Shen v R

[2009] NSWCCA 251

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
SHEN, David Ying  v R [2009] NSWCCA 251

FILE NUMBER(S):
2008/1009

HEARING DATE(S):
14 July 2009

JUDGMENT DATE:
30 September 2009

PARTIES:
David Ying Shen (App)
The Crown (Resp)

JUDGMENT OF:
Hodgson JA Howie J Fullerton J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/1009

LOWER COURT JUDICIAL OFFICER:
Hulme DCJ

LOWER COURT DATE OF DECISION:
18 April 2008

COUNSEL:
T Game SC (App)
N Adams (Resp)

SOLICITORS:
Horowitz & Bilinsky Solicitors (App)
Commonwealth Director of Public Prosecutions (Resp)

CATCHWORDS:
CRIMINAL LAW
appeal against sentence
offences under Commonwealth Criminal Code and Drug Misuse and Trafficking Act (NSW)
traffic commercial quantity of a controlled drug
supply commercial quantity of a prohibited drug
parity with co-offender sentenced in Queensland
partial accumulation of sentences

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995 (Cth)
Drug Misuse and Trafficking Act 1985

CATEGORY:
Principal judgment

CASES CITED:
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Lowe v R [1984] HCA 46; 154 CLR 606
Pham v R [2009] NSWCCA 25
Postiglione v R [1997] HCA 26; 189 CLR 295
R v Kerr [2003] NSWCCA 234
R v To [2007] NSWCCA 200; 172 A Crim R 121
SZ v R [2007] NSWCCA 19; 168 A Crim R 249

TEXTS CITED:

DECISION:
1.  Leave to appeal is granted.
2. The appeal is allowed.
3. The sentence for the State offence is confirmed.
4.  The sentence for the Commonwealth offence is quashed and in lieu the following sentence is imposed:
In respect of the offence of trafficking in a commercial quantity of 3,4 methylenedioxymethamphetamine the applicant is sentenced to imprisonment for 11 years with a non-parole period of 7 years.  The sentence is to date from 20 March 2007.  The applicant will be eligible for release on parole on the expiry of the non-parole period on 19 March 2014.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/1009

HODGSON JA
HOWIE J
FULLERTON J

30 SEPTEMBER 2009

DAVID YING SHEN v R

JUDGMENT

1. HODGSON JA:  I agree with Fullerton J.

2. HOWIE J:  I agree with Fullerton J.

3. FULLERTON J: This is an application for leave to appeal against sentences imposed after the applicant entered pleas of guilty in the District Court to two offences. The first alleged trafficking in a commercial quantity of a border controlled drug, namely MDMA contrary to s 302.2(1) of the Criminal Code Act 1995 (Cth) (“the Commonwealth offence”) and the second knowingly taking part in the supply of a large commercial quantity of MDMA contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (“the State offence”).

4. The quantity of MDMA the subject of the Commonwealth offence involved the distribution of the drug in the form of 230,000 tablets. Under the Criminal Code the weight of a controlled drug is specified by reference to its purity.  The gross weight of the tablets was calculated at 61 kilograms with a pure weight of 7.5 kilograms.  A commercial quantity of MDMA is specified as 0.5 kilograms. 

5. The quantity of MDMA the subject of the State offence involved an agreement to supply 10,000 tablets at an estimated gross weight of 2.26 kilograms or 666 grams pure. Under the Drug Misuse and Trafficking Act the weight of a prohibited drug is specified by reference to its gross weight.  A large commercial quantity of MDMA is specified as 500 grams.

6. The Commonwealth offence was committed in May 2006. The drugs were imported from Canada to Australia concealed in computer monitors. The applicant was not alleged to have been involved in the importation or to have had any previous relationship with the members of the criminal syndicate who were responsible for the importation. The drugs the subject of this offence were not recovered.

7. The State offence was committed in September 2006. The drugs the subject of this offence related to a separate importation involving the same methodology and the same criminal syndicate. On this occasion the applicant had the expectation that there would be prohibited drugs imported by the syndicate, and that they would be made available to him for supply, having maintained a relationship with one of the importers over the intervening months. The drugs the subject of this offence were intercepted by the authorities before the supply could be effected.

