New South Wales Court of Criminal Appeal CITATION : REGINA v HE [2002] NSWCCA 370 FILE NUMBER(S) : CCA 60068/02 HEARING DATE(S) : 29 August 2002 JUDGMENT DATE : 29 August 2002 REGINA PARTIES : v FANG XIAO (PHILLIP) HE JUDGMENT OF : Handley JA at 1; Simpson J at 13; Bell J at 14 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 01/11/0112 LOWER COURT JUDICIAL Freeman DCJ OFFICER : COUNSEL : Appellant - P Byrne SC Respondent - R Sutherland SOLICITORS : Appellant - Pearl Chew and Associates Respondent - Commonwealth DPP CATCHWORDS : No question of principle LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 (NSW) Customs Act 1901 (Cth) DECISION : Leave to appeal refused IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60068/02 DC 01/11/0112 HANDLEY JA SIMPSON J BELL J Thursday 29 August 2002 REGINA v FANG XIAO (PHILLIP) HE Judgment 1 HANDLEY JA: The applicant was charged on an indictment with an offence contrary to s 233 B of the Customs Act, of being knowingly concerned with the importation into Australia of not less than a commercial quantity of heroin on or about 9 April 2000 and a second offence, under the State Drug Misuse and Trafficking Act, of knowingly taking part on or about 1 March 2000 in the supply of not less than the commercial quantity of the prohibited drug heroin. 2 The applicant pleaded guilty to both charges and was sentenced by Freeman DCJ on 29 January 2002. His Honour dealt with the offences in the time sequence rather than the sequence in the indictment. The offence against State law involved 4.25 kgs of heroin and the later offence involved the equivalent of 9.8 kgs of pure heroin. 3 The sentence proceedings on 29 January 2002 were interrupted by the luncheon adjournment. His Honour delivered extempore reasons and sentenced the applicant to a fixed term of 3 years for the State offence and a cumulative sentence of 20 years' imprisonment for the Federal offence with a non-parole period of 13 years. The sentences were back-dated to the date the applicant was taken into custody. 4 The applicant's role in the two transactions which were the subject of the charges was a significant one. There has been no challenge to the Judge's findings of fact. He found that in relation to the State charge, the applicant was involved in the organisation in an advisory role, he had a complete mastery of the organisational details of the group with which he was concerned. He stood in the chain of supply between Mr Chen who organised the importation into Hong Kong from mainland China, and from Hong Kong to Australia, and the man in charge of local distribution in Sydney, a Mr El Hassan. As the Judge said the prisoner stood in the role of conduit or liaison or intermediary between those two links in the chain of supply. His task involved the recruitment of the courier and the monitoring of the transfer of the drug through various stages of collection until it was passed on to Mr El Hassan. Thus the prisoner's role in the first transaction was at a senior level. His position in relation to the events the subject of the second charge was at the same level. He again played the role of adviser and liaison and demonstrated a complete familiarity with the scheme and with Mr Chen, the apparent principal. The Judge described the applicant's role as that of co-ordinating and directing the supply and distribution of drugs at the wholesale level and said that he was a participant at a very senior level. 5 His Honour was asked to sentence the prisoner on the basis that the offences involved one continuing course of criminality so that concurrent sentences were appropriate. He rejected this submission holding that the offences were not only separate in time but separate in quality and related to separate transactions involving separate importations. He said they were quite separate and distinctive offences which should attract cumulative sentences. 6 Mr Byrne SC, who appeared for the applicant, challenged this conclusion and argued in favour of the sentences for these two offences being made fully concurrent. One aspect, namely that of totality, will have to be considered later in these reasons. On the question of characterizing the applicant's conduct as either one course of criminality or as conduct involving separate and distinct offences, it seems to me with respect that the Judge was entirely correct. This is not a case where the prosecutor has framed multiple counts in an indictment for what amounts to a single discreet course of criminality. These were separate transactions some weeks apart involving separate quantities of the drug. I reject the submission that the criminality in this case would be adequately dealt with by fully concurrent sentences. 7 The next matter relied on by Mr Byrne is that the combined sentences are so heavy that they demonstrate a breach of the totality principle. This was linked with a further submission that the second sentence breached the parity principle having regard to that imposed by Norrish DCJ on 8 June 2001 on Mr Robert Wei-Heng Li. Mr Li was a co-offender in relation to the April importation and had a role as an intermediate courier after the goods had been cleared through Customs at Mascot Airport. He was sentenced to ten years' imprisonment to date from his arrest with a non-parole period of six years. Mr Li pleaded guilty but did not assist the authorities and in those respects his position was comparable with that of this applicant. 8 Mr Li's involvement, as I have said, was as an intermediate courier. The actual importer, a Mr Bourchas, attended at the premises of a freight forwarder at Mascot Airport, took delivery of the package that had been sent by air from Hong Kong and took it home. Having got it home he separated the 32 blocks into two parcels of 22 and 10. He put the 22 blocks into a bag, and left it in the boot of a motor vehicle parked nearby. Mr Li arrived and collected a key secreted on one of the tyres. He opened the boot, removed the container with its contents, thought to contain heroin, replaced the key and left passing the container in due course to Mr El Hassan. Mr Li's role was, therefore, limited in time, in place and in quantity, compared with that of the present applicant. His role was entirely subordinate and as far as appears, he was not aware of the big picture and had no role in the planning of the importation. While Mr Li and the applicant are co-offenders, their roles are so different that in my judgment no principle of parity is properly engaged by the sentence Mr Li received. Mr Byrne pointed out that the applicant's head sentence was twice that received by Mr Li and his non-parole period was more than twice as great. Nevertheless, for the reasons I have given, their roles were so different that the applicant can derive no assistance from the parity principle. 9 There remains the totality principle. Mr Byrne says, undoubtedly correctly, that the total sentence passed on the applicant is a heavy one involving 16 years in custody, 3 years being the fixed term for the State offence and 13 years being the non-parole period for the Federal offence. On the other hand, the objective criminality of this applicant was very high having regard to the quantity of heroin involved and his senior role in the chain of distribution. This Court has said again and again that persons higher up in the chain of distribution of illegal drugs should properly receive heavier sentences than those whose role is mechanical or ministerial and relatively minor. If the State offence had been the only offence with which this applicant had been charged he should clearly have received a much higher sentence than a fixed term of 3 years. There is no need to identify what would have been an appropriate sentence for this offence alone but one of 10 years with a non-parole period of 6 years would not have been inappropriate, particularly when one bears in mind that that was the sentence received by Li for his role as an intermediate courier in the Federal offence. 10 I am not persuaded that this sentence does contravene the totality principle. Mr Byrne argued that the trial Judge in his reasons appeared to disregard or give no weight whatever to the sentence imposed on Mr Li. It was the subject of passing reference in his Honour's reasons when he said: "A number of other persons involved in these criminal activities of supply and importation have been sentenced by other judges of this Court". His Honour was provided with full details of the sentences imposed on five co-accused. 11 Even if the circumstances surrounding the sentence imposed on Li had been more relevant than I believe they were, I would not have concluded from his Honour's brief reference that he had failed to give this matter proper weight. Relevantly, the sentence proceedings took place in the course of one day, they continued past the lunch adjournment and his Honour gave extempore reasons. His failure to make further reference to the sentence imposed on Li does not, in my judgment, bespeak any error or failure to take parity into account. As I have already said, in my judgment it was not a material consideration on the parity issue because the circumstances of the two accused were so very different. 12 I would therefore propose that leave to appeal should be refused. 13 SIMPSON J: I agree. 14 BELL J: I also agree. ****** 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.