Su v The King

[2023] NSWCCA 207

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Su v R [2023] NSWCCA 207

Hearing dates:

14 April 2023

Decision date:

28 August 2023

Before:

Adamson JA at [1];
Ierace J at [12];
Sweeney J at [86]

Decision:

(1) Grant leave to appeal;

(2) Appeal dismissed.

Catchwords:

CRIME – Appeals – Appeal against sentence – Attempt to possess unlawfully imported border controlled drug – Methamphetamine – Commercial quantity – Observed conduct of applicant limited to two occasions – Whether sentence manifestly excessive – Whether sentencing judge erred in assessment of or lack of discernible finding as to objective seriousness

Legislation Cited:

Children (Criminal Proceedings Act) 1987 (NSW), s 15A

Court Suppression and Non-publication Orders Act 2010 (NSW), s 7

Crimes Act 1914 (Cth), s 16BA

Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A

Criminal Code Act 1995 (Cth), ss 11.1, 11.2A, 307.5

Cases Cited:

Bresnahan v R [2022] NSWCCA 288

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Howard v R [2019] NSWCCA 109

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Mulato v R [2006] NSWCCA 282

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Qiu v R [2022] NSWCCA 247; (2022) 373 FLR 183

R v Harris [2015] NSWCCA 81

Category:

Principal judgment

Parties:

Qing Qiang Su (Applicant)
Rex (Respondent)

Representation:

Counsel:
J Glissan KC; T Woods (Applicant)
R Ranken (Respondent)

Solicitors:
Jeffreys Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2019/364550

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

24 September 2021

Before:

Whitford DCJ

File Number(s):

2019/364550

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 24 September 2021 the applicant, Qing Qiang Su, was sentenced in the District Court to 9 years and 10 months’ imprisonment with a non-parole period of 6 years for attempting to possess a commercial quantity of methamphetamine which had been unlawfully imported.

In November 2018 Australian Border Force officers examined a shipping container that arrived at Port Botany, which had been consigned from an address in Malaysia. A total 4,970 packages containing 394.9kg pure methamphetamine were found within 71 car bonnets.

The applicant participated in a joint criminal enterprise with two co-offenders, Mr X and BC, to attempt to possess the imported methamphetamine. His observed conduct in the enterprise was limited to two occasions. The first was a meeting in which the applicant gave Mr X $20,000 in cash and a sim card, enabling Mr X to communicate with the freight forwarder to facilitate delivery of the consignment. The second was a meeting in which the applicant gave BC $600 to buy tools to disassemble the importation.

The applicant sought to appeal against his sentence on two grounds. The first ground was that the sentence was manifestly excessive (ground 1). The second ground was that the sentencing judge erred (a) in assessing the objective seriousness of the offence; or alternatively (b) in failing to make a discernible finding as to the objective seriousness of the offence (ground 2).

The Court held (per Ierace J; Adamson JA agreeing with separate reasons, Sweeney J agreeing with Ierace J), dismissing the appeal:

As to ground 1

1. For the reasons given by the sentencing judge, the sentence was an appropriate sentence having regard to all objective and subjective matters: Adamson JA at [11]. See also Ierace J at [79], with whom Sweeney J agreed at [86].

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, considered.

As to ground 2

1. The sentencing judge assessed the objective seriousness of the offence; and it was open to his Honour to assess the objective seriousness as his Honour did (and that it was not assessed as being low). Although sentencing judges commonly use language such as “objectively very serious”, “not particularly serious”, “in the mid-range of objective seriousness”, the form of words used in such an assessment is a matter for the sentencing judge. In the present case, the sentencing judge chose not to use verbiage of the variety set out above. Rather, his Honour recounted the factors relevant to the assessment of objective seriousness in such a way as to indicate his Honour’s assessment. That was sufficient to discharge this aspect of the sentencing role: Adamson JA at [4]-[9].

Bresnahan v R [2022] NSWCCA 288; Mulato v R [2006] NSWCCA 282; Qiu v R [2022] NSWCCA 247; (2022) 373 FLR 183, considered.

1. The sentencing judge comprehensively assessed the various elements that contributed to an understanding of the seriousness of the offence. It is neither necessary nor desirable to fix objective seriousness on a scale in respect of an offence that does not have a standard non parole period. The correct approach is for the sentencing judge to identify and assess the factors that are relevant to objective seriousness and take them into account as an essential element of the process of instinctive synthesis: Ierace J at [69]-[70], [84]; Sweeney J agreeing at [86].

Bresnahan v R [2022] NSWCCA 288; R v Harris [2015] NSWCCA 81, considered.

JUDGMENT

1. ADAMSON JA: I have had the benefit of reading the reasons of Ierace J in draft. I agree with the orders proposed by his Honour and adopt his Honour’s summary of the sentence hearing, sentencing judgment and parties’ submissions. What follows are my reasons for agreeing to the orders proposed.

2. Qing Qiang Su (the applicant) sought leave to appeal on the following grounds:

“1   The sentence is manifestly excessive.