1. Both offences attracted a maximum penalty of life imprisonment. The State offence attracted a standard non-parole period of 15 years. Because the State offence was constituted by an agreement to supply the sentencing judge was satisfied that the level of objective seriousness was below the mid-range, albeit only by a small margin, which, together with the applicant’s plea of guilty and assistance accompanied by good prospects of rehabilitation, satisfied his Honour that the standard non-parole period would not be imposed but would operate as a guide to an appropriate sentence.

2. In the result, a sentence of 11 years imprisonment with a non-parole period of 7 years was imposed for the Commonwealth offence and a non-parole period of 7 years and 3 months with a balance of term of 2 years and 6 months imposed for the State offence. His Honour did not vary the statutory ratio for the State offence, specified in s 44 of the Crimes (Sentencing Procedure) Act 1999, being satisfied that the overall sentence resulted in an adequate period of supervision on parole. He did determine that there should be partial accumulation of the sentences to reflect the fact that there were two discrete episodes of offending separated by months, and further, that since the Commonwealth offence was objectively more serious, the sentence for the State offence (the offence committed second in time) should commence first. The sentence for the Commonwealth offence (the offence committed first in time) was ordered to commence two years into the sentence for State offence with the non-parole period expiring two years after the expiration of the non-parole period for that offence. This resulted in an overall sentence of 13 years with an effective non-parole period of 9 years, being 69 per cent of the overall sentence. His Honour made express reference to the sentencing practice of fixing the ratio between the head sentence and the non-parole period for Commonwealth offences between 60 per cent and 66 per cent. He took the view, however, that the ratio of 69 per cent in this case was a compromise between the state and federal sentencing regimes and that it also addressed the need for the effective non-parole period to bear an appropriate relationship to the objective gravity of the offending.

The grounds of appeal

1. The applicant advanced two grounds of appeal.  The first concerned the question whether the sentencing judge made adequate allowance for what was described as “relative parity” with sentences imposed on Matthew Reed, a member of the international syndicate that imported the drugs the applicant was charged with trafficking and supplying.  Reed was sentenced by Douglas J in the Supreme Court of Queensland in April 2007 on four counts of importing a commercial quantity of a border controlled drug contrary to the Criminal Code (Cth). Two counts involved cocaine, respectively 4 kilograms imported in May 2006 and 135.7 kilograms in September 2006 (neither of which attracted charges against the applicant) and two counts involved MDMA. The applicant was charged with trafficking the total quantity of MDMA that Reed was charged with importing in May 2006 and with agreeing to supply 2.26 kilograms of the 33 kilograms of MDMA he imported in September 2006. Reed was sentenced to concurrent terms of imprisonment of 12 years with a non-parole period of 8 years on each count.

2. The second ground of appeal concerned the ratio between the effective head sentence and non-parole period. It was submitted that the sentencing judge was in error in fixing the non-parole period at 69 per cent of the overall sentence in circumstances where the Commonwealth offence effectively subsumed the State offence and where the applicant’s subjective circumstances justified appointing a ratio at the bottom of what has been described as the Commonwealth norm. It was submitted that the applicant is entitled to be re-sentenced to correct this error even if the first ground of appeal fails.

3. It was submitted that if the first ground of appeal succeeds then, at the very least, the head sentence imposed in respect of the Commonwealth offence should be reduced. If the Court were persuaded that the applicant should be re-sentenced, the applicant advanced no submission as to how we should approach any re-sentencing for the State offence. The applicant did not challenge the order for partial accumulation, or sentencing for the two offences in reverse date order, it being assumed that the Commonwealth offence would subsume the State offence as the objectively more serious offence.

