Reported Decision : 138 A Crim R 433 New South Wales Court of Criminal Appeal CITATION : Regina v Jack Chick Chen [2003] NSWCCA 326 HEARING DATE(S) : 1 September 2003 JUDGMENT DATE : 7 November 2003 JUDGMENT OF : Meagher JA at 1; Sully J at 2; Kirby J at 72 DECISION : Leave to appeal against sentence granted ; Appeal against sentence allowed and sentence passed in District Court quashed; Applicant sentenced to imprisonment for 31 years, to commence on 9 April 2000 and expire on 8 April 2031, with a non-parole period of 23 years to expire on 8 April 2023 Commonwealth Customs Act LEGISLATION CITED : NSW Drug Misuse and Trafficking Act Crimes Act 1914 (C'th) Criminal Appeal Act 1912 (NSW) Postiglione v The Queen (1996-7) 189 CLR 295 CASES CITED : Lee Vanit & ors. v The Queen (1997) 190 CLR 378 Wong v The Queen (2001) 207 CLR 584 PARTIES : Regina Jack Chick Chen FILE NUMBER(S) : CCA 60086/03 COUNSEL : R. Sutherland SC - Crown R. Richter QC - Appellant SOLICITORS : Commonwealth Director of Public Prosecutions - Crown Watsons Solicitors & Barristers - Appellant LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0360 FILE NUMBER(S) : LOWER COURT Kinchington ADCJ JUDICIAL OFFICER : - 1 - IN THE COURT OF CRIMINAL APPEAL 60086/03 MEAGHER JA SULLY J KIRBY J 7 November 2003 REGINA V JACK CHIK CHEN Judgment 1 MEAGHER JA: I agree with Sully J. 2 SULLY J: The applicant, Mr. Jack Chik Chen, applies for leave to appeal against the asserted severity of a sentence of imprisonment that was passed upon him on 27 September 2002 by his Honour Acting Judge Kinchington sitting in the District Court at Sydney. 3 The applicant was presented before his Honour on 3 June 2002 for trial upon an indictment charging that "between about 1 January 2000 and 9 April 2000 at Sydney, New South Wales, ………(he) ……….did conspire with Phillip Fang Xioa He, Fouad El Hassan, Con Polyzoidas, Simon Stanbouli, Christos Argyris, Mario Bourchas and divers others to import into Australia prohibited imports to which section 233B of the Customs Act 1901 applied, to wit narcotic goods consisting of a quantity of heroin being not less than the commercial quantity applicable to heroin." 4 Various preliminary matters occupied the Court until 5 June, on which day a formal plea was taken from the applicant. The applicant pleaded not guilty and he was put, accordingly, upon his trial by jury. That trial continued until 3 July, reaching a point at which the Crown case had almost concluded. 5 On 3 July the applicant indicated a wish to change his plea. He was formally re-indicted and entered a plea of guilty. 6 Proceedings on sentence took place on 12 August, and the applicant stood for sentence on 27 September. The applicant was sentenced to imprisonment for 40 years, with a non-parole period of 26 years. The relevant statutory maximum penalty was one of life imprisonment entailing actual custody for the term of the offender's natural life. 7 The applicant was represented throughout by very experienced Queen's Counsel who appeared, also, at the hearing of the present application. 8 At the commencement of the proceedings on sentence the Crown Prosecutor tendered a 46 page statement which set out in detail the structure of the Crown case against the applicant. During those proceedings learned Queen's Counsel for the applicant challenged a number of propositions advanced in the Crown outline; and those challenges will require consideration in connection with the notified grounds of appeal. It is, nevertheless, convenient to begin the present canvass of the relevant objective facts by taking the Crown outline as a starting point. 9 The Crown case was, and remains, that the applicant was at the material times the principal in a highly organised and ongoing conspiracy to import heroin into Australia in consignments which were concealed in parcels that contained, ostensibly, computer parts. 10 That conspiracy came to light, on the Crown case, as a result of a long term investigation of the Joint Asian Crime Group ("JACG"), a body which the Crown outline describes as: "……….. a combined task force of Commonwealth and State officers formed with the specific objective of targeting suspected criminal activity carried out by Asian groups and individuals. Rather than acting as a response group or pursuing reactive policing following the commission of a crime, the Joint Asian Crime Group selects particular targets and investigates their activities with a view to discovering hitherto undetected criminal activity". 11 In the period from 1998 to April 2000 the JACG was targeting the present applicant. Its method was "………… to undertake electronic interception of telephones which were able to be identified as being used either by ……. (the applicant)…….or persons with whom he was associated, and by undertaking visual surveillance of persons associated with …..(the applicant) …... rather than physically targeting …… (the applicant) …… himself". 12 The continuing investigations, on the Crown case, "crystallised with respect to a series of four specific consignments of alleged computer parts during a five week period from late February until early April 2000". 