R v Yeo - [2012] SASCFC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v YEO
[2012] SASCFC 60
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice David)
25 May 2012
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
The applicant applied for permission to appeal to the Court of Criminal Appeal against his sentence after a single Judge of the Supreme Court of South Australia refused permission to appeal – application and appeal heard concurrently in the event that permission to appeal was granted.
In November 2008, customs officials intercepted 80 kilograms of dimethylamphetamine concealed in a shipping container – police removed the substance from the container and replaced it with an inert substance – the container was then shipped to a place north of Adelaide and kept under surveillance – the applicant and co-offender were caught ‘red handed’ unpacking the substance – the applicant and a co-offender were both found guilty by a jury of attempting to possess a commercial quantity of a border controlled drug, contrary to s 11.1 and s 307.5 of the Criminal Code Act 1995 (Cth) – a District Court Judge sentenced the applicant to imprisonment for ten years, and fixed a non-parole period of six years six months.
The ground of appeal was that the sentence was manifestly excessive – the issues put into contention by the applicant to support the ground of appeal were: (1) whether the sentencing Judge erred in finding that the applicant’s role in the offence was more than that of a hired hand carrying out menial work; (2) whether the Judge erred in fact in relation to the benefit the applicant was to receive; and (3) whether the Judge erred in equating the applicant’s offending, for the purposes of sentencing, with that of his co offenders, who were sentenced by a different Judge – whether the Judge erred in the consideration of the principle of parity.
Held (Doyle CJ, Nyland and David JJ): (1) the evidence supported the Judge’s finding that the applicant’s role was significant; (2) the Judge made no error rejecting the applicant’s evidence and to find that his role was likely to result in a much greater benefit than he acknowledged; (3) it was open to the Judge to take the same starting point for the applicant and co-offenders – it was also open to the Judge to take the view that each offender had a substantial involvement in a major offence – it was not incumbent on the Judge to rank the culpability of the offenders.
Application for permission to appeal against sentence refused – the proposed grounds of appeal were not reasonably arguable.
Criminal Code 1995 (Cth) s 11.1; s 307.5, referred to.

R v YEO
[2012] SASCFC 60
Court of Criminal Appeal: Doyle CJ, Nyland and David JJ

DOYLE CJ: This is an application by Mr Yeo for permission to appeal against a sentence imposed by a District Court Judge. A single Judge of this Court refused permission to appeal. Mr Yeo now renews his application for permission. The application was heard on the basis that if the Court decides to grant permission to appeal, it will treat the hearing of the application for permission as the hearing of the appeal.
Mr Yeo and Mr Tong were both found guilty by a jury of attempting to possess a commercial quantity of a border controlled drug, contrary to s 11.1 and s 307.5 of the Criminal Code Act 1995 (Cth). The maximum punishment for this offence is life imprisonment or a fine of $825,000 or both.
The Judge sentenced Mr Yeo to imprisonment for 10 years, and fixed a non‑parole period of six years six months.
Mr Yeo complains that the sentence is excessive. In particular, he complains that the Judge erred in finding that his role in the offence was more than that of a hired hand carrying out menial work. He also submits that the Judge erred in equating his offending, for the purpose of sentencing, with that of Mr Tong and that of Mr Ho, who was sentenced by a different Judge. Mr Tong and Mr Ho were both involved in the same enterprise.
The offending
In November 2008 customs officers detected 80 kilograms of dimethylamphetamine concealed in a shipping container. This was a very substantial quantity of the drug. The Judge accepted evidence that it was worth between $3 million and $32 million, depending on how the drug was packaged and sold. The shipment was probably organised by Mr Xu and by Mr Nguyen, each of whom left Australia soon after the container arrived in Australia, and in that way avoided apprehension. Mr Yeo, Mr Ho and Mr Tong were involved in dealing with the container after it arrived in Australia.
Having found the illicit drug, police removed it from the shipping container and replaced it with an inert substance. The container was then shipped to a place north of Adelaide, and was kept under close surveillance.
Mr Yeo had travelled from Singapore to Sydney and then to Adelaide, arriving in Adelaide a day or two before the shipping container arrived in New South Wales. The evidence established that Mr Yeo was involved in the movement and unpacking of the shipping container, and that he was aware of the contents. As the Judge said, he was caught “red handed” unpacking the illicit drugs after the shipping container reached its destination north of Adelaide.
Both Mr Yeo and Mr Tong denied knowledge of the existence of the drugs, and denied committing any offence. After they were convicted, neither offered any expression of contrition nor any explanation of the true extent of his involvement and knowledge.
