R v Li

[2014] NSWCCA 327

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Li [2014] NSWCCA 327

Hearing dates:

23/10/2014

Decision date:

19 December 2014

Before:

Fullerton J at [1];
R A Hulme J at [60];
Garling J at [62]

Decision:

1. Appeal allowed.

2. The sentences imposed in the District Court on 12 June 2014 are quashed.

3. In lieu thereof, the following sentences are imposed:

a.For the supply count: Imprisonment for 10 years comprising a non-parole period of 7 years 6 months commencing on 30 October 2012 and expiring on 29 April 2020 with a balance of term of 2 years and 6 months expiring on 29 October 2022.

b.For the conspiracy count: Imprisonment for 7 years comprising a non-parole period of 4 years 4 months commencing on 30 October 2012 and expiring on 29 February 2017 with a balance of term of 2 years and 8 months expiring on 29 October 2019.

Catchwords:

CRIMINAL LAW - Crown appeal against sentence - knowingly take part in supply of prohibited drug - conspiracy to supply prohibited drug - whether sentence is manifestly inadequate

Legislation Cited:

Crimes Act 1900 (NSW), s 193B(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(1)(n), 44(2)
Criminal Appeal Act 1912 (NSW), s 5D
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 26

Cases Cited:

Bugmy v The Queen [2013] HCA 27; 249 CLR 571
Muldrock v R [2011] HCA 39; 244 CLR 120
R v Booth [2014] NSWCCA 156
R v DW [2012] NSWCCA 66; 221 A Crim R 63
R v RD [2014] NSWCCA 103
R v Robinson [2014] NSWCCA 12

Category:

Principal judgment

Parties:

The Crown (Applicant)
Man Kit Li (Respondent)

Representation:

Counsel:
P Ingram SC (Crown)
WP Lowe (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Ren Zhou Lawyers (Respondent)

File Number(s):

2012/338731

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2014-06-12 00:00:00

Before:

Jeffreys DCJ

File Number(s):

2012/338731

Judgment

1. FULLERTON J: On 12 June 2014, the respondent was sentenced in the District Court after pleading guilty to one count of knowingly taking part in the supply of a prohibited drug, namely 24.9782 kilograms of methylamphetamine, being not less than the large commercial quantity applicable to that prohibited drug ("the supply count") contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). That offence attracts a maximum penalty of life imprisonment, to which a standard non-parole period of 15 years applies.

1. He was also sentenced on a further count of conspiring with an unknown person to supply a prohibited drug, also methylamphetamine, in an amount of 5 kilograms, being an amount not less than the large commercial quantity applicable to that drug ("the conspiracy count") contrary to s 26 of the Drug Misuse and Trafficking Act. That offence attracts a maximum penalty of life imprisonment. The sentencing judge mistakenly assumed that the conspiracy count also attracted a standard non-parole period of 15 years (R v DW [2012] NSWCCA 66; 221 A Crim R 63 at [38]). Since the respondent does not bring the appeal, this error may be ignored.

1. Schedule 1 to the Drug Misuse and Trafficking Act provides that a large commercial quantity of methylamphetamine is 1 kilogram.

1. A charge of knowingly dealing with the proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900 (NSW) ("the proceeds offence"), was placed on a Form 1 to be taken into account in the sentence imposed on the supply count. The proceeds offence attracts a maximum penalty of imprisonment for 15 years.

1. After allowing for a 15 per cent discount for the plea of guilty (entered after the trial judge indicated his intention to admit the respondent's record of interview into evidence at his trial), and after taking into account the matter on the Form 1, the respondent was sentenced on the supply count to a term of imprisonment for 9 years with a non-parole period of 4 years and 6 months. A wholly concurrent term of imprisonment of 6 years with a non-parole period of 3 years was imposed on the conspiracy count.

1. The Director of Public Prosecutions appeals the sentences imposed pursuant to s 5D of the Criminal Appeal Act 1912 (NSW).

