Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Wong v R (Cth) [2020] NSWCCA 311 Hearing dates: 18 November 2020 Decision date: 27 November 2020 Before: Hoeben CJ at CL at [1]; Price J at [36]; Fagan J at [37] Decision: (1) The applicant is allowed an extension of time within which to seek leave to appeal against sentence. (2) Leave to appeal against sentence is granted. (3) The appeal against sentence is allowed. (4) The sentence imposed by Cogswell SC DCJ on 18 May 2012 is quashed. (5) In lieu thereof, the applicant is sentenced to imprisonment for 17 years and 6 months, commencing 21 December 2010 and expiring 20 June 2028, with a non-parole period of 11 years and 8 months expiring 20 August 2022. Catchwords: CRIMINAL LAW – sentence appeal – possession of a commercial quantity of a border controlled drug suspected of having been unlawfully imported – sentence of imprisonment for 18 years with a non-parole period of 12 years – error in failing to assess the utility of an early plea of guilty – need to resentence applicant – sentence of imprisonment for 17 years and 6 months with a non-parole period of 11 years and 8 months. Legislation Cited: Crimes Act 1914 (Cth) Criminal Appeal Act 1912 (NSW) Criminal Code (Cth) Cases Cited: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 SZ v Regina (2007) 168 A Crim R 249; [2007] NSWCCA 19 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 Category: Principal judgment Parties: Kok Loong Wong – Applicant Regina (Cth) – Respondent Representation: Counsel: S Fraser – Applicant P McEniery – Respondent Crown Solicitors: Legal Aid NSW – Applicant Commonwealth Director of Public Prosecutions – Respondent Crown File Number(s): 2010/422622 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 18 May 2012 Before: Cogswell SC DCJ File Number(s): 2010/422622 JUDGMENT 1. HOEBEN CJ at CL: Offences and sentence On 18 May 2012, his Honour Judge Cogswell SC, following a plea of guilty in the Local Court, sentenced the applicant for an offence of possess a commercial quantity of a border controlled drug, reasonably suspected of having been unlawfully imported, contrary to s 307.8(1) of the Criminal Code (Cth). In sentencing the applicant his Honour took into account an offence of deal with money which was greater than $100,000 being reckless as to whether that money was the proceeds of crime. 1. The applicant was sentenced to imprisonment for 18 years with a non-parole period of 12 years, to date from 21 December 2010. The applicant's non-parole period expires on 20 December 2022. 2. The maximum penalty for this offence is imprisonment for life and/or a fine of 7,500 penalty units. 3. A single ground of appeal is advanced in support of the application: the sentencing judge did not have regard to the utilitarian value of the applicant's plea of guilty. 4. The Crown's submissions in response to the application are as follows: 1. the applicant's application for an extension of time be granted on the basis that the application for leave to appeal should be granted; 2. the applicant's application for leave to appeal should be granted on the basis that the sentencing judge failed to have regard to the utilitarian value of the applicant's plea and it falls to this Court to resentence the applicant; and 3. the applicant should only be resentenced to a slightly less severe sentence than imposed at first instance in recognition of the fact that there is a limited degree to which an otherwise appropriate sentence can be discounted and still reflect the objective seriousness of the offence and the purposes of punishment. 1. The Crown accepted that the affidavit evidence relied upon by the applicant explains the reasons for the delay in bringing the application. That delay was due to the timing of this Court's subsequent decision in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 at [277]-[278] (Xiao) and the administrative steps and time it has taken for the applicant's legal representative to prepare this matter. Factual Overview 1. The Crown case on sentence was set out in an Agreed Statement of Facts. 2. On 21 December 2010, the applicant was arrested by members of the Australian Federal Police (AFP) in Strathfield, following an examination of bags that he was carrying. Those bags contained six mobile telephone boxes, in which was hidden $99,950 in cash; a small amount of methamphetamine hidden in a matchbox; and four mobile phones, three of which were subscribed in false names. In addition, the applicant had a laptop with him. 3. Following his arrest, the applicant volunteered to the AFP that he resided at an address in Blairmount, NSW; that there was about 90kgs of drugs stored there; and gave consent for those premises to be searched. The applicant provided the AFP with the keys to the premises. 4. The Blairmount premises, when searched, were found to contain a locked bedroom where four large suitcases containing methamphetamine were located in a locked cupboard. The bedroom was opened using the keys the applicant provided. The gross weight of the methamphetamine in the suitcases was later analysed as 76.8kgs and the pure weight was 61.68kgs. The methamphetamine had an average purity of 80.3 per cent. The street value of that methamphetamine was over $38 million and the wholesale value was over $19 million. 5. Also seized from the unit were matchboxes containing methamphetamine, similar to the matchbox found on the applicant and several bundles of cash again were hidden in phone boxes, amounting to $110,050. The applicant was the only person residing at the unit. 6. Other items seized from the unit included 30 mobile phones, almost all of which had SIM cards. The majority of these phones were used to contact only one number and contained only one contact. All these mobile phones were subscribed in false names. 