100 per ounce?

A. Yeah.

Q. And you'd accept that you put yourself at significant risk in doing that, in sitting on the drugs at your own home?

A. Well I'm not happy with my life, and I'm not happy with my – what choices I make just because I have an addiction to ice, but yes, I did put myself in harm’s way just to have my habits – yeah.

Q. At the time, as part of the agreed facts, there was $27,000 found in your property, was that your money?

A. No, it's not my money. Not all of my money, I have a minimal amount in my wallet, and that was it, but that's not all my money.

Q. You say something else – you're sitting on for someone else?

A. Yes.

Q. But again but no one can get in without your say so except for Mr Way [sic]?

A. No one can get in besides Way [sic], yes.

24. The Crown submitted to the sentencing judge that the applicant was “a principal in a small and well organised network of drug suppliers”. [20] That submission was advanced on the basis that the applicant:

    20. AB 543.

1. had access to, and possession of, drugs, cash and weapons at his home;

2. was the up-line contact for So;

3. intervened in the supplies which had taken place on 12 July 2018 and 26 July 2018;

4. took steps to conceal his identity; and

5. did not communicate by phone.

25. Counsel for the applicant on sentence (who was not counsel before this Court) variously submitted to the sentencing judge that the applicant’s role amounted to “supplementing something [that was] already in progress” and that he was a “permanent custodian” and a “warehouse”, but not a “mastermind”. [21] Counsel further submitted that the applicant was not responsible for any decision making, and that he was doing nothing more than “fulfilling a need”. [22]

    21. AB 603.7 – 603.30.

    22. AB 603.7 – AB 603.17.

The findings of the sentencing judge

26. In assessing the role of the applicant, the sentencing judge found that: [23]

    23. AB 27 – 28.

1. the applicant’s address was linked with two specific instances of the supply of drugs in which he had intervened, namely those which took place on 12 and 26 July 2018;

2. the applicant was the “up line” contact for So;

3. the items seized by police during the search were indicative of the applicant being a principal in a network of drug supply in which he was the “up line contact” for So, and in which he had access to drugs, cash and weapons; was a principal;

4. the applicant’s possession of the firearm and the taser were part of the business of supplying prohibited drugs; and

5. the applicant had taken steps to conceal his identity and had distanced himself from customers, all of which indicated that he occupied a higher position in the notional hierarchy than others.

27. In rejecting the applicant’s assertion that he was nothing more than a “housekeeper”, her Honour said: [24]

… I do not accept that was his role [of housekeeper].….. I do accept he was paid and his motive for supply was for financial gain.….. [I]n my view, he was being evasive in his answers.…… I did not find the offender to be an impressive witness, I found he was trying to minimise his role and was evasive in his answers. I find he was intimately involved in the supply of drugs.

24. AB 30.

28. In the course of specifically addressing the submissions which had been made on the applicant’s behalf regarding his role, her Honour said: [25]

I do not accept that he was just a mere custodian of the drugs and it is clear from the facts that he was intimately involved in the supply and his role was to intervene in supplies when there was an issue with respect to others, and he was clearly making important decisions. In my view, he was much higher up the hierarchy than being a mere custodian of the drugs.

It was submitted that he was an introvert and happy to stay at home and make his home available. I do not remotely accept that was his role. It was submitted that there was no evidence at all that he had any capital interest in terms of buying and selling. It was submitted that he told the Court what he was paid for and there was no evidence of any more. As I also said, he was not reliable in what he said, and I reject that submission because there was a considerable amount of money found in the premises. In my view, he was not merely a custodian.

It was submitted that in relation to the firearm, that it was part of the indicia and there is no suggestion he brandished it. There is no suggestion in the facts that he did, but there does not have to be. The fact he had it and he was involved in the drug supply means an inference can be drawn that it was for use in the drug supply and, in my view, this is extremely serious. Also he pled [sic] guilty to it, so he knew it was there and it was part of the indicia of drug supply.

25. AB 32-33.

Submissions of the applicant

29. Counsel for the applicant submitted that there was no evidence that the applicant had been responsible for setting up or managing the supply network, and that there was no evidence to distinguish between the role of the applicant on the one hand, and the respective roles of Wei and So on the other. It was further submitted that there was no evidence which contradicted the applicant's assertion that he simply lived in premises where drugs were kept, in what was described by counsel as a “warehouse-type scenario”.

