R v Low and Low
[2002] VSCA 167
•23 October 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 12 of 2001
| THE QUEEN |
| v. |
| KAR LEONG LOW |
No. 13 of 2001
| THE QUEEN |
| v. |
| YONG LIANG LOW |
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JUDGES: | WINNEKE, P., CALLAWAY, J.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 October 2002 | |
DATE OF JUDGMENT: | 23 October 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 167 | |
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CRIMINAL LAW - Trafficking in heroin in a quantity not less than the commercial quantity - Possession for sale by two accused - Whether complicity directions necessary - Drugs, Poisons and Controlled Substances Act 1981 ss.5, 70(1), 73(2).
CRIMINAL LAW - Sentencing - Applicants found guilty after trial - Co-offender sentenced six months earlier after plea of guilty - Parity - Whether judge bound to make favourable finding regarding applicants' rehabilitation - Sentence of 16 years' imprisonment with non-parole period of 12½ years severe but not manifestly excessive - Sentencing Act 1991, s. 5(2)(f).
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant For the Applicant | Mr D. Grace, Q.C. Mr P.F. Tehan, Q.C. | Pryles & Defteros Pryles & Defteros |
WINNEKE, P.:
For the reasons given by Callaway, J.A., I agree that the application for leave to appeal against conviction by Yong Low should be dismissed. I also agree that the application for leave to appeal against sentence by each of the applicants should be dismissed.
CALLAWAY, J.A.:
After a trial occupying six days, the applicants, who are both aged 36, were found guilty in the County Court on one count of trafficking in heroin in a quantity not less than the commercial quantity prescribed by the Drugs, Poisons and Controlled Substances Act 1981. The applicant Yong Low had one previous conviction in Singapore, but it was of no relevance to sentencing. The applicant Kar Low had no previous convictions. The learned trial judge heard a plea for leniency on behalf of both applicants, who were represented by the same counsel. On 22nd January 2001 his Honour sentenced each of them to 16 years' imprisonment with a non-parole period of twelve-and-a-half years. A co-offender, Gim Lim, had pleaded guilty. On 14th July 2000 his Honour had sentenced Lim to 11 years' imprisonment with a non-parole period of eight-and-a-half years. In every case declarations were made regarding pre-sentence detention.
The applicant Yong Low seeks leave to appeal against both conviction and sentence. The applicant Kar Low had intended to follow the same course, but he has abandoned his application for leave to appeal against conviction and perseveres only with his application for leave to appeal against sentence. Before turning to the three applications, I shall say something briefly about the facts.
The applicants and Lim travelled independently from Singapore to Melbourne. Yong Low arrived on 26th March 1999. Lim, who flew via Malaysia, and Kar Low arrived on 14th and 21st April 1999. Kar Low and Lim completed immigration documents stating that they would be staying at the Batman's Hill Hotel. Yong Low told an interviewing customs officer that he would be staying at
the Centra Hotel. His luggage, consisting of a single small suitcase, was searched. The customs officer found $2,000, but no toiletries, camera, travel itinerary, hotel reservations or casual clothing. There was nevertheless evidence that each applicant did originally lodge as stated.
The day after Kar Low arrived in Melbourne four well-dressed Asian men in their 30s approached the front office manager of some serviced apartments in Darling Street, South Yarra. They booked an apartment for the week commencing the following Saturday, 24th April, and paid a deposit. On that Saturday they checked in and were given apartment 102. They paid a further $1,235 in cash. The room was registered in the names of Jack Tan and Ang Mo Kio. The housekeeper observed that in the period 24th to 28th April room 202 was occupied by three Asian men aged between 28 and 35. Shown photo boards, she positively identified Kar Low and Lim as two of the occupants. From 12 photographs of Asian men wearing glasses, she stated that the third occupant "looked familiar" to two photographs, one of which was a photograph of Yong Low.
On 27th April 1999 members of the National Crime Authority conducted surveillance on one Chi Khan Voong. At 6.30 p.m. he was observed leaving an address in Latrobe Street. Three minutes later he met Lim at a bus stop in Russell Street. Lim picked up a black plastic bag which Voong had placed between them, whereupon they split up and left on foot. Voong went to the Golden Nugget in Lonsdale Street, where he stayed 50 minutes before returning to the Latrobe Street address. Lim looked into the plastic bag, which he later put into his back-pack. At 6.52 p.m. he boarded a tram and at 7.13 p.m. he alighted outside the South Yarra railway station. There he used a public telephone and at 7.26 p.m. he entered the serviced apartments in Darling Street.