7. At the date of his arrest on 21 December 2010, the applicant, a Malaysian national, had been in Australia for about four months, having arrived on 19 August 2010 on a tourist visa. Initially, he stayed in a hotel for about a month before renting the Blairmount premises using cash to pay the rent and bond. 8. On 21 September 2010, the applicant was granted a bridging visa and then on 16 December 2010, a Higher Education Visa. That visa restricted him to 20 hours of work per week. 9. Whilst in Australia, the applicant had no legitimate source of income. However, his bank accounts established that cash of over $47,000 had been deposited into his bank accounts over a two month period, between September and December 2010. As at 21 December 2010, there was $17,061 in his bank account. 10. The seized laptop, when examined, contained documents listing shipping and freight forwarding companies. A spreadsheet recording daily expenses of the applicant whilst he was in Australia recorded the purchase of various items including latex gloves, matches, clip seal bags, cable ties and garbage bags. Sentence proceedings 1. The sentence proceedings for the applicant were conducted on 11 May 2012. The applicant did not give evidence. A psychological report and a case report were tendered on his behalf. 2. In the course of his Remarks on Sentence, in addition to detailing the essential facts of the matter, his Honour noted and took into account the following matters relevant to the objective seriousness, nature and circumstances of the applicant's offence: 1. the "huge" amount of the drug, containing over 61.68kgs of pure methamphetamine, with an estimated street value of $38,430,600; 2. the applicant knew the amount of the drug that was being stored at his residence; he advised police that there was 90kgs (which was an overestimate); 3. the applicant was the occupier or warehouseman of the warehouse of a "huge" amount of drugs which were there for the purpose of distribution, he was responsible for maintaining the means of communication with phones and was entrusted with cash; 4. it could be inferred, from the presence of numerous phones and the large amount of cash at his residence, that the applicant was going to distribute drugs and had already done so; 5. his role was important, and he was an integral member of an enterprise dealing with a vast amount of drugs; 6. that whilst good character was relevant, it was less so in this matter; 7. there was a significant level of sophistication in the organisation that he was part of; and 8. there was a need for both general and specific deterrence. 1. The sentencing judge noted and took into account the following subjective features of the applicant: 1. he was aged 36 at the time, came from Malaysia and had worked there for most of his adult life; 2. he arrived in Australia on 19 August 2010 and at the time of his arrest was on a Higher Education Visa with limited ability to work; 3. he had given an account of becoming involved in the offence because of a loan shark; 4. he stated that he had been given varying amounts of money whilst in Australia, either by electronic transfer or in person; 5. he had been diagnosed with a major depressive disorder and generalised anxiety due to his current situation; 6. while in prison the applicant had completed courses and had contact with psychology staff; 7. there was an early plea of guilt for which he received a discount of 20 per cent; 8. he had been assessed to be at a low/moderate risk of committing further offences; 9. his good character, with no criminal record in Australia was to his advantage but of less weight in such a case; 10. his cooperation with authorities was characterised as low in value and for which he received a discount of 5 per cent; and 11. as a foreign national he would serve his time in an Australian prison with limited support. Ground of appeal 1. As already indicated, the applicant relies upon a single ground of appeal: in determining the appropriate discount to reflect the value of the applicant's plea of guilty in accordance with s 16A(2)(g) of the Crimes Act 1914 (Cth), the sentencing judge did not have regard to the utilitarian value of the applicant's plea of guilty. His Honour's failure to do so should not attract any criticism given that the decision in Xiao was handed down on 5 February 2018 and had the effect of altering the way in which pleas of guilty were to be treated in Commonwealth offences. Moreover, the Crown's written submissions had asserted that a plea of guilty must not be taken into account as a mitigating factor for its objective "utilitarian" value. This, of course, was directly contrary to the decision in Xiao. 2. It follows that error has been made out. Resentencing: considerations 1. Error having been established, this Court is obliged to undertake an "independent exercise of its discretion" (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35]) and determine whether some lesser sentence is warranted in law or the "same sentence or a greater sentence is the appropriate sentence [although] [i]n neither case is the Court required to resentence" (Kentwell at [43]), Criminal Appeal Act 1912 (NSW) – s 6(3)). In any event, it must be accepted that with the identification of error in the sentence, this Court must undertake a resentencing exercise. 2. In the hearing of the appeal, it was accepted by both parties that the findings of fact by the sentencing judge were not otherwise challenged and that there was no reason why the Court should not adopt them for the purpose of resentencing the applicant. 