30. Counsel further submitted that the evidence, even at its highest, established no more than the fact that the applicant had assisted others in isolated instances of supply, in circumstances where he had not undertaken any organisational role, was not responsible for sourcing customers, was not responsible for determining the price of the drugs, and did not derive any significant profit. Counsel further submitted that the applicant’s possession of the firearm and the mobile phones did not permit her Honour to reach the findings that she did regarding the applicant’s role.

31. It was submitted that in all of these circumstances, her Honour’s findings reflected error.

Submissions of the Crown

32. The Crown submitted that it had been open to the sentencing judge to reject the evidence of the applicant and that having done so, it was open to her Honour to reach the findings that she did. The Crown submitted that those findings were supported by the agreed facts, particularly those facts surrounding the applicant’s possession of drugs, cash and weapons at his premises. In advancing these submissions, the Crown specifically relied on the factors set out at [24] above which had been the subject of submissions made to the sentencing judge.

Consideration

33. In my view, this ground is not made out for a number of reasons.

34. Firstly, I would agree that the applicant’s possession of a firearm and multiple mobile phones was not, by itself, capable of supporting her Honour’s findings as to the applicant’s role. However, the evidence was not limited to those factors. Her Honour, quite properly, took into account the entirety of the evidence in reaching her findings, which extended to evidence of the applicant’s activities, and his possession of large amounts of drugs and cash at his premises. In my view, the entirety of the evidence amply supported her Honour’s findings.

35. Secondly, it is evident that in reaching her findings her Honour largely rejected the applicant’s evidence. In my view, it was well open to her Honour to do so. The applicant’s assertion that his role was “just to sit, and watch and get a message” was fundamentally at odds with the active role that he undertook in each of the instances of supply on 12 July 2018 [26] and 26 July 2018. [27] Such an assertion was also at odds with his possession of large amounts of cash and drugs, along with a prohibited weapon and a firearm, all of which her Honour properly regarded as indicia of drug supply. Further, the applicant’s assertion that he was not involved in weighing the drugs was contrary to his provision of the shortfall in the original amount supplied to the UCO on 12 July 2018. In light of the entirety of this evidence, I am unable to accept the submission that there was no evidence to contradict the proposition that the applicant was nothing more than a “warehouse”.

    26. Form 1 offence attached to Sequence 1.

    27. Sequence 1.

36. Thirdly, I am unable to accept the submission that there was no evidence to suggest that the applicant had derived any significant profit from his activities. That submission is entirely contrary to the large amount of cash found in his bedroom.

37. Fourthly, the absence of any evidence to support a conclusion that the applicant was responsible for setting up the scheme did not preclude her Honour from making the findings that she made. A person can obviously be a major participant in a scheme of organised drug supply without being responsible for that scheme’s inception.

38. Fifthly, it was entirely open to her Honour, in reaching the findings that she did, to reject the applicant’s assertion that he was in possession of 18 mobile phones simply as a result of acquiring them over the course of his lifetime. That explanation was, in my view, entirely fanciful, particularly in light of the other items seized at the time, all of which occurred against a background of the applicant having taken an active role in two actual supplies of methylamphetamine.

39. For all of these reasons, her Honour’s findings as to the applicant’s role do not disclose error.

40. This ground is not made out.

GROUND 3 – THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE

41. It is appropriate to address ground 3 in advance of ground 2, in circumstances where ground 2 raises a parity issue. [28]

    28. Li v R [2021] NSWCCA 75 at [41] and the authorities cited therein.

The applicant’s subjective case

42. Tendered before the sentencing judge was a joint report of Hasan Cinar and Ann-Marie De Santa Brigida, Psychologists, which followed an assessment of the applicant on 12 September 2019. The following background is drawn from that history.

43. The applicant was born on 6 September 1985. He was raised by both of his parents until they divorced when he was aged 12. He arrived in Australia from Malaysia in 1987 with his mother and sister. At the age of 16, the applicant's mother moved interstate in order to be with her partner, at which point the applicant commenced living with his father. [29]

    29. AB 148.

44. The applicant was educated to Year 10. He suffered numerous difficulties in his schooling, reflected in regular truanting, engaging in fights and failing to comply with homework and assignments. Upon leaving school, he commenced a real estate course but did not complete it due to a worsening drug problem [30] which had commenced with the recreational use of MDMA and methamphetamine in his teens, but which subsequently escalated to daily use. [31]

