R v Zhang
[2017] SASCFC 5
•16 February 2017
Supreme Court of South Australia
(Court of Criminal Appeal)
R v ZHANG
[2017] SASCFC 5
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Auxiliary Justice Chivell)
16 February 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - FRAUD - DEFRAUDING THE COMMONWEALTH - SENTENCE
Appeal against sentence. Appellant pleaded guilty to three counts of unlawfully dealing with identification information, two counts of importing tobacco products with the intention of defrauding the revenue, one count of possessing tobacco goods knowing they were imported with the intention of defrauding the revenue, one count of dealing with money or property reasonably suspected of being proceeds of crime and one count of attempting to possess a document knowing that it was a false foreign passport.
Appellant sentenced to a total of four years and eight months imprisonment with a non-parole period of two years. Whether head sentence and non-parole period were manifestly excessive - whether the judge failed to consider the principle of totality - whether the judge erred in making the sentences on counts 4, 5 and 6 cumulative upon the sentences on counts 1, 2 and 3 - whether the judge erred in making the sentence on count 8 cumulative upon the sentence on the other counts - whether the judge gave adequate credit for the appellant's offer to assist the authorities - whether the judge failed to reduce the non-parole period in recognition of his offer of assistance.
Held per Chivell AJ (Kourakis CJ and Vanstone J agreeing): Sentence not manifestly excessive. Appeal dismissed.
Crimes Act 1914 (Cth) s 16A, s 16AC, s 19AB; Criminal Code (Cth) s 11.1, s 372.1(1), s 400.9(1A); Customs Act 1901 (Cth) s 233BABAD(1), s 233BABAD(2); Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) s 22; Migration Act 1958 (Cth) s 501, s 501CA; Tobacco Plain Packaging Act 2011 (Cth); Correctional Services Act 1982 (SA) s 37A; Criminal Law (Sentencing) Act 1988 (SA) s 10B s 10C, s 18A, referred to.
R v Kreutzer (2013) 118 SASR 211; R v Horstmann [2010] SASC 103, (2010) 269 LSJS 42; House v The King (1936) 55 CLR 499; AB v The Queen (1999) 198 CLR 111; Kentwell v The Queen [2014] HCA 37; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; Lombard v Police [2016] SASC 179; R v Kopa; Ex parte DPP (Cth), R v Istogu; Ex parte DPP (Cth) (2004) 145 A Crim R 287; R v Nguyen (2005) 157 A Crim R 80; Postiglione v The Queen (1997) 189 CLR 295; R v Rossi (1988) 142 LSJS 451; Hili v The Queen (2010) 242 CLR 520; R v Creed (1985) 37 SASR 566; Mill v The Queen (1988) 166 CLR 59; R v E, AD (2005) 93 SASR 20; R v Copeland (No 2) (2010) 108 SASR 398; R v Cramp (2010) 106 SASR 304; R v Smoker [2016] SASCFC 114; Attorney-General v Tichy (1982) 30 SASR 84; R v Bagnato (2011) 112 SASR 39; R v Elliott [2016] SASCFC 11; R v Wall & Richards [2000] SASC 177, (2000) 209 LSJS 135; R v Barber (1976) 14 SASR 388; Barany v The Queen (2000) 114 A Crim R 426; R v Golding (1980) 24 SASR 161; R v Harris (1992) 59 SASR 300; R v J (1992) 59 SASR 145; R v Nagy (1992) 57 A Crim R 64; Malvaso v The Queen (1989) 168 CLR 227; R v Cartwright (1989) 17 NSWLR 243; R v Gallagher (1991) 23 NSWLR 220; Dinsdale v The Queen (2000) 202 CLR 321; R v Pham (2015) 256 CLR 550; R v Saleh [2015] NSWCCA 299; DPP v Wassar (unreported) Victoria County Court 7/3/14; DPP v Abdulah & Haddara [2014] VCC 2030; R v Seung Hyeok Jeongh & Sejin Jeong (unreported) Queensland District Court 11/7/14; Young v The Queen [2016] VSCA 149; Hussein v The Queen [2016] VSCA 212; R v Kilic [2016] HCA 48; Wong v The Queen (2001) 207 CLR 584; Venning v Police [2001] SASC 406, (2001) 216 LSJS 338; R v Schelvis; R v Hildebrand [2016] QCA 294; R v UE [2016] QCA 58; Guden v R (2010) 28 VR 288; Konamala v The Queen [2016] VSCA 48; Da Costa v The Queen (2016) 307 FLR 153; Schneider v The Queen [2016] VSCA 76; Dauphin v The Queen [2002] WASCA 104; Houghton v The State of Western Australia (2006) 32 WAR 260; Cohen v The State of Western Australia (No 2) (2007) 180 A Crim R 348; Ponniah v The Queen [2011] WASCA 105; Hickling v The State of Western Australia [2016] WASCA 124; R v Latumetan & Murwanto [2003] NSWCCA 70; R v Van Hong Pham [2005] NSWCCA 94; R v Mirzaee [2004] NSWCCA 315; Ali v R [2014] NSWCCA 45, considered.
R v ZHANG
[2017] SASCFC 5Court of Criminal Appeal: Kourakis CJ, Vanstone J and Chivell AJ
KOURAKIS CJ: I would dismiss the appeal on grounds 1 and 6 and refuse permission to appeal on the remaining grounds for the reasons given by Chivell AJ.
VANSTONE J: I agree.
CHIVELL AJ: This is an appeal against sentence.
On 15 January 2016, Mr Zhang arrived at Adelaide International Airport. His baggage was searched. A mobile telephone was found to contain evidence of cigarette smuggling. He was arrested and charged with importing tobacco products with the intention of defrauding the revenue.
On 27 May 2016, Mr Zhang pleaded guilty to eight offences. He was sentenced in the District Court on 2 August 2016 as follows:
·counts 1, 2 and 3 were charges of unlawfully dealing with identification information[1] (the ‘identity offences’). For these offences, he was sentenced to imprisonment for one year and four months (reduced from two years for the early pleas of guilty) as a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA);
·counts 4 and 5 were charges of importing tobacco products with the intention of defrauding the revenue,[2] and count 6 was a charge of possessing tobacco goods knowing they were imported with the intention to defraud the revenue[3] (the ‘importing offences’). For these offences, he was sentenced to imprisonment for two years and seven months (reduced from four years for the early pleas of guilty) as a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). This sentence was ordered to be cumulative upon the sentence for the identity offences;
·count 7 was a charge of dealing with money or property reasonably suspected of being the proceeds of crime[4] (the ‘proceeds offence’). For this offence, he was sentenced to imprisonment for four months (reduced from six months for the early plea of guilty). This sentence was ordered to be concurrent with the other sentences;
·count 8 was a charge of attempting to possess a document knowing that it was a false foreign passport[5] (the ‘passport offence’). For this offence, he was sentenced to imprisonment for nine months (reduced from 12 months for the early plea of guilty). This sentence was ordered to be cumulative upon all the other counts.
