Yip v The Queen

[2017] VSCA 231

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0262

HON PAN YIP	Appellant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 August 2017
DATE OF JUDGMENT:	1 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 231
JUDGMENT APPEALED FROM:	DPP (Cth) v Yip (Unreported, County Court of Victoria, Judge Dean, 2 December 2016)

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CRIMINAL LAW – Appeal – Sentence – Manifest excess – Importing commercial quantity of border controlled drug – Sentence of 7 years and 6 months’ imprisonment – Non-parole period 5 years and 6 months – Whether sufficient weight given to offer of assistance and increased burden of imprisonment – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Gullaci	Paul Vale Criminal Law
For the Crown	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

KYROU JA
HANSEN JA:

1. The appellant, Hon Pan Yip, appeals against a sentence of seven years and six months’ imprisonment, with a non-parole period of five years and six months, on one charge of importing a commercial quantity of a border controlled drug, methamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth). He contends that the sentence is manifestly excessive because the sentencing judge gave insufficient weight to his offer to give evidence against a co-offender and the consequential increased burden of imprisonment by virtue of being placed in protective custody.

1. Leave to appeal was granted by Ashley JA on 27 April 2017.  It is convenient to adopt his Honour’s summary of the circumstances of the appellant’s offending:

The [appellant] flew from Hong Kong to Australia, arriving in Perth on 30 August 2015. He carried with him two bottles of cognac, each of which contained methamphetamine. One of the bottles was damaged on his arrival and was discarded by him before clearing customs.

Although a scan revealed traces of methamphetamine and other drugs on his clothing, the [appellant] was permitted to enter Australia with the remaining bottle of cognac. Thereafter, the [appellant] was in contact by telephone with co-offenders in Hong Kong and in Australia.

The [appellant] travelled from Perth to Adelaide and then to Melbourne by public transport, arriving in Melbourne on 8 September 2015. Between 8 and 11 September 2015, he had various conversations with a man named Ban Joo Teoh. Ultimately, on 11 September 2015, he was arrested when on the point of delivering the remaining bottle to Teoh at premises in Footscray. The bottle was found to contain 673.5 grams of pure methamphetamine.

On the footing that the [appellant] had imported into Australia a second bottle which could be supposed to contain the same quantity of methamphetamine, the Crown alleged that the total quantity imported was about 1.346 kilograms of pure methamphetamine. A commercial quantity for the purposes of the relevant legislation is 750 grams of that substance.

1. The appellant first pleaded guilty to the charge on 26 August 2016, shortly after a committal hearing.  The maximum penalty for the offence is life imprisonment or 7,500 penalty units, or both.  On 16 November 2016, the appellant was re-arraigned on the same charge and his plea hearing commenced.

1. His co-offender, Ban Joo Teoh, had pleaded not guilty to charges of (1) attempting to possess a marketable quantity of an unlawfully imported border controlled drug;[1] (2) trafficking a marketable quantity of a controlled drug;[2] and (3) possessing property suspected of being the proceeds of crime.  Teoh’s trial was due to commence on 21 November 2016.  At issue regarding the first charge was proof of the fact that the substance Teoh was about to receive from the appellant was ‘unlawfully imported’.

   [1]Criminal Code (Cth) ss 11.1, 307.6

   [2]Criminal Code (Cth) s 302.3.

1. At the appellant’s plea hearing on 16 November 2016, in response to a query from the judge, the appellant’s counsel indicated that the appellant was not giving evidence against Teoh.  As the same judge would be presiding over Teoh’s trial, the appellant was remanded in custody to 2 December 2016 for sentence, on the expectation that Teoh’s trial would be resolved by then.