13 In February 2000 intercepted telephone conversations between the applicant, who was then in Hong Kong, and Phillip He, one of the persons named in the indictment, suggested that an importation of heroin into Australia was being organised. 14 On 29 February a consignment, purportedly of computer parts, was received by I.C.F., a freight forwarding agency in Sydney. The consignment had arrived by air from Hong Kong. It was addressed to Comworld Computers at a particular Sydney address. There was no such entity as Comworld Computers. The air freight manager of I.C.F. was Simon Stanbouli, also named in the indictment. He notified Mario Bourchas, also named in the indictment, and Bourchas collected the consignment from I.C.F. 15 On the Crown case, the consignment contained a quantity of heroin which was intended to be handed over to Phillip He or to Fouad El Hassan, both of whom are named in the indictment. The Crown case pointed to a sequence of intercepted telephone conversations passing either between the applicant in Hong Kong and Phillip He in Sydney; or between He and El Hassan in Sydney. The Crown case was, and remains, that the terms of those conversations point convincingly to their having concerned the consignment previously mentioned. 16 The consignment was collected by Bourchas on 29 February. The requisite fees were paid by Bourchas to I.C.F. by means of a cheque drawn on a bank account that had been organised as a cover for such payments. The consignment passed into the hands of Con Polyzoidas, who is named in the indictment. He conveyed the contents in a motor vehicle, which he had purchased on the preceding day, to a pre-arranged location where he left it parked and locked. A little later, one Mark Ho, arrived at that location, and, using a key which had been left by Con Polyzoidas for him on the top of the driver's-side wheel of the parked car, unlocked the car and took delivery of the consignment. Ho drove off, with the consignment, in his own car. He was pursued by police who had been keeping him under surveillance, and was stopped and arrested. He was found to be in possession of 4.05 kilograms of impure heroin. Later analysis established that the total pure weight was approximately 2.807 kilograms. 17 Following the arrest of Ho, Con Polyzoidas was observed by police to re-claim the car which he had left parked for Ho to find. This took place in the context of a flurry of intercepted telephone calls between the applicant, still in Hong Kong, and He; and between He and El Hassan. These interchanges showed anxiety and agitation about what had happened to Ho and the heroin that he had been sent to collect; and included one conversation between He and El Hassan concerning the removal of the vehicle in which the heroin had been left for collection by Ho. 18 On 1 March a second consignment was lodged in Hong Kong for overnight despatch to Sydney. Intercepted telephone conversations between the applicant, still in Hong Kong, and He in Sydney suggested that this second consignment was in fact a "dummy" run, designed to test whether the system which the conspirators were employing had been compromised following Ho's arrest. 19 On 2 March Bourchas collected the consignment. Later, and on 9 April, the police retrieved this consignment. It was found to be intact and to contain no heroin. 20 On 26 March a third consignment addressed to Comworld Computers was received. Its declared weight was 26 kilograms. The JACG was unaware, at the time, of this consignment; first becoming aware of it at about the end of March or the beginning of April after an intercept warrant had been obtained for a telephone service newly activated by the applicant after the arrest of Ho, and used thereafter by the applicant in place of a previous service which the police had been lawfully monitoring. 21 Intercepted telephone conversations between the applicant and He, both then in Sydney, on 2 and 3 April, and between the applicant and one of his Chinese contacts in Hong Kong on 3 April, indicated the expected arrival on 8 April of a further consignment. 22 In fact, that consignment arrived in Sydney on 9 April. It was handled, pursuant to the procedures previously outlined, by Stanbouli at I.C.F., and by Bourchas. Intercepted telephone conversations showed the applicant negotiating with the Chinese suppliers, and then liaising with He; and showed a flurry of contacts between and among He, El Hassan, Christos Argyris, a friend and associate of Polyzoidas and also named in the indictment, and Bourchas. The contacts were directed to arranging for Bourchas to collect the consignment from I.C.F.; to take it to his home and unpack the heroin contained in it; and to place that heroin in a motor vehicle for subsequent collection by somebody playing the part that had been played previously by Ho. 23 The JACG investigators, having learned of these arrangements, intercepted the consignment, removed the heroin contained in it, and substituted another non-narcotic substance for most of the heroin. The consignment, when intercepted and examined, was found to contain 32 blocks of heroin weighing 14.768 kilograms. Later analysis showed a total pure weight of 9.81 kilograms. 