New South Wales Court of Criminal Appeal CITATION : Regina v Lam [2002] NSWCCA 190 FILE NUMBER(S) : CCA 60154/02 HEARING DATE(S) : 22/05/02 JUDGMENT DATE : 22 May 2002 PARTIES : Regina (Cth) v Sik Lam JUDGMENT OF : Ipp AJA at 1; Dunford J at 49; Burchett AJ at 50 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0593; 01/11/0594 LOWER COURT JUDICIAL Taylor DCJ OFFICER : COUNSEL : K A Chapple (Crown/Appellant) L Flannery (Respondent) SOLICITORS : Commonwealth DPP (Crown/Appellant) Goh Lawyers (Respondent) CATCHWORDS : CRIMINAL LAW - Crown appeal against sentence - respondent convicted of a contravention of s 233B(1)(ca) of the Customs Act 1901 - respondent sentenced to 10 years imprisonment with a non-parole period of 7 1/2 years - whether judge erred in the exercise of sentencing discretion - whether respondent was wrongly sentenced separately for offences under Proceeds of Crime Act 1987 s 82(1) instead of the offences being taken into account when sentencing for offences under the Customs Act s 233B(1)(ca), s 235(2)(c)(i), s 235(2)(ii)(A) - whether sentence manifestly inadequate - whether appellate intervention justified - appeal dismissed. Customs Act 1901 LEGISLATION CITED : Proceeds of Crime Act 1987 Crimes Act 1914 (Cth) R v Thomson [2000] 49 NSWLR 383 Veen (No 2) v The Queen (1988) 164 CLR 465 Baumer v The Queen (1988) 166 CLR 51 CASES CITED: R v Hamzy (2000) NSWCCA 539 The Queen v Olbrich (1999) 199 CLR 270 Baker v R (2000) NSWCCA 85 Wong & Leung [2001] HCA 64 DECISION : Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60154/02 IPP AJA DUNFORD J BURCHETT AJ Wednesday 22 May 2002 REGINA (CTH) v Sik LAM Judgment 1 IPP AJA: This is a Crown appeal against sentence. The respondent pleaded guilty to and was convicted of a contravention of s 233B(1)(ca) of the Customs Act 1901. The charge involved the respondent being in possession of a prohibited import, namely a commercial quantity of heroin. The quantity concerned was 2.779 kilograms of a substance containing heroin which when analysed was found to contain 1.723 kilograms of heroin. 2 Schedule 6 of the Customs Act specifies a commercial quantity of heroin as 1.5 kilograms of pure heroin. By s 235(2)(c)(i) of the Customs Act the penalty for contravention of s 235B(1) involving a commercial quantity of heroin is a fine of $750,000 or imprisonment for life or both. As the respondent had a prior conviction for a similar offence he was, by virtue of s 235(2)(ii)(A) liable to the maximum penalty. 3 Taylor DCJ sentenced the respondent to 10 years imprisonment, commencing on 6 September 2000, with a non-parole period of 7 ½ years to expire on 5 March 2000. His Honour ordered that the respondent be eligible for parole. He said that, pursuant to s 16BA of the Crimes Act 1914 (Cth), he had taken into account two offences committed by the respondent in breach of s 82(1) of the Proceeds of Crime Act 1987. 4 The Crown submitted that Taylor DCJ erred in two respects: (a) It was said that Taylor DCJ imposed a sentence so low as to fall outside a proper exercise of sentencing discretion. (b) It was said further that Taylor DCJ, in effect, imposed a separate sentence on the respondent for the Proceeds of Crime Act offences, instead of merely taking those offences into account when sentencing for the Customs Act offence (as he was required to do). 5 The criminal transactions in which the respondent was involved, giving rise to the offence, took place on 4 and 5 September 2000. Pursuant to these transactions the respondent supplied a co-accused Gi Leung Chung with the heroin in question. The transactions involved a series of clandestine arrangements and several telephone calls using code words. The telephone calls were intercepted by the police and the arrangements were observed. This led to the apprehension of the respondent. The police took possession of the heroin which was identified as originating in South East Asia. It was therefore imported into Australia. 6 The wholesale value of the heroin was between $540,000 and $640,000 and the street value, calculated on one ounce deals of 25% purity, was between $1,476,000 and $2,461,000. 7 The Proceeds of Crime Act charges involved a sum of $4,667.20 located on the respondent's person when he was arrested and $60,000 in cash in a bedside drawer in his premises. 8 In dealing with the respondent's role in the dealings with the heroin, Taylor DCJ found that the respondent was a principal. Apart from Chung, the respondent's son was involved in the supply of the drugs and others may have been involved as well. Taylor DCJ said that the respondent was the person who organised the supply of drugs to Chung, presumably for their distribution. The respondent was the highest in the hierarchy of those involved in the particular transactions and the person most responsible for the relevant arrangements. 9 This was not the only serious offence involving narcotic drugs that the respondent, in his lifetime, has committed. In 1991 he was convicted of contravening s 233B of the Customs Act (being in possession of a trafficable quantity of heroin). He was sentenced for this offence by Sully J who also sentenced him for certain firearm offences. Sully J imposed an overall sentence of 11 years imprisonment with a non-parole period of seven years. Effectively, his Honour imposed a head sentence of nine years imprisonment and a non-parole period of six years in respect of the heroin charges. 