Loh v The Queen

[2013] NSWCCA 339

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Loh v R [2013] NSWCCA 339

Hearing dates:

12 December 2013

Decision date:

12 December 2013

Before:

Ward JA at [1]
Harrison J at [2]
R A Hulme J at [3]

Decision:

1. Leave to appeal granted.

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - sentence appeal - parity - supply large commercial quantity of heroin - co-offender received substantially lesser sentence - similar subjective circumstances - applicant had greater level of involvement in offence - no justifiable sense of grievance

Legislation Cited:

Criminal Appeal Act 1912 (NSW)
Drugs Misuse and Trafficking Act 1985 (NSW)
England v R; Phanith v R [2009] NSWCCA 274
Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
McMullen v R [2013] NSWCCA 261

Cases Cited:

Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

Category:

Principal judgment

Parties:

Lawrence Yong Shun Loh (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr W Chan (Applicant)
Ms H Wilson SC (Crown)
Solicitors:
Audix Legal
Solicitor for Public Prosecutions

File Number(s):

2009/157013

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2010-10-28 00:00:00

Before:

Bennett SC DCJ

File Number(s):

2009/157013

Judgment

1. WARD JA: I agree with the reasons of R A Hulme J and the orders he proposes.

1. HARRISON J: I also agree.

1. R A HULME J: Lawrence Yong Loh ("the applicant") applies for leave to appeal against a 14 year sentence imposed upon him by his Honour Judge Bennett SC in the District Court at Sydney on 28 October 2010. The applicant had pleaded guilty to an offence of supplying heroin in excess of a large commercial quantity. That is an offence contrary to s 25(2) of the Drugs Misuse and Trafficking Act 1985 (NSW) and the maximum penalty prescribed is imprisonment for life and/or a fine of 5000 penalty units. In sentencing him for that offence, the judge took into account at the applicant's request a further offence listed on a Form 1 document of dealing with property suspected to be the proceeds of crime, namely $7000.

1. The grounds of appeal are that the judge had erroneous regard to the prescription of a standard non-parole period and that the sentence was manifestly excessive because of a lesser sentence imposed upon a co-offender.

Facts

1. There was no dispute about the summary of the facts contained in the sentencing judgment. I draw the following from that source.

1. On 16 January 2009, the applicant and a man named Chuan Tat Kho were under physical surveillance as they left a rented room in Chatswood and made their way to a café in the city. At the café the applicant sat at a table on the footpath whilst Kho went inside and made a purchase. Another co-offender, Chin Lai Tan came to the café and joined the applicant at the table. Tan had a trolley case with him which he placed on the ground beside him. Kho joined the other two at the table. After about ten minutes, the three stood up and Kho took the case and wheeled it towards George Street followed by Tan and the applicant. Kho hailed a taxi whilst the applicant and Tan appeared to converse. A taxi stopped and Kho lifted the case into the boot and then he and the applicant entered the taxi while Tan walked away.

1. Police stopped the taxi a short time later and arrested the applicant and Kho. Tan was not arrested at that point but was apprehended at Sydney Airport the following day as he was about to leave Australia.

1. The trolley case was secured with a combination lock, the number for which was given to the police by the applicant. The applicant gave evidence of having been provided with the combination by Tan at the time the case was delivered to him. Inside the case was 13.999 kilograms of white powder which was found to contain heroin at a purity of 70 per cent. The large commercial quantity for heroin is one kilogram.

1. There was evidence before the judge that when broken down into ultimate street deals, the drug had an estimated value in the range of $14,500,000 to $20,300,000.

1. When police executed a search warrant at the apartment where the applicant was living they found paraphernalia consistent with the repackaging of heroin. This consisted of clip seal bags and latex gloves. The applicant's evidence was that he had purchased these items as he was told that the drugs were already contained in bags which might break and need to be repackaged.

1. The applicant's evidence was that he came to Australia from Singapore to assist in this crime. He said that he intended to pass on the trolley bag knowing that it contained drugs which he knew was heroin. He was to make $30,000 in cash and an additional $10,000 was provided to him for expenses. He said that before coming to Australia he was suffering stress because he was in debt in the sum of $150,000 which he had borrowed to assist his brother and family with medical treatment. He was desperate to get money to repay that loan. He said that he was retained to take delivery of the drugs from Tan and then to pass them on to other people in accordance with instructions to be received by telephone.

1. Between 1 and 16 January 2009, when the applicant was arrested, there were 43 recorded telephone connections between the phones used by Tan and the applicant.

Personal features of the offender

1. The judge noted that the applicant was married and had three children aged ten and under. He had not seen them since his arrest, which caused him some distress.

1. A psychiatric report by Dr Richard Furst included an assessment that the applicant was suffering a major depressive disorder as a result of the stress suffered in Singapore because of the debt and the consequences of his participation in the index offence. The judge noted that the depressive disorder was a product primarily of the applicant's legal difficulties, financial problems and separation from his family.