The next day NCA officers observed a second meeting between Lim and Voong. On that occasion Voong was accompanied by one Xuan Cuong Phung. At 10.30 a.m. Lim met Voong at the same Russell Street bus stop and they exchanged plastic bags. Lim took a white plastic bag which had red writing on it and Voong took a green and white plastic bag. It was the Crown case that, by that exchange, Voong handed money to Lim and Lim handed heroin to Voong. The meeting was video-taped and the recording tendered at the trial. Voong and Phung returned to the Latrobe Street address. Lim walked along Lonsdale Street, going first into a public telephone booth and then into a Russell Street video shop. At 10.54 a.m. Lim was standing on the south-west corner of Lonsdale and Russell Streets, when he waved to Yong Low. They met and then walked together, first to a Singapore Airlines office, then to some clothing stores and finally to a Morning Glory store at 12.16 p.m. There they purchased a metal stand before boarding a tram. They alighted near the South Yarra railway station and turned into Darling Street, where they were arrested. In subsequent interviews they said they knew nothing about heroin. Kar Low admitted he was staying in apartment 102. Yong Low claimed never to have been in Darling Street prior to his arrest.
Detective Senior Constable Randall gave evidence that he and other officers followed Lim and Yong Low into Darling Street before making the arrests. Lim was carrying a back-pack, inside which was a white coloured plastic bag with orange markings. A white box inside the bag contained $19,750 in cash. It was the Crown case that that was the money which Lim had received from Voong. There were also five video tapes and a mobile telephone in the back-pack. In addition, Lim was carrying a Morning Glory plastic bag which contained, among other items, five rolls of silver-coloured wrapping foil or wrapping paper. He had on his person a further $1,800 and 2,655 Singaporean dollars. Another witness gave evidence that a wallet seized from Yong Low was found to contain a substantial amount of Australian and Singaporean currency.
Shortly before 4 o'clock on that afternoon National Crime Authority investigators executed a search warrant at apartment 102. Upon entering the apartment they arrested Kar Low and seized a number of items, including two Singapore Airlines tickets in Kar Low's name. A safe located in the wardrobe of the bedroom of the apartment was opened. It contained five double blocks of heroin and 18 bundles of cash. The latter were counted and found to amount to $99,980. There was a Paklite carry-case on a shelf in the wardrobe above the safe. Inside were a birthday card and a red gift box, the latter containing a further 18 bundles of hundred dollar and fifty dollar notes wrapped in blue paper. That currency too was later counted and found to amount to $180,000. A wallet containing $5,000 was located in a wardrobe drawer, four rolls of cellotape in a chest of drawers and a wristwatch on the top shelf of the wardrobe. Kar Low identified the wallet as his. A search was also conducted of wheelie bins at the rear of the premises.
The next day police searched the premises at Latrobe Street and located various items, including a blue plastic bag containing six bundles of Australian notes in various denominations, which was found in the roof cavity; a second collection of cash, hidden in a mobile phone bag under the bed; a further bundle of cash notes in various denominations, found on a wardrobe shelf; five separate items consisting of white powder in multiple plastic bags; and various other items which it was admitted could be used in the preparation of heroin for sale.
Evidence was given by a fingerprint expert who examined the items taken from apartment 102. His results included the following:
·Yong Low's fingerprints were located on the mirror door of the bedroom wardrobe which contained the safe, a Smith's chips packet, a sesame seed oil bottle, wrapping paper from the Morning Glory bag and silver wrapping paper from the wheelie bin.
·Kar Low's fingerprints were found on the safe, a shiraz bottle, pieces of adhesive tape wrapped around the currency found in the safe, the birthday card, a piece of blue wrapping foil and the sesame seed oil bottle.
·Lim's fingerprints were identified on the mirror door of the bedroom wardrobe, the outside of the safe, the refrigerator door in the kitchen, an empty video antenna box and a Jack Daniels bottle.