   The facts upon which sentence was passed

1. The members of the syndicate that imported the drugs comprised four Canadian nationals: Handlen, Reed, Nerbas and Paddison.  The drugs were shipped by sea in a container which had been packed with computer monitors some of which had their picture tube removed and into which the packages of drugs had been inserted prior to the computer monitor being resealed for shipping.  Handlen had the leading role in the arrangements for both importations and was also responsible for the disposition of the drugs in Australia.  Reed had some background in the business of recycling computer equipment in Canada.  He was originally recruited to provide advice as to the suitability of the use of the computer equipment to secrete the drugs.  Thereafter his role escalated to the point where Handlen was the only person senior to him. 

2. Handlen and Reed came to Australia on 6 April 2006 to progress arrangements for the arrival of the drugs and to take possession of the drugs on their arrival.  Nerbas was resident in Queensland during 2006 where he carried on an internet sales business.  A company was incorporated in Queensland (RCC Pty Ltd) for the purposes of the importation with Reed and Nerbas as directors.  The shipping container was consigned to that company.  Reed and Nerbas also leased commercial office and storage premises in Brisbane.  After the arrival of the container Reed, Handlen and Nerbas unloaded the computer monitors and stacked them in the storage unit.  Within days the drugs (including the cocaine) were removed and stored in cardboard boxes inside the premises. 

1. The following day what was referred to in the evidence as a “green Woolworth’s shopping bag” was packed with a number of packages of MDMA containing a total of 30,000 tablets which Handlen told Reed was to be given to someone who had come from Sydney to “get the samples”.  The shopping bag was given to the applicant. 

2. A few days later the balance of the MDMA, comprising 200,000 tablets, was packed into two duffel bags by Reed, Handlen and Nerbas and taken to Reed’s rented apartment.  Handlen instructed Reed that the person who was to collect the bags had been provided with Reed’s telephone number to enable him to be directed to the apartment.  The applicant telephoned Reed and obtained those directions.  Later that evening, the two duffel bags were given to a young Asian man.  Reed later confirmed with the applicant that the transfer had been effected.  

3. The applicant told police in a record of interview upon his arrest that he collected all the drugs (or arranged for their collection) at the request of an acquaintance he knew only as “Peter”, who was in turn assisting a friend of his who did not understand English.  He said that Peter told him that a Canadian might have some tablets the applicant could sell and that Peter expected a commission of 50 cents per tablet in addition to the tablets the applicant would collect for him if he was successful in selling them.  The applicant said he was given Handlen’s telephone number, and later met with him in Brisbane, where he was offered the tablets for sale at an agreed price.  Arrangements were made for the applicant to collect the Woolworth’s shopping bag and, a few days later, the two duffel bags.  The applicant then returned to Sydney.  He told police that he gave the tablets to someone else to sell and that this person accounted directly to Peter for the sale of Peter’s share of the consignment.  After deducting Peter’s commission on his share of the tablets, the applicant said he owed Handlen $80,000.  As Handlen was due to return to Canada he told the applicant to hold the money until either he or Reed asked for it.  Some time later the applicant provided Reed with $50,000 at his request and the balance of what was owed was given to Handlen in September 2006.

4. On their return to Canada after the first importation Reed, Handlen and Paddison made arrangements to ship two further containers of used computer monitors to Australia.  The first container was shipped without any drugs.  Cocaine and MDMA were concealed in the second container in the same fashion as in the May importation.

5. Reed returned to Australia in August 2006 and resumed residence in Brisbane.  Handlen and Paddison returned the following month.  The applicant regularly socialised with Handlen pending the arrival of the shipment on 8 September 2006. 

6. The Australian Customs Service intercepted the container and substituted an inert substance for the packages of drugs concealed in the monitors.  When the container was unloaded it apparently became obvious to Reed and Paddison that there had been interference with its contents although it was not clear to them whether the drugs had been located.  The applicant was recorded on several occasions speaking with Handlen in guarded and coded language concerning the anticipated availability of the container and distribution arrangements for the drugs.  By the evening of 18 September 2006 they concluded that the authorities had inspected the container but had failed to locate the drugs.  Handlen conveyed this to the applicant.  Subsequent conversations revealed that the applicant was seeking confirmation that the consignment had cleared customs in order to proceed with some arrangements he had made with a third party.  In his record of interview the applicant told police that Handlen had offered him 10,000 tablets to sell on condition that the proceeds of sale were available within a week. 

