R v Zeng

[2008] NSWCCA 183

New South Wales
Court of Criminal Appeal

CITATION:	REGINA v ZENG [2008] NSWCCA 183
HEARING DATE(S):	Wednesday 28 May 2008
JUDGMENT DATE:	6 August 2008
JUDGMENT OF:	Giles JA at 1; Barr J at 2; Hall J at 3
DECISION:	Leave to appeal be granted. That the appeal be allowed, in part. The respondent be re-sentenced to a term of imprisonment of 10 years with a non-parole period of six years commencing on 27 July 2006 and expiring on 26 July 2012, and with the balance of the term ending on 26 July 2016. Accordingly, the first date upon which the respondent will be eligible for release on parole will be 26 July 2012. The appeal is otherwise dismissed.
CATCHWORDS:	CRIMINAL LAW – SENTENCING – Crown appeal against sentence – whether sentence is manifestly excessive – conviction for attempted possession of commercial quantity of unlawfully imported drugs – over seventy four kilograms of ecstasy involved – storage of ecstasy at respondent’s residence - participation in enterprise over a short duration of less than one day - PRACTICE AND PROCEDURE – correction of technical error regarding pre-sentence custody
LEGISLATION CITED:	Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Assafiri v Regina [2007] NSWCCA 159 Dinsdale v The Queen (2000) 202 CLR 321 Everett v The Queen (1994) 181 CLR 295 Regina v Kevenaar (2004) 148 A Crim R 155, [2004] NSWCCA 210 Regina v Moore [2005] NSWCCA 212 Regina v Newman (2004) 145 A Crim R 361, [2004] NSWCCA 102 Regina v Nguyen, Pham, Vu & To (2005) 157 A Crim R 80, [2005] NSWCCA 362 Regina v Schofield (2003) 138 A Crim R 119, [2003] NSWCCA3 Regina v Sukkar [2005] NSWCCA 54 Regina v To (2007) 172 A Crim R 121, [2007] NSWCCA 200 Wong v The Queen (2001) 207 CLR 584
PARTIES:	REGINA v Xiao Yuan ZENG
FILE NUMBER(S):	CCA 2007/4972
COUNSEL:	Crown: K Chapple SC Resp: A Radojev
SOLICITORS:	Crown: Commonwealth Director of Public Prosecutions Resp: Jack Rigg
LOWER COURT JURISDICTION:
LOWER COURT FILE NUMBER(S):	07/11/0016
LOWER COURT JUDICIAL OFFICER:	Hulme DCJ
LOWER COURT DATE OF DECISION:	5 October 2007

No 2007/4971

GILES JA
BARR J
HALL J

WEDNESDAY 6 AUGUST 2008

REGINA v Xiao Yuan ZENG

Judgment

1 GILES JA: I agree with Hall J.

2 BARR J: I agree with Hall J.

3 HALL J: By notice dated 2 November 2007, the Director of Public Prosecutions for the Commonwealth of Australia gave notice of his desire to appeal the sentence pronounced in the District Court on 5 October 2007 when the respondent appeared for sentence on one charge of attempting to possess a substance, the substance having been unlawfully imported, being a border controlled drug within the meaning of the Criminal Code Act 1995 (Cth), namely, 3, 4–methylenedioxymethamphetamine, in a quantity attempted to be possessed being a commercial quantity contrary to s.11.1(1) and s.307.5(1) of the Code.

4 On 20 June 2007, the respondent stood trial before a jury charged with the above offence, that between 27 June 2006 and about 30 June 2006 he did attempt to possess a commercial quantity of an unlawfully imported substance, namely, the abovementioned drug.

5 On 6 July 2007, the jury returned a verdict of guilty.

6 On 5 October 2007, the respondent was sentenced to imprisonment for 10 years with a non-parole period of six years.

7 Two co-accused, Johnson Au and Minh Cheun, had earlier pleaded guilty to the same offence.

The co-offenders’ sentences

8 On 7 March 2008, the respondent’s co-offenders, Minh Cheun and Johnson Au, were sentenced as follows:-

(1) Johnson Au

9 Sentenced to a term of imprisonment for 14 years and six months with a non-parole period of nine years following a plea of guilty. An allowance of 15% was made for the plea of guilty and 20% discount was allowed for assistance. But for the plea and the assistance, the total sentence would have been 21 years.