1. Two grounds of appeal are relied upon.

(1)   The sentences imposed are manifestly inadequate.

(2)   The non-parole periods set are manifestly inadequate.

The facts

1. The Crown tendered an agreed set of facts with regard to both counts which appears to have been based exclusively on the respondent's record of interview (or some parts of it) and police surveillance. The record of interview was not tendered.

1. The following facts are derived from the agreed facts, including the further facts found by his Honour for sentencing purposes by inference from the agreed facts.

1. The respondent is a Hong Kong national. He was recruited in Hong Kong to come to Australia to work for a criminal organisation. His role was to travel to Sydney where he was to await instructions from his "controller" in Hong Kong via a mobile phone that he was to purchase in Australia with money supplied to him for that purpose.

1. He told the interviewing police that his role was to collect prohibited drugs and deliver them on behalf of the criminal organisation. However, the sentencing judge found that the respondent did not know that he was to supply prohibited drugs (or their quantity or type) until some time after his arrival in Sydney. It is unclear from the facts or his Honour's findings what the respondent understood to be the role he was to perform in Australia when he left Hong Kong or what criminal activity he believed he was to carry out.

1. The respondent was to be paid HK$80,000 a month (approximately AU$11,400) for his work. The sentencing judge found that this was to be the limit of his financial gain.

1. Upon the respondent's arrival in Sydney on 13 October 2012, police commenced an investigation into his activities.

1. On 14 October 2012, he purchased an iPhone.

1. On 18 October 2012, he purchased a Samsung Galaxy mobile phone.

1. On 19 October 2012, he leased a residential unit in Arncliffe in his own name.

1. On 25 October 2012, he hired a car and travelled to Sydney International Airport where he collected the vehicle.

1. On 26 October 2012, he drove the hire car from the Arncliffe apartment to Ikea on the Princes Highway at Tempe where he met with an unknown male in the carpark who was driving a blue Ford Falcon. The man handed the respondent a Honda car key. (There was nothing in the agreed facts to explain the significance of the key.)

1. The respondent told police that he had received a phone call on 26 October 2012 from his controller in China, who told him to drive to the Bondi area and collect 5 kilograms of what was referred to in the facts as an "unknown prohibited drug" to supply to "an unknown male". He agreed and was told to wait for further instructions. He told police that he drove to Bondi when he received another phone call from his controller who told him to leave Bondi because the man in the blue Ford was "missing". The controller told him to go to an address in Wolli Creek to look for the man. The respondent told police that he drove to the address specified by his controller and he looked for the man but could not find him. This conduct formed the basis of the conspiracy count.

1. On 29 October 2012, the respondent checked into the Ibis Hotel in Darling Harbour with his luggage.

1. On 30 October 2012, he checked out of the hotel and travelled to Haymarket where he parked in a public carpark. He then attended a Westpac Bank and deposited $200,000 into a bank account in his name. The facts do not reveal whether the account had been opened prior to this date or the information the respondent supplied to the bank in opening the account as a foreign national. The facts reveal nothing as to the source of the funds deposited. The respondent then attended a Western Union agency and remitted $13,000 to Hong Kong. The facts are silent as to the identity of the recipient of the funds. The respondent then attended another Westpac Bank and deposited $225,000 into two separate bank accounts, also in his name. Again, the facts reveal nothing as to the source of those funds or the circumstances in which the accounts were opened.

1. Later that night, the respondent travelled to Sydney International Airport where he was arrested. Upon being searched, police located $7,295 in Australian currency in his possession. The sentencing judge was satisfied that, by that time, the respondent was carrying through a decision to withdraw from any further involvement in the criminal syndicate after having learned of the quantities of drugs he was to supply.

