Xin Liang v The Queen
[2011] VSCA 148
•19 May 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| XIN LIANG | S APCR 2009 0877 |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
---
JUDGES: | ASHLEY and HARPER JJA and LASRY AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 May 2011 | |
DATE OF JUDGMENT: | 19 May 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 148 | |
JUDGMENT APPEALED FROM: | R v Xin Liang (Unreported, County Court of Victoria, Judge Wood, 15 October 2009) | |
---
CRIMINAL LAW – Sentence – Single charges of each of trafficking in a commercial quantity of dimethylamphetamine, money laundering and conspiracy to traffic in heroin – Pleas of guilty – Total effective sentence of ten years’ imprisonment – Non parole period of seven years – Whether sentencing judge erred in finding the quantity of heroin being trafficked was “a large marketable quantity” – Manifest excess – Parity – Considerations on re-sentence – Cumulation - R v Renzella [1997] 2 VR 88 applied.
Criminal Code Act 1995 (Cth), ss 11.2(1), 11.5(1), 302.2(1), 302.3(1) and 400.3(1).
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms A C Fox | Lethbridges |
| For the Crown | Mr J Gullaci | Solicitor for Commonwealth Director of Public Prosecutions |
ASHLEY JA:
I agree with Harper JA that the appeal should be allowed and, with one exception, with his Honour’s reasons. The exception is this: the last sentence at [24] below is strictly obiter. Even so, I prefer not to essay a view upon a matter which will involve consideration of a myriad of circumstances in any particular case. It is enough to agree with his Honour, had all the facts in this case been as the judge below concluded, that a sentence of eight years’ imprisonment for trafficking a quantity of heroin towards the upper limit of a ‘marketable quantity’ under the Criminal Code Act 1995 (Cth) could be regarded as merciful.
HARPER JA:
Introduction
On 12 October 2006, the appellant was arrested and charged with a number of drug-related offences. A year later, having pleaded guilty to one of them – a charge of trafficking in a marketable quantity of cocaine – he was, in October 2007, sentenced in the County Court to two and a half years’ imprisonment. The sentencing judge made a recognisance release order which was to take effect after 16 months service of sentence. The 16 month period ended on 11 February 2008.
By then, however, the appellant remained to be dealt with on three other charges. He remained in custody, but now on remand in respect of the other charges. It is those other charges which have given rise to the appeals now before this Court.
One of them dates back to the appellant’s arrest on 12 October 2006. It was the subject of a single presentment alleging that, between 5 October 2006 and 12 October that year, contrary to ss 11.2(1) and 302.2(1) of the Criminal Code Act 1995 (Cth) (the Code), the appellant trafficked in a commercial quantity of the drug dimethylamphetamine (otherwise known as ‘ice’), in that he aided and abetted, counselled or procured the commission of that offence by two others: Yik Lun
(‘Joey’) Siu and Tin Yu (‘Rocky’) Ng. The maximum penalty for this offence is life imprisonment.
The remaining two charges, which were not laid until 24 April 2007, were joined in a single presentment. The first of the two was that, between 13 April 2006 and 27 July that year, contrary to s 400.3(1) of the Code, the appellant dealt with more than $1 million, believing it to be the proceeds of crime. This offence is generally referred to as ‘money laundering’. The maximum sentence for it is 25 years’ imprisonment.
The second charge on the second (two-charge) presentment alleged that, between 23 June 2006 and 12 October that year, contrary to ss 11.5(1) and 302.3(1) of the Code, the appellant conspired with a person identified in the presentment as ‘Big Brother’, and with others, to traffic in heroin, the quantity trafficked being a marketable quantity of that drug. This offence also carries a maximum sentence of 25 years’ imprisonment.
One of those also allegedly involved in the money laundering enterprise was the appellant’s co-accused, a woman 12 years his senior. Her name is Kim Phuong Tran. She was arrested on 15 December 2006. By then, all the heroin provably relevant to the conspiracy had, according to the Crown, ‘long gone’. None was recovered. Nor was any substantial sum of money the subject matter of the laundering charge ever retrieved. It too, according to the Crown, had been dispersed ‘long before December 2006.’
The appellant was on 27 March 2007 interviewed by the police at the Melbourne Remand Centre in relation to these matters. He then denied knowledge of co-offenders, admitted nothing, and gave ‘no comment’ answers to a substantial number of questions. Nevertheless, when on 23 July 2008 he was arraigned on all three charges, he pleaded guilty to them all. A plea was heard on 17 August 2009 and the following day.