(2) Minh Cheun

10 Sentenced to a term of imprisonment of 17 years and six months with a non-parole period of 11 years. A discount of 10% was allowed for the guilty plea (entered on the day the trial was listed for hearing) and a discount of 20% was allowed for assistance. But for the plea of guilty and past and future assistance, the total sentence would have been 25 years.

The co-offender, Johnson Au

11 In the course of sentencing Au, the sentencing judge, who also sentenced the respondent, observed that, in relation to an enterprise involving the importation of illicit drugs into Australia, this case was in the worst category in terms of the volume of the drugs involved, their potential value to the importers and distributors and the potential harm that could have been done to consumers of the drugs within the Australian community.

12 The sentencing judge found in relation to Au that his role was inferior to that of Cheun in terms of the length of involvement in the enterprise and the particular tasks he was required to perform in relation to Cheun. From the time of his involvement with the contact person referred to as “David”, he knew from that early stage that he was being asked to involve himself in serious criminality in relation to drugs. The sentencing judge further observed in relation to Au, that a significant matter in relation to his role was that it was he who recruited the respondent into the enterprise in order to permit the important step of transporting the drugs away from the person Huang’s place and temporarily warehousing them in the respondent’s garage. Au was also found to be responsible for the purchase of some equipment and then willingly returning to the respondent’s home with the intention of assisting in the recovery and then proposed delivery of the drugs. The sentencing judge observed that Au was an active participant in the ill-fated recovery process. Au also acted as driver for Cheun, the man who he understood was the person actively and locally responsible for that aspect of the enterprise. He admitted that $20,000 to $30,000 had been mentioned by “David” to be the split between himself and the respondent. Au’s knowledge and participation in the enterprise was over a relatively short period but, as the sentencing judge observed, that was not determinative of the gravity of the offence.

The co-offender, Minh Cheun

13 In the course of his remarks on sentence (p.18), the sentencing judge accepted the general statement of Cheun’s role as recorded in the Crown’s written submissions as follows:-

“This was a well planned importation with the MDMA expertly concealed in containers of ink. The offender was recruited to travel to Australia for the sole purpose of overseeing the retrieval of the drugs from their concealment once the shipment of ink had been sent to Sydney and the drugs initial distribution. The offender was furnished with a list of the box numbers which contained the drugs and utilised the services of an innocent courier to assist him in taking the relevant boxes to a place of safety from where the drugs could then be accessed. The offender also actively assisted in the unpacking of the drugs and from the intercepted phone calls was to have also divided the various types of pills of on distribution.”

14 The sentencing judge observed that Cheun’s role (remarks on sentence, p.18):-

“… was pivotal to the success of the enterprise after the drugs had arrived in Australia. I accept that he was not a principal. He was following instructions. The intercepted telephone conversations generally make that clear enough. However, he was involving in making decisions akin to that of a middle manager, such as the recruitment of Mr Huang and other tasks necessary for the implementation of the instructions that he was given by telephone from abroad. In short, while he was an employee of the principal, he played an significant and crucial role. He did not become involved in the enterprise at short notice as were the offenders Au and Zeng, but he came to Australia specifically to carry out the tasks designated to him.”

15 In sentencing Cheun, the sentencing judge observed under the heading “parity” (remarks on sentence, p.18):-

“I sentenced Zeng to imprisonment for 10 years with a non-parole period of six years. I found that his role was subservient and relatively short-lived compared to all other known and unknown offenders. He was conscripted to the enterprise somewhat unwittingly but then went on to provide assistance in a very short time frame. His sentence was not reduced for a plea of guilty or for assistance to authorities.
In comparing the roles played by the present offender, Au and Zeng, it is clear that Zeng’s was significantly less than the other two and that Au’s was somewhat less than the role of the present offender. Their respective subjective features are different and pull in different directions in determining the appropriate sentence to be imposed. For example, Zeng did not plead guilty but he had a more favourable subjective case.
For these reasons, no question of direct parity arises but it is important that sentences be imposed that bear an appropriate proportion to the sentences imposed upon the others.”

