Tabuan v R

[2013] NSWCCA 143

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Tabuan v R [2013] NSWCCA 143

Hearing dates:

11 June 2013

Decision date:

25 June 2013

Before:

Hoeben CJ at CL at [1]; Harrison J at [2]; Beech-Jones J at [30].

Decision:

1. Grant leave to appeal.

2. Dismiss the appeal.

Catchwords:

CRIMINAL LAW - appeal - appeal against sentence - whether sufficient evidence to support findings relating to applicant's knowledge of drug transaction - whether evidence capable of supporting findings adverse to applicant beyond reasonable doubt - error found - whether lesser sentence warranted - parity - whether applicant entitled to have justifiable sense of grievance

Legislation Cited:

Drug Misuse and Trafficking Act 1985

Cases Cited:

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

Category:

Principal judgment

Parties:

Mario Guiang Tabuan (Appellant)
Crown (Respondent)

Representation:

Counsel:
R Mathur (Appellant)
N Noman SC (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2010/25529

Publication restriction:

Nil

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-08-03 00:00:00

Before:

Frearson DCJ

File Number(s):

2010/25529

Judgment

1. HOEBEN CJ at CL: I agree with Harrison J.

1. HARRISON J: The applicant seeks leave to appeal against a sentence imposed upon him by Frearson DCJ on 3 August 2012 after his conviction following a jury trial on a single count that he knowingly took part in the supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. His Honour sentenced the applicant to a term of imprisonment of 2 years and 2 months commencing on 18 June 2012 and expiring on 17 August 2014 with a non-parole period of 16 months expiring on 17 October 2013. The applicant was acquitted by the same jury on a charge that he knowingly took part in the supply of 460 grams of methylamphetamine, being an amount not less than the commercial quantity, contrary to s 25(2) of the Act.

1. This application raises the difficult issue of the extent to which a sentencing judge can legitimately make findings consistent with a jury's verdict where the evidence does not necessarily establish all of the facts required by the judge for that purpose. That issue is reflected in the first two of the applicants grounds of appeal, all of which are as follows:

Ground 1: The sentencing judge erred in finding that the applicant was aware that the drug transaction was "substantial" and in the order of 150 grams of methylamphetamine.

Ground 2: His Honour erred in placing too much weight on the quantity being "substantial"/150 grams in reaching the appropriate sentence.

Ground 3: His Honour erred in failing to allow procedural fairness to the applicant by finding that the quantity involved was substantial and in the order of 150 grams, without providing the applicant the opportunity to make submissions to the contrary.

Ground 4: The applicant has a legitimate sense of grievance due to the disparity of his sentence and the sentence of Joel Tongol.

Background

1. The facts reveal that on 28 January 2010 at about 7.45pm, an undercover officer purchased 460 grams of methylamphetamine for $185,000 from Jose De Vera at the Marrickville Shopping Centre. There were a number of vehicles present at the time, one of which was driven by the applicant. It was parked 15 metres from the exit ramp of the shopping centre car park near Smidmore Road. That vehicle had travelled there in convoy with other vehicles from a business known as Solar Tint at West Ryde earlier that afternoon. Mr De Vera and a man named Jose Tongol were arrested at the scene. The Crown alleged that the applicant acted in some otherwise unspecified role providing security at the scene. Also arrested at the scene were Gerry Baquiran and Rowena Olaivar. Mr Baquiran was the owner of the Solar Tint business and he knew the applicant.

1. The applicant's role in the operation was somewhat curious. He had become involved in the supply only on the day of the arrests and possibly as late as 4.55pm. He spent the afternoon of 28 January 2010 at the Solar Tint office before driving to Marrickville. There was no evidence at the trial that he witnessed or was privy to any of the dealings by others with the drugs, including cutting with some additive in a bedroom upon the premises. There was also no evidence that the applicant became aware in fact of the quantity of the drug that was ultimately supplied.