    30. AB 149 – 150.

    31. AB 150.

45. The applicant said that he “never had a chance” to engage in rehabilitation, and that he did not consider that he had ever really addressed the aetiology of his drug addiction. In terms of his plans for the future, he said that he was considering employment opportunities in the construction industry and had completed a Certificate III in Fitness whilst in custody. [32]

    32. AB 150.

46. Mr Cinar and Ms De Santa Brigida concluded that the applicant was suffering from an amphetamine-type substance disorder, as well as a gambling disorder. [33] They also concluded that the results of tests which were administered to the applicant demonstrated “some risk” of ADHD. [34] They further concluded that attachment problems from the applicant’s childhood and his subsequent substance abuse were the background to his psychological difficulties. They reported that the applicant posed a low to moderate risk of re-offending, and expressed the view that this level of risk could be further reduced by appropriate rehabilitation centring upon his addiction to illicit substances. [35]

    33. AB 156.

    34. AB 151.

    35. AB 156.

47. In his evidence, the applicant was asked about the reference to ADHD in the report: [36]

    36. AB 582.28 – 582.47.

Q. …. Was there anything in the report which was any surprise to you?

A. Supposedly I'm 34 years old and I'm just recently learning about myself still to this day which is like on the borderline I'm ADHD so – –

…

Q. Has that ever been suggested to you before?

A. Never, that's why it was so surprising for me to learn about myself. I'm almost 35 now and I'm still learning about myself today and with my drug issues and so on.

Q. All right, well, let me just briefly touch on ADHD. You’re aware that it involves problems with concentration and self-control and so on?

A. Yes.

Q. Does that sound like what your life has been like? In other words, have you had concentration problems et cetera?

A. Yes, from since high school, yes, yes.

48. A sentencing assessment report was also before the sentencing judge which noted that the applicant accepted full responsibility for his offending and had demonstrated a desire to do better in life. However, the report also noted that the applicant had reported that he considered that his addiction to illicit drugs continued to “take control of him”. [37] The report further noted that the applicant had a lengthy history of illicit drug abuse and that at the time of the offending, he was consuming approximately 1.5g of methylamphetamine daily. [38]

    37. AB 141.

    38. AB 141.

49. Whilst the sentencing assessment report made reference to the fact that the applicant had demonstrated remorse for his offending behaviour, and had stated that he wanted to “change” and “make a better life”, the author of the report expressed the view that the applicant's expressions of remorse could be considered superficial, in circumstances where he had not elaborated on the position of the victims of his offending, and had stated only that he felt “bad” and knew that “what he did was wrong”. [39] That said, the report did note that the applicant had demonstrated a willingness to undertake intervention to address his offending behaviour. [40] The applicant was assessed as having a medium risk of re-offending. [41]

    39. AB 142.

    40. AB 142.

    41. AB 142.

50. A letter from the applicant was tendered to the sentencing judge, [42] in which he made reference to his previous drug addiction. The applicant expressed shame and remorse for his offending, stating that he was now drug free. A letter from the applicant's mother made reference to his remorse, and expressed ongoing support for him. [43] A number of other documents were tendered confirming the applicant’s completion of various TAFE courses. [44]

    42. Exh 2; AB 162 – 164.

    43. Exh 3; AB 165 – 166.

    44. Exh 4; AB 167 – 181.

51. In giving evidence, the applicant expressed a willingness to take prescribed medication to address his issues, saying that his “life has been held back because of ice” and that he was “at the point where [he] had enough”. [45] He said that his main goal was to “better himself” and be a valuable member of the community. [46] He expressed a willingness to undertake rehabilitation which he said that he “never had a chance to do”, and a preparedness to engage in ongoing psychological treatment. [47]

    45. AB 584.6 – 584.12.

    46. AB 586.26 – 586.31.

    47. AB 586.48 – 587.5.

52. The applicant’s criminal history [48] included a number of driving offences, in respect of some of which he was sentenced to terms of imprisonment. More significantly, in September 2015 he was sentenced to imprisonment for 3 years and 9 months for supplying a prohibited drug in an amount greater than the indictable quantity. At the time of the present offending, he was on parole for that offence.

    48. AB 106 – 115.

The findings of the sentencing judge

53. The sentencing judge said: [49]

[The applicant] confirmed the contents of the psychologist's report as being truthful. In particular, he discovered that he had ADHD. He said the since he has learned that, he has realised that the amphetamines calmed him down. I do not accept, however, that his condition of ADHD had anything to do with him becoming a drug dealer or supplier. Many people have ADHD and do not deal in drugs or the supply of drugs.