The Criminal Code

16 Section 11.1 in Part 2.4 – Extensions of criminal responsibility – provides:-

“11.1 Attempt
(1) involves a person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
…”

17 Section 307.5 is contained within Division 307 – Import – export offences. It falls within subdivision (B) of that Part – Possessing unlawfully imported border controlled drugs or border controlled plants. Section 307.5 is in the following terms:-

“307.5 Possessing commercial quantities of unlawfully imported border control drugs or border control drugs
(1) A person commits an offence if:-
(a) the person possesses a substance; and
(b) the substance was unlawfully imported; and
(c) the substance is a border controlled drug or border controlled plant; and
(d) the quantity possessed is a commercial quantity.
Penalty: Imprisonment for life, or 7,500 penalty points, or both.
(2) Absolute liability applies to paragraphs (1)(b) and (d).
(3) The fault element for paragraph (1)(c) is recklessness.
(4) Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported.”

18 The maximum penalty prescribed for the offence under s.307.5(1) of the Criminal Code is life imprisonment or a fine of $825,000 or both.

The facts

19 On 5 June 2006, a container arrived on a ship in Melbourne, having been sent from Canada. Customs officers in Melbourne detected over 1.29 million MDMA or ecstasy tablets concealed in the consignment of ink containers. Analysis revealed that the tablets comprised over 371 kilograms of MDMA. The pure MDMA was over 74 kilograms with an estimated street value between $38 million to $77 million.

20 The consignment was made of 180 cardboard boxes, each containing 20 litre plastic bottles of ink. A total of 67 of 180 ink containers had plastic bags of ecstasy within them. The Australian Federal Police Forensic Section substituted harmless tablets for the ecstasy and the consignment was then returned to the Melbourne docks.

21 On 8 June 2006, the shipping container was collected by an innocent agent and taken to a storage unit in Melbourne. The same agent received instructions whereby he unloaded the 180 boxes from the shipping container at the Melbourne storage unit and arranged for their transportation to a storage facility in Blacktown, Sydney.

22 On 28 June 2006, Cheun engaged the services of a courier driver, Huang, to collect the consignment from the Storage King facility at Blacktown.

23 The courier driver, Huang (who had no knowledge of the drugs), picked Cheun up outside a warehouse in Campsie and travelled to the Storage King at Blacktown. They there loaded Huang’s van with the specific number of boxes containing the tablets.

24 Huang was instructed initially by Cheun to return to the Campsie address to off-load the boxes. Cheun, however, changed his delivery instructions to Huang and eventually persuaded him to temporarily store the 65 boxes in Huang’s garage.

25 Events of 28 June 2006 were subject to police monitoring and surveillance. On 28 June 2006, Cheun telephoned Huang and advised him that other men were on their way to collect the boxes from his garage.

26 Police observed the respondent and Cheun arrive at Huang’s premises in the respondent’s truck. The boxes were removed from the garage and loaded onto the truck. Au travelled in his own car just ahead of the respondent’s truck.

27 After loading the boxes, police then followed the truck and Au’s vehicle to the respondent’s home in Yagoona where the boxes were unloaded into the respondent’s garage. Au and Cheun left in the early hours of 29 June 2006. The respondent remained at the house with the boxes.

28 The respondent left the house at about 6.00 am to go to work and returned at 1.00 pm. Au and Cheun then returned and the three men commenced to remove what they thought were ecstasy packages from the ink bottles.

29 A listening device was in place and recorded conversations in the garage between the three men during the process of removing the ecstasy packages.