7. The applicant was arrested on 20 September 2006.

.

His Honour’s findings

1. His Honour characterised the applicant’s criminality as constituted by the assistance he gave to members of an international drug importation syndicate whose objective was to introduce substantial quantities of dangerous drugs into the Australian community on two separate occasions.  He also noted that the quantities of drugs the applicant dealt with were substantial in themselves notwithstanding the fact that they were part of a much larger consignment, that his sole motivation was a desire for financial gain and that his role in distributing the drugs was that of a principal.  These findings are not challenged on appeal. 

2. In so far as the applicant’s subjective circumstances were concerned his Honour noted that he was 64 years of age and had no prior convictions.  His Honour took the applicant’s good character into account and was satisfied that because of his age, and the time he would spend in custody, he was unlikely to reoffend.  Although his Honour had some express misgivings about the genuineness of the applicant’s remorse he accepted that the applicant regretted the impact of his conviction and sentence upon his wife and young children and other members of his family, some of whom have respectable careers.  His Honour accepted the joint approach of prosecuting and defence counsel that the combined effect of the plea of guilty and past assistance justified a discount of 35 per cent.  These findings are not challenged on appeal. 

   How his Honour dealt with the sentences imposed on Reed

1. The Crown provided his Honour with the published remarks of Douglas J in Reed’s sentence proceedings however, because of a sentencing practice in Queensland where details of assistance and discounts for assistance are suppressed from publication, neither defence counsel nor his Honour were aware of the precise discount that was applied to the Reed sentence or the reasons for it.  Instead his Honour was informed by the prosecutor that Reed had been afforded the “maximum discount” for his past and future assistance.  He accepted the Crown submission that because the applicant and Reed were not co-offenders  (presumably because they were not charged with the same offences and were dealt with in different jurisdictions) parity considerations did not arise in what his Honour called “the direct sense”.  Rather, his Honour was invited by the prosecutor to “bear in mind” the sentences that were imposed on Reed in imposing sentence on the applicant.  He said that he would do so in his sentencing remarks.  

2. This Court was provided with the published remarks in the Queensland sentence proceedings, inclusive of the in camera proceedings.  Within days of the hearing of the appeal, the applicant’s counsel was also provided with the same material by order of the Supreme Court of Queensland on his undertaking that it would not be published otherwise than for the purposes of the appeal. 

3. By reference to this material it is clear that Reed’s sentence was reduced by 50 per cent for his past and future assistance and, on one reading of Douglas J’s sentencing remarks, also by reason of his plea of guilty.  When applied to a notional head sentence of 24 years on all four counts, the discount reduced the head sentence to 12 years on each count with a non-parole period of 8 years.  The sentences were ordered to be served concurrently.  In the applicant’s written submissions it was argued that his Honour may well have thought the discount was higher than 50 per cent, (presumably on the basis that that a 60 per cent discount on sentence has been nominated as ‘”the maximum discount”: see SZ v R [2007] NSWCCA 19; 168 A Crim R 249) and that this may have impacted adversely on the applicant’s sentence because his Honour may have assumed a higher notional starting point for the calculation of the Reed sentence. After being given access to Douglas J’s reasons for judgment this submission was abandoned.

The first ground of appeal

1. The only remaining submission advanced in support of the first ground of appeal was that despite the fact that the Commonwealth laid different charges against the two offenders, the sentence imposed on the applicant did not bear a reasonable relationship or relativity to the sentence imposed on Reed.  After making due allowance for differences in the sentencing practices in New South Wales and Queensland (the most significant being that Reed was sentenced to wholly concurrent terms of imprisonment for all offences, an approach which is contrary to established sentencing principles in this state for repeated offending of the type and scale in which Reed was involved), it was submitted that the sentences were nevertheless disproportionate.  This conclusion was also said to be borne out by the fact that the objective criminality involved in Reed’s offending was much greater than that of the applicant and for two reasons.  The first because of the senior role he played in both importations as compared with the applicant’s role in distributing, or agreeing to distribute, some of the drugs imported, and secondly because the drugs imported by Reed in September 2006 exceeded the drugs that the applicant was charged with supplying by a very considerable measure.  It was submitted that to the extent that there are relevant differences in the subjective circumstances of both offenders this does not justify the applicant serving a significantly longer effective sentence. I note that Reed was a young man with no prior convictions and the applicant a very much older man also with no prior convictions.