2   The proceedings miscarried because the legal representatives of the applicant failed to place relevant subjective material before the Court.

3   The sentencing judge erred in taking the subjective value of the applicant’s plea into account towards an arithmetical discount rather than otherwise in mitigation of the sentence.

4    The sentencing judge erred

(a)   in assessing the objective seriousness of the offence; or alternatively,

(b)   in failing to make a discernible finding as to the objective seriousness of the offence.”

3. Ground 2 was expressly abandoned. At the hearing of the appeal, Mr Glissan KC, who appeared with Mr Woods for the applicant, informed the Court that he did not propose to advance any argument in support of ground 3 (thereby indicating to this Court that it, too, was abandoned). Because ground 1 will not arise if ground 4 is made out (since this Court, in that event, would be required to re-sentence the applicant), I propose to address ground 4 first.

Ground 4: alleged error in assessment of objective seriousness

4. The importance of the assessment of objective seriousness by sentencing judges was highlighted in Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ):

“Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour.”

5. In substance Mr Glissan argued that the sentencing judge had erred in the assessment of objective seriousness or had not assessed objective seriousness.

6. Although sentencing judges commonly use language such as “objectively very serious”, “not particularly serious”, “in the mid-range of objective seriousness”, the form of words used in such an assessment is a matter for the sentencing judge. The examples referred to above are not particularly exact as to the level of objective seriousness but they serve to indicate that such an assessment has been performed. In the present case, the sentencing judge chose not to use verbiage of the variety set out above. Rather, his Honour recounted the factors relevant to the assessment of objective seriousness in such a way as to indicate his Honour’s assessment.

7. The sentencing judge expressly considered the two principal matters relevant to the objective seriousness of this offence: the quantity of the drug and the role played by the offender. The sentencing judge recorded that the quantity was more than 526 times the threshold for commercial quantity and of high purity (79%). Although the sentencing judge was not satisfied that the applicant knew of these matters, his Honour was satisfied that the applicant knew that it was a substantial importation. The sentencing judge considered the applicant’s role to be lesser than those ultimately directing and controlling the operation and greater than his co-offenders. The sentencing judge assessed the applicant’s role on the basis of various matters, including that the applicant was trusted to provide cash and, in the case of the co-offender Mr X, important instructions and a SIM card to facilitate access to the importation. His Honour found that the applicant was an “essential component” of the enterprise, whose culpability was at least equivalent to Mr X and whose role was greater than the co-offender BC.

8. In my view, these findings, taken together, indicate, first, that his Honour assessed the objective seriousness of the offence; and, second, that it was open to the sentencing judge to assess the objective seriousness as his Honour did (and that it was not assessed as being low). This was sufficient to discharge this aspect of the sentencing role: see the summary of authorities in Bresnahan v R [2022] NSWCCA 288 at [130] (Yehia J, Beech-Jones CJ at CL and Walton J agreeing) and Qiu v R [2022] NSWCCA 247; (2022) 373 FLR 183 at [25] (Cavanagh J, Gleeson JA and Wright J agreeing).

9. For these reasons, ground 4 has not been made out.

Ground 1: alleged manifest excess

10. Manifest excess is a conclusion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). The question is whether the sentence is “unreasonable or plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

11. The applicant’s submissions on this ground were largely based on the erroneous premise that the sentencing judge had assessed the objective seriousness of the offending as low. For the reasons given above, that submission must be rejected. For the reasons given by the sentencing judge, the sentence was an appropriate sentence having regard to all objective and subjective matters. Ground 1 has not been made out.

12. IERACE J: On 24 September 2021, Qing Qiang Su (the applicant) was sentenced by Judge Whitford SC (the sentencing judge) in the District Court for a count of attempting to possess a commercial quantity of methamphetamine which had been unlawfully imported, contrary to ss 11.1(1), 11.2A and 307.5(1) of the Criminal Code Act 1995 (Cth). The maximum penalty was life imprisonment and/or 7,500 penalty units. The amount involved was 394.9kg of pure methamphetamine.

13. The applicant pleaded guilty to committing the offence with two named persons, who I will refer to as Mr X and BC. ^[1] They pleaded guilty to the same offence and were sentenced by Judge Hock in the District Court on 3 February 2020. Both provided assistance to the authorities. For that reason, Mr X was the subject of a non-publication order made by the sentencing judge on 15 July 2021, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), which prevented publication of him having provided assistance to the police. BC was a young person at the time of the offence and thus, in any event, cannot be identified: s 15A(1)(a) of the Children (Criminal Proceedings Act) 1987 (NSW).

    1. These are not the young person’s initials.

14. The applicant was sentenced to imprisonment for 9 years and 10 months, with a non-parole period of 6 years, commencing on 22 September 2021. The earliest date on which he will be eligible for release to parole is 21 September 2027.

15. On his arraignment in the District Court, the applicant entered a plea of not guilty to the offence. His plea of guilty was entered four days before his trial was set to commence, which at that time had an estimate of three weeks.