10 When the respondent was released on parole in respect of the s 233B offence, he very soon committed breaches of parole conditions relating to notification of residence, approval of employment and failing to obtain permission before leaving New South Wales. The latter breach was particularly relevant as it involved visits by him to the Crown Casino in Melbourne. There he gambled and lost large sums of money. These losses caused him once again to embark on a course of drug dealing that in turn led to the sentence imposed by Taylor DCJ. The fact is that the respondent committed the offences less than six months after he was released on parole on 15 March 2000. 11 Prior to Taylor DCJ sentencing the respondent, Gi Leung Chung was sentenced by Coorey DCJ to nine years imprisonment as from 6 September 2000 with a non-parole period of six years. Chung was also sentenced on two proceeds of crime charges to six months imprisonment, to be served concurrently with the principal charge. 12 Taylor DCJ considered that there were two factors that particularly mitigated the criminality of the offence. These were the plea of guilty and the co-operation the respondent had afforded the authorities. 13 Taylor DCJ considered that the respondent should be treated as if he pleaded guilty at the earliest practical opportunity. His Honour noted however that the Crown case was very strong. Nevertheless, he considered that the plea had a utilitarian benefit. He said that the discount for the plea of guilty should be at the lower end of the range. 14 The level of the respondent's co-operation with the authorities was described by the latter as moderate. Nevertheless, his Honour held that the assistance had been to real effect and the respondent was entitled to a significant discount accordingly. The learned judge observed that the respondent, in co-operating with the authorities, had been motivated partly by self-interest and partly because of despair. He had been frank to the police. 15 Applying R v Thomson [2000] 49 NSWLR 383 Taylor DCJ decided that the respondent was entitled to a discount of three and a half years by reason of his plea of guilty and co-operation with authorities. 16 His Honour then proceeded to explain how he arrived at the ultimate sentence that was imposed. It is necessary to go into this in some detail as it forms the basis of the second ground of appeal. 17 Having referred to the particular circumstances of the offence, Taylor DCJ said that he would take into account general deterrence which he regarded as "a very significant aspect of sentencing". He then said: "A sentence of 15 years imprisonment is appropriate for the offences of possession of a prohibited import". He stated that he would adjust that sentence pursuant to s 16G of the Crimes Act to 10 years. At that stage, it seems that the judge had arrived at a head sentence of 10 years. 18 Taylor DCJ proceeded: "The sentence is further adjusted to six and a half years by reason of the plea of guilty and the cooperation with authorities. I impose an additional 12 months sentence in total in respect of the two proceeds of crime matters to be added to the non-parole period". 19 The approach so adopted is difficult to understand. It seems that the learned judge did not reduce the head sentence of 10 years by reason of the plea of guilty and the cooperation with the authorities (as he said he was going to do) but took these matters into account solely when fixing the non-parole period. Presumably, when he had stated that the sentence would be reduced to six and a half years, he meant only that the non-parole period would be fixed at that term. 20 Similarly, although he said that he would impose an additional twelve months imprisonment in respect of the Proceeds of Crime offences, in fact he increased only the non-parole period by this amount and did not alter the head sentence. 21 In the result, his Honour sentenced the respondent to 10 years imprisonment with a non-parole period of 7 ½ years. This was the sentence actually pronounced. 22 After orders had been made by Taylor DCJ to this effect, the following exchange occurred between counsel for the Crown and the judge: "STAEHLI: Can I just further say in clarification if your Honour doesn't mind, your Honour has increased the non parole period by one year in respect of the matters in the schedule as your Honour expressed. It follows from that, I suppose, your Honour, that your Honour has in effect increased the head sentence by a similar proportion in order to take into account the matters on the schedule, is that right? HIS HONOUR: Yes. STAEHLI: Sorry, when I say a similar proportion, would the proportion which has gone to make up that part of the ten years which your Honour imposed as the head sentence reflect the same ratio as your Honour suggested before your Honour added the year to the non parole period? HIS HONOUR. Yes. STAEHLI: So it was ten years with six and a half years non parole. That ten years, though, includes an amount for the taking into account of the matters on the schedule as well, is that right? HIS HONOUR: Yes." 23 The following comments can be made about this exchange. Firstly, his Honour's affirmative response to the first question was plainly wrong. His Honour had not in effect increased the head sentence (as counsel suggested) in order to take into account the Proceeds of Crime offences. He had arrived at a head sentence of 10 years after applying the reduction required by s 16G of the Crimes Act to his starting point of 15 years for the drug offence. Secondly, the second question posed by counsel is difficult to understand, even though his Honour answered it in the affirmative. 