1. The applicant submitted that it was immaterial for the purposes of the appeal whether this Court approaches the question of principle as one of “strict parity” or “relative parity”, assuming that there is a practical distinction between the two concepts.  It was also submitted that irrespective of whether there is any difference in the approach to the sentencing of co-offenders mandated by Lowe v R [1984] HCA 46; 154 CLR 606 and the approach to the sentence of offenders involved in a course of criminal conduct in circumstances where, despite differences in the type or number of charges, different sentencing outcomes generate a justifiable sense of grievance, due proportion in the sentences of the applicant and Reed is required in order to reflect the principle of equal justice. The applicant relied upon Postiglione v R [1997] HCA 26; 189 CLR 295 where at 301 Dawson and Gaudron JJ said:

   The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

2. The Crown submitted that the lack of relativity in the sentences imposed on the applicant and Reed simply reflects the fact that they pleaded guilty to different offences and were sentenced on a different factual basis and that this approach was entirely in keeping with the line of authority most recently considered by Latham J in Pham v R [2009] NSWCCA 25 at [28] – [45]. The Crown submitted that the applicant was seeking to extend the application of the parity principle beyond that of co-offenders contrary to that same line of authority.

3. In Pham the applicant was convicted of knowingly taking part in the supply of a large commercial quantity of pseudoephedrine and was sentenced to a non-parole period of 7 years and 6 months with a balance of sentence of 2 years and 6 months.  His role was held to be significant although below that of others jointly involved in the importation and supply of the drug.  While all offenders were originally charged with both importation and supply offences, not all offenders were arraigned on both charges.  The importation offence carried a maximum of 5 years while the supply offence carried a maximum of life imprisonment with a non-parole period of 15 years.  A co-offender, whose criminality was said to be far greater than that of the applicant, was sentenced only for the importation offence, the Crown having accepted that they should elect as to which charge to proceed with to avoid the indictment being stayed, and to a term of 2 years imprisonment that was then suspended under the Crimes (Sentencing Procedure) Act.  Another offender was sentenced on both counts, no point having been taken in that sentence proceeding before a different judge that the indictment was duplicitous.  That offender was sentenced to an effective non-parole period of 8 years.  The applicant complained that his sentence on the supply count should be reduced in light of the sentences imposed on his co-offenders.  He relied upon R v Kerr [2003] NSWCCA 234, a decision that addresses the application of the parity principle where co-offenders are charged with different offences. In Kerr Miles AJ, with whom the other members of the Court concurred, stated at [20]:

   In other words when it is known that a person implicated in the offence for which an offender is being sentenced has already been convicted and sentenced, care needs to be taken to ensure that as far as possible the sentence about to be imposed is not so severe as to generate, not only a sense of grievance in the offender but also a sense of disquiet in the disinterested observer. The observer must of course be reasonably acquainted with the circumstances. Sometimes such a situation may be unavoidable. A co-offender may be given immunity in exchange for testifying against the accused. That does not in itself require leniency to be extended to the offender being sentenced let alone a sentence that is so lenient that it is out of the range of what is appropriate.