30 It was the respondent who suggested that the men use post-it notes to keep a record of the number of tablets extracted from each bottle. He then left the premises to purchase some additional items needed to complete the extraction process. He was then arrested.

31 Inside the house and garage, police located 65 of the boxes from the original consignment. A total of five of the boxes had been opened.

32 The respondent participated in an interview with the Australian Federal Police.

33 The sentencing judge observed that it was apparent from the conversation in the garage that the respondent was a knowing participant in the enterprise and that he only intended to depart the premises temporarily in order to purchase some additional items that would assist with the unpacking and sorting of the tablets.

34 The Crown case, as the sentencing judge observed, was that the respondent was a knowing participant in what was anticipated to be the successful conclusion of a large drug importation.

35 The importation and concealment, the sentencing judge further observed, was “… sophisticated and executed with a great deal of patience and a large number of participants. The object of the enterprise was to have available in Australia an enormous number of ecstasy tablets worth a great deal of money …”.

36 The remarks on sentence record that, although the respondent was only involved for a short time before the police revealed their knowledge of the scheme, “… his role was integral and, but for the intervention of the authorities, would have resulted in the ecstasy being distributed …”.

The Crown’s submissions

37 The Crown contended that the sentence imposed, a term of imprisonment of 10 years with a non-parole period of six years, was manifestly inadequate. Reliance was placed on the fact that the enterprise was a well-planned importation with the MDMA or ecstasy expertly concealed in containers of ink. This, it was said, involved a large investment of time and money and the involvement of many participations internationally and in Australia.

38 The Crown submitted that (paragraph 31 of the Crown’s written submissions):-

“… the respondent’s contribution was critical at a time when difficulties had arisen in bringing the scheme to fruition. In association with Au and Cheun, he provided transportation, security of the boxes, a safe house where the lengthy and complicated extraction of the ecstasy tablets could be achieved and participated in that work. He was trusted with possession of the boxes until the extraction process could begin. He was trusted by Cheun and Au to leave the premises during the extraction process, apparently with no fear that he would expose them …”

39 The Crown observed in its submissions that the sentencing judge was satisfied that:-

(1) The respondent was not only aware of the content of the boxes during the time they were still in his home, but also that it was a large quantity of illegal drugs.

(2) That the respondent had been a knowing participant in the extraction process and was intending to continue his role but for the intervention of the police.

40 The sentencing judge had regard to the fact that the respondent had no relevant prior convictions and generally had been previously a person of good character.

41 The Crown emphasised that the offence involved over 74 kilograms of pure MDMA for which the maximum penalty is life imprisonment.

42 In relation to the findings made, the Crown’s submissions stated:-

“30. His Honour’s remarks on sentence commence at AB 253. His Honour found:-
(a) that this drug importation was in the worst case category (AB 260). In particular his Honour noted the large volume of tablets involved, their potential value to the importers and distributors and the potential harm to the Australian community;
(b) as to the Respondent’s role, his Honour found that Cheun and Au had roles in taking the drugs from a point of safety in Sydney and having them available for ultimate distribution – the offender was used by them in an important step in that process (AB 8);
(c) the Respondent was willing to allow himself and his home to be used as an important link in the distribution process on 28 and 29 June 2006;
(d) the process of extracting the drugs from the ink containers was a crucial one and the relative brevity of his involvement was not of great importance in the assessment of the objective gravity of his criminality;
(e) as to when the Respondent became aware that drugs were involved, his Honour noted the conflict in the Respondent’s evidence regarding the precise time and potential interpreting difficulties and found, in effect, that it was some time before the unloading of pills became [sic] in the early afternoon of 29 June;
(f) the listening device evidence clearly indicated that during the extraction process the Respondent was well aware that it was a significant quantity of illegally imported drugs involved (AB 9);
(g) there was nothing to indicate in the garage that the Respondent was unwilling and only involved because he had been imposed on by the other 2 men – he was not directing proceedings but was making suggestions to the others as the recovery of tablets continued (AB 10);
(h) the Respondent was not aware of the precise amount of drugs involved but because of the $10,000 payment and the number of containers involved was aware that it was substantial;
(i) his Honour found that when leaving the garage before his arrest the Respondent intended to continued [sic] his involvement as he was purchasing items to help with the extraction process;
(j) the Respondent knew that illicit drugs were going to find there [sic] way into the community if the extraction process succeeded;
(k) it was an extremely serious criminal enterprise and while the Respondent’s role was subservient to others it was a critical role nonetheless;
(l) condign punishment should be imposed upon anyone having even the slightest role in an importation of these dimensions (AB 12). His Honour considered the comparative cases referred to during the sentence proceedings and the fact that no discount was available in this case for a plea of guilty or assistance to the authorities;