24 Counsel for the Crown on appeal submitted that this exchange should be understood as meaning that Taylor DCJ had imposed a sentence of eight years eight months imprisonment on the drug charge, with a non-parole period of six years, and an additional sentence of 18 months imprisonment with a non parole period of one year on the Proceeds of Crime offences. I do not accept this argument. Firstly, the orders made by Taylor DCJ are clear on their face and are not in the terms for which the Crown contends. Secondly, the exchange on which the Crown relies occurred after the orders were made. Thirdly, the questions posed of his Honour were obscure in meaning and it is not possible to know what the judge understood them to mean. In my view, the sentence must be approached on the basis that the judge intended the words he uttered when pronouncing sentence to mean what they conveyed in their terms. 25 While I am unable to comprehend the basis of the learned judge's reasoning in determining the effect of the plea of guilty and cooperation with the authorities, it is plain that he intended to give due credit for these matters in determining the composite sentence. In my view, it is that sentence, looked at in the context of all the relevant circumstances pertaining to the criminality of the respondent's conduct, that has to be examined in determining the arguments raised in this appeal. 26 I agree with the submissions made by the respondent that, despite saying "I impose an additional 12 months sentence in total in respect of the two Proceeds of Crime matters", Taylor DCJ did not in fact impose a separate sentence in respect of the latter offences. This conclusion requires some explanation. 27 In passing sentence, Taylor DCJ said: "Your sentence is taken to have commenced on 6 September 2000. I impose a non-parole period of 7 ½ years to expire on 5 March 2000 [sic] when you'll be eligible for parole". 28 Earlier he had stated: "In relation to the conviction and sentence of possession of a prohibited import I have taken into account the offences under the Proceeds of Crime Act 1987 admitted by the offender and contained in the Form 1 document under Schedule 3 of the Crimes Regulations". 29 During the course of his sentencing remarks he expressly referred to the respondent's request that the two Proceeds of Crime offences be taken into account pursuant to s 16BA of the Crimes Act. He proceeded to say that he had taken those admitted offences "into account". 30 I accept the submission made on behalf of the respondent that the judge, by saying "I impose an additional 12 months sentence in total in respect of the two Proceeds of Crime matters", thereby intended merely to take the two matters into account by increasing the non-parole period. 31 I would therefore not uphold the argument that Taylor DCJ, in effect, imposed a separate sentence on the respondent for the Proceeds of Crime Act offences, instead of merely taking them into account when sentencing for the Customs Act offence. 32 As regards the other ground of appeal, it was submitted on behalf of the Crown that Taylor DCJ failed to make any real allowance for: (a) The fact that the offence in question was the respondent's second serious narcotics offence. (b) The maximum sentence faced by the respondent was life imprisonment. (c) The offence was committed within six months of the expiration of the respondent's parole period for his first offence and the parole had been revoked because the respondent had breached the conditions thereof. (d) The respondent's prospects of rehabilitation were limited. 33 Taylor DCJ made specific reference to the previous narcotics offence committed by the respondent. Plainly, he took that fact into account. It was particularly significant that the latest offence took place so soon after the respondent was released on parole in respect of the sentence for the earlier offence. But his Honour was well aware of that. 34 Of course, the prior offence could not have led to an increase in sentence beyond what the learned judge considered to be an appropriate sentence for the offence for which he was sentencing the respondent: Veen (No 2) v The Queen (1988) 164 CLR 465 (at 477); Baumer v The Queen (1988) 166 CLR 51 (at 57-58). 35 In Veen (No 2) the majority, after re-affirming the last-mentioned principle, said (at 477): "The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted". Their Honours went on to state that the antecedent criminal history may be taken into account when it is relevant to the moral culpability of the offender, or his propensity or the need to impose a condign punishment for the purposes of personal and general deterrence. 36 In this case it seems to me that the judge did not give sufficient consideration to the fact that the respondent committed a serious drug offence so soon after being discharged from custody. However, that fact, alone, would not justify this Court overturning the sentence. The question remains whether in all the circumstances the sentence was outside his Honour's discretion. 