Sentence in relation to all three charges was pronounced on 15 October 2009. For that relating to ‘money laundering’, the appellant was sentenced to seven and a half years’ imprisonment. On the charge of trafficking in a marketable quantity of heroin, he was sentenced to eight years’ imprisonment. Finally, on that of trafficking in a commercial quantity of dimethylamphetamine, he was sentenced to six years’ imprisonment. The sentencing judge determined that the sentence on the count of trafficking in a marketable quantity of heroin was to be the base sentence. His Honour ordered that one year of the sentence on the count of trafficking in a commercial quantity of dimethylamphetamine, and one year on the money laundering count, be served cumulatively on the base sentence. This resulted in a total effective sentence of ten years’ imprisonment. A period of seven years was required to be served before the appellant became eligible for parole. Pre-sentence detention was calculated as from 11 February 2008 (the notional date of release on recognisance following sentence on the cocaine charge) and up until the date of sentence (15 October 2009), a period of 611 days.
Were the sentences pronounced on 12 October 2009 to remain in force, the appellant’s earliest possible release date would be seven years from 11 February 2008. He would therefore remain in detention until, at earliest, 11 February 2015.
Ng and Siu were also sentenced on the charge of trafficking in a commercial quantity of dimethylamphetamine. Ng was imprisoned for six years, with a non-parole period of four years. After a successful appeal, Siu – who played a lesser role than either Ng or the appellant – received a sentence of four years’ imprisonment, with a non-parole period of two and a half years.
The grounds of appeal
On 23 July 2010, Nettle JA granted the appellant leave to appeal against these sentences. The first ground of appeal is that the sentencing judge erred in finding that the quantity of heroin, the subject of the count of trafficking in a marketable quantity of that drug was ‘a large marketable quantity’. Ground 2 is that the sentences on all counts were manifestly excessive, resulting in a total effective sentence that was also manifestly excessive. The third and final ground is that the sentences imposed on the appellant on, respectively, the counts of money laundering and trafficking in a commercial quantity of dimethylamphetamine offended the principle of parity when regard is had to the sentence imposed on the co-offenders, respectively, Tran on the one hand and Ng and Siu on the other.
Ground 1
The Code defines a ‘marketable quantity’ of heroin by weight, but does not recognise a ‘large marketable quantity’. A marketable quantity of heroin is at least 250 grams, but less than 1.5 kilograms, of that drug. The weight, it is to be noted, is the weight of the pure quantity of the drug. It follows that, other things being equal, a person who trafficks in 250 grams of heroin would for sentencing purposes be regarded as deserving of a lesser penalty than one who trafficks in 1.49 kilograms of the drug, although both are charged with the same offence. The offender who trafficks in 1.49 kilograms might be colloquially described as dealing in a large marketable quantity, and should be sentenced accordingly.
A sentencing judge is, therefore, not merely entitled but required to take into account any evidence of the quantity of the drug the subject of the charge. But, as with all judicial decisions on questions of fact, the evidence must be sufficient to support the finding. It is, indeed, axiomatic that a sentencing judge must not sentence on the basis that a particular quantity of a drug has been trafficked by the offender unless the evidence supports such a conclusion; and, in the absence of agreement, it is for the prosecution to prove beyond reasonable doubt any particular quantity upon the basis of which it seeks to have the relevant sentence assessed.
In this case, the evidence was that the applicant and his co-accused Tran were participants in a large drug-dealing operation. On the plea, the Crown put forward uncontested evidence that the appellant was an active participant in the laundering of $884,000 in May 2006, $1,774,00 in the following June, and $1,368,950 in July that year: a total of $4,026,950 during the period covered by the charge. These sums formed the basis of the money-laundering charge, which included an allegation that the appellant believed them to be the proceeds of crime. By his plea of guilty, the appellant accepted that this belief was indeed held by him.
Other evidence pointed to the appellant’s participation, with Tran, in drug-dealing on a large scale. Not only were millions of dollars involved, but (for example) on 23 June 2006 the appellant and Tran spoke in terms of there being ‘plenty out there’ and ‘one or two shipments’; and these expressions were used in circumstances indicating that the references were to heroin, to be physically received by Tran having been consigned to her by ‘Big Brother’.
In July 2006, Tran in fact took possession of seven ‘blocks’ of heroin, sourced from ‘Big Brother’ which she subsequently sold to a person referred to as ‘X’. As will be seen, these blocks were of great importance to the charge of conspiracy to traffick heroin.
On the material placed before the judge on the hearing of the plea, there can be no doubt that the appellant was heavily involved in large-scale drug dealing. His counsel accepted as much on several occasions during that hearing. That, however, did not of itself justify a finding that the conspiracy to traffick heroin alleged against the appellant as taking place between 23 June 2006 and 12 October that year involved trafficking a marketable quantity of the drug which was at the upper end of the range encompassed by the statutory definition of a ‘marketable quantity’. Such a finding could only be based upon proof beyond reasonable doubt, to the satisfaction of the sentencing judge, that the heroin in question was in weight sufficiently close to 1.5 kilograms to warrant the description of ‘a large marketable quantity’.