(m) because of the Respondent’s prior good character and the need for lengthy period of parole supervision his Honour set the non-parole period at the bottom of the range of 60% to 66%;
(n) his Honour considered the matters referred to in s.16A(2) of the Crimes Act 1914; and
(o) his Honour also considered the subjective features of the Respondent in a detailed summary at AB 6 to 7.”

43 The Crown submitted (paragraph 35):-

“His Honour referred to many of the relevant matters in his remarks on sentence but in the final sentence imposed, the Crown submits, that there does not appear to have been enough consideration of the need for deterrence. The sentence does not reflect either the objective seriousness nor the respondent’s culpability. His Honour identified the importation as falling into the worst case category in respect of the volume of drugs and the potential harm of the community. The respondent’s role was ‘critical’ and his relatively brief participation was not of great importance in fixing an appropriate sentence. His Honour found that the respondent was involved in the transportation, storage and extraction for distribution of the large quantity of MDMA tablets. His Honour found that the offender was involved for reasons of greed, rather than need …”

The respondent’s submissions

44 It was contended for the respondent that it was significant that the sentencing judge found that the respondent had only become aware of the presence of the drug filled ink containers once he had returned to his house at or about lunchtime on 29 June 2006 when the extraction process had commenced. Emphasis was given to the times at which the respondent was involved in the storing and extraction of the drugs contending that his involvement in the entire project was limited to a period of approximately one hour.

45 The respondent’s submissions also emphasise the fact that the sentencing judge found that the respondent was an unwitting dupe. It was contended that the respondent’s involvement up to the time the extraction process commenced was no more culpable than that of the driver, Huang, who initially assisted in the removal from Blacktown of the stored boxes and who assisted Cheun by storing the boxes in his own garage.

46 It was further argued for the respondent that he only became aware of the contents of some of the boxes after 1.00 pm on 29 June 2006 and it was after that time that he was prepared to allow them to stay on his property for a period of time, probably no later than 5.00 pm on the same day. It was contended that the sentencing judge could not have found that the respondent was involved in the transportation, storage and extraction for distribution of a large quantity of MDMA tablets and that the finding must be limited to his involvement in the “extraction for distribution” and that that lesser involvement reflects a substantially diminished level of criminality.

47 Counsel for the respondent submitted that the findings of fact were consistent with the conclusion that the respondent’s involvement was “on the periphery and less than a courier”.

Consideration

48 It is apparent from the findings made by the sentencing judge, as summarised in paragraph 30 of the Crown’s submissions, they correctly identified the objective circumstances relating to the offence. The critical findings in that respect were those referred to in paragraphs 30(a), (c), (d), (f) and (i) as set out in the Crown’s submissions (paragraph 30). Further, it was not suggested by the Crown that the sentencing judge had failed to take account of any other relevant circumstance or that there had been any particular incorrect application of sentencing principles.

49 In that respect, it is a fundamental importance, as the High Court has observed, that with prosecution appeals where specific error of sentencing principle is not demonstrated and the complaint is one of manifest inadequacy of the sentence, it is only where it is shown that the “sentencing is definitely outside the appropriate range that (a court) is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence”: Everett v The Queen (1994) 181 CLR 295 at 306; Dinsdale v The Queen (2000) 202 CLR 321 at 340 to 341 and Wong v The Queen (2001) 207 CLR 584 at 605 per Gaudron, Gummow and Hayne JJ and at 624 per Kirby J.