The Judge commented, and I agree (AB202):
… the case against each of you was very strong and it is absolutely clear that you both played significant roles in the attempted possession of these illegally imported drugs.
The Judge specifically rejected a submission by Mr Yeo that he came from Singapore to Adelaide just for the purpose of unpacking the boxes in the container, and that his role was “at a very low level”, and a lesser role than that of Mr Ho. The Judge outlined the involvement of Mr Yeo, and the circumstances to which she refers support her conclusion. The Judge accepted that Mr Yeo was not one of those who organised the shipment, but said that the evidence relating to Mr Yeo (AB202):
…leads to an overwhelming inference that you had far greater knowledge than you have disclosed and that your suggested role as simply a pair of hands to open the boxes is incredible.
The Judge also summarised Mr Tong’s involvement in the matter. He also was closely involved, and was involved in the unpacking of the contents of the container. In relation to him the Judge also made a finding that while he was not an organiser of the shipment, he played a significant role in the enterprise, and was acting as a kind of supervisor for Mr Nguyen.
The Judge made a specific finding that Mr Yeo and Mr Tong might not have known the exact weight of the drug involved, but that each of them knew he was involved in a “very substantial drug importation exercise”.
Mr Yeo told the Judge at trial that he expected to be paid Singapore $1,500 per week for two weeks’ work in Australia. In her reasons the Judge referred to this as a promise of payment of Singapore $1,500 per day. This error is of no significance. The Judge said that she was sceptical about his evidence as to the extent of the expected reward, and in the circumstances she was entitled to be sceptical. The Judge had no evidence about Mr Tong’s expectations of gain, but observed that there was:
… an overwhelming inference that you must have been involved in this large scale enterprise for a considerable financial reward.
The same comment must apply to Mr Yeo.
Mr Tong was sentenced to imprisonment for nine years six months. The Judge would have sentenced him to imprisonment for 10 years, but reduced that sentence slightly having regard to his personal circumstances. For Mr Tong the Judge fixed a non-parole of five years six months.
Mr Long Ho was dealt with by another Judge. He pleaded guilty to one count of aiding and abetting an attempt to possess a commercial quantity of an unlawfully imported border controlled drug. The maximum penalty for that offence was imprisonment for life or a fine of $825,000 or both. Because he pleaded guilty at an early stage, he was dealt with some 17 months before Mr Yeo and Mr Tong were sentenced.
The Judge said that Mr Ho was recruited by Mr Nguyen. He said that Mr Ho acted as Mr Nguyen’s “general assistant or adjutant”. The Judge summarised Mr Ho’s involvement and said it was:
… towards the lower end of the scale of seriousness, but it was still significant.
The Judge sentenced him on the basis that he expected to receive a financial reward. The Judge referred to the circumstance that shortly after he was arrested he began to cooperate with the police, and indicated very early that he would plead guilty. He had been cooperative throughout. The Judge said that he would have sentenced him to imprisonment for 10 years, but having regard to the early plea of guilty and the cooperation with the police, he fixed a sentence of imprisonment for five years. He fixed a non-parole period of three years.
The sentencing of Mr Yeo and Mr Tong
In relation to the sentencing of Mr Yeo and Mr Tong, the Judge said (AB204):
I have decided that, having regard to all of the circumstances of the offending and also having regard to your personal circumstances, there is, generally speaking, no basis for a significant departure from the sentence which would have been imposed by Judge Boylan but for the discounts. I observe that the sentence imposed on Long Ho, particularly that starting point, was, in all of the circumstances, in my view, very merciful. But, nonetheless, I should have regard to that sentence to ensure appropriate parity between like offenders. I take the view that, whilst the roles of each of the three of you varied and your personal circumstances also vary, which circumstance will lead to some difference in the sentence, particularly in respect of Mr Tong, it is appropriate that I approach the matter in a broadly similar fashion to the starting point of Judge Boylan.
Mr Yeo was 52 years of age. He was a native of Singapore. Material put before the Judge disclosed that he had a significant number of convictions in Singapore, between 1980 and 2007. They included offences of theft, unlawful possession of an offensive weapon, dealing with stolen property, promoting gaming and harassment on behalf of an unlicensed money lender. He had previously been imprisoned. The Judge referred to his background and upbringing. Mr Yeo had embarked on a second marriage in 2006. The Judge was told that his wife suffered from poor health, and that she had a young son. Mr Yeo expressed concern about the welfare of his wife and child. The Judge accepted that imprisonment in Australia would impose strains on Mr Yeo, because he was separated from his wife and child.