In total ten blocks of compressed white powder were seized from the Darling Street premises. The powder in each block was analysed and found to contain heroin in a purity ranging between 71.8% and 76.7%. Packages of white powder were also taken from the Latrobe Street address. There were 23 items in all from that source, the largest of which was a plastic wrapped block packaged and marked the same way as those from Darling Street and having the same dimensions. The powder in the various samples was analysed and found to contain heroin in a purity ranging between 71.3% and 77.1%. A total of 3,533.4 grams of white powder was found at Darling Street and 780.2 grams at Latrobe Street. Representative samples from each location were analysed. They were found to be virtually identical and to have come from the same batch of heroin. It was agreed that one kilogram of heroin of approximately 70% purity would have a street value of about $1m.
As we shall see, the Crown case as ultimately opened to the jury was that the applicants trafficked in the heroin found at Darling Street. The total weight of white powder, being 3,533.4 grams, corresponded with 2,633.7 grams of pure heroin. The commercial quantity prescribed by the Drugs, Poisons and Controlled Substances Act is 250 grams of pure heroin or any amount where there is a mixture of heroin and another substance together weighing not less than 500 grams.[1]
Yong Low's application for leave to appeal against conviction
[1]See para. (c) of the definition of "commercial quantity" in s.70(1).
Three grounds of appeal were substituted for the original grounds by order of the Registrar made on 16th September 2002, but ground 2 was abandoned and ground 3, that the conviction was unsafe and unsatisfactory, was argued only as an incident of ground 1. Ground 1 reads:
"1.The learned trial judge erred in failing to give the jury any direction in relation to complicity and thereby failed to [relate][2] such directions to the evidence in the trial."
[2]The ground as typed reads "make".
In her opening to the jury the Crown prosecutor said:
"The Crown alleges that on or about 28 April 1999 the two accused together with a third man named Gim Siang Lim, were jointly involved in the trafficking of a very large amount of heroin. It is alleged that the three men had a large supply of heroin in a serviced apartment where they were all staying. They had this heroin in their possession for the agreed purpose of selling it. It is also alleged that on the morning of 28 April 1999 Lim met with two men in Russell Street in a bus stop and actually sold to them a quantity of heroin which he had earlier taken from that serviced apartment where the three men were staying. He did this, that is Lim, sold this heroin to the two men pursuant to the agreement that he had with these two accused men, Yong Low and Kar Low."
I have emphasized the words on which Mr Tehan particularly relied.
There followed a discussion between counsel and the judge, which led to his Honour ruling that the Crown would have to elect between putting its case in terms of possession and relying on the actual sale by Lim to Voong. The prosecutor elected to rely on possession and re-opened her case to the jury, saying:
"As a result of some discussions in your absence which don't really need to concern you as to what they were, but the Crown will now only be relying on the possession of the 3.5 kilograms of heroin in Darling Street for the purpose of sale as constituting the trafficking, so the Crown is relying upon the possession for the purpose of sale of the 3.5 kilograms of heroin in Darling Street. The earlier sale, that is the sale in the morning of 28 April by Lim to Phung and Voong, simply forms part of the evidence upon which the Crown says you can rely in order to be satisfied beyond reasonable doubt that the accused had the Darling Street heroin in their possession for the purpose of sale."
That negated the references to an agreement to sell in the initial opening. The Crown case was now solely one of possession for sale, the actual sale by Lim being no more than evidence confirming the prima facie position established by s.73(2) of the Drugs, Poisons and Controlled Substances Act.[3]
[3]Section 73(2) provides:
"(2)Where a person has in his possession, without being authorized by or licensed under this Act or the regulations to do so, a drug of dependence in a quantity that is not less than the traffickable quantity applicable to that drug of dependence, the possession of that drug of dependence in that quantity is prima facie evidence of trafficking by that person in that drug of dependence." Section 70(1) defines "traffick" to include "have in possession for sale".
It was nevertheless submitted that the judge should have given the following directions to the jury:
"1.The Crown case here is one of joint enterprise. That is, that the accused and Lim agreed to traffic in heroin and that they did so by possessing heroin for sale. In proof of this contention the Crown rely inter alia upon the sale of heroin by Lim to Voong and Phung on 28/4 and the presence of Lim near such sale. It is for the Crown to establish beyond reasonable doubt:
- the joint criminal enterprise; and
- the participation of each of the accused in it.
2.A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement to commit a crime. In this case the Crown contend that you can conclude from all the evidence that the accused together with Lim reached such an agreement, and that the sale of heroin on 28 April was in pursuance of such agreement. Thus, the understanding or arrangement need not be express and it may be inferred from all the circumstances.