1. The facts are silent as to how police came to learn the respondent was en route to the airport.

1. A search warrant was executed over the apartment in Arncliffe. Police located the following items in a wardrobe:

(1)   a blue hand held cooler bag containing six snap-lock bags containing approximately 1 kilogram of methylamphetamine in each bag;

(2)   a medium sized grey suitcase containing nine snap-lock bags containing approximately 1 kilogram of methylamphetamine in each bag; and

(3)   a black and white patterned suitcase containing ten snap-lock bags containing approximately 1 kilogram of methylamphetamine in each bag.

1. The combined weight of the methylamphetamine was 24.97282 kilograms, with an estimated street value of $5,000,000. These drugs are the subject of the supply count. There is no evidence as to the purity of the drugs seized.

1. The respondent was interviewed by police. He made what the sentencing judge described as "full and frank admissions in relation to his role in ... the supply of drugs". The basis upon which his Honour made that finding is unclear since the record of interview was not tendered.

1. What the agreed facts do reveal is that, in the course of the interview, and at the request of the police, the respondent drew a diagram representing the structure of the drug syndicate into which he told police he had been recruited. The sketch was annexed to the statement of facts. It showed four tiers. "Big Boss" was at the apex, "Boss" was beneath him with the "Controller" beneath the Boss and "Us" beneath the Controller. He told the police he did not know the identity of the people in the organisation. He said that he only ever communicated with them by telephone and that the only person he met associated with the criminal syndicate in Australia was the man at the Ikea carpark.

1. In relation to "the cash" the subject of the proceeds offence (again, the word used in the statement of facts), the respondent told police he won it playing poker in an illegal gaming house. He did not to provide any further information.

1. The respondent's bank accounts were frozen.

1. In the statement of facts, the respondent's role in the enterprise was said to be confined to the delivering of drugs in accordance with instructions that he was given by mobile phone from his controller in Hong Kong and that this was equivalent to that of a "mule" or "courier".

1. The Crown also tendered the respondent's criminal history and a pre-sentence sentence report. Certain passages in the pre-sentence report, where the respondent sought to innocently account for the money the subject of the proceeds count and where he suggested that the 25 kilograms of methamphetamine the subject of the supply count were not his and must have been placed in the apartment by someone else after he left, were expressly disavowed by senior counsel who appeared for the respondent on sentence. The Crown did not seek to rely upon this material as reflecting an absence of contrition or as qualifying the submissions by the respondent's counsel that he was fully co-operative with investigating police.

1. There was no evidence from either the Crown or the respondent as to when, or in what circumstances, the drugs were stored in the apartment; whether the respondent was found with a key to the apartment on his arrest; or how the fact of drugs being left in what may be assumed to be a locked apartment squared with the respondent's claim that he was voluntarily withdrawing from the criminal organisation and en route to the airport when he was arrested. The basis upon which the search warrant was obtained by police to enable a search of the apartment was not revealed.

The respondent's subjective circumstances

1. The respondent did not give evidence on sentence. He relied upon a character reference from his mother and a report from the Manager of Industries at the Metropolitan Remand and Reception Centre attesting to the fact that he is employed in the laundry.

1. The following is drawn from the available documentary material.

1. The respondent was 32 at the time of offence. He has no prior convictions. He is the eldest of four children. He is married and has two young children. The sentencing judge found that he was the "bread winner in the family". His mother and grandmother reside in Hong Kong.

1. He was educated in a boarding school in England. He attempted a business and computer degree which he did not complete. In 2004, he returned to Hong Kong and worked in an office environment.

1. In 2006, he commenced his own business with an associate. The sentencing judge found that the business appeared to be doing well until the associate began stealing funds, which resulted in the business folding in about 2009. He subsequently worked for his parents.

1. Several years prior to the offences, he had established a small trading company. That business has since ceased trading as a result of his incarceration.

1. He has been employed in the laundry of the Metropolitan Reception and Remand Centre since 26 November 2012. The pre-sentence report read:

"... Correctional Centre staff members have nothing but praise for [the respondent], describing him as someone who is proactive, trustworthy, polite, reliable, works with minimal supervision, is helpful to fellow inmates and staff members and staff utilise him as an informal interpreter in the correctional centre."