37 On behalf of the Crown it was submitted that, in the light of the moderate degree of assistance afforded to the authorities by the respondent, the learned judge was generous in the reduction of three and a half years that he gave for mitigating circumstances. I agree with this submission, but I am not persuaded that that reduction was beyond discretion. 38 Taylor DCJ referred expressly to the fact that the respondent faced a maximum sentence of life imprisonment. He noted that parole had been revoked because the respondent had breached conditions. The consequence of these matters was essentially for the sentencing judge to determine. 39 As regards the respondent's prospects of rehabilitation, it may well be that those prospects were limited. But Taylor DCJ did not take rehabilitation into account in sentencing the respondent so it cannot be said that he made any error in this respect. 40 I also accept that, generally, principals involved in the narcotics trade should be given condign punishment: R v Hamzy (2000) NSWCCA 539. This rule must be seen, however, against the observations of the High Court in The Queen v Olbrich (1999) 199 CLR 270 where the majority said (at 279): "Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did". 41 Counsel for the Crown pointed out that the respondent was responsible for the organised movement of drugs around Sydney, he involved his son in the criminal transaction, he also involved Chung and perhaps others as well. He deliberately flouted his parole conditions, and demonstrated a continued disobedience to the law in the sense said to be relevant in Veen (No 2). These matters, however, were all mentioned by Taylor DCJ in the course of his sentencing remarks and it cannot be said that he erred in not taking them into account. 42 I agree with the Crown's submissions that the overall effect of the respondent's conduct demonstrated a degree of criminality that called for a far higher starting point than that adopted by the sentencing judge. I come to this conclusion particularly because of the dominant role the respondent played in the transactions and the fact that he committed the offence so soon after leaving prison. But again, it does not necessarily follow from these matters that the appeal should succeed. 43 Where error in the sentencing process has not been demonstrated the Crown faces a difficult task in attempting to overturn a sentence on the ground that it was manifestly inadequate. See the comments of Spigelman CJ in Baker v R (2000) NSWCCA 85. In Wong & Leung [2001] HCA 64 the High Court said (at 58) that: "Appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons." 44 In an effort to demonstrate that there had been appealable error, counsel for the Crown referred to cases where the sentences imposed were arguably far more substantial than those in the present instance. I am, however, not persuaded that the sentence imposed by Taylor DCJ, in the particular circumstances, was below the range. 45 I have said that in my view his Honour's starting point of 15 years imprisonment was too low. But the fundamental question before this court is whether the ultimate sentence passed was too law. It is not whether the starting point was too low. 46 In my view the starting point should have been between 21 and 23 years. I do not accept that it should have been significantly higher. Although the respondent bore paramount responsibility for the transactions, and although he was high up on the chain of supply, he was not the importer of the heroin, nor could he be described as a person responsible for the storage or distribution or control of large quantities of heroin. Rather, the heroin the subject of the charge must have been acquired by the respondent from such a person. Moreover, while the amount of heroin possessed by the respondent was a commercial quantity, and its value was substantial, the quantity, in relative terms, was not at the upper end of the scale. 47 Taking into account a starting point in the vicinity of the range I have postulated, when regard is had to the reduction required by s 16G of the Crimes Act and the discount of three and a half years for the plea of guilty and co-operation with authorities, the result would not be a difference in sentencing that should result in a successful appeal. I also bear in mind that the non-parole period, when considered relative to the head sentence, is higher than usual. 48 In my view, the overall sentence imposed by his Honour was within discretion. That, in my view, is the overriding consideration in this appeal which, for the reasons I have expressed, I would dismiss. 49 DUNFORD J: I agree that this appeal should be dismissed for the reasons given by Ipp AJA, but I do so with some hesitation and ultimately only because of the principles which apply to Crown appeals. I consider that the sentence imposed was unduly lenient, but I am not persuaded that it was so far outside the permissible range as to justify the intervention of this Court. 50 BURCHETT AJ: I agree with the reasons of the presiding judge. 51 IPP AJA: The order of the Court is that the appeal is dismissed. ********** 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. 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