16. At the sentence hearing, the applicant disputed a significant aspect of the Crown case on sentence, which was the subject of a hearing over two days. The sentencing judge determined the issue in favour of the applicant.

17. The applicant initially sought leave to appeal in respect of three grounds, the second of which was abandoned at the outset of the hearing. The remaining two grounds are interrelated and, for the purposes of this judgment, are re-numbered grounds 1 and 2:

“Ground 1: The sentence is manifestly excessive;

Ground 2: The sentencing judge erred (a) in assessing the objective seriousness of the offence; or alternatively (b) in failing to make a discernible finding as to the objective seriousness of the offence.”

The circumstances of the offence

18. The facts on sentence that were not disputed were as follows. On 29 November 2018, Australian Border Force (ABF) officers examined the contents of a fully-loaded 40 foot shipping container that had arrived at Port Botany the day before, which had been consigned from an address in Malaysia to a named company at an address in Granville (the Granville address). The contents of the container were three crates that were found to contain 71 car bonnets. X-rays of some of the bonnets revealed abnormalities. In a deconstruction on 1 and 2 December, packages of a substance were found inside the bonnets that tested positive for methamphetamine. In all, 4,970 packages were recovered, containing a total of 495.5kg of methamphetamine with a minimum purity of 79.6 per cent, which is the equivalent of 394.9kg pure.

19. Prior to the shipment’s arrival at Port Botany, messages had been sent from a WeChat handle known as “I’m the Wind and You’re the Sand” (referred to by its acronym ITWAYTS) to Mr X concerning the shipment.

1. On 15 November 2018, a message advised Mr X of the consignment details of the impending shipment and informed him that “you will be responsible for the dissembly (sic) and delivery” and “wages will go up by 1.5”. He was also instructed to collect a phone card.

2. The next day, ITWAYTS sent messages to Mr X stating that he would be responsible for signing for the delivery. The consignment details of the shipment were repeated.

3. On 25 November 2018, a message from ITWAYTS informed Mr X that “The stuff is arriving soon. Need to prepare tools for the dismantling. Do you have time to put together a list for me?”

4. On the morning of 29 November 2018, telecommunications service 0450 969 901 (the 901 phone number) attempted to contact Mr X’s phone number eight times and Mr X attempted to contact the 901 phone number three times.

20. That evening, the applicant met with Mr X outside the University of Technology Sydney (UTS) library near Central railway station and handed him $20,000 in cash and a sim card, which was for the phone number 0420 558 659 (the 659 phone number). A person or persons using the name “Mac Clen” and using an email address that included the word “mac” was in regular contact with the freight forwarder, Seaway Logistics Pty Ltd (Seaway), regarding delivery of the consignment. The contact number for Seaway employees to communicate with those importing the consignment was the 659 phone number. The identity of the person or persons who posed as “Mac Clen” was not established.

21. Later the same evening (29 November 2018), Mr X texted ITWAYTS, asking: “where do I transfer the tens of thousands tomorrow?” ITWAYTS responded: “Just transfer … at the bank … Don’t forget to do a screenshot after”. The following day (30 November 2018), BC transferred the sum of $20,000 to a bank account in the name of Seaway.

22. On 3 December 2018, ITWAYTS texted Mr X with instructions in relation to the “unwrapping/dissembly”.

23. On Tuesday 4 December 2018, the customs hold on the consignment was removed, which showed it as cleared for delivery. That afternoon, Mr X texted ITWAYTS stating: “If time is confirmed I will apply for time off”. ITWAYTS replied “Confirmed … To arrive on Friday”.

24. On 6 December 2018, an employee of Seaway emailed Mac Clen that the shipment had been cleared and would be ready for delivery at 9am on Friday 7 December 2018. Mac Clen responded that a person with the same name as Mr X would be at the Granville address to take receipt of the consignment. On the same date, in an exchange between ITWAYTS and Mr X, discussion occurred as to the arrival of a delivery, obtaining tools, emailing the freight forwarder and getting to the address at 8:00am “tomorrow”. In an exchange that ended at 10:07pm that night, ITWAYTS told Mr X to have “the hammer, pincers, most importantly an electric saw, one that has a round head for cutting iron”. Mr X asked where the money was for that. ITWAYTS replied: “Will pass on tonight. (Mr X: Where to find you?) … I will pass to [BC]”. Between 10:15pm and 10:18pm that night, the applicant met with BC outside a branch of the Commonwealth Bank in Hurstville. He withdrew $600 from an ATM and handed it to BC. The following morning between 8:21am and 8:45am, BC attended a hardware shop at Kingsgrove and purchased an electric cutting multi-tool, hatchet, two sets of pliers and an extension cord.

25. On Friday 7 December at about 8:45am, Mr X attended the vicinity of the Granville address. At 8:50am, an employee of Seaway rang the 659 phone number and advised the male who answered that the consignment would be at the address at 9am. The male responded that he would wait out the front of the premises. A few minutes later, AFP officers approached Mr X, who was standing outside the premises and arrested him. His mobile phone was found to have in it the sim card for the 659 phone number. At about 9:30am, BC arrived at the premises and was arrested.