[1] Criminal Code (Cth), s 372.1(1). The maximum penalty for each offence is imprisonment for five years.
[2] Customs Act 1901 (Cth), s 233BABAD(1). The maximum penalty for each offence is imprisonment for 10 years or a fine of more than $2.3 m, being five times the duty evaded, or both.
[3] Customs Act 1901 (Cth), s 233BABAD(2). The maximum penalty for this offence is the same as for the other importing offences.
[4] Criminal Code (Cth), s 400.9(1A). The maximum penalty for this offence is imprisonment for two years or a fine of $21,600 or both.
[5] Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), s 22(1) and Criminal Code (Cth), s 11.1. The maximum penalty for this offence is imprisonment for 10 years or a fine of $180,000 or both.
The sentencing judge fixed a relatively short non-parole period of two years. This represents just under 43% of the head sentence of four years and eight months. Her Honour gave the following reasons for this:
·the appellant’s youth (he was 24 years old at sentencing);
·this was his first offending;
·his good prospects for rehabilitation;
·the circumstances of the offending;
·his contrition;
·his cooperation with the authorities.[6]
Since the head sentence exceeded three years, s 19AB of the Crimes Act 1914 (Cth) required that a non-parole period, rather than a recognizance release order, be imposed.
[6] AB 137.
Grounds of Appeal
Mr Zhang appealed on the following grounds:[7]
1.The head sentence and non-parole period were manifestly excessive.
2.The learned sentencing Judge erred in failing to consider the principle of totality adequately or at all.
3.The learned sentencing Judge erred in making the sentence in respect of counts 4, 5 and 6 cumulative upon the sentence in respect of counts 1, 2 and 3.
4.The learned sentencing Judge erred in making the sentence in respect of count 8 cumulative upon the sentence in respect of the other counts.
5.The learned sentencing Judge failed to give any credit in terms of a discount off the head sentences, in relation to the applicant’s offer of assistance “to catch and prosecute other persons engaged in the illegal importation of tobacco”.
6.The learned sentencing Judge failed to reduce the non-parole period in recognition of said offer of assistance.
[7] AB 3-4.
On 10 October 2016, Peek J granted permission to appeal on grounds 1 and 6, and referred grounds 2, 3, 4 and 5 to this Court for adjudication.[8]
[8] AB 52.
Background
Mr Zhang’s offending became apparent on 15 January 2016, when he was searched on arrival at Adelaide International Airport. A mobile telephone in his possession contained photographs of cigarettes concealed in various ways, x-ray images of cigarettes and tobacco concealed in various ways, bulk cigarettes stored in a warehouse, Express Mail Service consignment details, text messages detailing sale and distribution of cigarettes in Adelaide, email records of storage unit rentals, records of post office boxes, and a receipt issued by the Australian Border Force in relation to cigarette importations.
Mr Zhang was arrested. A subsequent investigation revealed further evidence that he and his partner, Ms Jie Li, had been importing large quantities of cigarettes into Australia without paying the required duty. The method used was posting consignments to multiple post office boxes. Some, but not all, of the post office boxes were in false names.
Count 1, the first of the identity offences, involved the use by Mr Zhang of a bank card in the name of one of his former housemates. A post office box at the Norwood Post Office was opened on 23 September 2014 using the card. The former housemate said the signature on the card was not his, he had never had a card with those numbers, and had never opened a post office box.
Count 2 involved the use by Mr Zhang of a bank card in the name of the wife of the former housemate in count 1. A post office box was opened at the Kent Town Post Office on 23 September 2014 using that card. When interviewed, the woman whose name appeared on the card said the signature on the card was not hers, she had never had a card with those numbers, and she had never opened a post office box.
Count 3 involved the use by Mr Zhang of a bank card in the name of another of his former housemates. This bank card was used to open a post office box at the Sturt Street Post Office on 1 December 2014. The former housemate told the investigators that after she left Mr Zhang’s premises, her bank card had expired. When she applied for a new card, the bank informed her that they had sent a new card to Mr Zhang’s address. She said the signature on the card was not hers, she did not recall a bank card with those numbers, and she had never opened a post office box in Australia.
As to count 4, the first importing offence, the investigators reviewed records held by the Australian Border Force which disclosed that between September 2015 and February 2016, Mr Zhang and Ms Li imported 547 parcels which contained 377,000 cigarettes and 15.96 kilograms of loose tobacco. The total revenue evaded was $245,166.43.
As to count 5, when Australian Border Force officers attended at Mr Zhang’s residence, they found 28 post office box keys, and subsequently established that a further 68 parcels had been sent from overseas to 38 post office boxes, 13 parcel lockers and 16 parcel collection points. In all, the 68 parcels contained 253,920 cigarettes and 0.921 kilograms of loose tobacco. The total revenue evaded was $155,671.99.
As to count 6, Australian Border Force officers also found at Mr Zhang’s residence tobacco products, a cigarette rolling machine, items used to conceal smuggled cigarettes, consignment notes and other records. There was also a quantity of Chinese cigarettes which did not have Australian health warnings on the packaging. Searches at Mr Zhang’s residence and at a storage unit at Klemzig revealed a total of 64,640 cigarettes and 33.269 kilograms of loose tobacco. The total duty evaded on those items was $62,527.25.
The total quantities in connection with counts 4, 5 and 6 were:
·615 separate parcels;
·695,560 cigarettes;
·50.15 kilograms of tobacco;
·total revenue evaded $463,365.67.
As to count 7, the proceeds offence, during the search of the Klemzig storage unit referred to above, Australian Border Force officers located a plastic bag in a cardboard box containing $47,200 in Australian currency. The circumstances in which the money was found give rise to a strong inference that it was part of the proceeds of the cigarette smuggling operation. An examination of bank records linked to Mr Zhang and Ms Li revealed regular cash deposits in large amounts, money transfers in large amounts, and large offshore telegraphic transfers of money to and from their accounts.