That is where the seven blocks became important. Although the appellant’s first revealed involvement in the particular transaction was on 8 September rather than 23 June 2006, it was not in debate that the heroin embraced by the charge of conspiracy to traffick was contained in these blocks; and it was upon them that the prosecution relied to sustain the submission that the conspiracy had involved trafficking in a ‘large’ marketable quantity. Other than that, the Crown was reduced on the plea to submitting that the appellant should be sentenced on the basis that, because he was involved in extensive money laundering, and in trafficking in drugs on a large scale, and because seven blocks of heroin must have amounted to a large quantity of heroin, he had trafficked in a ‘large’ marketable quantity of that drug.
In my opinion, this was not sufficient to make good the Crown’s contention. Of course, $4,026,950 is a very significant amount. It is also true that, as his counsel conceded during the plea, the appellant ‘certainly launched himself towards the upper end of the drug-related offending menu’ and that he went ‘wayward in the grandest possible way’. But it is not known how much of the $4,026,950 is attributable to dealings in heroin with which the appellant was involved. Further, and importantly, it is quite unknown whether the gross weight of the blocks approached 1.49 kgs, let alone whether the pure weight of heroin did so. Moreover, there was no evidence from which it could be concluded that a refund of $150,000 – made in September 2006 for three of the seven blocks which were valueless because their quality was said to be very poor – meant that the weight of heroin in each block was any particular quantity. But even if there had been evidence of the weight of the pure heroin in those blocks, that evidence would have been of doubtful significance with respect to the remaining four blocks..
Counsel for the Crown submitted in this Court that it had been difficult to quantify the trafficking because no heroin had ever been intercepted. He submitted also, in effect, that the intercepted conversations did not permit conclusions to be reached about the extent of the trafficking. But such difficulties frequently arise. In my experience, appropriately qualified experts often enough give evidence of the probable extent of transactions based upon the amount of money paid. Often enough, also, evidence is given of quantities trafficked by ‘translation’ of codes used in intercepted conversations. The history of convictions shows that the difficulties faced by the Crown are not insurmountable.
It follows from what I have said that the sentencing judge was wrong to find, as he did, that the appellant ‘trafficked in a large marketable quantity’ of heroin.
That being so, the appellant will have to be re-sentenced on the basis that by his plea of guilty to the heroin charge he has admitted only to trafficking in at least 250 grams of that drug. Nothing else is encompassed by that plea. For its part, the Crown has not proved that the amount involved exceeded 250 grams. In my opinion, the Court must, in determining the appropriate sentence, therefore proceed on the basis that this was trafficking at the lowest point of a marketable quantity of heroin.
The matters to be considered in re-sentencing
By ground 2 of the grounds of appeal, the appellant contended that the sentences on all counts were manifestly excessive. I do not agree. Had the Crown properly established that the quantity of heroin trafficked by the appellant was at the high end of the marketable scale, a sentence of eight years’ imprisonment would not in my opinion have been manifestly excessive. Drugs are a scourge on society. Those who trade in the misery of others for the selfish benefit of themselves, as the appellant has done, must be sentenced having regard, amongst other things, to the fact that the maximum penalty for this offence is 25 years’ imprisonment. Eight years’ incarceration for marketing a quantity of heroin towards the upper limit of the range of a ‘marketable quantity’ should, other things being equal, be regarded as merciful, even given a plea of guilty. In the absence of such a plea, the marketing of a quantity towards the upper limit of the range should, in the absence of powerful mitigating or other considerations to the contrary, attract a penalty above the half-way point of the maximum.
Here, however, the appellant must be sentenced on the basis that the quantity of heroin trafficked by him was at the lowest point of the relevant range. In those circumstances, and bearing in mind the remaining matters put in mitigation on the plea – to all of which his Honour had regard when fixing upon the sentences he pronounced, and to which I shall return – a sentence of four years’ imprisonment on the charge of trafficking in a marketable quantity of heroin is, in my opinion, appropriate.
I would impose the same penalty as did his Honour on the remaining two charges. It was submitted before this Court that considerations of parity indicated that the appellant should receive a lesser sentence for the respective charges than each of Tran and Ng. It was said that the objective gravity of Ng’s conduct in relation to the charge of trafficking in a commercial quantity of dimethylamphetamine was more serious than that of the appellant; and the same submission was put in relation to Tran and the charge of money laundering.
