Regina v Ho [1999] NSWCCA 440

New South Wales Court of Criminal Appeal CITATION : Regina v Ho [1999] NSWCCA 440 FILE NUMBER(S) : CCA 60189/99 HEARING DATE(S) : 10/12/99 JUDGMENT DATE : 10 December 1999

PARTIES : Regina Kevin Chi Ho JUDGMENT OF : Beazley JA at 1; Newman J at 35; Greg James J at 36

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70225/95 LOWER COURT JUDICIAL OFFICER : Ireland J

COUNSEL : Crown: G J Bellew Appellant: G J Scrapp SOLICITORS : Crown: Commonwealth Director of Public Prosecutions Appellant: M K Steele & Giammario CATCHWORDS : Sentence appeal; Attempt to possess trafficable amount of heroin; Parity in sentencing; Co-offender; Criminality ACTS CITED : Customs Act 1901 (Cth) R v Thiagaragah 4 A Crim Rep 45 CASES CITED: R v Budiman (1998) 102 A Crim R 411 R v Lowe (1984) 15 CLR 606 DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

CCA 60189/99

BEAZLEY JA NEWMAN J GREG JAMES J

Friday, 10 December 1999

REGINA v KEVIN CHI HO

JUDGMENT

1 BEAZLEY JA: This is an application for leave to appeal against sentence. The applicant pleaded guilty to one charge under s 233B(1) of the Customs Act 1901 (Cth) relating to an attempt to possess a trafficable amount of heroin. The amount involved was 1.518 kilograms, with a purity of 71 per cent, giving a pure amount of 1.078 kilograms. 2 The applicant initially pleaded not guilty on 4 May 1998 and the trial proceeded for a period of seven days. On the eighth day, 13 May 1998, at a point when, on the Crown submission, the Crown case was almost at a close, the applicant was re-arraigned and entered a plea of guilty. 3 The applicant's co-offender, Mr Yu, had on 23 April 1997 pleaded guilty to the same charge and was sentenced by Barr J on 5 September 1997. The sentence of the two co-offenders was effectively the same. 4 The applicant seeks to challenge the sentence imposed upon him. He says that having regard to the degree of his criminality and other subjective circumstances compared to those of his co-offender, Mr Yu, the sentencing judge erred in failing to adequately apply parity of sentencing principles. It is implicit in that contention that the applicant should have received a sentence which was less than that imposed on Mr Yu. 5 The applicant also claims that the non-parole period imposed by the sentencing judge was too high in all the circumstances and that a more appropriate relationship between the non parole period and the head sentence, which was in fact about two thirds, should have been fifty/fifty. It was submitted on behalf of the applicant that the sentencing judge was influenced by the sentencing remarks and the sentence imposed by Barr J on Mr Yu, and that the sentencing revealed manifest error. 6 The sentencing judge found that there was a criminal organisation whose objective was to import heroin. Whilst, as part of the background put forward by the Crown that there had been prior importations by this organisation on four occasions in 1994, his Honour made it clear that he was only dealing with the subject importation of January 1995. I will deal with the background circumstances a little more fully later. 7 The subject importation involved the following relevant circumstances. In January 1995 the importation of heroin was intercepted and a substitute substance put in its place. This was delivered as though it were the heroin to a Brian Alexander Kuan. 8 The applicant and his co-accused, Mr Yu, are Melbourne based people who travelled to Sydney in January for the purposes of participating in this importation. They flew in on 13 January. The trial judge found that their purpose in coming to Sydney was to obtain heroin. They booked in to the Golden Gate Hotel, the applicant booking in under a false name. 9 At the time they booked in, Mr Kuan was already a guest in the hotel. The applicant requested and was allocated, a room on the same floor. The room allocated to the appellant was almost opposite that of Mr Kuan. I think that circumstance must be considered to be coincidental. However, on the material before the Court, the request of a room on the same floor was not. 10 The trial judge was satisfied that the applicant and Mr Yu received fifteen bags of what turned out to be the substituted substance from Mr Kuan on 13 January 1995. The evidence reveals that thirteen of those bags were returned, apparently because there was suspicion about the contents of the bag. The remaining two bags that were the subject of the charge. 11 The applicant played the following part in the enterprise. He came from Melbourne for the purpose of obtaining the heroin. That much was accepted by his counsel. It was also accepted by his counsel that the applicant was physically involved in the packaging of the substance for transportation to Melbourne. This involved the two men going out into the nearby commercial and retail business district, buying some boxes of noodles and replacing the noodles with the substituted substance. 12 It was submitted on behalf of the applicant that the degree of accepted criminality to which I have just referred demonstrated that the applicant's overall involvement and therefore his criminality was much less than that of Mr Yu. Counsel for the applicant relied upon a number of factors to support this submission. He submitted for example that on 13 January the appellant was not seen by surveillance officers until after 6pm when he joined Mr Yu at a restaurant in the Haymarket area, but other members in the enterprise had been under surveillance from earlier in the day. 13 He also relied upon the fact that another person involved in the enterprise, who it would seem was much more involved in the organisation of the crime, a Mr Tam, gave evidence that his contact had been with Mr Yu and that he was unaware of the applicant. 14 Further, it was submitted that a mobile telephone belonging to the applicant was not the one that was used for the purpose of organising the transfer of the substance during the course of 13 January. Rather, the phone found on Mr Yu was the phone which had been used. 15 Once the two men left the Golden Gate Hotel to go to the airport to return to Melbourne it was Mr Yu who always had physical possession of the two boxes and it was Mr Yu who did the talking to the airport staff. 