1. A significant part of the police operation that culminated in the arrests included electronic surveillance and telephone intercepts. Mr De Vera's phone was recorded as having in excess of 14,000 intercepted calls and SMS messages. The undercover operative was in communication with over 20 people who were part of the drug syndicate being investigated. With one exception, the applicant did not figure in any of these intercepted calls or dealings. There was no evidence that the applicant was ever involved in any respect at all prior to his arrival at the Solar Tint premises on the afternoon in question. None of his co-accused referred to him. No objective evidence such as DNA or fingerprints relating to the applicant was recovered. Whilst a two-way radio was found in Mr Baquiran's vehicle, the applicant had no such device.

1. The exception referred to arose in the course of an intercepted telephone conversation between a Mr Capilli and Mr Baquiran in the moments before the convoy left West Ryde. Mr Capilli is recorded as telling Mr Baquiran that he would be going (presumably driving or travelling to Marrickville) with the applicant. His response was, "Shit, I don't want them. Why am I going with them?" and later, "I'd rather be on my own." Later still Mr Baquiran is recorded as telling Mr Capilli, "if you want [to] let them stay and watch the place then the two of us together...do they know it's going to [be] big?" Mr Capilli responded, "They're there not to do anything but just stay and watch".

1. There was no evidence at the trial or at the sentencing proceedings about what, if any, financial reward the applicant was to receive as a result of his involvement in the transaction. His acquittal on the first count clearly indicates that the jury were not satisfied beyond reasonable doubt about his knowledge concerning the quantity of methylamphetamine that was supplied.

Findings

1. His Honour found that the applicant was at the lower end of the hierarchy of those involved. He found that his role was to provide security at the car park. His Honour also found that the applicant was aware that the drug transaction was substantial and in the order of 150 grams of methylamphetamine and that he was involved for his own financial gain. His Honour found that the applicant had no relevant antecedents but denied him leniency otherwise available to someone with an unblemished record. He took account of the fact that the applicant was otherwise a person of good character, that he was unlikely to reoffend and that he had fair to good prospects of rehabilitation. His Honour found special circumstances.

1. His Honour's remarks on sentence were relevantly in the following terms:

"I am required to find facts that are consistent with the verdict, as I said, and the offender's version of events has been rejected by the jury clearly beyond reasonable doubt, not surprisingly I would add, because the version did present as inherently implausible and unbelievable. There was much planning and effort that went into the transaction, much co-ordination and clearly, on any realistic view of the efforts made by those involved, what was going down at the car park was some substantial drug dealing which required a deal of security.

I am constrained by the verdict of the jury not to make any fact-finding as to the awareness of the accused regarding the quantity that would reach the threshold of the commercial quantity of 250 grams. I am satisfied that the offender was well aware that what was taking place was a substantial drug transaction and he must have been aware that it was in the order of 150 grams or thereabouts, or something like that, otherwise there would not have been the necessity for the elaborate arrangements that were made to secure the transaction.

It is a very serious example of this type of offence. I appreciate that the quantity itself is not decisive. When I say the 'quantity' even the offender's awareness as to the quantity that he was involved in, it is not decisive as to criminality but it remains as a relevant consideration.

I accept the characterisation of the accused's role as providing security for the transaction. I do accept that he was at the lower end of the hierarchy of those involved. I do accept that he took place in it obviously for financial gain, I do not know what that was but it clearly was for financial gain."

Consideration

1. The applicant contended that there was no direct of inferential evidentiary basis for his Honour's finding that the applicant knew that the supply transaction involved a substantial amount of methylamphetamine in the order of 150 grams.

1. The principles guiding a judge in sentencing following a jury verdict are well known and often stated. They have been sufficiently summarised by the High Court in Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [14] as follows:

"[14] In Isaacs the Court of Criminal Appeal summarized certain well-established principles concerning the law and practice of sentencing in New South Wales as follows (omitting references to authority):

'1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury ...

2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. ...

3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. ...

4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. ... However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. ...'"