4. In dismissing the appeal Latham J considered the line of authority commencing with Kerr in some detail. After referring to the views of Miles AJ extracted above her Honour observed:

   33 This statement of principle was considered by this Court in R v Formosa [2005] NSWCCA 363. There the applicant was charged with malicious infliction of grievous bodily harm in company. The co-offender, Wood, was dealt with as an accessory after the fact to the applicant’s offence. In dismissing the appeal, Simpson J stated:

   40 The decision in Kerr is capable of being read as extending the principle so that it applies even where co-offenders are charged with different offences. I do not wish to be taken as entirely rejecting the proposition that the principle can be so applied, but here, with the extremely wide divergence between the nature of the crimes charged against the co-offender and against the applicant it is difficult, if not impossible, to see how that principle can be applied.
   41 The effect of the submissions made on behalf of the applicant (and the decision in Kerr is at least capable of giving them some support) is that the principle of parity in sentencing is broad enough to extend to redressing disparities or discrepancies in the charging process as well as in the sentencing process.
   42 In Kerr, there were marked parallels with the present case. The facts suggested that both the applicant and Oliver had been actively involved in the actual assault, and, so far as the facts are recited in the judgment, to a comparable degree. Yet Kerr was charged with a significantly more serious offence than was Oliver. Quite apart from any other differences, which were recognised in the passage quoted in Postiglione as justifying different sentences, that alone imposed demands upon each sentencing judge that were different.
   43 In the present case the divergence was even greater. While Colin Wood does not appear actively to have participated in the assault, he was undoubtedly present for the purpose of supporting the applicant. That he was charged only with an accessorial offence is mysterious and unexplained.
   44 I do not understand either Lowe or Postiglione to suggest that the parity principle extends to correcting any imbalance in the manner in which co-offenders are charged. I would be very cautious before proposing or adopting any such principle.

   34 The statement of caution made by Simpson J above was repeated in Spinks v R [2007] NSWCCA 52 where a complaint of disparity was rejected in circumstances where one offender had been charged with less offences than the co-offender. The statement was also endorsed in Yin v R [2007] NSWCCA 350 at [23]–[24], in Kauwenberghs v R [2008] NSWCCA 98 at [109] and referred to in McGuiness v R [2008] NSWCCA 80. In the latter case there was no disparity arising where one offender had been dealt with summarily and the other on indictment. In Yin Barr J stated at [24]:

   ……………….Although I express no opinion about the comparison of an appellant's sentence with that of an offender convicted of a more serious offence, it seems to me that comparison with that of an offender convicted of a less serious offence, as is done in this appeal, is attended with difficulty.

   35 For completeness I note that Kerr was referred to in Yassine v R [2008] NSWCCA 139 and a small part of the judgment of Miles AJ quoted, but without critical comment. But the argument on parity failed and the appeal was dismissed. Similarly, Formosa and Spinks were referred to by Buddin J (Basten and Barr JJ agreeing) in Holden v R [2008] NSWCCA 100 at [38] with apparent approval and the appeal was dismissed.

   36 In my opinion, if Kerr has any applicability, it must be in a very limited class of case. This Court is not generally concerned with addressing the consequences of prosecutorial discretion as it impacts upon the sentences imposed upon offenders. As Miles AJ recognised, it could not be seriously argued that a person should receive a reduction in sentence because a co-offender is not charged or where, for some reason, the charge does not proceed. Why then should a sentence be reduced because another offender is charged with a less serious offence or a lesser number of offences? How does the court inform itself of the reasons why the prosecutor acted as he or she did? Does the court interfere even if the prosecutor’s actions were completely justified?

   37 If the disinterested observer is to be consulted then that observer should understand the reasons why the prosecutorial discretion was exercised as it was. If this observer also understands that the courts do not generally supervise the legitimate exercise of prosecutorial discretion or seek to address the results of its exercise, then the observer would feel no disquiet about the different sentencing outcomes. But if such disquiet does arise, it is a result of the prosecutor’s actions and not the sentences imposed by the court.

   38 In my opinion there is no justifiable sense of grievance arising from the proceedings against [the applicant] or the sentence imposed upon him.  

5. While it is true that the Commonwealth prosecuting authority in the present case laid different charges against Reed and the applicant (in part, it would seem, as a result of the fact that Reed was arrested in Queensland and the applicant in New South Wales) and that this had the effect of invoking different statutory sentencing regimes and different approaches of principle to the question of accumulation, the same statutory maximum of life imprisonment applied to all offences. In addition, it is important to emphasise that despite the differences in the objective criminality of the applicant and Reed the dominant offending of both was contrary to the Commonwealth Criminal Code, albeit that Reed was charged with importing the border controlled drug that the applicant was charged with trafficking there was a marked overlap and interconnection between their offending.  In the particular circumstances of this case, to point to the different charges and the different State sentencing regimes as justifying the disproportion between the applicant’s sentence and Reed’s sentence understates the importance of the overriding principle of equal justice and its legitimate operation in this case. 