The Crown tendered on the plea a detailed summary of the facts concerning each of these charges. Neither tender was challenged. I have read each summary carefully. They include much about the activities of each of the offenders. All participated actively in the respective offences. Tran was not obviously either inferior or superior to the appellant; and the same can be said about the appellant and Ng. Nor is it possible to draw any relevant distinction in the importance of their respective roles. It is true that Tran speaks both Cantonese and Vietnamese, whereas the appellant is not a Vietnamese speaker. Moreover, Tran laundered more money than the appellant ($5,893,950 as against $4,026,950) and was 12 years his senior. But these are minor distinctions when set against all the relevant considerations, one of which is that, following the departure of ‘Big Brother’ to Malaysia, the appellant stepped into some of the roles previously played by him. Another is that Tran deferred to the appellant on occasions.
In short, the appellant was very actively involved in the money laundering process, to the point at which a sentence of less than seven and a half years’ imprisonment would in my opinion be inappropriately lenient. Seven and a half years’ imprisonment was the penalty imposed upon Tran. In circumstances in which parity is indicated, the appellant should in my opinion be punished in the same way.
That leaves a question, however, whether any part of the appellant’s sentences on the two-charge presentment should be cumulated. The appellant submitted that there should be no cumulation. He argued that Tran had faced a single charge presentment (for money laundering) although it was clear that she had also been a heroin trafficker. For whatever reason, however, he had faced two charges. Their overall criminality was at least very similar. His punishment would be disproportionate to Tran’s if any part of the sentence on the trafficking charge was cumulated on the sentence on the money-laundering charge.
I agree with that submission. The principle of equal justice means that similar criminality, even if offenders are not charged with the identical offences, will require in particular cases proportionality between the sentences imposed, as this Court made clear in Farrugia v The Queen.[1]
[1][2011] VSCA 24.
I turn to the contention that Ng played a more active part than the appellant in the dimethylamphetamine trafficking. It is clear that Ng’s part was very significant in arranging for the drug to be brought from Sydney to Melbourne. On the other hand, the involvement of the appellant was in some aspects of the dimethylamphetamine enterprise greater than that of Ng. The latter was sentenced to six years’ imprisonment on the charge of trafficking in ‘ice’. An appeal by him against that sentence failed. In my opinion, a like sentence is appropriate in relation to the appellant.
One of the Court’s remaining tasks is to determine an appropriate head sentence. This requires consideration of, among other things, the issue of totality. The appellant has now been in custody since his arrest on 12 October 2006, some four years and five months ago. As I have said, had the sentence imposed below been sustained, the appellant’s earliest time for release would have been in February 2015;[2] and the end of the head term would have been in February 2018.
[2]The interaction between the order for parole and the recognisance release order was not the subject of submissions in this Court, and I say nothing about the matter.
It was not suggested by the Crown that the sentences should be totally cumulated. The only arguments concerning cumulation were included in the submission which I noted at [29], and in submissions directed to totality. The latter involves consideration of the fact that, because of the 2007 sentence, the appellant’s continuous period of custody will effectively be 16 months longer than the head sentence and any non-parole period respectively which the Court imposes. It is ‘dead time’, in respect of which R v Renzella[3] is in point.
[3][1997] 2 VR 88. The Renzella principle was recently discussed, in detail, by Tate JA in Karpinski v The Queen [2011] VSCA 94.
The appellant deliberately embarked upon his involvement in the drugs trade for the sole reason that he had twice attempted, and twice failed, to establish himself in business, and as a result owed his parents the money they had provided to him as seed capital. He did not want to lose face with them, and turned to the drug trade as a means of ready finance. He became heavily involved, causing great harm thereby. What can be said for him by way of mitigation is that he was in his early twenties at the time, without any previous criminal history, has since pleaded guilty to each of the charges laid against him, otherwise evidences remorse, shows signs of rehabilitation, and has strong family support.
I have read the sentencing reasons of the judge who sentenced him on 10 October 2007, and am of the opinion that her Honour dealt with the appellant fairly, but with leniency. Nonetheless, Renzella indicates that some allowance should be made for the dead time; and I consider that it should be done in this case by somewhat moderating the order for cumulation which I would otherwise make.
In my opinion, the sentence for money laundering should be the base sentence. Eight months of the sentence for trafficking in a commercial quantity of dimethylamphetamine should be served cumulatively upon that sentence. The sentences should otherwise be served concurrently. The result is a head sentence of eight years and two months imprisonment. I would order that the appellant serve five years before being eligible for parole.
I would declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for the appellant’s plea of guilty, I would have sentenced him to a total effective sentence of 11 years and six months.
The appellant is entitled to a declaration that a period of 1193 days, including this day, has already been served pursuant to this sentence.
LASRY AJA:
I have had the considerable benefit of reading the judgment of Harper JA in draft. I respectfully agree with his Honour’s reasons and the outcome he proposes. However, it is sufficient to add that, like Ashley JA and for the brief reasons he has given, I would not commit to agreement with the observations appearing in the last sentence at [24] of his Honour’s reasons.
- - -
2
2
0