3. The independent exercise of discretion must also consider the maximum penalty provided for the relevant offence. The offence of possess a commercial quantity of a border controlled drug reasonably suspected of being imported, contrary to s 307.8(1) of the Criminal Code (Cth) carries a maximum penalty of life imprisonment. The process was described by Howie J (with whom Simpson and Buddin JJ agreed) in SZ v Regina (2007) 168 A Crim R 249; [2007] NSWCCA 19 where he said: "5 ... at the conclusion of the exercise of the sentencing discretion, whatever be the subjective circumstances of the offender and whatever discounts are applied to achieve a recognised public policy, the sentence must bear a reasonable relationship with the objective seriousness of the offence and fulfil the manifold purposes of punishment: see for example R v Geddes (1936) 36 SR (NSW) 554; and R v Dodd (1991) 57 A Crim R 349. ..." 1. The independent exercise of the sentencing discretion must take account of the applicant's subjective case and circumstances as of the date of resentence, not as of the date of the original sentence. The applicant's present circumstances were dealt with by his affidavit, affirmed 12 November 2020, and by the affidavit of Dawoud Ayache, also affirmed 12 November 2020. 2. Without going into detail, the effect of those affidavits is to demonstrate that the applicant has been a model prisoner since his incarceration and has completed a number of courses which will assist him upon release. He has demonstrated a strong work ethic in the jobs which have been allocated to him while in prison. 3. This material has not added anything new to the applicant's subjective case but has confirmed the assessment made by the sentencing judge as to his prospects of rehabilitation, i.e. that he was a "low/moderate risk of committing further offences" and that as of the date of sentence, he had already used his time in prison profitably by completing courses. Accordingly, on resentence I have taken into account that the rehabilitation referred to by his Honour at the time of sentence, has continued. 4. In these proceedings, no challenge was made to the findings of the sentencing judge as to the nature and seriousness of the offence. His Honour found that the applicant, as the warehouseman of a large amount of drugs, played an important and integral role in the offending. The applicant does not challenge the proposition that he was going to distribute the drugs and had already done so as to some of them. His Honour found that the quantity of the controlled drug possessed by the applicant, namely 61,686.70g was "huge" and that this was a highly relevant factor. It was, as his Honour noted, more than 82 times the commercial quantity of methamphetamine. 5. The applicant has not challenged the finding that as the sole occupier of the Blairmount premises, he knew that a large amount of methamphetamine was stored in the locked bedroom. 6. In these proceedings, the Crown did not challenge the quantification of the value of the assistance provided to authorities at 5 per cent. This was an acknowledgement of the fact that s 16A(2) is formulated in such a way that the plea of guilty and an offender's co-operation with authorities are separate and distinct considerations on sentence. 7. On resentence, the applicant submitted that the utilitarian value of the plea of guilty should be assessed at 25 per cent. This was on the basis that it was an early plea of guilty. The Crown did not challenge that assessment. The Crown did, however, note that the discount applied by the sentencing judge for the plea of guilty took as its starting point a sentence of 25 years. This was in addition to the 5 per cent discount allowed for assistance. 8. As already indicated, the Crown accepted that a 25 per cent discount for the utilitarian value of the plea of guilty was available in the circumstances of this case given the early timing of the plea. The Crown submitted that in relation to the other sentencing considerations, the sentencing judge had correctly applied relevant sentencing principles and his start point for the assessment of the sentence of 25 years was well within the discretionary range available. In these proceedings, the applicant has not challenged that assessment. 9. It follows that having regard to the statutory maximum penalty, the objective seriousness of the offence, the subjective circumstances of the applicant and the pattern of sentencing by appellate courts for sentences of this type, a lesser sentence is warranted in law to take into account an appropriate discount for the utilitarian value of the early guilty plea. Conclusion 1. My consideration of the appropriate resentence in this matter conforms with the analysis of the sentencing judge. Given the substantial level of agreement between the parties, both as to the sentencing judge's analysis and as to the nature of the error, my assessment on resentence is a head sentence of 17 years and 6 months, starting 21 December 2010, and concluding on 20 June 2028 with a non-parole period of 11 years and 8 months concluding on 20 August 2022. 2. Accordingly, the orders which I propose are: 1. The applicant is allowed an extension of time within which to seek leave to appeal against sentence. 2. Leave to appeal against sentence is granted. 3. The appeal against sentence is allowed. 4. The sentence imposed by Cogswell SC DCJ on 18 May 2012 is quashed. 5. In lieu thereof, the applicant is sentenced to imprisonment for 17 years and 6 months, commencing 21 December 2010 and expiring 20 June 2028, with a non-parole period of 11 years and 8 months expiring 20 August 2022. 1. PRICE J: I agree with Hoeben CJ at CL. 2. FAGAN J: I agree with the Chief Judge. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 November 2020