50 The joint judgment in Wong (supra) included the following observations (at pp.605 to 606):-

“So much is, or should be seen as, no more than a statement of elementary principle. If, however, further elucidation of the principle is necessary, it is evident in cases like House v The King … and the discussion of when an appellate court may conclude that a trial judge’s exercise of discretion has miscarried.
Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case, appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. It follows that for a court to state what should be the range within which some or all future exercises of discretion should fall, must carry with it a set of implicit or explicit assumptions about what is, or should be regarded as, the kind of case which would justify a sentence within the specified range. It is those assumptions that may reflect or embody relevant principle, not the result.” (emphasis added)

51 The Crown relied upon Regina v Kevenaar (2004) 148 A Crim R 155, [2004] NSWCCA 210 (Hulme J, with who Simpson and Howie JJ agreed) and the judgment of Hulme J in Regina v Schofield (2003) 138 A Crim R 119, [2003] NSWCCA3 and the judgments in Regina v To (2007) 172 A Crim R 121, [2007] NSWCCA 200, Regina v Nguyen, Pham, Vu & To (2005) 157 A Crim R 80, [2005] NSWCCA 362, Regina v Moore [2005] NSWCCA 212 and Regina v Sukkar [2005] NSWCCA 54.

52 However, as also stated by Gaudron, Gummow and Hayne JJ in Wong (supra):-

“Similarly, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are seen to be seen as the unifying principles which this disparate sentences may reveal …”

53 In Sukkar (supra), the importation of narcotic drugs in that case, namely, ecstasy tablets, was recorded as having a value of between $7.2 million and $12 million.

54 The appellant, Sukkar, was convicted on a charge of being knowingly concerned in the importation of the ecstasy tablets and he was sentenced to a term of imprisonment for 14 years and a non-parole period of nine years. The tablets had been concealed in 48 columns in a shipping containers which was transported in a ship from Belgium.

55 The appellant appealed against conviction and also sought leave to appeal against sentence. The Crown appealed against the leniency of the sentence.

56 The Crown case was that the appellant’s knowing concern was demonstrated by his participation in the unloading of the columns after they were delivered to premises in Sydney owned by him, in the examination of the columns and the sorting of tablets removed in a search for genuine ecstasy among the inert tablets. His involvement also included the making of extensive inquiries as to the whereabouts of the balance of the consignment which he, and his brothers, suspected had been stolen either by those involved at the European end of the shipment, or by associates who had been responsible for the clearance and initial delivery of the container into a warehouse in Brisbane.

57 The appellant in that case contended that he was innocently unaware of, and had no knowledge of, the importation until 1 December when his brothers came to him for advice, by which time, it was contended, the importation process had ended. The case involved 34.401 kilograms of pure ecstasy. He was arrested on 5 December 2003.

58 Wood CJ at CL, in dismissing the Crown appeal against sentence, observed:-

“151. Upon my assessment, absent any evidence of the appellant having been knowingly concerned in the venture before 24 November, of him standing to gain any financial benefit from it, his objective criminality needed to be assessed upon the basis of the active assistance which he provided to his brothers, in permitting the cool room and tablets to remain on his premises, in assisting physically in the attempts to recover drugs from them, and in pursuing various inquiries aimed at discovering where the missing drugs were so as to retrieve them for his brothers.”

59 The Court, in Sukkar (supra), determined that his role was that of a knowing assistant to his brothers rather than as a principal, or accomplice, who expected monetary reward. It was emphasised that that was not to say that it was an insignificant role. By the time he had become deeply involved from 1 December, he clearly knew, it was held, that the venture was one of considerable substance, which potentially involved very large sums of money. Wood CJ at CL further observed (at [152]):-

“… despite his prior good character, he became enthusiastically involved and his objective criminality was high, although not as high as that of those who stood to gain financially from it.”