1. The judge took into account that the applicant had used his time in custody to good advantage in terms of undertaking employment and courses.

1. There was an issue about assistance to authorities which culminated in the judge determining that no discount should be allowed but it would be a factor regarded as relevant to the applicant's contrition. The judge was satisfied that the applicant was remorseful.

1. The judge found in the applicant's favour that he was of good character, he had no prior convictions, he had good prospects of rehabilitation and his risk of further offending was low.

1. The judge also took into account that being in custody in this country and thereby separated from his family would involve additional hardship for the applicant in custody.

1. A finding of special circumstances was made which warranted a "modest" reduction in the non-parole period that would otherwise have been imposed.

1. The applicant had pleaded guilty on the first day of his trial and it was common ground that a reduction of sentence of 12.5 per cent was appropriate to reflect the utilitarian value of the plea.

Role of the applicant and other matters relevant to the assessment of sentence

1. The judge took into account that the offence was part of organised criminal activity and the applicant's goal was financial gain. His Honour also had regard to the significant harm that could have been caused in the community if the drugs had have been further disseminated.

1. The judge regarded the three offenders as being participants as "individual cells in an overall enterprise being directed by others at a higher level". He regarded Kho, Tan and the applicant as being at a level below the criminals managing the enterprise and directing it. He added, however, "they were critical components in the distribution of almost 14 kilograms of heroin at 70 per cent purity. But for their willingness to participate, this crime could not have been committed".

1. A final observation made by the judge before imposing sentence was the need to reflect in the assessment of sentence general deterrence, denunciation of the applicant's conduct, and recognition of the harm that could have fallen upon the community.

Ground 1: That the Court erred in law by reason of its erroneous application of Div 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) by inappropriately asking whether there were reasons for not imposing the standard non-parole period and then proceeding to assess whether the offence was within the mid range of objective seriousness and thereby treating the standard minimum non-parole period as having determinative significance to the applicant's sentence.

1. The judge sentenced by reference to the principles enunciated by this court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. Although judgment was given shortly after the High Court of Australia handed down its decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, the judge made no reference to it. It was contended by counsel for the applicant that the judge's approach was erroneous in that he adopted a two-stage approach to sentence held to be erroneous in Muldrock. It was further contended that the judge accorded the standard non-parole period determinative significance.

1. By way of response the Crown contended that a fair reading of the remarks on sentence in their entirety did not disclose the errors for which the applicant contended.

1. Upon my reading of the sentencing remarks, it appears that in some passages the judge did allude to a mode of reasoning impugned in Muldrock whereas in other parts he appears to have adopted an approach in accordance with that identified as being correct in that decision. It is unnecessary to set out the various passages from the sentencing remarks as I am persuaded that the applicant should be given the benefit of the doubt with a finding that the judge probably did err as contended. That, of course, is not the end of the matter because it enlivens the consideration of whether a less severe sentence was warranted in law: s 6(3) of the Criminal Appeal Act 1912 (NSW).

Ground 2: That the applicant's sentence is manifestly excessive because the applicant has a justifiable sense of grievance having regard to the sentence imposed upon him compared to that of the co-offender Chuan Fat Kho.

1. The co-offender Kho was sentence by his Honour Judge Berman SC in the District Court on 14 September 2012. The delay in sentencing him as compared to the sentencing of Tan and the applicant is explained by the fact that Kho was found guilty by a jury in 2010 but successfully appealed against his conviction to this court. He was retried before Judge Berman and again found guilty. Kho was sentenced to 12 years imprisonment with a non-parole period of 7 years.

1. Bennett DCJ sentenced Tan prior to sentencing the applicant. He imposed a sentence of 15 years 3 months 28 days with a non-parole period of 10 years. That sentence was imposed after trial.

1. The submissions on behalf of the applicant contend that the subjective circumstances of both the applicant and Kho were "virtually identical". It was submitted that despite the finding by Berman DCJ that Kho's objective level of criminality was less than the applicant's, it was nevertheless criminality of significant seriousness having regard to the quantity of drugs involved. It was also contended that, unlike the applicant, Kho did not demonstrate contrition nor assist authorities. On the other hand the applicant had pleaded guilty, he was remorseful and had provided assistance. That led to the submission that the applicant had a justifiable sense of grievance arising from the heavier punishment imposed upon him compared to that of Kho.

Sentencing of Tan

1. Tan was allowed a discount of 15 per cent for his assistance to authorities. That would mean that the starting point for his sentence would have been about 18 years. Bennett DCJ found that Tan was aware of the transaction upon which he was engaged but that his role was limited to the delivery of the trolley case to the other two offenders. He had not come to Australia in order to commit crime but was in Sydney on a holiday visa intending to extend his stay as a student and to obtain employment to improve his circumstances and provide better for his wife and children in his home country.