As to count 8, the passport offence, Australian Border Force officers noted on 15 January 2016 that there was a photograph of a Chinese passport in the name of Lun Wang on Mr Zhang’s telephone. On 22 January 2016, a parcel was intercepted at the Australia Post depot in Franklin Street, Adelaide. It was addressed to Lun Wang, and it had come from China. The parcel was ‘deconstructed’ and was found to contain the passport in the photograph. The number was identical. Subsequent investigation revealed that the passport was counterfeit. It had not been issued by the Chinese government.
Other investigations revealed extensive computer records of post office boxes, parcel lockers, names, addresses, concealment methods, price lists, freight costs, photographs and x-ray images showing concealment methods, and cigarettes and loose tobacco, on a USB device. Similar material was found on an ASUS laptop computer, and on a ThinkPad laptop computer.
The Appeal
The grounds of appeal complain of both ‘outcome errors’ and ‘process errors’ – see R v Kreutzer.[9]
[9] (2013) 118 SASR 211 at [10] per Kourakis CJ, quoting R v Horstmann [2010] SASC 103 at [37].
The starting point for all such submissions is the passage from the judgment of Dixon, Evatt and McTiernan JJ in House v The King:[10]
But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
[10] (1936) 55 CLR 499 at 504.
In AB v The Queen,[11] Hayne J said, at [130]:
The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be resentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
This analysis was approved in Kentwell v The Queen.[12]
[11] (1999) 198 CLR 111.
[12] [2014] HCA 37 at [35] per French CJ, Hayne, Bell and Keane JJ.
In Kreutzer, the Chief Justice said:
If the only error identified by the Full Court is manifest excess or inadequacy (an outcome error), it necessarily follows that it will also think that a different sentence should have been passed. In such a case there will generally be no reason for the Full Court to remit the matter to the court of first instance. If the only error is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, pursuant to s 353(4)(a)(i) of the CLCA, even if the sentence imposed at first instance was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding a process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal in accordance with s 353(4)(b) of the CLCA.
Factual Errors
At the commencement of the hearing of the appeal, counsel for the respondent, Mr Crowley, drew attention to the fact that when the sentencing judge recounted the factual basis for sentencing, she failed to mention certain amounts of loose tobacco. These errors were repetitions of errors made by prosecuting counsel in his written statement of facts.[13] The judge’s attention was not drawn to these errors at the time.
[13] AB 73-76.
Mr Abbott SC, counsel for the appellant, submitted that the errors vitiate the sentencing discretion and this court should determine the sentence afresh.
However, not every error, no matter how slight or inconsequential, requires an appeal court to set aside the order of the court appealed from and exercise the discretion afresh.
In Micallef v ICI Australia Operations Pty Ltd,[14] Heydon JA (as he then was) said that a challenge to a primary judge’s discretionary decision can succeed only if the judge:
a. made an error of legal principle;
b. made a material error of fact;
c. took into account some irrelevant matter;
d. failed to take into account or gave insufficient weight to, some relevant matter; or
e. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
[14] [2001] NSWCA 274.
A ‘material error’[15] is one which has a demonstrable effect on the outcome.
[15] The phrase ‘material error of fact’ also appears in Lombard v Police [2016] SASC 179 per Doyle J.
The errors were as follows:
·when describing count 4, her Honour referred to 377,000 cigarettes, but omitted 15.96 kilograms of loose tobacco from her description of the offence. The total number of parcels (547) and the total amount of revenue evaded ($245,166.43) were correct;
·when describing count 5, her Honour indicated that the 253,920 cigarettes consisted of 0.921 kilograms of tobacco. In fact, the seizure was of 253,920 cigarettes and 0.921 kilograms of loose tobacco. The number of parcels (68), the number of cigarettes and the amount of revenue evaded ($155,671.99) were correct;
·in relation to count 6, her Honour indicated that 64,640 cigarettes consisted of 33.269 kilograms of tobacco. In fact, 64,640 cigarettes and 33.269 kilograms of loose tobacco were seized. The number of cigarettes and the revenue evaded ($62,527.25) were correct.
The errors described above were repeated when her Honour observed that the total figures were 615 parcels, 695,560 cigarettes and unpaid revenue of $463,365.67, omitting a total of 50.15 kilograms of loose tobacco.
These errors were favourable to Mr Zhang. I do not accept that they had any effect on the sentence. The amount of revenue evaded was a much more significant indicator of the seriousness of the offence in each case, and these figures were correct. In any event, the High Court has observed that numerical considerations alone are not a reliable indicator of the seriousness of an offence.[16]
[16] Wong v The Queen (2001) 207 CLR 584 at [69]-[70] per Gaudron, Gummow and Hayne JJ. I will refer to this case again in the discussion of schedules of comparative sentences.
Revenue Offences – Sentencing Generally
Section 233BABAD of the Customs Act 1901 was enacted in 2012 in the Customs Amendment (Smuggle Tobacco) Act 2012. The Second Reading speech[17] shows that the increase in penalties[18] provided for in the legislation was part of a package of measures. Another measure was the introduction of plain packaging legislation. The legislation had, as one of its aims, the reduction of smoking in the community. Senator Feeny said:
The penalties must provide a strong deterrent to criminals involved in this activity – as well as demonstrate the seriousness with which the Government views such frauds against the Commonwealth, and harm against the community.
Currently smuggled tobacco is usually prosecuted under a general smuggling provision, with penalties ranging from two to five times the amount of duty evaded.
However, these pecuniary penalties for tobacco smuggling are not necessarily an effective deterrent, as many penalties currently imposed for tobacco smuggling are simply not paid.
[17] Customs Amendment (Smuggled Tobacco) Bill 2012, Tax Laws Amendment (2012 Measures No. 4) Bill 2012, Second Reading Speech, Thursday, 23 August 2012, by Senator David Feeny MP.
[18] For example, the increase for an importing offence was from two years to 10 years imprisonment.
Prosecuting counsel referred the judge to the Tobacco Plain Packaging Act 2011 (Cth). The provisions of that Act originated from recommendations made by the National Preventative Health Taskforce (established by the Commonwealth Government in April 2008), which also recommended an increase in tobacco excise. As a result, tobacco excise was increased by 25%. Counsel made the following submission:[19]
Smuggling of tobacco into Australia is a very prevalent offence which is difficult to detect, and which creates significant enforcement and investigation costs for the Commonwealth of Australia, and consequently taxpayers. Smuggled tobacco creates a risk for the success of legislative health measures in place in Australia intended to mitigate the harmful effects of smoking on the health of Australians, both because of the cheap tobacco made available to the community, and because the tobacco imported has not been subjected to any testing or quality control.