3.A person participates in a joint criminal enterprise either by committing the agreed crime itself or by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. However, mere physical presence of a person at the scene of a crime is not sufficient to make that person guilty of a crime. The Crown must show that by the presence of the person, that person encouraged another to commit the crime charged. In the context of this case if you found that Mr Yong Low was present at the apartment when the heroin was there and that he was present when the sale took place on 28 April those facts alone would not be sufficient to found guilt. You would have to be further satisfied that his presence in these circumstances was pursuant to an agreement between himself, Lim and Kar Low to traffic in heroin which is the primary way in which the Crown puts its case. Alternatively, if you were not satisfied of such agreement, you might still find him guilty but only if you were satisfied that by his presence Mr Low was intentionally encouraging the others to commit the crime or intentionally conveying to them that he was assenting to its commission. However, if he simply does not prevent the crime or apprehend the others and he is not acting in concert with them, then he is not guilty." (Counsel's emphasis.)
Reference was made to four well-known cases, R. v. Coney[4], R. v. Russell[5], R. v. Lowery and King (No. 2)[6] and R. v. Tangye[7].
[4](1882) 8 Q.B.D. 534.
[5][1933] V.L.R. 59.
[6][1972] V.R. 560.
[7](1997) 92 A.Crim.R. 545.
Counsel conceded that no such directions were asked for at the trial but pointed out that a discharge of the jury had been sought after the prosecutor, in her closing address, had referred to the sale by Lim to Voong as "a sale of drugs in which the accused, each of the accused, was involved with Lim and others in the agreement to supply drugs". The quotation comes from defence counsel's note. We do not have a transcript of the prosecutor's address. The judge did not accept that the address transgressed his ruling at the outset of the trial and refused to discharge the jury.[8] It is unfortunate if the prosecutor did muddy the waters in the manner described but, if she did, the problem was remedied by the form of the charge.
[8]It was apparently common ground that the test was a "high degree of necessity". The preferable and more accurate expression is a "high degree of need". In R. v. Boland [1974] V.R. 849 at 866-867 the Full Court explained that the test was not one of necessity but only of necessity in the sense of a high degree of need. See R. v. Eastwood (1998) 114 A.Crim.R. 448 at [14] per Phillips, C.J. and R. v. Brown [2000] VSCA 102 at fn. 15.
When he described the element of trafficking to the jury, his Honour explained that the definition of "traffick" in the Drugs, Poisons and Controlled Substances Act included "have in possession for sale". The Crown, he continued, contended that each of the applicants had the heroin at Darling Street in his possession for sale. The terms of s.5 of the Act[9] were read twice and their effect explained. The Crown relied on that section, his Honour said, but contended in the alternative that the jury should be satisfied on the evidence that each of the accused was in possession according to the ordinary principles of the common law. A direction was given regarding those principles and the effect of s.73(2). In other words, the Crown case was put exclusively in terms of possession for sale by each of the accused, not possession by one in which the other was complicit or a sale by Lim that Yong Low aided and abetted.
[9]Section 5 provides:
"Without restricting the meaning of the word 'possession', any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary."
After explaining the meaning of "commercial quantity" and the procedure that would be followed when the verdicts were taken, his Honour concluded this part of the charge as follows:
"The Crown also relies upon the evidence of what it contends was the sale of heroin, taken from the stock at Darling Street, by Lim to Voong in Russell Street on the morning of 28 April, and the Crown of course relies upon the finding of heroin at La Trobe Street which was identical, so it says, in many respects, to the heroin found in Darling Street. The Crown contends to you that each of the accused men was involved with Lim in that sale to Voong. The Crown says, therefore, to you that that evidence supports its submission to you that each of the accused men was in possession for sale of that heroin found in Darling Street."
Again it will be seen that, notwithstanding the second last sentence, the Crown case was ultimately put as one of possession for sale of the heroin found at Darling Street.
For these reasons I would not uphold Mr Tehan's principal submission under this ground. In his written outline he also said that some evidence in the trial, such as the meeting between Lim and Phung and Voong on 28th April[10], the finding of similar heroin at the Darling Street and Latrobe Street premises and the finding of items in Lim's bag, could only have been used by the jury if there had been reasonable evidence of pre-concert. Reference was made to Tripodi v. R.[11] That point does not have to be decided. It is too late, in the circumstances I have described, for it to be contended for the first time on appeal that the judge should have directed the jury that such evidence was inadmissible on that basis against Yong Low.[12] The application for leave to appeal against conviction should be dismissed.