1. The applicant submitted that his Honour's finding that he was well aware that what was taking place was a substantial drug transaction in the order of 150 grams was a finding made against the applicant and as such was a finding that could only be made following satisfaction to the criminal standard. He contended that the evidence did not support and could not permit any such findings.

1. What was clear was that the applicant had no history of any previous involvement in drug supply or possession. The evidence was silent as to his knowledge or even his familiarity with drug deals or drug supply at any level or on any scale. The evidence did not permit any conclusions as to the applicant's knowledge or understanding of what occurred in terms either of dollar amounts or weighted quantities.

1. The evidence was also silent upon, and arguably did not support adverse findings about, the extent to which the applicant had been involved in the transaction either prior to 4.55pm at West Ryde or thereafter. There was correspondingly no evidence that permitted or supported an adverse finding against the applicant that he knew of the "elaborate arrangements that were made to secure the transaction." The evidence only went as far as to support the fact that the applicant was sitting in a car near the car park exit.

1. The reference by one of the co-offenders to whether or not "they" knew how big it was going to be is not evidence that "they" did know. It is not evidence that the applicant knew anything at all. There was little evidence that the security arrangements were anything at all, and on one view there was no evidence that they were "substantial". In any event, the inferences that are available as to the applicant's state of knowledge that can be drawn from the fact that he was present in a car "as security" are necessarily limited.

1. In my view there was insufficient evidence available to his Honour from any combination of the surrounding circumstances to support an inference about the applicant's state of knowledge or understanding of the size or scale of the transaction being undertaken. Whether or not something qualifies as substantial is a relative consideration. It implies a comparison with something else to give it that quality. There is no evidence available in the present case that assisted or permitted his Honour to make such a comparison and hence to make such a finding. It was not in my view open to his Honour to be satisfied about the applicant's knowledge or understanding of what was happening beyond reasonable doubt, apart from what flows directly from the unexplained verdict of the jury.

1. In my view, through no fault on his part, his Honour was faced with a situation contemplated by the fifth principle from Isaacs extracted above. In other words, the state of the evidence upon the question of the applicant's knowledge of the size or scale of the drug transaction with which the jury found him to be concerned was so vague and unsatisfactory that his Honour was not in a position to make findings beyond reasonable doubt. That left his Honour in the position of having to resolve any doubt about the issue in a way that favoured the applicant.

1. His Honour proceeded to make a series of findings that were favourable to the applicant. No challenge to them is made. The only findings that are challenged are the findings that the applicant was aware that the drug transaction was substantial and in the order of 150 grams of methylamphetamine. The result of a determination that it was not open to his Honour to reach those conclusions beyond reasonable doubt is that his Honour should have sentenced on a view of the facts that was most favourable to the applicant. In the events that occurred, that impels a finding that the applicant took part in an offence meeting the minimum requirements of s 25(1) of the Act and no more. His Honour's description of the applicant's role as being at the lower end of the hierarchy conformed to that approach but his Honour's challenged findings did not. Just in the way that the jury were apparently, if not obviously, unable to conclude beyond reasonable doubt that the applicant had knowingly taken part in a transaction in an amount of 460 grams of the drug, so was it not open to his Honour to find that the applicant's knowledge extended to the detail of any particular quantity. The jury's verdict and the facts only supported a finding beyond reasonable doubt that the applicant knowingly took part in the supply of a quantity of a prohibited drug.

1. In my opinion it follows that grounds 1 and 2 have been made out. It therefore becomes unnecessary to consider ground 3.

1. The question that arises is whether in the circumstances some other sentence, whether more or less severe, is warranted in law and should have been passed. It is convenient to consider the applicant's fourth ground of appeal in this context.