[19] AB 84.
Counsel also referred to a report of the Australian Crime Commission entitled Organised Crime in Australia 2013, in which the Commission reported, at page 55:
Involvement in Australia’s illegal tobacco market is perceived by organised crime groups as a low risk, high profit activity. They see it as a market in which large profits can be made with minimal risk of detection or significant penalties. Organised crime has sustained access to cheap tobacco products overseas, which can be illegally imported, avoiding tax obligations, to supply the illegal tobacco market in Australia.
Counsel referred to R v Kopa; Ex parte DPP (Cth), R v Istogu; Ex parte DPP (Cth), in which the Queensland Court of Appeal observed:[20]
Offences of the type in question are prevalent and it is obvious that the deterrent aspect of sentencing is of critical importance.
[20] (2004) 145 A Crim R 287 at [20].
Kopa was decided before the maximum penalties for these offences were increased from two years to 10 years imprisonment. The intention of Parliament that deterrence be a critical factor in sentencing is even more obvious since the increase.
Counsel submitted that factors to be taken into account in sentencing for serious revenue offences such as these, should include:
·the role of the offender[21] – in particular, it is important to identify whether the defendant was a principal organiser of the criminal operation or merely acting on the instructions of others;
·the sophistication of the offending, or lack thereof;
·the period over which the offences were committed;
·the quantity of the tobacco imported and/or possessed and the amount of duty defrauded or evaded;
·whether the loss of revenue has been repaid;
·whether the offending involved other illegalities, such as the use of false identities;
·whether the defendant was involved in distribution and sale of tobacco products within Australia;
·the extent to which the defendant gained financially from his or her offending.
[21] R v Nguyen (2005) 157 A Crim R 80 at 91. Although Nguyen involved drug importation, I accept that the principle remains the same.
I agree that these factors should be taken into account when sentencing for an offence against s 233BABAD of the Customs Act.
In addition to the factors specific to the Customs Act, regard must also be had to the principles set out in Part 1B of the Crimes Act 1914 (Cth), in particular s 16A. Section 16A(2) lists matters that the sentencing court must take into account to the extent that they are ‘relevant and known to the Court’:
(a) the nature and circumstances of the offence;
(b) other offences (if any) that are required or permitted to be taken into account;
(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(ea) -
(f) the degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
(fa) …
(g) if the person has pleaded guilty to the charge in respect of the offence—that fact;
(h) the degree to which the person has co‑operated with law enforcement agencies in the investigation of the offence or of other offences;
(j) the deterrent effect that any sentence or order under consideration may have on the person;
(ja) the deterrent effect that any sentence or order under consideration may have on other persons;
(k) the need to ensure that the person is adequately punished for the offence;
(m) the character, antecedents, age, means and physical or mental condition of the person;
(n) the prospect of rehabilitation of the person;
(p) …
Cooperation with law enforcement agencies is referred to in general terms in s 16A(2)(h). Section 16AC(2) specifically requires a sentencing court to state that the sentence, order or non-parole period is being reduced for that reason, and specify the sentence, order or non-parole period that would have been imposed but for the reduction.[22] However, that section applies only to a situation where the offender has undertaken to cooperate with law enforcement agencies. It was accepted by Mr Abbott SC that s 16AC does not apply in this case, since no specific undertaking was given.[23]
[22] Section 16AC(2).
[23] T 32.
The other matter which is noteworthy in relation to s 16A(2) is that although the court is required to take into account the fact that the offender has pleaded guilty to the charge,[24] there is no provision for specific discounts for pleas of guilty at particular stages of the proceedings.[25]
[24] Section 16A(2)(g).
[25] Cf Criminal Law Sentencing Act 1988 (SA) ss 10B and 10C.
Consideration
It is convenient to commence with a consideration of the grounds which assert that process errors have occurred.
Totality (Ground 2)
A judge imposing a sentence for multiple offences should ensure that ‘the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved’,[26] and that the aggregate of all the sentences did not become ‘so crushing as to call for some reduction in the aggregate’.[27] These two factors are the two ‘limbs’ of what has become known as the ‘totality principle’.
[26] Postiglione v The Queen (1997) 189 CLR 295 at 307-8 per McHugh J.
[27] R v Rossi (1988) 142 LSJS 451 per King CJ, cited by McHugh J in Postiglione at 308.
Totality is a common law sentencing principle which applies to federal sentencing.[28]
[28] Hili v The Queen (2010) 242 CLR 520 at [25].
It was submitted that because the judge made no mention of totality in her sentencing remarks, she did not consider the matter when sentencing. It is true that her Honour did not specifically indicate that she had ‘stood back’ and considered whether the sentence violated the two limbs of the totality principle quoted above.[29]
[29] See R v Creed (1985) 37 SASR 566 at 568 per King CJ.
In Mill v The Queen,[30] the High Court stated:
Where the principle [of totality] falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
[30] (1988) 166 CLR 59 at 63, per Wilson, Deane, Dawson, Toohey and Gaudron JJ (quoting Thomas, Principles of Sentencing, 2nd ed. (1979) 56).
In R v E, AD, Doyle CJ said:[31]
The concept of totality will usually have little part to play when a sentence is imposed in exercise of the powers conferred by s 18A of the Sentencing Act. If the sentencing judge arrives at a sentence, without determining the sentence that each offence will attract separately, the judge will necessarily have regard to the total period of imprisonment that is appropriate: see R v Major (1998) 70 SASR 488. No further reduction under the totality principle would usually be called for: see R v Bennett [2005] SASC 55 at [15]-[16] Doyle CJ; R v B, RWK [2005] SASC 84; (2005) 91 SASR 200 at [16]–[17] Doyle CJ, at [24]–[25] Vanstone J. That is not to say that the principle of totality never requires consideration in such a case. Ordinarily one would not expect it to require separate consideration.
[31] (2005) 93 SASR 20 at [36].
In R v Copeland (No 2), Kourakis J, as he then was, said:[32]
First, there is the consideration, which applies in all cases when sentences of imprisonment are made cumulative, that the deprivations of a sentence of a particular length will be suffered all the more deeply if it is served after the completion of one or more earlier terms.
[32] (2010) 108 SASR 398 at 425.