1. In the event, a gaol order was issued and the appellant was brought to court on 23 November 2016 prior to the start of the second day of Teoh’s trial.  Through counsel, the prosecution had foreshadowed that they were prepared to call the appellant as a witness, willing or no, and would seek to have his evidence adduced via alternative means if he refused to co-operate.[3]  The appellant had had discussions with counsel the previous day and again that morning.  When Teoh’s trial resumed, the appellant’s counsel announced in Teoh’s presence that the appellant was prepared to make a statement and give evidence confirming that he had unlawfully imported methamphetamine into the country, made contact with Teoh, and was in the process of delivering it to Teoh when he was arrested.

   [3]See, eg, R v Suteski (No 4) (2002) 128 A Crim R 275.

1. Shortly after the appellant’s offer was announced, Teoh pleaded guilty to two charges: attempting to possess a marketable quantity of an unlawfully imported border controlled drug and trafficking a marketable quantity of a controlled drug.  Each offence carried a maximum penalty of 25 years’ imprisonment or 5,000 penalty units, or both.  For his offending, Teoh was sentenced to a total effective sentence of nine years’ imprisonment with a seven-year non-parole period.

1. The appellant’s plea hearing resumed later that day, where the main matter in mitigation put to the judge was his offer of assistance.  As appears from the transcript, the judge accepted that the offer was significant and acknowledged the increased risk to the appellant’s safety and added burden of having to serve his sentence in protective custody, the offer having been made in open court.

1. As mentioned, the appellant was sentenced on 2 December 2016.  He was aged 23.  In his sentencing remarks, the judge said this regarding the appellant’s offer of assistance:

Following your plea of guilty you agreed to give evidence against [Teoh] in his forthcoming trial. However, he too pleaded guilty and you were not called upon to either make a statement or give evidence. Nevertheless, you have cooperated with authorities and for that reason you will experience further hardship [in] prison as you will now be held in secure protection. I have taken these factors into account in your favour in mitigation of sentence. The evidence that you indicated that you were able to give would have been significant in the trial of Teoh.

…

You will experience isolation from family and friends while in prison here and as I have observed that will be served in secure protection.

…

I accept that your cooperation with the prosecution supports a finding that you are remorseful for your offending and further supports your prospects of rehabilitation.

…

[T]he factors relied on by you in mitigation of sentence, in particular your age and cooperation with the prosecution, are significant.

1. The appellant submits that a reading of the first paragraph quoted above indicates that the judge accorded the appellant’s offer of assistance lesser mitigatory weight simply due to the fact that Teoh pleaded guilty before the appellant could make his statement or give evidence, while also failing to take into account that the appellant’s offer when announced in court led to Teoh’s change of pleas.

1. The appellant also submits that the judge undervalued the increased burden of imprisonment faced by the appellant by being in protective custody.

1. Against the appellant’s submissions, the Crown points to the judge’s express statements that he took into account the appellant’s offer to give evidence and his consequent increased hardship in prison as factors in mitigation of sentence, and that the appellant’s evidence would have been significant at Teoh’s trial.  His Honour also accepted that the appellant’s willingness to co-operate with authorities was demonstrative of remorse and increased prospects of rehabilitation.  Counsel referred to several cases in support of the submission that the sentence was within range.[4]

   [4]Webber v The Queen [2014] NSWCCA 111; Ng v The Queen [2010] NSWCCA 232; Legault v The Queen [2014] NSWCCA 271; R v Onyebuchi [2016] QCA 143.

1. Axiomatically, there is no necessarily correct amount of discount for co-operation, and many factors are relevant to the exercise of the court’s discretion.[5]

   [5]R v Johnston [2008] VSCA 133.