1. The applicant's co-offender Joel Tongol pleaded guilty to the same count as that of which the applicant was acquitted. As already indicated, the maximum penalty for that offence is 20 years with a standard non-parole period of 10 years. The sentencing judge took into account two matters on a Form 1, namely, participating in a criminal group between 9 December 2009 and 28 January 2010, which carries a maximum penalty of five years, and supplying not less than the commercial quantity, namely 268.75 grams of methylamphetamine, also carrying a maximum penalty of 20 years. Mr Tongol pleaded guilty on the first day of the trial and received a 10 percent discount for his plea. He was sentenced to a term of imprisonment of 4 years and 6 months with a non-parole period of 3 years.

1. Mr Tongol's role was greater than the applicant's. He drove the van that carried the drugs. The sentencing judge described his role as involving the distribution of small amounts of methylamphetamine to customers in Sydney, which was relevant to his knowledge and understanding of the magnitude of the subject offence. On the day of the arrest Mr Tongol was heard to be discussing where and when the transaction was to take place, demonstrating his close association with what subsequently occurred. He also assisted in cutting the drugs. Mr Tongol's association with the syndicate spanned just over two months. He had full knowledge of the quantity of the drug and was directly involved in the planning and organisation of its distribution. He participated for financial gain. The sentencing judge described him as "an active member of the drug syndicate". The starting point of his sentence was five years.

1. The applicant argued on principles of parity that he was entitled in those circumstances to have a justifiable sense of grievance at the disparity between his sentence and Mr Tongol's sentence.

1. In my opinion there is no basis for substituting some other less severe sentence for that imposed by his Honour, either upon the basis that the errors identified lead to such a result or upon the basis that the applicant is entitled to feel aggrieved at the way his sentence compares to that imposed upon Mr Tongol.

1. To start with, it does not seem to me that his Honour fell into error in the imposition of the sentence he formulated. It is not insignificant that no challenge is mounted against the sentence imposed upon the basis that it is manifestly excessive. Nor could it be. The maximum penalty for the offence of knowingly take part in the supply of a prohibited drug is 15 years imprisonment. Neither the head sentence nor the non-parole period could be described as other than at the lowest end of the range. His Honour could presumably have sentenced the applicant to a lower sentence but in the exercise of his discretion he chose not to do so. Even if his Honour had not made the findings concerning the applicant's "knowledge" of the amount of drug involved or about whether he must have known that the transaction was substantial, his Honour could nevertheless in the proper exercise of his discretion have imposed the same sentence. The identified errors do not mean that some other sentence is warranted in law. His Honour's sentencing discretion was not relevantly infected with an error that invalidated the conclusions on sentence to which he came.

1. Further, I do not consider that the applicant can have a justifiable sense of grievance in the circumstances that he identifies. It is sufficient to observe that the sentence imposed upon Mr Tongol was on one available view somewhat lenient. That is particularly so having regard to the fact that Mr Tongol was sentenced for a s 25(2) offence and had further matters on a Form 1. That arguably fortunate outcome for Mr Tongol should not lead to the conclusion that the applicant's sentence is unfairly harsh by comparison. The discrepancy between the two sentences should not lead to the conclusion that in the case of the applicant some other lesser sentence is warranted in law.

1. As an additional matter I consider that it is important to recognise that the judges in the District Court are faced on a daily basis with an almost unending onslaught of serious and complex sentencing exercises. The fact that an error or errors may be identified upon quiet reflection by others in circumstances that are unconstrained by the pressures under which the judges are required to operate is neither surprising nor derogatory. There is no doubt that the process must be undertaken according to the detailed and difficult sentencing principles that guide all sentencing judges. But where, as in this case, the sentencing judge passes a sentence that in all of the circumstances of the case is a proper sentence howsoever it is viewed, it is not appropriate to make minor adjustments to the result in order only to give some practical recognition of or endorsement to the identified error if it is not otherwise warranted.

Conclusions and orders

1. In my opinion the following orders should be made:

1. Grant leave to appeal.

2. Dismiss the appeal.

1. BEECH-JONES J: I agree with the judgment of Harrison J and the orders his Honour proposes.

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Decision last updated: 25 June 2013