In R v Cramp,[33] Kourakis J explained that the second limb of the totality principle was directed to the need to promote rehabilitation:
Where there are reasonable prospects of rehabilitation, and the requirements of punishment and deterrence otherwise allow, care should be taken not to impose a sentence which leaves the offender in a state of despair in which he abandons any inclination to reform. Where there are prospects of rehabilitation, a sentence that destroys any real capacity for the offender to reform should not be imposed unless the protection of the community demands it.
[33] (2010) 106 SASR 304 at [51].
Later in the judgment in Cramp,[34] Kourakis J said:
It does not follow, therefore, that a reduction will always be necessary where cumulative sentences are imposed. In some cases the persistent offending may require greater punishment and for that reason too no downward reduction will be necessary after conducting the overall review. The application of the totality principle cannot be allowed to lead to a position where, in effect, offenders receive a “bulk discount”. All that is required is that the sentencing judge considers whether the sum of the sentences imposed is disproportionate to the criminality of the underlying offences. If the individual sentences have been framed so that the accumulation does not result in any disproportion, there need not be any reduction.
[34] At [61].
In R v Smoker,[35] Lovell and Hinton JJ said:
In our view, if the second aspect to the totality principle referred to by Doyle CJ in R v E, AD is to be given any operation different to the application of the proportionality principle subject of the first aspect as explained above, it lies in the extension of mercy of a type beyond leniency that a judge may be moved to grant to an offender in the ordinary course of determining the appropriate sentence overall … For a court to permit sympathy to cause it to divert from attaching due weight to the purposes of punishment, would be for the court to fail to discharge its duty.
It follows that the extension of mercy where an overall sentence is not disproportionate in the sense discussed above, will be a rare occurrence.
[35] [2016] SASCFC 114 at [84]-[85].
Returning to R v E, AD, Doyle CJ said, at [38]:
In recent times there has been at tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy.
It follows that a failure to mention the totality principle is not necessarily an error of law (a ‘process error’). The ultimate question is whether the ‘aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved’.[36]
[36] Postiglione (supra).
I do not accept that this was a case where the totality principle needed separate consideration. The judge was obviously aware of the total sentence she was imposing – she aggregated several of the sentences in the first two groups, and had regard to the total sentence when setting the non-parole period. The sentence was not crushing. I would refuse leave to appeal on ground 2.
Cumulative or Concurrent (Grounds 3 and 4)
Mr Abbott SC submitted that the judge should have ordered that all the sentences imposed should be served concurrently. In the alternative, he submitted that the sentences should have been made partially concurrent.
An analysis of this issue usually commences with the judgment of Wells J in Attorney-General v Tichy:[37]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct … The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[37] (1982) 30 SASR 84 at 92-3.
The judge accepted that the offending formed part of a course of conduct.[38] She observed:
Although all of this offending is related, I am going to sentence in separate groups for these offences. I regard the identification offences as being offences in their own right and although connected to the importation are really quite separate.
[38] AB 135.
Mr Abbott SC submitted that this was an error. He submitted that the sentences for the identity offences and the importing offences should have been concurrent because they were ‘closely related to the tobacco offending’ and that they were ‘only committed in furtherance (of) and for the purposes of the tobacco importation racket that the appellant embarked upon and for no other reason’.[39]
[39] T 16.
An offender who commits an offence of illegal importation of tobacco products using the fraudulently obtained identities of three people cannot expect the same penalty as an offender who commits the same offence in his own name. Of course, it would have been possible to achieve a just result by making the sentences wholly or partially concurrent, but the sentence for the importing offences would have needed to be substantially larger. In the final analysis, the overall sentence must reflect the total criminality of the offending. The rules as to whether sentences should be concurrent or cumulative are not so inflexible that their application in any instance is necessarily erroneous, provided that their application does not produce an unjust result.
To adopt Mr Abbott SC’s submission would be to create the danger, identified by Wells J in Attorney-General v Tichy, that ‘the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration’.
This was not the sort of ‘unbroken course of very closely related conduct’ discussed by Peek J in R v Bagnato,[40] and referred to by Nicholson J in R v Elliott.[41] This offending occurred over a period of six months. There were 68 various importations and it would have been absurd to consider each one separately.
[40] (2011) 112 SASR 39 at [70]-[81].
[41] [2016] SASCFC 11 at [23].
What the sentencing judge did was to group the sentences so that it was possible to identify the relevant issues for each group of offences. Her Honour acknowledged, as I have quoted above, that the identification offences were ‘connected to the importation’, although she also regarded them as separate. I see no error in this. She acknowledged that the proceeds offence was part of the same course of conduct as the importing offences by making those sentences concurrent. The passport offence was clearly separate and so a cumulative sentence was appropriate.
Grouping the identity offences and the importation offences, and considering separately the proceeds offence and the passport offence, was simply a convenient way to express what the appellant acknowledges was a ‘complex’ sentence.[42]
[42] Appellant’s Outline of Argument 5.
Ultimately, the only question which arises in this appeal is whether or not there has been an ‘outcome error’, namely, whether the head sentence is manifestly excessive or not. The rules as to whether sentences should be concurrent or cumulative are not so inflexible that their application in any given instance can be shown to be erroneous if they do not produce an unjust result.
I would refuse leave to appeal on grounds 3 and 4.
Cooperation with Authorities (Grounds 5 and 6)
In his submissions to the judge, defence counsel said:[43]
We invite your Honour to look at the contrition by way of that plea and any assistance provided to the Australian Border Force. That assistance, we say, is contained within para.27 of the defence submissions. By way of clarification, I'm not making a lot out of it, he spent perhaps two-and-a-half, three hours with two members of the Australian Border Force. He talked about locations in Murray Bridge and Sydney and Melbourne. He talked about people and particular characters. He stated he didn't know who these people were, that he was dealing with this product and he did not know them because they were well organised people who did not want him to know their identity.
[43] AB 119-20.
This submission was not disputed by prosecuting counsel. It was specifically accepted by the judge in her sentencing remarks:[44]
I accept you have also cooperated in the investigation of these matters and have offered to cooperate with the law enforcement authorities in relation to similar offences committed by other people ... You have of course, shown contrition for your offending in the form of your plea, your expressed contrition and your cooperation.
[44] AB 134 and 135.
It is true that her Honour did not refer to cooperation when she reduced the sentences for each group of offences. The reduction, she said, was on account of the appellant’s pleas of guilty. However, in relation to the non-parole period, she said:[45]
In setting your non-parole period I take into account your youth, the fact that this is the first time you have offended, your good prospects of rehabilitation, the circumstances of your offending, your contrition and your cooperation …
Her Honour set a low non-parole period of two years, which was less than 50% of the head sentence.