1. The sentencing judge found that the respondent evinced "some contrition" which manifested in the interview with the police, his guilty plea and the letter from his mother. His Honour concluded:

"In my view, [the respondent], who I am told has a previous unblemished character, and a person who has made good use of his time in prison and with his close family support, I am of the view that [the respondent] has excellent prospects of rehabilitation and is unlikely to re-offend."

The sentencing judge's reasoning

1. The sentencing judge described the supply of illegal drugs in commercial quantities as objectively seriousness and that, while the quantity of the drug supplied is not a determining factor, it remains a factor of significance in that assessment. He considered the quantity of drugs the subject of the supply count in the indictment as "high", being 25 times the large commercial quantity on the conspiracy count and 5 times the large commercial quantity. He also acknowledged that, in assessing the objective seriousness of drug supply offences generally, the potential for harm generated from that conduct, both directly by the proliferation of illicit drugs in the community and indirectly by the criminal culture that it engenders, should be taken into account in the imposition of sentence.

1. In determining whether the offences were part of planned or organised activity (an aggravating factor under s 21A(1)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and a factor which the Crown submitted was established on the evidence), the sentencing judge said:

"So far as this offender is concerned, although the planning may have involved him leasing premises in his own name and obtaining a motor vehicle, in my view I am not satisfied beyond reasonable doubt that the degree of planning so far as the offender is concerned exceeded what one might normally expect in relation to offences of this kind."

[Emphasis added]

1. This finding appears to be in conflict with a related finding where his Honour was satisfied that the respondent came to Australia knowing that he was to work for a criminal organisation into which he was recruited in Hong Kong, despite the fact that he went on to say:

"... I am not satisfied beyond a reasonable doubt that when [the respondent] came to Australia he knew that his involvement would be in relation to the supply of prohibited drugs. It seems likely to me that he found that out some time after his arrival in Sydney.

He told the police that the fact that drugs were involved made him quite fearful and he told the police that he decided he was not going to work for the syndicate any more and he was returning to Hong Kong when he was arrested at the airport."

1. The Crown also submitted that the offending was aggravated by the respondent's financial motivations, being prepared to accept a monthly salary on his recruitment. His Honour said:

"[The respondent's] involvement in these offences is difficult to understand. His involvement was for only, in my view, a modest reward, where he was to be paid HK$80,000 or AU$11,400 a month. Bearing in mind the value of the drugs, that was a very small reward.

I am not satisfied beyond reasonable doubt, however, that [the respondent] was to or expected to receive any other money other than the amount of HK$80,000 or AU$11,400 a month."

1. In assessing the weight to be afforded to the respondent's claim to have voluntarily withdrawn from the criminal organisation which recruited him, a finding which the sentencing judge was satisfied should be made in the respondent's favour and which he regarded as of significant weight, his Honour said:

"On the material before me it is clear, in my view, that [the respondent] voluntarily ceased being involved in the offending in the sense that on 30 October or probably on 29 October he left the material in the unit and on 30 October he was planning to leave Australia when he was in fact arrested at the airport."

1. In determining the sentence to be imposed on the supply count and after taking into account the proceeds offence on the Form 1, the sentencing judge said:

"Having availed himself of that arrangement, that is the Form 1, [the respondent] has the benefit of not facing a sentence of imprisonment for that additional offence. However, by clearing the slate in this way as it is described, he is provided considerable utility which must be brought to account to [the respondent].

I do not overlook, though, that it could not be said that [the respondent] would not have been inculpated in that additional offence but for his acknowledgement that he committed it ...

The additional offence should impinge upon the sentence for the principal offence to a significant or marginal extent requiring the appropriate increase in the sentence that would have otherwise been applied for the principal offence standing alone ...

...