26. A search warrant for the applicant’s residence was executed on 19 November 2019. He was arrested on 19 November 2019 and was granted bail on 20 November 2019. Conditions of his bail included that he reside at an address where his parents and wife resided. He was subject to an evening curfew with an enforcement condition. He had no prior convictions. He was aged 21 at the time of the offence, 22 at the date of his arrest and 24 at the date of his sentence.

The sentence hearing

The nature of the dispute as to the facts

27. The sentence hearing took place on 15 and 16 July 2021. The Crown contended that the WeChat handle ITWAYTS was the applicant, which he denied. The applicant gave evidence as to the disputed facts issue and more generally as to matters relevant to his sentence. In his remarks on sentence, the sentencing judge concluded that while on the balance of probabilities he would be satisfied that the applicant operated the ITWAYTS handle, he was not satisfied beyond reasonable doubt of that proposition.

28. For the purposes of this application, it is unnecessary to canvass the aspect of the sentence hearing that concerned the disputed facts issue.

The applicant’s evidence on matters other than the disputed facts issue

29. The applicant gave evidence through an interpreter in a Chinese language. In respect of his position in the drug importation enterprise, the applicant said his only role was “passing on the money,” he was not told what the money was for.

30. As to his background and personal circumstances, the applicant had no criminal history. He said that he arrived in Australia from China when he was aged “about 14”, attended two years “of language” and then attended “about 3 years” of high school in Sydney, leaving during year 12.

29. As at the date of his evidence, the applicant resided with his parents, wife and infant child on a ten-acre vegetable farm in Leppington. He worked on the farm and one day a week at Flemington markets. He had previously worked in a pet food factory.

30. The applicant agreed in evidence that when the search warrant was executed at his home on 19 November 2019, he tried to flush a mobile phone down a toilet. Police retrieved the phone and, when asked, the applicant provided the password for the phone but said he had forgotten the password for a “cipher” application on the phone, which facilitates encrypted messaging. Due to water damage, police were unable to determine the phone number associated with the phone or sim card.

Evidence by the applicant’s wife

33. The applicant’s wife gave evidence that they met in China when she was aged 10. She formed a relationship with the applicant in 2016 and migrated to Australia in 2018, when she was aged 20 or 21. They have a child aged two years and eight months and were expecting their second child.

The value of the methamphetamine

34. The Crown bundle on sentence, which was tendered without objection, included a statement by an AFP officer to the effect that he estimated the wholesale value of the seized methamphetamine to be between $31,592,000 and $39,490,000.

The sentences imposed on Mr X and BC

35. The Crown bundle on sentence included the remarks on sentence by Judge Hock concerning the co-offenders. In sentencing Mr X, Judge Hock took into account his plea of guilty to another offence, committed on 25 October 2018, of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely MDMA, pursuant to s 16BA of the Crimes Act 1914 (Cth) (the Form offence). It also carried a maximum penalty of life imprisonment. The MDMA was discovered inside a picture frame which was addressed to Mr X by name and intercepted by ABF officers. The pure quantity involved was 3,937.7g. He was sentenced to imprisonment for 9 years with a non-parole period of 5 years and 6 months, taking into account a discount of 35 per cent for his plea of guilty and past assistance.

36. His role was that, on instructions from others, he inspected and rented premises for unloading and gaining access to the drugs, purchased equipment for unpacking the substance or arranged for someone to do so, and arranged for the purchase of suitcases to transfer the drugs.

37. Mr X was aged 18 at the time of the Form offence and 19 when he committed the same offence as the applicant. His subjective circumstances were that his parents separated when he was a baby. He lived with his mother in China until he was 13, then migrated with his father to Australia. His father was violent to his partner, prompting the applicant to leave home as soon as he was able, while he was in Year 11. He was motivated to commit the Form offence by his financial struggles, and was advanced $1,000 for rent and food. Judge Hock accepted evidence that he was a vulnerable person, and that his vulnerability would impact on his experience of prison. Her Honour found that he had “extremely good” prospects of rehabilitation.

38. Judge Hock found, as to BC’s role:

“[BC’s] was more limited in terms of the length of time he was involved and what he did. He participated from 20 November … .

On 7 December as instructed by [Mr X] the previous day, [BC] attended a Bunnings store at Kingsgrove and bought the tools for gaining access to the consignment. He then attended the premises where the delivery was to take place with that equipment and with the scales.”

39. BC had a background of significant deprivation, which her Honour outlined:

“… [BC] is a young man who has experienced an even more difficult upbringing than [Mr X].

He was born in Australia while his mother was in detention and returned to China with her when he was one year old. He has four older sisters. As his mother was single the family was very poor and [BC] took on a carer’s role including cooking and cleaning from a young age.

Because he held an Australian passport, apparently [BC] could not attend high school in China and therefore his mother sent him alone at age 12 to live with her friend or friends, none of whom were known to [BC].