60 In the present case, it was observed that the respondent had previously been a person of good character and had not been convicted of a previous criminal offence. The amount of drugs in the present case was almost double that in Sukkar (supra) and there are some similarities in the role performed by the appellant in Sukkar at least insofar as it involved the storage in premises controlled by him and his physically assistance in the attempts to recover the drugs similarly to the activity of the respondent in the present case.

61 On the findings in Sukkar (supra), the appellant had been involved in the enterprise from about 24 November through until just before his arrest. Accordingly, the period of time was approximately five days. This is in contrast to the respondent’s participation in the present proceedings of something less than a day. The Crown in oral submissions emphasised that one might readily infer that, but for the intervention of the police and the respondent’s arrest, he would have continued to participate in activities associated with the extraction of the drugs. That inference is certainly open although how long he would have continued cannot, of course, be precisely known.

62 The sentence has not, in my opinion, been established as one that is outside the appropriate range of sentences, having regard to all of the relevant objective and subjective circumstances which the sentencing judge identified and evaluated. His Honour’s later sentencing remarks in relation to the co-offenders, Cheun and Au, do not, of course, in themselves, provide or constitute a basis for determining whether the sentence imposed on the applicant fell inside or outside the relevant range of sentencing in his case. They, nonetheless, provide a context in which his criminality was assessed, by reference to this subservient and relatively short-lived role in contrast to that of his co-offenders.

63 Whilst the respondent’s role was similar to that of the appellant in Sukkar, in the respects earlier discussed (although not quite as extensive either in terms of the duration or scope of the participation), taking account of the quantity of pure MDMA (74 kilograms) involved in the consignment of ink containers delivered to the respondent’s premises, I do not consider that the Crown has established a basis for contending that the sentence was manifestly inadequate.

Technical error in the commencement date for the sentence

64 The respondent was sentenced to a term of imprisonment of 10 years with a non-parole period of six years. The sentence was backdated so as to commence on 29 June 2006 with the non-parole period, accordingly, expiring on 28 June 2012 and the balance of term ending on 28 June 2016.

65 The sentencing judge stated that as the respondent had been in custody since his arrest on 29 June 2006, it was “appropriate” that his sentence be backdated to this date (Sentencing Remarks, p.13).

66 On appeal, the Crown submitted that in stipulating the commencement date for the sentence, the learned sentencing judge had “failed to take into account the fact that the respondent’s pre-sentence custody had been broken by a period on bail” (Crown Submissions on Appeal at [50]).

67 The Crown, in its written submissions, stated that the respondent had been released on bail for the period 9 January 2007 to 6 February 2007 (Crown Submissions on Appeal at [51]; see also transcript of sentencing proceedings before the District Court, 21 September 2007, at p.7).

68 In essence, the Crown submitted that the sentencing judge had erred in backdating the sentence for a period equal to the period served in custody and the period for which the respondent was on bail. The Crown contended that the sentencing judge had made allowance for the respondent’s pre-sentence custody by way of backdating the sentence but that this allowance incorrectly included the time in which the respondent was on bail.

69 In order to remedy this oversight, the Crown submitted that this Court should re-sentence the respondent, backdating the sentence to commence on 6 February 2007 (this being the date that bail was revoked and the respondent was returned to custody) and “with the actual length of sentence reduced to reflect the six months 11 days of earlier custody”: Crown Submissions on Appeal at [51].

70 The Crown’s submission that the respondent’s pre-sentence custody totalled six months and 11 days does not appear to be supported by the materials before this Court. The transcript of the sentencing proceedings before the District Court records the following exchange:-

“[CROWN]: Thank you, your Honour … Mr Zeng was arrested on 29 June. He was granted bail on 14 December 2006 but not released until 9 January 2007. A bail review occurred on 6 February 2007 and his bail was revoked. So the additional information should be that he was not in custody from 9 January 2007 for about a month or a little over a month until 6 February 2007.
HIS HONOUR: That’s 28 days, so the sentence should date from 27 July 06.
CHAPPLE: As we understand it, it would date from the date of revocation, 6 February, but your Honour would take into account the fact that he was in custody from 29 June 2006 until 9 January 2007...” (emphasis added): transcript of sentencing proceedings, 21 September 2007, at p. 7.