The applications for leave to appeal against sentence
[10]The outline says "27th April" but, as it refers to the meeting when Phung was present, I have taken it to be a reference to the meeting described at [7] above.
[11](1961) 104 C.L.R. 1 at 6-7.
[12]Accordingly I do no more than refer to R. v. Lao [2002] VSCA 157 at [108], especially the text accompanying fn. 89.
Each applicant relies on the same amended grounds, namely:
"1. The learned sentencing judge failed to
(a)make any finding as to rehabilitation prospects of the applicant;
(b)take rehabilitation into account in sentencing the applicant.
2.The learned sentencing judge failed to place any weight upon the principle of parity in sentencing.
3.The sentence imposed was manifestly excessive."
Ground 1 has its genesis in the following paragraph in his Honour's sentencing remarks:
"Your counsel did not, as I understand him, make any express submission as to rehabilitation or any prospect thereof. I should say that I am unable to arrive at any view whether you are likely or not likely to rehabilitate. As when sentencing Lim, I do not have sufficient or adequate material before me on which I am able to form a view or seek to arrive at a conclusion on that matter one way or the other."
It was suggested that those remarks may have been addressed only to Yong Low, but I am satisfied that they were addressed to both applicants. In the immediately preceding sentence the judge had referred to a factor that he would bear in mind in sentencing each applicant and, as I have said, they were represented by the same counsel.
The natural reading of the passage is that his Honour was not prepared to make either a favourable finding about rehabilitation, of which he would have had to be satisfied on the balance of probabilities,[13] or an adverse finding, of which, it seems, he would have had to be satisfied beyond reasonable doubt.[14]
[13]Compare R. v. Arts and Briggs [1997] 2 V.R. 261.
[14]Compare R. v. Pickard [1998] VSCA 50 and R. v. Natoli [2001] VSCA 243 at fn 7.
Mr Tehan for Yong Low and Mr Grace for Kar Low contended that his Honour should have made a favourable finding in respect of each of their clients: each applicant was relatively young, it was said, and had no relevant prior convictions; they had families to whom to return upon their release and there was reason to think they would find employment; and each of them had undergone educational courses whilst in custody. Progress reports from Kangan Batman TAFE were tendered below in relation to each applicant but cannot be located. We were provided with copies of those tendered on behalf of Kar Low and I assume, as we were invited to do, that Yong Low's reports were similar.
When Lim appealed against the sentence imposed on him[15], Buchanan, J.A., with whom Winneke, P. and Tadgell, J.A. agreed, expressed the opinion that the judge correctly refrained from drawing any conclusion as to Lim's prospects of successful rehabilitation, because there was insufficient evidence upon which to base a conclusion.[16] Counsel pointed out that in Lim's case there had been no evidence that he had taken advantage of educational opportunities and there was the rejection, or at least non-acceptance, by his Honour of what the prisoner had told the psychiatrist whose report was tendered. So much may be accepted and, of course, what Buchanan J.A. said was said with reference to the facts of R. v. Lim and is not binding on these applicants.
[15]R. v. Lim [2001] VSCA 60.
[16]At [12].
It by no means follows, however, that the judge was bound to make a favourable finding concerning their prospects of rehabilitation.[17] Both of the applicants have until very recently maintained their innocence, notwithstanding the seriousness of these offences. Neither of them gave evidence on the plea and no character evidence was called on their behalf. In truth we know very little about them except the basic personal details that counsel elicited for the purpose of the plea. I would not uphold ground 1.
[17]I understood ground 1(b) to be dependent on ground 1(a). There is no reason to think that his Honour totally ignored rehabilitation as one of the sentencing objectives to be achieved.