He was unable to speak English when he arrived and understandably felt very isolated, particularly as the various people with whom he lived provided shelter only and were not able or were unwilling to provide emotional support. He told the psychologist that he was sexually assaulted by a female carer at age 15.

The Department of Communities and Justice became involved and [BC] became the responsibility of the Minister in 2016.”

40. Judge Hock noted that BC had significant mental health issues. Nevertheless, he was performing well in his studies in custody and her Honour concluded that he had “excellent prospects for rehabilitation”.

41. BC was sentenced to imprisonment for 5 years 6 months with a non-parole period of 3 years, after the application of a combined discount of 45 per cent for his plea of guilty and past and future assistance. He was aged 17 at the time of the offence.

42. In relation to both offenders, Judge Hock noted that neither had a criminal history, each had pleaded guilty at an early stage of proceedings and provided assistance to authorities, and both “have expressed remorse for their involvement and I accept that they are genuine”. Her Honour observed:

“While general deterrence remains important, and particularly important in cases of this kind, the law recognises that in the case of such young offenders considerable emphasis should be given to rehabilitation.”

Submissions on sentence

43. The applicant submitted to the sentencing judge that if his Honour ruled that the applicant was not the person who operated the ITWAYTS WeChat handle, it would be open to the court to categorise the applicant’s role as that of a low-level assistant, his role falling “well below the co-offender [Mr X] and below the co-offender [BC]”.

44. The Crown submitted that the offence fell in the mid-range of objective seriousness for an offence of this kind, noting that by his plea the applicant admitted being aware that a substance was contained in the consignment and being at least reckless as to the fact it was a border controlled drug.

45. The Crown submitted that the proposition that the applicant was a low-level assistant whose position in the hierarchy was lower than that of Mr X and BC was contradicted by the evidence that he was entrusted with the consignment money and phone and was distanced from the physical delivery of the drugs, and thus from the risk of detection. Rather, the applicant’s culpability was higher than that of BC and no less than that of Mr X, for the following reasons:

“(a)   [The applicant] performed crucial acts in furtherance of the enterprise and was trusted to pass on key resources to ensure the enterprise could advance. Without the $20,000 cash and the consignment phone, [Mr X] could not have taken possession of the drugs as they would not have been released by the shipping company. [Mr X] and [BC] did not perform these roles;

(b)   [BC’s] acts in receiving the $600, buying tools and attending the place of delivery … were of a lower order than those of [the applicant]. Further, there was a hierarchy between [the applicant] and [BC], evident in the offender’s instructions to [BC] that the money was for dismantling the consignment;

(c)   While all offenders were relatively young at the time of the offence, [the applicant] was older than both [BC] and [Mr X] (although not significantly older than [Mr X]);

(d)   [The applicant] was motivated by financial gain, whereas [BC] and [Mr X] were motivated by need, not greed. [The applicant] did not give any evidence of financial troubles or of any pressure placed on him to commit the offence;

(e)   However, [the applicant’s] involvement was of a lesser duration than [Mr X’s]. Also, there is no additional offence to take into account, as there was for [Mr X];

(f)   [The applicant] is not entitled to a discount for either past or future assistance, unlike ([Mr X] and [BC] respectively).”

46. The Crown handed up five comparative sentences.

The sentencing judge’s remarks on sentence

47. Although the sentencing judge determined the disputed facts issue in favour of the applicant, his Honour did not find him to be a reliable witness:

“As I have indicated, there was much that I consider unsatisfactory about the evidence given by [the applicant]. Indeed, such are the difficulties I have with it that unless it is objectively supported elsewhere, or involves some admission against interest, I do not accept it and disregard it for present purposes.”

48. His Honour noted that it was common ground between the parties that it was likely that others were involved in the importation. His Honour added:

“The likelihood of that is only increased when one takes account of the respective ages and apparent circumstances of these offenders in the context of an importation of the size and value of this one.”

49. His Honour accepted that it followed from his determination of the disputed facts issue that the “observed conduct” of the applicant in the enterprise came down to two occasions: his meeting on 29 November 2018 outside the UTS library with Mr X where he gave him $20,000 in cash and a sim card for the 659 phone number, enabling Mr X to communicate with Seaways to facilitate the delivery, and his meeting with BC on 6 December 2018, when he gave BC $600 to buy tools for the purpose of disassembly of the product. His Honour concluded, as to the applicant’s role in the enterprise:

“On the whole of the material before me, I am satisfied that [the applicant] was, within a hierarchy attaching to this illicit commercial enterprise, placed somewhere between those ultimately directing and controlling the enterprise locally, if it was not him, and the two co-offenders. Whilst [the applicant’s] observed conduct was limited to the two occasions outlined above, his role is sensibly assessed, in terms of its relativity to the involvement of the co-offenders, by considering the nature and context of that conduct. At the very least, he was apparently trusted to provide in each case cash and, in the case of [Mr X], important instructions and a sim card, all to facilitate ultimate access to the importation. The nature of this role, whilst potentially protecting others in the hierarchy from detection, enjoyed a degree of apparent protection from scrutiny in and of itself, relative at least to the identified co-offenders. That bespeaks in my mind an inevitable conclusion that [the applicant] was closer to those ultimately responsible for the organisation and planning in this enterprise than were those co-offenders. I have concluded, predominantly for the reasons articulated in paragraph 58 of the prosecutions written submissions of 27 July [MFI 4], in addition to my own observations a moment ago, that it is appropriate to, and I do, approach this exercise on the basis of equivalence, at the minimum, in culpability with the co-offender [Mr X]. In that respect, the characterisation urged on behalf of [the applicant], of him being a low level assistant, is not inappropriate, where there is no evidence to support a conclusion to the requisite standard, as distinct from on the probabilities, that he had any decision making capability or was able to exercise any discretion in relation to the operation of the enterprise. Like the co-offenders he was acting on the instructions of others.”

50. As to the objective seriousness of the offence, his Honour referred to the quantity and purity of the methamphetamine and the fact that it was just over 526 times the threshold of a commercial quantity, although noting that the quantity was “not the determinant factor” in assessing the seriousness of the offence.

51. His Honour assessed the applicant’s knowledge of what was being imported as a factor relevant to the objective seriousness of the offending:

“I am satisfied by reference to his role that [the applicant] well knew he was dealing with a substantial importation, but there is not evidence by reference to which I can conclude to the requisite standard that the offender was aware of the precise amount involved.”

52. The sentencing judge found that the applicant’s motive for the offence was financial reward:

“Whilst he gave self-serving and, to my mind, unconvincing evidence as to the extent of the reward, the effect of his evidence was to admit that motivation. … he was to benefit by being paid for his involvement, in an amount indeterminate, effectively as an employee, as it were, rather than a principal.”

53. The sentencing judge made a limited allowance for the applicant’s plea of guilty, on both utilitarian and subjective bases:

“Notwithstanding its timing, and what appears to me to be an apparently strong prosecution case, I am satisfied that the plea embraced, to a limited extent, a degree of subjective value by way of some evidence of an acceptance of responsibility and a willingness to facilitate the course of justice. I do not understand there to be any contention that [the applicant] should not have some favourable account accordingly, albeit limited. There was also some objective utilitarian value in the plea. For the various values which the plea represents, I will allow a discount of 10% on sentence.”

54. Later in his remarks, his Honour said:

“Beyond the plea, which certainly reflects some, there is little which satisfies me that [the applicant] has demonstrated significant contrition or remorse.”

55. His Honour noted that there was little evidence before him as to the applicant’s subjective circumstances. He acknowledged the fact that he did not have a criminal history, which was a basis for some leniency, and the evidence of his family and living situation and his employment.

56. As to the applicant’s youth, the sentencing judge noted the appropriate principles, citing in particular Howard v R [2019] NSWCCA 109, per Fullerton J (Macfarlan JA agreeing) at [13]-[14]. His Honour found that, in spite of his relative youth, the applicant was not particularly vulnerable:

“Having watched and listened carefully as he gave his evidence, I am satisfied that [the applicant] has a sophistication and intelligence potentially beyond his years. Rather than taking advantage of any vulnerability, assuming he was recruited to the role in a fashion similar to that asserted by him, I am satisfied it was likely more on account of those characteristics and a capacity for discretion rather than in exploitation of any vulnerability.”

57. In accordance with principle when sentencing a young offender, the sentencing judge proposed to reduce the application of general deterrence and denunciation in favour of considerations of rehabilitation, although noting:

“While I extend to [the applicant] leniency in deference to those considerations generally, there is really very little of substance otherwise in the material before me which permits definitive conclusions on [his] circumstances or prospects generally.”

58. His Honour noted the applicant’s pro-social family situation and the salutary effect of the sentence would likely stand as “important protections against [the applicant] ever offending in the future”. His Honour later noted:

“… beyond some evidence about his marital and employment status, and family situation generally, there is really very little guidance in this case concerning [the applicant’s] subjective situation from which any conclusive determination can be made about his prospects, beyond the observations I earlier made, concerning the pro-social nature of his family commitments likely giving him some concrete focus towards a law abiding existence in the future.”

59. The sentencing judge made an allowance for the applicant having been on bail “since the date of his arrest on 19 November 2019, a period of about 20 months”, during which he was subject to a nightly curfew and reporting conditions, which entitled him to “some limited favourable account”. His Honour noted the starting point sentences for each co-offender, which were 14 years’ imprisonment for Mr X and 10 years’ imprisonment for BC.

60. As to considerations of parity, the sentencing judge made reference to the co-offenders’ sentences; their roles in the enterprise; their remorse and motivation for committing the offences, which he noted was financial gain on the basis of need, rather than greed; their assistance to authorities; their subjective features, including their youth; and positive prospects of rehabilitation.