49. AB 28-29

54. Her Honour concluded that the evidence fell short of establishing a formal diagnosis of ADHD in any event, [50] saying that she found the psychological report “unhelpful”. [51] Her Honour expressly took into account the TAFE records which had been tendered, the applicant’s letter to the Court, the letter provided by his mother, and the sentence assessment report, before concluding that the applicant had demonstrated little contrition or remorse. [52]

    50. AB 31

    51. AB 31.

    52. AB 31-33.

55. Her Honour recognised the need to apply principles of totality and proportionality and concluded that there should be an added degree of accumulation in the respective sentences to be imposed. [53] She applied a discount of 40%, 25% of which was referable to the applicant's early pleas of guilty, and the remaining 15% was referable to the applicant’s assistance. [54] Her Honour also found special circumstances in light of the applicant's need for rehabilitation, supervision and guidance to address his addiction issues. [55]

    53. AB 33.

    54. AB 33-34.

    55. AB 34.

Submissions of the applicant

56. In advancing this ground, counsel for the applicant relied, to a large extent, upon the submissions advanced in support of ground 1. The essence of counsel’s position was that, on a proper assessment of the applicant’s role, and taking into account his subjective case, the sentence imposed was unreasonable or plainly unjust.

Submissions of the Crown

57. The Crown submitted that having regard to the totality of the applicant’s criminality, the sentence imposed was not unreasonable or plainly unjust. In support of that submission, the Crown relied upon a number of matters. These included the applicant’s role and his criminal history. The Crown emphasised in particular, the need to assess the sentence which was imposed in light of the totality of the applicant’s offending.

Consideration

58. In Goodbun v R this Court summarised the relevant principles applicable to a ground of appeal asserting manifest excess of sentence as follows: [56]

    56. [2020] NSWCCA 77 at [254] citing Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].

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

2. 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;

3. it is not to the point that an appellate court might have exercised the sentencing discretion differently;

4. 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 application of principle; and

5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

59. In addressing this ground in accordance with those principles, two observations should be made at the outset. Firstly, I have found that ground 1 has not been made out. That is obviously significant in circumstances where, in support of the present ground, counsel for the applicant relied largely upon the submissions advanced in support of ground 1. Secondly, and leaving aside the challenge to her Honour’s findings as to the applicant’s role (which I have rejected in dealing with ground 1) no issue was taken with any of her Honour’s remaining findings.

60. For a number of reasons, I am not satisfied that the sentence imposed upon the applicant is unreasonable or plainly unjust.

61. To begin with, the applicant was sentenced for seven separate offences, four of which carried maximum penalties of 15 years imprisonment, and two of which carried maximum penalties of 14 years imprisonment, with prescribed non-parole periods of 5 years imprisonment and 4 years imprisonment respectively. Those penalties, without more, reflected the seriousness of the applicant’s offending, and provided important guideposts for the sentencing judge. In addition, the applicant asked the sentencing judge to take into account a number of serious Form 1 offences. That required the sentencing judge to give greater weight to the need for personal deterrence, and the community’s entitlement to extract retribution for serious offences, with a view to increasing the penalty that would otherwise have been appropriate. [57] The relevance of personal deterrence was heightened by the fact that at the time of the offending the applicant was on parole for an offence of drug supply. General deterrence was also a significant consideration.

    57. Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [62]-[65] per Spigelman CJ.

62. Any sentence imposed was required to reflect the significance of the applicant’s role, not only in the two specific instances of supply, but in the broader sense reflected in his possession of the cash, drugs, the prohibited firearm and the prohibited weapon. For the reasons I have already set out in addressing ground 1, all of this evidence supported the conclusions reached by her Honour as to the applicant’s role. The applicant’s possession of the firearm, in particular, was significant.

63. Further in my view, and aside from his pleas of guilty and his assistance (both of which were appropriately reflected in the significant discount applied by her Honour), the applicant’s subjective case was generally unremarkable. Her Honour was not prepared to find, in the absence of a formal diagnosis, that the applicant suffered from ADHD and thus rejected the proposition that any such disorder was causally related to his offending. Given the applicant’s criminal history, and the fact that he was on parole for the same offending at the time of commission of these offences, her Honour was justifiably guarded about his prospects of rehabilitation and found that he had displayed little contrition or remorse. As I have noted, none of these findings were challenged before this Court. Her Honour also made a finding of special circumstances in favour of the applicant which could be regarded as somewhat generous in light of his previous failures to engage in any successful drug rehabilitation. Finally, it is evident that her Honour was mindful of the need to (and did) apply principles of totality and proportionality.