71 The written submissions of the Crown referred to only one short period of bail of 28 days.

72 On the basis of the respondent having been in custody from the date of his arrest, 29 June 2006, until the date of sentencing, 5 October 2007, except for the brief 28 days on bail, the respondent’s pre-sentence custody totals around 14 months and eight days.

73 In sentencing offenders for Commonwealth offences, s.16E(1) and (2) of the Crimes Act 1914 (Cth) relevantly provide:-

“(1) Subject to subsections (2) and (3), the law of a State or Territory relating to the commencement of sentences and of non-parole periods applies to a person who is sentenced in that State or Territory for a federal offence in the same way as it applies to a person who is sentenced in that State or Territory for a State or Territory offence.
(2) Where the law of a State or Territory has the effect that a sentence imposed on a person for an offence against the law of that State or Territory or a non-parole period fixed in respect of that sentence:-
(a) may be reduced by the period that the person has been in custody for the offence; or
(b) is to commence on the day on which the person was taken into custody for the offence;
the law applies in the same way to a federal sentence imposed on a person in that State or Territory or to a non-parole period fixed in respect of that sentence.”

74 In Assafiri v Regina [2007] NSWCCA 159 at [11], Howie J (with Basten JA and Grove J concurring) observed that courts exercising the sentencing discretion under s.16E(1) of the Commonwealth Act should adopt practices already established in respect of sentencing for State matters.

75 It is uncontroversial that a sentencing court must take into account the period served in pre-sentence custody where that period is referrable to the offence for which sentence is being passed: Regina v Newman (2004) 145 A Crim R 361, [2004] NSWCCA 102 at [24].

76 Where the offender has had a pre-sentence custody broken up by periods on bail, the sentencing court should preferably backdate the sentence for a period equal to the period served in custody: Assafiri v Regina [2007] NSWCCA 159 at [11]; Regina v Newman (2004) 145 A Crim R 361, [2004] NSWCCA 102 at [26] and [32]. The date to which a sentence should be backdated is not necessarily the date upon which the offender was returned to custody (after having had bail revoked). Rather, on this approach, it is the length of the pre-sentence custody that dictates the relevant commencement date.

77 I should observe that, whilst not the preferred approach, the sentencing court can simply state that the pre-sentence custody has been taken into account and then reduce the sentence accordingly: Regina v Newman (2004) 145 A Crim R 361, [2004] NSWCCA 102 at [26].

78 The sentencing judge in the present matter, with respect, appropriately adopted the preferred backdating approach. However, in doing so there was a technical error in backdating the sentence to a period equal to the time spent in custody and the time during which the respondent was on bail.

79 It is necessary for this Court to correct the error by re-sentencing the respondent with the sentence to commence on 27 July 2006 (reflecting the approximate 14 months and eight days of pre-sentence custody), the effect of which will be to extend the respondent’s non-parole period by 28 days to allow for the period on which he was on bail. Accordingly, the non-parole period will expire on 26 July 2012 and not on 28 June 2012, which latter date marked the expiration of the non-parole period under the sentencing order made by the District Court.

80 Accordingly, the Crown appeal should be allowed, in part, in order for the technical error to which I have referred above to be corrected.

81 The orders I propose are as follows:-

(1) Leave to appeal be granted.

(2) That the appeal be allowed, in part.

(3) The respondent be re-sentenced to a term of imprisonment of 10 years with a non-parole period of six years commencing on 27 July 2006 and expiring on 26 July 2012, and with the balance of the term ending on 26 July 2016.

(4) Accordingly, the first date upon which the respondent will be eligible for release on parole will be 26 July 2012.

(5) The appeal is otherwise dismissed.

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