[45] AB 137.
It cannot be said that the appellant’s cooperation amounted to more than an offer at the time of sentencing. This was conceded by Mr Abbott SC during submissions. To use his words, the offer was ‘nebulous’.[46]
[46] T 28.
In R v Wall & Richards,[47] two offenders received reductions of 50% for their pleas of guilty and cooperation with the authorities, having identified the third offender, and agreed to give evidence against him. Gray J, with whom Duggan and Mullighan JJ agreed, referred to the well-known passage from R v Barber,[48] where Bray CJ said:[49]
We have, I think, to accept that the courts have acted on the view that it is not expedient that there should be honour amongst thieves and have therefore sometimes rewarded the informer and encouraged other potential informers by an appropriate mitigation of his sentence. In some cases genuine remorse by those who have been used as the tools of organized crime may be manifested by disclosure of the identity of their principals and when that happens I think it deserves generous recognition, particularly when it is only done at the cost of personal danger.
In Wall & Richards, Gray J said:[50]
Reductions in sentence for public interest reasons such as a plea of guilty and cooperation with the police as an informer, raise very different considerations. As has been pointed out, there is a public interest in the disclosure of the fact and extent of the reduction. This is by reason of the benefit to the community. It is only public disclosure that will lead to public awareness. The public interest is best served by disclosure. Non disclosure is a disservice to the public interest.
Sentencing Judges should identify the fact that a reduction is to be made, the reason for it, and the extent of the reduction, unless there is good reason for not doing so.
[47] [2000] SASC 177; (2000) 209 LSJS 135.
[48] (1976) 14 SASR 388 at 390.
[49] See also R v Golding (1980) 24 SASR 161; R v Harris (1992) 59 SASR 300; R v J (1992) 59 SASR 145 at 153.
[50] R v Wall & Richards [2000] SASC 177, (2000) 209 LSJS 135 at 144.
Mr Abbott SC submitted that the appellant should have received sentencing discounts even if there was no effective result from the offer of assistance. He referred to Barany v The Queen.[51] In Barany, the offender attempted to assist police by taking part in a ‘controlled delivery’ of drugs to a suspect. The attempt was a failure because the suspect did not arrive. The sentencing judge described the operation as a ‘long‑shot’.[52]
[51] (2000) 114 A Crim R 426.
[52] At [12].
After referring to Nagy[53] and Malvaso,[54] Parker J, at [16], quoted Hunt and Badgery‑Parker JJ in Cartwright:[55]
“Again, in order to ensure that such encouragement is given, the reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as could significantly assist the authorities.”
and from Gleeson CJ (as he then was) in Gallagher:[56]
“In the present case I regard the information that was before the sentencing judge, and that is before this Court, as to the nature and extent of the assistance that the appellant has given to the authorities, and as to the benefits that have resulted, or will result in the future, from such assistance as inadequate for the purpose of forming an appropriate judgment as to the degree of leniency that should be extended to the appellant on account of that assistance.” (Emphasis added.)
[53] R v Nagy (1992) 57 A Crim R 64
[54] Malvaso v The Queen (1989) 168 CLR 227.
[55] R v Cartwright (1989) 17 NSWLR 243 at 253.
[56] R v Gallagher (1991) 23 NSWLR 220 at 232-233; 53 A Crim R 248 at 260.
Parker J concluded that Mrs Barany’s assistance to the police, which he described as ‘frank and substantial, though not full’,[57] and her participation in the controlled delivery which might have exposed her to risk,
warranted due recognition in the sentencing process by the provision of a substantial discount, although not as extensive as would have been justified had there been a successful delivery in Adelaide which resulted in the identification and prosecution of others involved in the criminal importation …
[57] At [24].
The circumstances in Barany were very different from those in the case here. Ms Barany’s assistance to the authorities warranted a much more substantial discount in the sentence.
The information before the sentencing judge was indeed nebulous, and justified nothing more than a slight reduction in sentence or in the non-parole period. It was adequately recognised in the low non-parole period.
That being so, I do not consider that the sentencing judge’s failure to stipulate a precise reduction on account of cooperation was an error. Even if the cooperation was of a type which called for a much more substantial reduction, the ultimate issue is, to use Gray J’s words in Wall & Richards that ‘(t)he end result must be proportionate’.[58]
[58] Supra, at 11.
Thus the ultimate question is whether the sentence and the non-parole period were manifestly excessive in all the circumstances of the case, including the extent of the appellant’s cooperation with the authorities.
I would refuse leave to appeal on ground 5, and dismiss ground 6.
Manifest Excess (Ground 1)
In Dinsdale v The Queen,[59] Gleeson CJ and Hayne J said:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.
[59] (2000) 202 CLR 321 at [6].
Thus, the excess (or inadequacy) of a sentence demonstrates that an error has occurred, the nature of which is not ‘discernible’[60] or ‘explicit’.[61]
[60] AB v The Queen (supra) per Hayne J at [130].
[61] Micallef v ICI Australia Operations Pty Ltd (supra) per Heydon JA at 504.
The judge accepted that this was a course of conduct.[62] On the basis of this acceptance, it was submitted that the sentence was manifestly excessive in that it reflected offending of a far higher degree than the prisoner had committed. This submission was supported by reference to comparable sentences imposed in other cases.
[62] Sentencing Remarks 6.
It was also submitted that the sentence would bear more heavily on Mr Zhang because he is a foreign national who is liable to deportation.
Comparative Sentences
The sentencing judge was presented with a schedule of comparative sentencing for similar offences. These related only to the importing offences.
In R v Pham,[63] the High Court said:
[63] (2015) 256 CLR 550 at [28].
Previous decisions of this Court have laid down in detail the way in which the assessment of sentences in other cases is to be approached. It is neither necessary, therefore, nor of assistance to repeat all of what has previously been said. But, in view of the way in which the Court of Appeal approached the task in this case, it is appropriate to re-emphasise the following:
(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.
(2) The consistency that is sought is consistency in the application of the relevant legal principles.
(3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.
(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.
(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.
(6) When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.
(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.
[Citations omitted]
The schedule presented to the judge included two cases in the County Court of Victoria, one in the District Court of New South Wales and one in the District Court of Queensland.
The judge said:[64]
I have had regard to the comparative sentencing schedule that has been provided. It provides general assistance, none of these cases of course, are the same as yours. As with all cases there are differences in the factual basis of the offending and also the personal circumstances of the offenders.