64. In circumstances where the offending was wide ranging and objectively serious, where the applicant’s role was significant, and where there was little of substance in his subjective case, I am not persuaded that the sentence imposed was unreasonable or plainly unjust.

65. It follows that this ground is not made out.

GROUND 2 – THE APPLICANT HAS A JUSTIFIABLE SENSE OF GRIEVANCE BY REASON OF THE MARKED DISPARITY BETWEEN HIS SENTENCE AND THE SENTENCES IMPOSED UPON THE CO-OFFENDERS, ESPECIALLY THE CO-OFFENDER DUNDEE XIAONENG WEI

The sentences imposed on the co-offenders

66. Annexure C to the written submissions of the Crown was the following table setting out the sentences imposed upon the applicant, Wei and So respectively, as well as a notation of the findings of the sentencing judge in respect of each of them, both in terms of their respective roles and subjective cases.

COMPARISON	APPLICANT		WEI		SO
Aggregate sentence	7 years and 6 months NPP 4 years and 11 months		4 years and 4 months NPP 2 years and 7 months		3 years and 6 months NPP 2 years and 1 month
Offences	Supply 139.1g methylamphetamine (Seq 1); Supply 158.32g methylamphetamine (Seq 7); Supply 9.92g methylamphetamine (Seq 9) Supply 51.48g heroin (Seq 10) Possess prohibited weapon (taser) (Seq 14); Deal with suspected proceeds of crime ($27,685) (Seq 16) Possess unauthorised pistol (Seq 18) Plus various Form 1 matters for supply.		Supply commercial quantity of methylamphetamine (309.7g) (Seq 4) Possess prohibited weapon (taser) (Seq 6), Plus Form 1 for deal with proceeds of crime.		Supply prohibited drug on an ongoing basis (methylamphetamine) (Seq 1) Supply 139.1g methylamphetamine (Seq 6) Plus three Form 1 matters for supply and possess prohibited drug
Discount	40% (25% for plea and 15% for assistance)		40% (25% for plea and 15% for assistance)		25%
Objective seriousness	Drug supply offences: within the mid-range Possess prohibited weapon (taser): below the mid-range, towards the lower end of objective seriousness Possess unauthorised pistol: mid-range		Supply commercial quantity: within the mid-range Possess prohibited weapon (taser): below the mid-range towards the lower end of objective seriousness		Both supply offences: just below mid-range
Role in drug supply offences	A principal in the drug supply network; higher up in the notional hierarchy than others		Between Mr So and the applicant (with the applicant being higher up in the hierarchy or the principal)		“Towards the bottom of the organisational hierarchy, although intimately connected”.. Did not have access to the drugs at his own premises. Motivation was to support his own drug habit. No evidence he received a substantial profit.
Age	32 at time of offending	25 at time of offending			36 at time of offending
Criminal record	Commercial drug supply, drug supply, custody of knife in public place, deal with proceeds, robbery, goods in custody The applicant’s “lengthy criminal record” was taken into account as an aggravating factor.	Drug supply and possession, deal with proceeds, receiving, driving offences, steal motor vehicle Mr Wei’s “record of previous convictions” was taken into account as an aggravating factor.			Supply prohibited drug > small and < indictable quantity, possess prohibited drug, driving offences, make false statement to obtain money, goods in custody His criminal record did not entitle him to leniency but was not an aggravating factor.
On parole	Yes – for drug supply offence		Yes – for driving offence	No
Special circumstances	Yes – ratio adjusted to 65.5% Need for rehabilitation and supervision for drug addiction.		Yes – ratio adjusted to 59.6% To enable offender to address long term drug use, mental health issues, stimulant use disorder and major depressive disorder.	Yes – ratio adjusted to 59.5% Due to circumstance of having a long history of drug addiction.
Remorse	Had demonstrated little remorse or contrition		Contrition and remorse demonstrated	Contrition accepted, based on acceptance of the offender’s oral evidence on sentence.
Subjective circumstances	Amphetamine use since age of 16 (met criteria for amphetamine-type substance disorder). The submission that the applicant was self-medicating for ADHD was rejected. No formal diagnosis of ADHD.		Drug use since 2014, addicted to ice by 2016; met the criteria for stimulant use disorder. Met criteria for major depressive disorder and unspecified anxiety disorder. Affected by the death of his mother in 2004 but did not meet diagnoses of PTSD No causal connection between offending and his disorders.	Longstanding history of drug addiction; commenced using ice at age of 17. Using 1g of ice per day at time of arrest (per the offender’s oral evidence on sentence). Attended Remand Addictions program in custody. A number of traumatic life events in his childhood, such as physical punishment and abuse, parental neglect, lack of nurturance, guidance and support, bullying and racism at school, and physical scarring from a severe burn at a young age. Supportive family. Living with grandmother at time of arrest.
Prospects of rehabilitation	Guarded		Guarded. Risk of re-offending intrinsically linked with any potential future drug use	Some prospects, but guarded as to what extent. Inextricably linked to prospects of addressing his drug addiction