So far as the money is concerned in relation to the Form 1, there is no evidence which indicates that the money is the proceeds of drug sales by [the respondent]. Importantly, in my view, the money was deposited into accounts in [the respondent's] personal name and so far as the unit premises are concerned, he leased those premises in his own name. In my view, that supports the submission made by senior counsel on his behalf in relation to his naivety concerning the offences."

1. In departing from the statutory ratio in s 44(2) of the Crimes (Sentencing Procedure) Act, the sentencing judge said:

"I find there are special circumstances which warrant an adjustment in the normal ratio between the non-parole periods and the head sentence. These include the fact that [the respondent] has not previously served a sentence of imprisonment; the fact that [the respondent] will be serving a sentence of imprisonment in a gaol a great distance from his family; and the fact that he will require assistance to reintegrate into the community when he is released after his sentence."

1. In relation to the order for total concurrency, at first instance the Crown submitted that were his Honour satisfied that the criminality on the supply count comprehended the criminality on the conspiracy count, an order for total concurrency was available and that his Honour would not fall into appealable error were he to take that approach. This was a generous concession.

The Crown submission on the sentence appeal

1. The grounds of appeal and the written submissions were settled by a Crown prosecutor who did not appear at the hearing.

1. The written submissions were brief in the extreme. In seeking to persuade the Court that the individual sentences and the non-parole periods were manifestly inadequate, it was not submitted that any of the factual findings made by the sentencing judge favourable to the respondent were either unsupported by the evidence or findings not open to him. In addition, there was no separate challenge to his Honour's finding of special circumstances, and no submission from the Crown that an alteration of the statutory ratio in s 44 of the Crimes (Sentencing Procedure) Act, based upon what his Honour found to be the respondent's need for assistance to ensure his reintegration into the community, was inappropriate when the respondent is a foreign national in Australia on a criminal justice visa. Neither did the Crown challenge the finding of special circumstances on the basis of a finding that the distance from his family, and that he has not previously served a jail sentence, could properly support an alteration in the statutory ratio between the head sentence and non-parole period.

1. In the Crown's written submissions, the sentences were said to show manifest error by the disproportionate weight given to the respondent's subjective circumstances relative to the objective gravity of his offending and that, although the sentencing judge referred to the approach mandated by Muldrock v R [2011] HCA 39; 244 CLR 120, insufficient regard was paid to the maximum penalty of life imprisonment on both the supply and conspiracy counts and, in respect of the former, that a standard non-parole period of 15 years applied.

1. The senior Crown prosecutor who appeared on the hearing regarded himself as bound by the approach the Crown had articulated in the written submissions. For that reason, he did not seek to be heard on what appeared to me to be a number of questionable factual findings made in the respondent's favour concerning both the actual extent of his knowing involvement in the criminal organisation of which he admitted he was a member, evidenced by his conduct in Australia, and the circumstances of his arrest. I have already noted that his Honour's failure to find that the offending was part of a planned and organised criminal activity is contradicted by the agreed facts. In other respects, it seems to me his Honour failed to interrogate the agreed facts, and the inferences which might have been drawn from those facts, in assessing the respondent's role as a drug supplier and his account of himself to police, for example, the inferences which might have been drawn from the respondent's apparent familiarity with the Australian banking system and his trusted position in dealing with large quantities of cash.

1. I accept that the facts were silent on a number of issues that might have better informed the respondent's role and the extent of his autonomy generally whilst active as a syndicate member in and around the city whether through design or oversight. I also accept that it is not for the sentencing judge to invite the Crown to tender evidence in support of its case on sentence, or to gainsay concessions made in the agreed facts, including, in this case, that the respondent's role was equivalent to that of a "mule" or "courier". On the other hand, where those findings are not challenged, the success of the Crown appeal against what are said to be manifestly inadequate sentences is necessarily limited to making good the argument that the sentences are so patently disproportionate to the gravity of the offending that the only conclusion open is that the sentencing discretion miscarried.