Ground 2 also finds its genesis, in part, in the sentencing remarks. His Honour said:
"Neither of you gave evidence at your trial and neither of you gave evidence on your plea. Your counsel has said that each of you continue to maintain your innocence. I am unable in all the circumstances, therefore, to arrive at any concluded view as to the role played by each of you in the commission of this crime or to seek to distinguish between the part taken by each of you or the extent of your involvement. I am of the view, therefore, it being unknown as to how you came to be involved in this crime or the precise part played by each of you, that you should, so far as that aspect is concerned, be treated as equally culpable. I also see no reason for taking any view that the culpability of either of you is greater or lesser than that of Lim in respect of the trafficking, the possession for sale, of that heroin found in the safe. In other and simpler words, the criminal culpability of each of the three of you should be viewed as equal. Indeed, so far as sentencing is concerned and save for personal details, the only distinction, or differing feature, which may properly be made, or which exists, is that your co-offender Lim pleaded guilty to this offence."
The "personal details" to which the judge referred in the last sentence of that passage do not explain the difference between the sentences of 16 years' imprisonment with a non-parole period of twelve-and-half years imposed on the applicants and the sentence of 11 years' imprisonment with a non-parole period of eight-and-a-half years imposed on Lim. The difference is to be explained either by reference to Lim's plea of guilty, and that alone, or by reference to that plea together with the fact that his Honour may have had a better appreciation of the case following the trial. I prefer the latter view, which is another way of saying that the material on which the applicants were sentenced was different from the material on which Lim was sentenced.
Discounts for a plea of guilty of the order of 25% or even more are not uncommon in some other jurisdictions.[18] Victorian courts have been reluctant to specify the discount in percentage terms, on the footing that the facts of cases are infinitely various and that to do so might unduly circumscribe the discretion of sentencing judges. The breadth of that discretion has been emphasized on countless occasions, by this Court, by its predecessor and recently by seven judges of the High Court in a unanimous judgment.[19] The breadth of the discretion relates to a variety of topics, including in most cases the kind of sentence to be imposed; in the case of a custodial sentence, its length, questions of suspension and eligibility for parole; and the weight to be given to circumstances of aggravation and mitigation, including the discount to be given for a plea of guilty. An appellate court has no jurisdiction to interfere simply because it considers that a discount is generous. In the absence of specific error, it must be outside the range of a permissible discretionary judgment.
[18]See, for example, Thomas, Current Sentencing Practice §A8-2C; R. v. Thomson (2000) 49 N.S.W.L.R. 383 at [141]-[159]; R. v. Radebe (2001) 122 A.Crim.R 559 at [13]-[28] and Cameron v. R. (2002) 76 A.L.J.R. 382.
[19]Lowndes v. R. (1998) 195 C.L.R. 665 especially but not only at [15].
That consideration alone should cause us to hesitate before we hold that a five year difference warrants appellate intervention, but it does not stand alone. Ground 2 does not direct attention to the question whether a notional discount was within the range but to the question whether the applicants are justifiably aggrieved by the difference between the sentences (including the non-parole period) imposed on them and the sentence imposed on Lim. That is why I pointed out that the sentencing dispositions may be explained not simply by the discount but also by the judge's better appreciation of the facts following the trial. The finding of equal culpability in the passage set out in [28] is consistent with a desire to impose just punishment on the applicants to the maximum degree permitted by the previous sentence.
The mere fact that the difference between their sentences and Lim's may make the applicants wish that they too had facilitated the course of justice by entering pleas of guilty at an early stage does not mean that there is appellable disparity.[20] The difference must be manifestly excessive and such as to engender a justifiable sense of grievance. A sense of grievance is not justifiable unless it would be shared by an objective observer.[21] In my opinion, it would not be in this case. An objective observer would appreciate the importance of an adequate discount being given to Lim, the breadth of the discretion reposed in the judge in deciding on that discount, the advantage his Honour enjoyed not only as the trial judge but in sentencing all three offenders and the interest that the community has in seeing that trafficking on this scale does not escape just punishment.
[20]The applicants did shorten the trial by a statement of certain agreed facts.
[21]See R. v. Taudevin [1996] 2 V.R. 402 at 404, a passage which has often been applied and was expressly approved by Gummow, J. in Postiglione v. R. (1997) 189 C.L.R. 295 at 323.
Ground 3 raises a question of impression, but it is necessary to refer to the arguments advanced by counsel as to why the sentences imposed on their respective clients were outside the range. Particular emphasis was placed on the applicants' age and previous good character[22] and the fact that they will be separated from their families in Singapore and have no friends in Australia. We were reminded that it is possible to conceive of even larger quantities of heroin the subject of commercial trafficking.[23] No positive finding was made, or could be made, about the precise roles played by the applicants. I accept that they were not to be sentenced as ultimate suppliers.