Submissions of the applicant

67. The submissions of counsel for the applicant in support of this ground centred upon the sentence imposed upon Wei. Counsel submitted in particular, that Wei had been involved in the two instances of supply with the applicant as well as a further instance of supply which he (Wei) had organised. Counsel also pointed out that So had pleaded guilty to a charge of ongoing supply as well as an individual instance of supply.

68. Counsel submitted that there was “very little reasoning offered” in terms of differentiating between the roles of the applicant on the one hand, and each of the two named co-offenders on the other, which might justify the disparity in the sentences which were imposed.

Submissions of the Crown

69. The Crown submitted that although the sentencing judge had been faced with a difficult sentencing exercise (particularly in circumstances where none of the offenders who appeared for sentence had pleaded guilty to precisely the same offences even though they had been involved in similar conduct) it was important to recognise that her Honour was obviously fully aware of the circumstances of each offender at the time of imposing their respective sentences.

Consideration

70. The principle of equal justice requires, so far as the law permits, that like cases be treated alike. Equal justice also requires, where permissible, the different treatment of persons according to the differences between them. Consistency in the punishment of offences against criminal law finds its expression in the parity principle which requires that like offenders should be treated in a like manner, and which allows for different sentences to be imposed on like offenders to reflect different degrees of culpability and/or different circumstances. [58]

    58. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan J and Kiefel (as her Honour the Chief Justice then was) and the authorities cited therein.

71. The parity principle also recognises that equal justice requires that as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance. The question is always one of due proportion being structured between those sentences which is to be determined having regard to the different circumstances of the co-offenders and their different degrees of criminality. [59]

    59. Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26 (per Dawson and Gaudron JJ; Lowe v The Queen (1984) 154 CLR 606 at 610 – 611; [1984] HCA 46 per Mason J (as His Honour then was).

72. It is also important to bear in mind that the sense of grievance necessary to attract appellate intervention with respect to sentences which are said to be unjustifiably disparate is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. As a consequence, this Court will refuse to intervene when disparity is justified by differences between co-offenders. [60]

    60. Green at [31].

73. Whilst there is disparity in the sentence imposed on the applicant when compared with the respective sentences imposed upon Wei and So, I have come to the view that such disparity is entirely justified, having regard to the objective circumstances of the offending of each of them, and their respective subjective cases. This is so for a number of reasons.

74. Fundamentally, the offences to which the applicant pleaded guilty covered a far broader range of criminality than was the case with either of his co-offenders. The applicant’s criminality included his possession of an unauthorised pistol. That was, of itself, serious offending which necessarily had to be encompassed by any sentence which was imposed. No such offence was alleged against either So or Wei.

75. There was also a marked difference between the criminal history of the applicant on the one hand, and those of each of Wei and So on the other. The applicant’s history was far more significant, and his offending was aggravated by the fact that he was, at the time of the offending, on parole for precisely the same offence, as opposed to Wei (who was also on parole, but for a driving offence) and So (who was not on parole at all).

76. Finally, as I have previously noted, her Honour found that the applicant had demonstrated little remorse or contrition for his offending. The opposite finding was made in the case of each of Wei and So.

77. For all of these reasons, the applicant has failed to establish that he has a justifiable sense of grievance.

78. It follows that this ground is not made out.

ORDERS

79. I propose the following orders:

1. The time in which to file the notice of application for leave to appeal against sentence is extended to 8 December 2020.

2. Leave to appeal against sentence is granted.

3. The appeal is dismissed.

Endnotes

Decision last updated: 07 July 2021