[64] AB 136.
Her Honour referred to the case of R v Saleh.[65]She quoted from the judgment of RS Hulme AJ:
Premeditated offending for the rewards or benefits that criminality may bring is a calculated risk. As the cases mentioned show, the rewards are not infrequently enormous. The criminality is often difficult to detect and it is impossible to believe that many people do not get away with it. Accordingly it behoves the courts to ensure that the penalties imposed on those who are caught are high enough to operate as a real disincentive to others tempted to offend.
[65] [2015] NSWCCA 299 at [47].
There is no indication that her Honour had regard to the sentence in Saleh for any comparative purposes. Mr Abbott SC, however, sought to use the sentence in Saleh for the purposes of comparison with the sentences imposed in this case.
Mr Saleh was involved in a larger importation than the one under consideration here: 2,250 kilograms of tobacco were imported and $996,997 in duties were avoided. He was sentenced to three years imprisonment with a recognizance release order after two years after discount. He was sentenced as an aider and abetter. He was not the importer. It was submitted that he had received only $3,000 for his part in the operation, although the veracity of that submission was doubted on appeal.[66]
[66] See RS Hulme AJ at [24]-[25].
Mr Zhang was a principal in this operation, and clearly profited to a much greater extent. There is therefore no useful comparison between the two cases.
The court in Saleh referred to a number of sentences which had been presented as comparators. Mr Abbott SC also relied on some of these:
·In DPP v Wassar,[67] the offender had provided ‘transport services’ to a syndicate which imported two containers of cigarettes into Australia, avoiding about $5 million in duty. Other containers had been imported but not intercepted. The offender received a fee of $30,000 for his services. He made full admissions on arrest, cooperated with the authorities, and later agreed to give evidence against the syndicate. He received a suspended sentence of a total of 18 months imprisonment, after reduction for his pleas of guilty.
·In DPP v Abdulah & Haddara,[68] the offences committed involved an evasion of duty of about $3,278,000. Their role was participation in the unloading of a container containing cigarettes. They were not the importers. Abdulah received a suspended sentence of 15 months imprisonment. Haddara received a suspended sentence totalling 27 months.
·In R v Seung Hyeok Jeongh & Sejin Jeong,[69] the offences involved evasion of duty of about $432,000, and the offenders’ roles were described as being ‘much more important than that of a courier’. Both offenders received sentences of 20 months imprisonment, to be suspended after three months upon entering recognizances.
[67] (unreported) Victoria County Court 7/3/14.
[68] [2014] VCC 2030.
[69] (unreported) Queensland District Court 11/7/14.
In Saleh, RS Hulme AJ remarked:
[34]Counsel for the Respondent placed emphasis on the more substantial involvement of the offenders and/or the greater amount evaded in many of those cases. Those features may be acknowledged and it is proper for this Court to take notice of the cases mentioned. It is also appropriate to recognise the extent to which sentences not involving full-time custody have been imposed in the other cases to which the Court was referred.
[35]However, as was made clear in DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 205 A Crim R 1 at [303-[305], cited with approval in Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54], those previous sentences may be used to establish the range of sentences that have been imposed in the past but they do not necessarily establish that the range is correct. And while it is proper to have regard to the accumulated wisdom of the judges who have imposed those sentences it is also appropriate to bear in mind that almost all were single judge decisions, most in the District or equivalent courts and there is a tendency for any sentencing pattern to be followed.
[36]So far as revealed by the arguments in this case, this is the first time that s233BABAD has been considered by an appellate court. The section itself is by far the most definitive exposition of how offences under it should be regarded and I confess I am unable to reconcile many of the decisions under the section with its terms and general sentencing principles.
Mr Abbott SC referred to Young v The Queen.[70] In that case, 9 million cigarettes and 22,969 kilograms of tobacco were involved,[71] and the revenue avoided in the two counts was a total of $14 million. Mr Young was a customs agent. He was not the principal in the enterprise, but the Court said he played an important role in facilitating the passage of the tobacco through Customs. He had lost his business and was ‘presumably’ prevented from acting as a director of a company in the future. There was no information as to what financial gain he derived from the offence. He had no prior convictions. He was sentenced to two years imprisonment, to be released after one year and three months upon entering a recognizance. Mr Young appealed against the sentence on the basis of manifest excess.
[70] [2016] VSCA 149.
[71] One count involved the importation of the 9 million cigarettes, another count involved the attempted importation of the 22.969 kg of tobacco.
The unsurprising outcome was that it was not reasonably arguable that the sentence in Young was manifestly excessive, and leave to appeal was refused.
I reject the submission of Mr Abbott SC that the decision in Young is of any assistance in the determination of this appeal, except, of course, to the extent that it quoted with approval the statements of principle in Saleh, which were referred to by the judge in her sentencing remarks in this case.
Mr Abbott SC also referred to Hussein v The Queen.[72] In that case, there had been a single instance of importation involving 17,000 kilograms of tobacco; $8.3 million in duty and GST was avoided. Mr Hussein asserted that he was paid $1,500 to unload the container. He had several previous convictions for tobacco-related offences.
[72] [2016] VSCA 212.
It was accepted by the prosecution that Mr Hussein was not the importer of the tobacco. He had telephoned the importer, had hired two trucks and had enlisted others to help unload the tobacco.
Mr Hussein was sentenced to imprisonment for two years and six months, to be released after serving 12 months upon entering a recognizance.
Again, the Victorian Court of Appeal referred to Saleh and the need for strong deterrence of these offences.[73]
[73] At [31].
The court ruled that the sentence could not be said to be manifestly excessive, and refused leave to appeal.
For the same reasons outlined in relation to Young, the decision in Hussein is of no assistance in determining whether the sentence in this case was manifestly excessive.
In R v Kilic,[74] the High Court was considering the usefulness of comparative sentences for causing injury by fire, in the context of Victorian legislation which required a sentencing court to have regard to ‘current sentencing practices’.[75] The High Court said:[76]
The few cases mentioned by the parties could not properly be regarded as providing a sentencing pattern. There were too few of them, one dealt with a different offence, another was more than 12 years old and, in any event, as will be explained, the circumstances of the offending in each of those cases were too disparate. At best they were representative of particular aspects of the spectrum of seriousness.
[Citations omitted]
[74] [2016] HCA 48.
[75] Sentencing Act 1991 (Vic), s 5(2)(b).
[76] At [25].