[22]See Ryan v. R. (2001) 206 C.L.R. 267 and Sentencing Act 1991, s.5(2)(f).
[23]Mr Grace referred to the typical sentences for couriers and persons low in the hierarchy of an importing organization set out by Spigelman, C.J. in R. v. Wong (1999) 48 N.S.W.L.R. 340 at [142] in the course of promulgating the guideline that was subsequently disapproved by the High Court in Wong v. R. (2001) 76 A.L.J.R. 79.
That is not to say that nothing may be gauged, to the appropriate standard, from the facts that are known and the jury verdicts. The quantity of pure heroin, which they were found to possess for sale, was more than ten times the commercial quantity. Its potential for inflicting misery on end users and encouraging crime can hardly be overstated. The applicants came to this country to facilitate, or participate in, its distribution for profit. They were more than just couriers. For reasons similar to those that apply to the offence of importing a narcotic drug, their previous good character is of limited weight and it does not pluck at the heartstrings very much that they will have to serve their sentences in an Australian prison.[24] His Honour took separation from family and friends into account, as he had done when sentencing Lim. That factor may be entitled to more weight when a person pleads guilty, especially if the plea evidences remorse. There was no remorse here, nor were there any other significant mitigating factors. The sentences were severe, but
the maximum custodial penalty at the time was 25 years' imprisonment.[25]
[24]See R. v. Thomas [1999] VSCA 204 at [16]. The topic of youth is also mentioned in that paragraph. Persons in their 30s are not youthful offenders in the ordinary acceptation of that term.
[25]It is now life imprisonment for this quantity of heroin: see s.71 of the Drugs, Poisons and Controlled Substances Act 1981 as amended by Act No. 61 of 2001, s.5.
For these reasons, in addition to dismissing Yong Low's application for leave to appeal against conviction, I would dismiss each application for leave to appeal against sentence.
O'BRYAN, A.J.A.:
I have read in draft form the judgment of Callaway, J.A. and I agree in his conclusions and for his reasons that each application should be dismissed.
Yong Low
I only wish to add that, in my opinion, the trial judge acted correctly in not giving the jury any direction in relation to concert or joint enterprise. The prosecution alleged that Low had in his possession for sale in the Darling Street room not less than three grams of heroin. In a record of interview, Low denied ever staying in the room in Darling Street or being in Darling Street, and he did not give evidence. Low left unexplained the presence of the heroin found in the room. The room was central to proof of the trafficking. The jury was correctly directed to consider the case against Low separately from the case against Kar Low. A question for the jury was whether Low was an occupier of the room where the heroin was found by the police. If he was found to be an occupier, the law deemed him to be in possession of the heroin unless he satisfied the court to the contrary. The issue of possession by occupation of the room was not based upon concert or joint enterprise with Kar Low. The case against Low might have been put that way by the prosecution, but it was not. Consequently, were the judge to direct the jury that they could consider the doctrine of concert or joint enterprise, the scope of the case against both Low and Kar Low would have been extended to their disadvantage.
It was a rather bold submission that the judge should have raised concert or joint enterprise for the point was not raised by experienced counsel at the trial after the charge and was not joined in by Low's co-applicant, Kar Low, on appeal.
A further question for the jury was whether he had in his possession for sale not less than three grams of heroin. If he did, then his possession of that quantity of heroin was prima facie evidence that he trafficked in it. The further question for the jury did not involve concert or joint enterprise. The jury was concerned only with the legal consequences if they found Low was in possession in the room of not less than three grams of heroin.
The critical issue in the trial was possession for sale by Low through occupation of a room in which heroin was found.
I too would dismiss the application for leave to appeal the conviction.
Yong Low and Kar Low
I agree with Callaway, J.A. that the applications for leave to appeal the sentence should be dismissed. The magnitude of the quantity of heroin called for condign punishment. The applicants came into Australia from overseas to traffick a very considerable quantity of heroin. They played for high stakes and lost. Tadgell, J.A. observed in R. v. Berisha[26]
"An inflation in the extent of custodial sentences for offences of the kind now in question [trafficking 860 grams of heroin] must be recognised."
[26]R. v. Berisha & Ors [1999] VSCA 112.
In my opinion the sentences, although severe, were within range and the applications for leave to appeal the sentences should fail.
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