61. The sentence imposed by his Honour of 9 years and 10 months, with a non-parole period of 6 years, was backdated to commence on 22 September 2021, so that the earliest date of release to parole is 21 September 2027. I note that the starting point of the sentence, having regard to the 10 per cent discount for the plea of guilty, was 10 years and 11 months. The ratio of the non-parole period to the total sentence is 61 per cent.

Grounds of appeal

62. As ground 2 is complementary to ground 1, they are considered together.

Ground 1: The sentence is manifestly excessive

Ground 2: The sentencing judge erred (a) in assessing the objective seriousness of the offence; or alternatively (b) in failing to make a discernible finding as to the objective seriousness of the offence

63. The applicant submitted that, although there is no specific or identifiable error apparent in the sentencing judge’s remarks, the sentence imposed is inconsistent with certain findings that were made by his Honour, to a point that it was manifestly excessive. These were:

1. the low objective seriousness of the applicant’s offending conduct;

2. his role being that of a “low level assistant”;

3. his criminal conduct being confined to two short meetings with other participants in which he handed over money and a SIM card on the instructions of others;

4. the fact that he had no decision-making capability or ability to exercise discretion in relation to the operation of the enterprise;

5. the absence of knowledge on his part as to the type and precise quantity of the border controlled drug;

6. the fact that there was no evidence suggesting he would share in the illicit proceeds from the sale of the drugs;

7. his youth, being aged 21 at the time of the offence, and the consequent necessity for emphasis to be given to his rehabilitation;

8. his clean record and concomitant prior good character;

9. his plea of guilty and concomitant acceptance of responsibility; and

10. his strong family connections and support, bearing favourably upon his prospects of rehabilitation and low risk of reoffending.

64. The applicant posited that, assuming the sentence imposed is unreasonably severe and in view of any error being latent, it may be due to the sentencing judge having done one or more of the following:

1. giving excessive weight to the quantity of drugs involved or to the applicable maximum penalty;

2. allowing suspicion as to the applicant being the user of the ITWAYTS account to affect his Honour’s consideration of the appropriate penalty;

3. failing to appropriately mitigate the sentence because his Honour was dissatisfied with or unimpressed by aspects of the sworn evidence given by the applicant; and/or

4. feeling constrained by the sentences imposed on the co-offenders, in that his Honour considered that imposing a lesser sentence upon the applicant could give rise to complaints of impermissible disparity, and so his Honour avoided that by imposing a more severe sentence than was otherwise justified.

65. The applicant concluded:

“Ultimately, the complaint under this ground is that there is a disparity between the objective seriousness of the applicant’s conduct, and his generally favourable subjective circumstances, and the very severe and punitive sentence of approximately 10 years’ imprisonment.”

66. The applicant advanced ground 2 as an alternative to ground 1, which presumes that the sentencing judge made a finding of low objective seriousness. The applicant submitted that if this Court concludes that the sentencing judge did not make such a determination but rather made a finding of a higher level of objective seriousness, or none at all, then it is an error warranting a resentence.

Consideration

67. The principles that apply to a determination of whether a sentence is manifestly excessive are uncontroversial. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R A Hulme J (as his Honour then was) succinctly stated those principles, at [443]:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

•   Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

•   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

•   It is not to the point that this Court might have exercised the sentencing discretion differently.

•   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

•   It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

68. The applicant’s contention that the sentence imposed was manifestly excessive presumes that the sentencing judge made the ten findings that are listed above at [63]. In my view, some of those points misstate or overstate the sentencing judge’s findings.

69. As to [63(1)] the sentencing judge’s findings as to the seriousness of the offence could not reasonably be characterised as a finding of “low objective seriousness”. His Honour did not fix the seriousness on a scale of “low”, “mid-range” or “high”, and, as senior counsel for the applicant acknowledged at the hearing of the application, he was not obliged to do so. It is only in a sentencing exercise that concerns a State offence with a standard non parole period that a sentencing court is obliged to fix an offender’s position in relation to the middle of a range of seriousness, for the purposes of s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). While error does not arise from fixing objective seriousness on a scale in respect of an offence that does not have a standard non parole period, it is neither necessary nor desirable: R v Harris [2015] NSWCCA 81 at [57]. The correct approach is for the sentencing judge to identify and assess the factors that are relevant to objective seriousness and take them into account as an essential element of the process of instinctive synthesis: Bresnahan v R [2022] NSWCCA 288 at [130].

70. His Honour comprehensively assessed the various elements that contributed to an understanding of the seriousness of the offence, as committed by the applicant. Those elements included the weight and purity of the border controlled drug, the applicant’s role in the enterprise, the extent to which that role was integral to its success, his degree of knowledge of its scope and the nature of his expected reward; that is, as an employee’s payment rather than as a principal. His Honour’s overall finding as to the seriousness of the offence, by any measure, was that it was significant and beyond what could be regarded as “low”.