6. Despite his Honour having said that he would “bear in mind” the sentences imposed on Reed, I am satisfied that a greater allowance ought to have been made for relative parity in sentencing the applicant particularly since it was not suggested to his Honour (and not submitted to this Court) that the sentences imposed on Reed were manifestly inadequate, despite the fact that the sentences are markedly out of step with sentences imposed in this state for importing commercial quantities of a border controlled drug (see R v To [2007] NSWCCA 200; 172 A Crim R 121 where Hulme and Hall JJ reviewed a number of recent sentences where commercial quantities of MDMA were imported and where significantly longer sentences were imposed). In circumstances where the Crown on the appeal does not advance a submission that the individual sentences imposed on Reed were manifestly inadequate, or that the overall sentence was extremely lenient given his repeated and serious offending over an extended period, it is not for this Court, of its own volition, to make such a finding and to refuse to intervene for that reason.

7. I am satisfied that the applicant has made out the first ground of appeal and that he should be re-sentenced.  Accordingly, it is not necessary to decide whether, standing alone, the second ground of appeal would have warranted the applicant being re-sentenced.

   Re-sentencing

8. The applicant submitted that this Court should approach the re-sentencing exercise by commencing to calculate the head sentence for the Commonwealth offence within the range of 15-17 years (the agreed range in the sentence proceedings) but less than the commencement point his Honour adopted of 17 years. After allowing 35 per cent for the applicant’s assistance and plea of guilty, the agreed range translates to a head sentence between 9 years and 9 months and 11 years. I am not satisfied that it is necessary to disturb the sentence imposed by the primary judge for a sentence in appropriate proportion to Reed’s sentence to result from the re-sentencing exercise. That can be achieved, in this case, by moderating the extent to which the two sentences are accumulated. The head sentence imposed by his Honour was not only within the agreed range but appropriately reflected both the seriousness of the applicant’s offending and the principle of general deterrence – a principle of fundamental importance when sentencing offenders who are involved in large scale drug trafficking. In addition, I am not persuaded that there is any need to re-sentence for the State offence, particularly having regard to fact that the non-parole period imposed by his Honour was half of the standard non-parole period of 15 years.

9. In order to achieve relativity with the Reed sentence I propose to ameliorate what was otherwise an appropriate degree of accumulation so that the sentence for the Commonwealth offence (the offence committed first in time) will commence six months after the commencement of the sentence for the State offence with the non-parole period expiring six months after the expiration of the non-parole period for that offence. This will result in an overall sentence of 11 years and 6 months with an effective non-parole period of 7 years and 6 months, being 65.2 per cent of the overall sentence. Although the ratio between the effective head sentence and the non-parole period slightly exceeds what has generally been considered appropriate where there has been an order for partial accumulation of Commonwealth and State offences (see Howie J, Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [36] - [39]) as his Honour emphasised at [40] this will not always be the case. In the particular circumstances of this case, were the generally accepted ratio of between 60 and 65 per cent to be applied the effective non-parole period would be an inadequate reflection of the objective gravity constituted by the applicant’s offending.

Orders

1. The orders I propose are as follows:

   1.  Leave to appeal is granted.

   2. The appeal is allowed.

   3. The sentence for the State offence is confirmed.

   4. The sentence for the Commonwealth offence is quashed and in lieu the following sentence is imposed:

   In respect of the offence of trafficking in a commercial quantity of 3,4 methylenedioxymethamphetamine the applicant is sentenced to imprisonment for 11 years with a non-parole period of 7 years.  The sentence is to date from 20 March 2007.  The applicant will be eligible for release on parole on the expiry of the non-parole period on 19 March 2014.

   **********

LAST UPDATED:
30 September 2009