The Judge referred to the sentence imposed on Mr Ho. She acknowledged that there were differences between Mr Yeo and Mr Ho, in relation to aspects of their involvement in the offence and in relation to their personal circumstances. However, she considered that these matters balanced each other out, and that in the interests of parity she should impose a sentence of 10 years’ imprisonment, the sentence that would have been imposed on Mr Ho but for his plea of guilty and cooperation. The Judge fixed a non-parole period of six years six months.
Mr Tong was 38 years of age. He came to Australia from Vietnam at the age of 18 years. He had two children, one of whom suffered from autism. The Judge accepted that his imprisonment would cause hardship to his wife, and distress to his children. However, the Judge took the view that this could have no substantial effect on the sentence of imprisonment that she had to impose. In the end, the Judge imposed a sentence of nine years six months, and fixed a non-parole period of five years six months.
Consideration of appeal
I repeat, although it is hardly necessary to do so, that Mr Yeo was sentenced for a serious crime, and for an offence which was a very serious offence of its kind. As the Judge found, there being plenty of evidence to support the finding, Mr Yeo must have realised that he was dealing with a very large quantity of drugs, and with a quantity of drugs worth millions of dollars. The sentence that the Judge imposed had to be a heavy one. It had to reflect the substantial nature of the undertaking. General deterrence was important.
Mr Heffernan, counsel for Mr Yeo on appeal, submits that there was nothing done by Mr Yeo to support a conclusion that he was “anything more than imported cheap labour whose function was to assume the greatest risk for minimum financial return”. I do not accept that submission. It was open to the Judge to find that his role was more substantial than that, as she did. One might wonder why the organisers of the shipment would send someone from Singapore to Australia on the basis suggested by Mr Heffernan. In any event, the activities in which Mr Yeo engaged provided a basis for the finding that the Judge made.
Mr Heffernan also submitted that the Judge made a mistake as to the amount that Mr Yeo was to be paid, and that this led to her concluding erroneously that that his role was more than that of labourer. Again, I disagree. It was open to her Honour to reject Mr Yeo’s evidence about his expected reward, and to find as she did that his role was likely to result in a much greater benefit than he acknowledged.
Mr Heffernan also submits that Mr Yeo has a justifiable sense of grievance, bearing in mind the sentence imposed on Mr Tong in particular. He submits that the Judge should not have used the same starting point as that used by the Judge who sentenced Mr Ho. He also submits that Mr Yeo’s offending was less culpable than that of Mr Tong, that he should have received a lesser sentence than Mr Tong, and that there was nothing about the circumstances of Mr Tong to warrant the slight reduction in the head sentence imposed on him.
I disagree with each of these submissions. It was open to the Judge who sentenced Mr Yeo to take the same starting point for Mr Yeo and Mr Tong, as was taken by the Judge who sentenced Mr Ho. In doing so, the Judge adopted a starting point that she herself referred to as “very merciful”. I agree. Each of the offenders can regard himself as fortunate to have escaped with the sentence that he did. As to the question of parity, each of them was involved in a substantial way in a very serious offence. I do not accept the implicit submission that it was incumbent on the Judge who sentenced Mr Yeo and Mr Tong to rank each of them carefully in relation to the other, and in relation to Mr Ho. It was open to the Judge to take the view, as she did, that each of them had a substantial involvement in a very major offence, and that any differences in relation to their culpability were sufficiently minor to be passed by. I do not accept the notion that it was incumbent on the Judge to finely grade and rank the offending of each these three offenders. The Judge did not err in her approach to the sentencing of Mr Yeo and Mr Tong.
Mr Tong was probably fortunate to receive the slight reduction in the head sentence that he did, but it was open to the Judge to take the approach that she took, and it cannot be said that she erred in allowing a small reduction to Mr Tong, but not to Mr Yeo.
All in all, I find no indication of any error on the part of the Judge.
Conclusion
I would refuse permission to appeal. Because of the substantial nature of the sentences imposed I have dealt with the application in some more detail than would usually be done in relation to an application for permission to appeal. But having done that, I am satisfied that the proposed grounds of appeal are not reasonably arguable. Accordingly, it is appropriate to refuse permission to appeal. It goes without saying that if permission to appeal were to be granted, I would dismiss the appeal in any event.
For those reasons I would order that permission to appeal be refused.
NYLAND J: I agree that permission to appeal should be refused. I agree with the reasons of the Chief Justice.
DAVID J: I would refuse permission to appeal. I agree with the reasons of the Chief Justice.