1. Accepting for the moment that the judge’s sentencing remarks do not expressly describe a connection between the appellant’s offer of assistance and Teoh’s change of pleas, it does not necessarily follow that the remarks are to be understood in the manner contended for by the appellant.  In this case, the following facts from the course of the proceedings must be borne in mind:

(a)               First, the same judge heard the appellant’s plea on 16 November 2016, presided over Teoh’s trial which commenced on 21 November 2016, and sentenced both men on 2 December 2016;

(b)               Secondly, at the plea hearing on 16 November 2016, his Honour was evidently alive to the prospect of the appellant giving evidence against Teoh;

(c)               Thirdly, his Honour was well aware of any deficiencies in the prosecution case against Teoh and the value of the appellant’s evidence in meeting them;

(d)              Fourthly, the appellant’s offer of assistance, Teoh’s change of pleas, and the resumption of the appellant’s plea hearing occurred in succession on the same day on 23 November 2016.  That the appellant’s offer was material to the resolution of the prosecution’s case against Teoh was not lost on the judge.  On the contrary, at the plea the judge described the appellant’s offer as ‘significant’ and ‘important’.  He acknowledged that by making the offer, the appellant had placed himself at significant risk of reprisal and gaol would be more onerous for him in protective custody ‘without any question’;

(e)               Fifthly, it was for his Honour to weigh the significance of the appellant’s offer in the context of the circumstances in which it was made.[6]  Those circumstances include that the appellant initially declined to give evidence against Teoh, and changed his mind once the possibility emerged that he might nonetheless be compelled to take the stand in Teoh’s trial and yet not gain the benefit of any discount in his sentence for doing so; and

(f)                Sixthly, the prosecutor submitted at the plea, and the judge acknowledged, that the appellant’s offer of assistance was a relevant factor to be taken into account in mitigation of sentence, notwithstanding the fact that the appellant ultimately did not have to give evidence.

[6]Nguyen v The Queen [2012] VSCA 119 [27].

1. When those facts are taken together with the sentencing remarks, we consider that the judge must be taken to have appreciated the full import of the appellant’s offer of assistance.  In our view, there is no basis for inferring that the judge failed to give sufficient weight to the appellant’s offer of assistance and increased burden of imprisonment.

1. We turn to consider counsel for the appellant’s oral submission about the judge’s declaration under s 6AAA of the Sentencing Act 1991 (Vic). The judge declared that, but for the appellant’s plea of guilty, he would have imposed a term of imprisonment of nine years with a non-parole period of seven years. Counsel submitted that the 18-month gap between the ‘notional’ sentence and the sentence imposed was indicative of the lack of weight attributed by the judge to the appellant’s offer of assistance and increased burden of imprisonment.[7] We reject that submission. While there have been cases in this State where the discounts given for an offender’s guilty plea and undertaking to assist authorities have been declared holistically pursuant to s 6AAA,[8] there is nothing in the course of the proceedings and sentencing remarks to indicate that the judge took that approach in this case. Plainly, the judge’s declaration was directed solely to the effect of the appellant’s guilty plea. We note in passing that s 16AC of the Crimes Act 1914 (Cth), which provides for a declaration to be made where a court reduces a sentence because of an offender’s undertaking to co-operate with authorities, had no application to this case because it is directed towards future assistance, as counsel for the prosecution correctly submitted to the judge at the plea.

   [7]Counsel cited R v Burke (2009) 21 VR 471.

   [8]See, eg, R v Lewis [2015] VSC 252; R v Tepsut [2015] VSC 399.

1. Ashley JA in his reasons for granting leave considered that, shorn of the two matters upon which the appellant relies, the sentence imposed was undoubtedly within the range of sentencing discretion:

[T]he judge described the circumstances of the offending and the offender quite unexceptionally. He adverted to a number of statements by appellate courts as to the seriousness of the offence committed by the [appellant], and as to the important role played by each participant in a drug importation, including persons who may be categorised simply as couriers. His Honour also noted … the matters which the [appellant] could call in aid of mitigation — his relative youth, his very limited prior criminal history, his satisfactory work record, together with the judge’s assessment that his prospects of rehabilitation might ‘properly be regarded as reasonable’ and his Honour’s acceptance that the [appellant] was remorseful for his offending.

1. We respectfully agree with his Honour’s assessment in that regard. The appeal is dismissed.

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