1. Tan claimed that on the morning of the offence he woke in response to a telephone conversation with a man he knew and as a result, met up with that man and accepted an offer of $3000 to deliver the trolley case. He knew it contained drugs. His explanation for his participation was economic need against his background of modest circumstances with obligations for the care of his wife, children and aging parents.

1. Bennett DCJ was doubtful as to Tan's explanation given the telephone contact between Tan and the applicant in the fortnight or so prior to the transaction. His Honour did not accept that Tan's reward was limited to the $3000 he claimed. Despite Tan's attempt to minimise his role, the judge still accepted that his expressions of remorse were genuine.

1. Tan was 22 years of age with no prior criminal record and no family in Australia. Regard was had to the fact that Tan would be imprisoned in circumstances where he would have little or no contact with his wife or children for a considerable period of time. He was found to be a person of good character with no prior convictions, good prospects of rehabilitation and a low risk of re-offending. Having regard to various circumstances the judge was satisfied that imprisonment would be a greater punishment for Tan than for a more typical inmate.

Sentencing of Kho

1. The evidence before Berman DCJ was that Kho and the applicant had travelled from Chatswood to the café in the city on the morning of 16 January 2009. Tan arrived with the suitcase and sat at a table and spoke with the applicant. CCTV footage indicated that Kho appeared to be "relatively uninterested in the conversation which was occurring". After the offenders had consumed a drink they stood up and it was at this point that Kho took the suitcase, hailed a taxi, and put the suitcase in the boot.

1. Berman DCJ noted that there was telephone contact between the applicant and Tan in the days leading up to the meeting but no known contact involving Kho.

1. There was an issue as to precisely when Kho learnt that there was to be a supply of drugs on 16 January. The judge was not prepared to accept on the balance of probabilities that he only became aware immediately before the transaction took place. Similarly he was not prepared to conclude beyond reasonable doubt that he was aware of the proposed transaction at the time he came to Australia. In the end his Honour concluded that Kho became aware of the transaction "some indeterminate time before 16 January".

1. Berman DCJ noted that it was "notorious that those high up in the drug supply hierarchy try to avoid physical possession of drugs, preferring foot soldiers to take the risks associated with moving drugs from one place to another". He concluded:

For those reasons I will sentence Mr Kho on the basis that he was less involved in this matter than Loh and Tan and lower down the drug supply hierarchy than those two men".

1. Kho was 38 years of age at the time of sentence and had no prior convictions. He was found to be a hard and industrious worker in Singapore and had assumed many responsibilities involving his family. It was accepted that he came to Australia for a holiday.

1. The judge had regard to Kho's industriousness whilst in custody; he was studying and had completed various courses and was planning for his release. The judge also took into account that serving a sentence in a foreign country involved a level of hardship. This included that Kho had, through his actions, deprived his parents of the assistance that he use to provide for them.

1. Finally his Honour referred to the principle of parity and had regard to the sentences imposed by Bennett DCJ on the applicant and Tan.

Determination

1. Although the ground is expressed ambiguously in asserting both manifest excess and a complaint about parity, it was clarified that the ground should be confined to the latter. That is in accordance with authority to the effect that parity is an issue to be considered once one accepts that the sentence imposed was otherwise appropriate: England v R; Phanith v R [2009] NSWCCA 274 at [22]; Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [251]; McMullen v R [2013] NSWCCA 261 at [49].

1. To compare the sentences imposed upon each co-offender in order to consider whether there is a legitimate sense of grievance in relation to the applicant's sentence, it is appropriate to have regard to the starting points adopted before any quantified reduction for a plea of guilty or assistance.

1. The starting point for the applicant's sentence was 16 years, whereas for Tan it was 18 years and for Kho it was 12 years.

1. On any view, the level of involvement of Tan and the applicant was broadly equivalent whereas the involvement of Kho was significantly less. That on its own justified some similarity in the sentences imposed upon the applicant and Tan and a lesser sentence imposed upon Kho.

1. The applicant had a number of more favourable features to be taken into account and for that reason the distinction between the starting points for his sentence and that of Tan is understandable.

1. The 12 year sentence, not subject to any reduction, imposed upon Kho was an appropriate distinction between he and the applicant. Their respective subjective circumstances were not dissimilar. In my view there is no legitimacy to the parity complaint now raised by the applicant.

Conclusion

1. Having regard to the substantial gravity of the offence to which the applicant had pleaded guilty, involving as it did the supply of 14 times the large commercial quantity of heroin, I am not persuaded that a lesser sentence is warranted and should have been passed.

Proposed orders

1. I propose the following orders:

1. Leave to appeal granted

2. Appeal dismissed.

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Decision last updated: 21 January 2014