16 These facts were before his Honour and were taken into account by him. However, his Honour also relied on two other matters which have been the subject of significant challenge before the Court today. The first relates to his Honour's finding that he was satisfied that there were fifteen bags of white powder involved and that thirteen were returned to Mr Kuan. Counsel for the applicant submitted that there was not sufficient evidence for his Honour to make that finding. 17 In my opinion, that submission has not been made out. A statement of facts was tendered to his Honour by the Crown. Some of the facts alleged in the statement were subject to challenge by the applicant. To the extent they were not, it must be taken that the applicant agreed that they were facts upon which his Honour could base his findings. To the extend that the facts were challenged by the applicants it was incumbent upon the Crown to prove them. We have not been pointed to any challenge to the paragraphs which contain the allegations evidence that there were fifteen bags involved at one stage and that Mr Kuan retained possession of thirteen of those bags. That is consistent with the findings which his Honour made. 18 Although Mr Kuan gave evidence before his Honour and counsel for the applicant seeks to rely upon it in support of the challenge to this finding, I do not consider that that evidence in any way dispels the material before the trial judge that there was a much greater quantity involved than the amount for which the applicant was eventually charged. I refer in particular to Mr Kuan's evidence at page 9 of the transcript from 20 October 1998, which indicates that fifteen bags were involved. 19 Counsel for the applicant conceded that subject to there having been satisfactory evidence of the number of bags, it was open to his Honour to consider the criminality of the applicant in the overall context of the enterprise, provided of course that it was always borne in mind that the charge to which the applicant pleaded guilty was in relation to the quantity in the two bags and not the fifteen bags. 20 His Honour's remarks on sentence make it patently clear that that is precisely what his Honour did. He looked at the overall criminality of the applicant, having regard to the charge which was laid. 21 The other matter relied upon by counsel for the applicant was his Honour's remarks at paragraphs 10 and 11 of his judgment, which were said to be irrelevant to the assessment of the applicant's criminality. In those paragraphs his Honour pointed out various circumstances which had occurred from the second half of 1994 when the applicant had acquired two mobile telephone services in his own name, but these telephone services were used in Sydney at a time when there was no evidence of the applicant being in Sydney. These telephones had, at times, been used in a way which clearly linked them to members of the criminal organisation. There was also a trip by the applicant and Mr Yu on 25 November 1994 from Melbourne to Sydney. 22 His Honour stated at para 11: "The purpose of reciting in some detail the foregoing events is to do no more than to indicate that the connection between the [applicant] and the conspirators to import heroin into Australia was not the result of an isolated communication but was of several months standing as evidenced by this intercourse." 23 In my opinion, his Honour was also entitled to take that material into account in understanding the degree and extent of the applicant's involvement in the crime and the period over which it had occurred. Accordingly, I do not think there has been any error in the manner in which his Honour treated the factual circumstances in the case. 24 It was against this background that the trial judge considered that the applicant should be treated as a courier. I agree with his Honour's assessment. 25 His Honour stated that the criminality of a domestic courier was not less than that of an international courier. I also agree with that statement. It is a well accepted notion in this area of sentencing. 26 Further, as this Court has emphasised and re-emphasised, persons who perform tasks in the lower rungs of the organisation of crimes of this sort cannot expect, for that reason alone, to be treated with a measure of leniency which might be applied in other forms of crime to distinguish persons who have a lesser role. See R v Thiagarajah in (1989) 41 A Crim R 45; R v Budiman (1998) 102 A Crim R 411 and the cases cited therein. 27 In my opinion, the offence with which the applicant was charged and to which he pleaded guilty was one which was of significant criminality and involved the imposition of a significant sentence. The applicant was entitled, in the imposition of that sentence to have the principles of parity of sentencing applied to his circumstances. Those principles are clearly set out in the decision of the High Court in Regina v Lowe (1984) 154 CLR 606. They are well known and do not need to be repeated. I do not consider that his Honour offended those principles. 28 Starting from the proposition to which I have referred as to the type of sentences that couriers and people in the lower rungs of crimes of this sort are likely to receive, his Honour was then obliged to take into account the role the applicant played. I consider that is was established on the material properly before his Honour that the applicant's role was an important and significant one. 29 His Honour was then required to take into account the personal circumstances of this applicant as compared to those of his co-accused. 30 Counsel for the applicant submitted that those subjective circumstances differed greatly. His co-accused had a prior, similar offence in Hong Kong in 1981, for which he had received a significant gaol sentence. The applicant, by contrast, was of prior good character. Whilst that is true, the courts have emphasised in crimes of this sort that prior good character is often not of assistance because these people are particularly used by the persons higher up in the criminal structure to carry out the criminal enterprise. 31 I can see no error in his Honour's approach. He clearly took into account the differing circumstances of Mr Yu and the applicant and the sentence imposed is appropriately in the range. I would uphold his Honour's sentence. 32 I wish to add that I see no error in his Honour's determination of a non-parole period. I do not see any reason why a two-thirds sentence was not appropriate in the circumstances. 33 Accordingly, I would grant leave to appeal but dismiss the appeal. 34 NEWMAN J: I agree. 35 GREG JAMES J: I do also. 36 BEAZLEY JA: The order of the Court will be as I have indicated.