1. In oral argument, senior counsel for the Crown submitted that the concession at the sentencing hearing that an order for full concurrency was open, did not relieve the sentencing judge of ensuring that the effective sentence ultimately imposed adequately comprehended the full extent of the respondent's admitted criminal offending. The Crown submitted that, despite the range of factors that his Honour considered operated to mitigate the objective seriousness of the offending, including the positive findings he made on the respondent's subjective case, an effective sentence of imprisonment for 9 years with a non-parole period of 4 years and 6 months fell so egregiously short of a proportionate sentence that this Court would find that the sentencing discretion miscarried.

1. I accept that submission. I also accept that the position the Crown adopted at first instance on the question of accumulation or concurrency is a matter which might, in other circumstances, have resulted in the exercise of the residual discretion in the respondent's favour (see R v Robinson [2014] NSWCCA 12 at [57] - [63]). However, I am unable to come to the affirmative view that it should result in the Crown appeal being dismissed. In my view, the only conclusion open is that the sentencing discretion miscarried, resulting in sentences that were well below sentences that could be properly imposed for agreeing to supply or being knowingly concerned in the supply of large commercial quantities of prohibited drugs. The maximum penalty and standard non-parole period for the supply offence was not a mere formality, but a yardstick created by the legislature to guide sentencing courts. Against a standard non-parole period of 15 years, a non-parole period of 4 years and 6 months cannot be justified even on the most favourable view of the respondent's criminal offending and his subjective case (see Bugmy v The Queen [2013] HCA 27; 249 CLR 571 at [24]; R v RD [2014] NSWCCA 103 at [48], R v Booth [2014] NSWCCA 156 at [54]).

1. That said, and not without some reluctance, I propose to preserve the order for concurrency. I also consider that I have no option but to move to re-sentence referable to the appointment of the respondent's role in the agreed facts as a "courier" in the criminal organisation despite that being what I regard as a demonstrably erroneous assessment of what the respondent was recruited to do, and what he agreed to do as a drug supplier, and what I have no doubt was his trusted role in dealing in the proceeds of that criminal activity.

1. In light of the approach of the Crown on the hearing of the appeal, I am also prepared to preserve his Honour's favourable finding that the respondent had determined to withdraw from the criminal syndicate before he was arrested and that he had a subjective case that entitled him to some leniency. I am not, however, satisfied that there is any basis for a finding of special circumstances.

1. After taking into account the proceeds offence in the imposition of the sentence on the supply count, I consider that a sentence of 10 years with a non-parole period 7 years and 6 months should be imposed for that count, and that a sentence of 7 years with a non-parole period of 4 years and 4 months should be imposed for the conspiracy count, to be served wholly concurrently with the sentence on the supply count.

1. The orders I propose are:

(1)   Appeal allowed.

(2)   The sentences imposed in the District Court on 12 June 2014 are quashed.

(3)   In lieu thereof, the following sentences are imposed:

(a)   For the supply count: Imprisonment for 10 years comprising a non-parole period of 7 years 6 months commencing on 30 October 2012 and expiring on 29 April 2020 with a balance of term of 2 years and 6 months expiring on 29 October 2022.

(b)   For the conspiracy count: Imprisonment for 7 years comprising a non-parole period of 4 years 4 months commencing on 30 October 2012 and expiring on 29 February 2017 with a balance of term of 2 years and 8 months expiring on 29 October 2019.

1. R A HULME J: I have no hesitation in agreeing with Fullerton J that the sentences imposed by Jeffreys DCJ are manifestly inadequate.

1. The proposed new total term of imprisonment of 10 years with a non-parole period of 7 years 6 months is a modest result in resentencing but I agree with Fullerton J of the need to adopt such an approach for the reasons she has indicated.

1. GARLING J: I agree with the orders proposed by Fullerton J and with her Honour's reasons.

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Decision last updated: 19 December 2014