71. The applicant’s submission, as refined at the hearing, was that the evidence was insufficient to have permitted the sentencing judge to make the determinations in the passage extracted at [49] above concerning the applicant’s position in the hierarchy of the enterprise. In any event, the sentence imposed was inconsistent with the sentencing judge’s conclusion in that passage that the applicant’s culpability was, “at the minimum”, on par with that of Mr X, that he was a “low level assistant”, that the evidence did not disclose any decision-making capability or a capacity to exercise discretion in relation to the operation; he also was acting on the instructions of others.

72. The challenge to the sufficiency of the evidence to permit the sentencing judge’s findings was not incorporated in the applicant’s grounds or foreshadowed in his written submissions. In any event, the submission is not made out. The nature of the two meetings, including their timing in the context of the anticipated delivery of the importation, the trust that was implicit in the tasks that the applicant carried out at them and the degree of protection from detection by the authorities that the applicant enjoyed compared to his co-offenders were inferences made available to the requisite standard, leading to what the sentencing judge aptly described as “an inevitable conclusion” that the applicant was closer in the hierarchy to the principals than were his co-offenders.

73. In my view, there is no tension between the sentencing judge’s findings as to the applicant’s position in the hierarchy and the applicant’s limitations as to his decision-making power, and his equivalent culpability with Mr X, at a minimum. When comparing the starting points for the sentences for the applicant and Mr X, allowances must be made for differences in the relevant facts and considerations, most notably that Mr X’s sentence took into account the Form offence.

74. As was submitted by the respondent at the hearing, it is apparent that BC was less culpable than Mr X and the applicant, although the starting point of the applicant’s sentence was only 11 months more than the starting point of BC’s sentence.

75. The next five factors listed by the applicant are effectively encompassed in the sentencing judge’s finding as to the objective seriousness of the offence. As to [63(3)], I note that the sentencing judge did not find that the applicant’s criminal conduct was confined to “two short meetings”, but rather, those meetings were the only “observed conduct”. His Honour’s assessment of the applicant’s criminal conduct was set out in par 46 of the remarks, which is extracted at [49] above.

76. In relation to [63(5)], while it is correct to observe that his Honour found that the evidence did not establish that the applicant knew the precise quantity of the border controlled drug that was being imported, as noted in the passage extracted from his Honour’s remarks set out at [51] above, his Honour found that “he well knew he was dealing with a substantial importation”.

77. As to the seventh and tenth factors, that is, the applicant’s youth, the consequent need for emphasis on rehabilitation and his strong family connections and support and low risk of reoffending, although the sentencing judge expressly acknowledged the need for general deterrence and retribution to give way to rehabilitation in respect of a young offender, he expressed a degree of frustration at the paucity of material before him as to the applicant’s situation and prospects, which precluded “definitive conclusions” in that regard; see the passage at [57] above.

78. In relation to the eighth and ninth factors, while his Honour took into account the applicant’s absence of a criminal history and prior good character, he did not make a finding that the applicant had demonstrated an “acceptance of responsibility”. To the contrary, in the passages extracted at [53] and [54] above, the sentencing judge expressed reservations about the extent of the applicant’s acceptance of responsibility and contrition and remorse.

79. In my view, when the sentence is considered in the context of the relevant findings made by the sentencing judge, the applicant has not discharged the onus of satisfying the Court that the sentence imposed was unreasonable or manifestly unjust.

80. Although it is perhaps unnecessary to do so, I would make the following observations about the five submitted hypotheses as to why error had occurred, if it was established. His Honour’s remarks were a reserved judgment that was handed down about two months after the sentence hearing was completed. It is comprehensive in its scope and nuanced in its consideration of the relevant issues.

81. The sentencing judge expressly acknowledged that the quantity of the border controlled drug, although a factor that is relevant to a determination of the seriousness of the offence, is not determinative of that issue.

82. His Honour’s reasons for rejecting the Crown’s contention as to the disputed facts were detailed and candid in their delineation between the civil and criminal standards of proof, which involved adverse findings as to the reliability of the applicant’s evidence. There is no basis to suspect that, in spite of (or as a result of) that candour, his Honour was subconsciously affected by his adverse findings in determining the appropriate penalty.

83. His Honour made no express or implied observation as to the appropriateness or otherwise of the co-offenders’ sentences. There is simply no basis, therefore, to suspect that the sentencing judge “felt constrained” by the co-offenders’ sentences in fixing the applicant’s sentence.

84. As to ground 2, for the reasons I have advanced in consideration of ground 1 in relation to objective seriousness, I conclude that the sentencing judge did not determine that it was “at the lower end” and that his Honour did make an assessment of the seriousness of the offence in accordance with principle. In my view, the sentence imposed is conformable with those findings. No error is demonstrated by his Honour’s findings as to the objective seriousness of the offence.

85. I would reject both grounds. Accordingly, in relation to each of the grounds, I would grant leave to appeal and dismiss the appeal.

86. SWEENEY J: I agree with Ierace J.

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Endnote

Amendments

28 August 2023 - Typographical errors corrected in [7]

Decision last updated: 28 August 2023