In my view, the same general observations could be made about the cases presented for comparison in this case.
In Wong v The Queen,[77] the High Court pointed out that reliance on numerical considerations such as the weight of drugs imported or, in this case, the number of cigarettes or the amount of tobacco imported, or the revenue avoided, is likely to lead to error because:
[T]here will be many cases in which a sentencing judge will be more concerned to identify the level of the offender’s criminality by looking to the state of the offender’s knowledge about the importation in which he or she was involved. Often enough, information about the kind and size of reward given or promised to the offender for involvement in the importation will be seen as important in fixing a sentence and distinguishing between offenders.
… The selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle.
[77] (2001) 207 CLR 584 at [69]-[70] per Gaudron, Gummow and Hayne JJ, quoted in R v Pham, supra, at [35].
None of the comparators presented in this case was a principal who personally designed and implemented an elaborate importing scheme involving dozens of separate importations over a substantial period of about six months, and reaped substantial financial rewards in the process. For that reason alone, the suggested comparisons are not helpful.
Risk of Deportation
The appellant submits that the sentence imposed will bear more heavily upon him because he is a foreign national. It was submitted that unlike Australian national prisoners, release on home detention would not be available and so the entirety of his sentence would have to be served in custody.[78]
[78] Appellant’s Outline of Argument 5.
Section 37A of the Correctional Services Act 1982 (SA) states:
(1) Subject to this section, the (Chief Executive) has an absolute discretion to release a prisoner from prison to serve a period of home detention in accordance with this Division.
(2) The exercise by the (Chief Executive) of the discretion under subsection (1) is subject to the following limitations:
(a) …
(d) any limitations determined from time to time by the Minister, which may include, without limitation, the exclusion of prisoners sentenced for a specified class of offence or any other class of prisoners from release on home detention.
In his written submissions, Mr Abbott SC states that ‘by Ministerial direction, home detention is not available for prisoners who are liable to deportation as the appellant clearly will be’.[79]
[79] Appellant’s Outline of Argument 6 - footnote 24.
No evidence of this direction was presented to the sentencing judge. The assertion was not disputed by the respondent.
In Venning v Police,[80] Perry J held that it is wrong for a sentencing court to assume in fixing sentence that the discretion in s 37A(2) would be exercised in any particular way.
[80] [2001] SASC 406; (2001) 216 LSJS 338.
In R v Schelvis; R v Hildebrand,[81] it was argued that the sentencing judge should have taken into account the effects of Ms Schelvis’ deportation being ‘almost inevitable … upon being released on parole’. Ms Schelvis was a Dutch national who had come to Australia as a child, and she held a permanent residence visa to live here.
[81] [2016] QCA 294.
Fraser JA (with whom Morrison JA and Peter Lyons J agreed) noted that the Migration Act 1958 (Cth) had been amended so that if a visa holder does not pass the ‘character test’ in the Act, by virtue of having a ‘substantial criminal record’, the Minister must cancel the visa.[82] However, the visa holder may make representations to the Minister, who then has a discretion to revoke the cancellation.[83] His Honour referred to a line of authority in Queensland and Victoria[84] which conflicted with authorities in Western Australia[85] and in New South Wales[86] about whether the prospect that an offender may be deported should be taken into account. His Honour accepted that ‘the risk of removal from Australia (must) be assessable rather than merely speculative before it may be taken into account by way of mitigation’, following Guden v R.[87]
[82] Migration Act, s 501(3A).
[83] Migration Act, s 501CA(4).
[84] R v UE [2016] QCA 58; Guden v R (2010) 28 VR 288; Konamala v The Queen [2016] VSCA 48; Da Costa v The Queen (2016) 307 FLR 153; Schneider v The Queen [2016] VSCA 76.
[85] Dauphin v The Queen [2002] WASCA 104; Houghton v The State of Western Australia (2006) 32 WAR 260; Cohen v The State of Western Australia (No 2) (2007) 180 A Crim R 348; Ponniah v The Queen [2011] WASCA 105; Hickling v The State of Western Australia [2016] WASCA 124.
[86] R v Latumetan and Murwanto [2003] NSWCCA 70; R v Van Hong Pham [2005] NSWCCA 94; R v Mirzaee [2004] NSWCCA 315; Ali v R [2014] NSWCCA 45.
[87] (2010) 28 VR 288.
Fraser JA held:[88]
I would therefore hold that the sentencing judge did not err in not taking into account by way of mitigation of the sentence any hardship which Schelvis might suffer as a result of the prospect that she might be deported upon completion of the custodial component of her sentence.
[88] At [82].
I respectfully agree with that analysis. Leaving aside the fact that the issue was not raised at the time of sentencing, the judge did not err in failing to take into account the prospect of deportation of Mr Zhang. This is so both in relation to the possibility that the sentence is more burdensome to Mr Zhang generally, and in relation to the further possibility that the Chief Executive’s discretion under s 37A of the Correctional Services Act may be exercised in a particular way.
Conclusion
The ultimate question for determination in this appeal is whether the sentence imposed was manifestly excessive.
Mr Zhang was a principal in an elaborate scheme to import tobacco into Australia without paying duty. A total of 615 parcels was imported, over a six-month period, in a scheme which Mr Zhang devised and for which he made all the necessary arrangements.
These parcels were delivered to postal boxes and parcel collection points. Some of these facilities were opened using bank cards Mr Zhang had fraudulently obtained from former housemates. The importation of a counterfeit passport is also a serious offence.
Mr Zhang derived very substantial profits from his crimes. His actions were motivated by greed. It is not suggested that he was in difficult financial circumstances. He had the option of a professional career in Australia had he pursued his studies. None of the cases put forward for comparison demonstrated the same level of criminality – in each case the offender’s role was more limited and the crimes were instigated by others.
Having regard to the nature of these offences and the resources required to detect them, as evidenced by the large body of evidence presented by the prosecution in this case, and to the evident intention of Parliament when the penalties were increased, general deterrence must be an important component of the sentencing scheme in such cases.
Mr Zhang is a young man with no previous convictions. He was 23 years old when the offences were committed. He is contrite, he pleaded guilty at an early stage, and he offered to cooperate with authorities. There is little else to mitigate the seriousness of his offending.
In all the circumstances, I do not accept that the sentence was manifestly excessive. The judge gave appropriate weight to Mr Zhang’s age, contrition, cooperation and prospects for rehabilitation in fixing a relatively short non-parole period.
I would dismiss the appeal.
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