24 The reconstituted consignment was duly collected and processed by Bourchas; and was then left for, and collected by, one Robert Li. 25 Li was watched by JACG operatives as he collected, and departed with, the controlled delivery. He was very soon thereafter arrested. His arrest, when it became known to the applicant and to He, touched off a number of telephone conversations between He and the applicant; and between the applicant and one of the Chinese suppliers. Shortly after the making of these calls the applicant was arrested. 26 Part of the Crown outline concerns some intercepted telephone conversations made on 9 April from the applicant in Sydney to two Chinese suppliers who are identified as "cousin" and "Liang". 27 The Crown outline describes these two suppliers as follows: "Cousin Cousin's precise identity was not ascertained by police but intercepted telephone calls with him, together with telephone discussions with the Man Liang, indicate that Cousin was directly responsible for the initiating supply from mainland China. Liang Zhi Xiong Liang was identified on a substantial number of telephone calls in discussion with Jack Chen as being closely connected with the original supply from mainland China and with the receipt of payment for the consignments and organisation of their transmission from Hong Kong. Hong Kong police surveillance revealed Liang having travelled in company with Chen from Hong Kong to Cambodia on 28 February and having returned together with Chen to Hong Kong on 29 February 2000 where both men were kept under police surveillance as they travelled from Hong Kong Airport." 28 The particular conversations are summarised as follows in the Crown outline: "At 5.10 pm on 9 April (WAV 187) Chen telephoned Hong Kong and spoke with Liang. He enquired as to the "total number sent over here …. I mean what your total number is, for today, today, arriving on today". Chen was advised by Liang that the total was "21" and in that and a number of subsequent calls Chen enquired as to the precise number of "pieces" which were included in the consignment. Following telephone calls between Chen and Liang and Chen and "Cousin" in mainland China, it was eventually confirmed that there were twenty four 500 gram packages and eight packages of 350 grams. In conversation with Lian (WAV192; 17.23, 9 April 2000) Chen indicated the ongoing nature of the conspiracy: "Next time … next time you'll need to ask. In the future when the fucking package is different, in different style and you should have advised me the first thing." Chen further told Liang: "But when this happens, advise me the first time and I'll tell the other side in advance so that when they open it up they will know straight away that it is right and take it. If it is not right they will not take it. Do you understand?" Chen then telephoned Cousin in mainland China (WAV193, 17.24, 9 April 2000) and confirmed the size and weight of the packages which had been received and complained: "… the style is different from those before so people dare not take it …. Next time when there is anything different, please ring and advise me the first thing. OK?" In a subsequent call to Cousin (WAV 194) Chen told him: "Next time when it happens again, report to me the first thing." He also told Cousin: "Besides, you need to prepare for 28. Do you know? The date of 28th … Get prepared straight away." Chen also phoned Liang back (WAV 195) and asked whether he had told his cousin about the date of the 28th. Telephone contact between Phillip He and El-Hassan (WAV 237) confirmed that He was going to be provided with "22" (blocks). He advised El-Hassan: "I said next time he should tell you what's happening … Now listen because over there, the country, this is heroin alright. A couple of days. So this guy has got to do a collecter. Different things you know what I mean." 29 The Crown case was, and remains, that the applicant was, during 2000 and prior to his arrest on 9 April 2000, the principal in an on-going conspiracy to import heroin into Australia. The Crown points to the foregoing conversations, all of which occurred prior to the applicant's becoming aware of Li's arrest, as establishing beyond reasonable doubt the then existence of such an open-ended conspiracy. 30 The applicant's case on sentence can be summarised by reference to the following submissions put for him to the learned sentencing Judge: "True it is that in terms of the actual hands on distribution Phillip He did not have in his hands the block of heroin but it is quite clear from the evidence in my respectful submission that Phillip He and El Hussan were partners and that they were the central figures in the organisation that brought about these importations or the importation that we're specifically dealing with and if one has regard to the contents of the conversations between Phillip He and El Hussan, it appears quite clear that the nature of their relationship was that they were the persons who wanted the heroin in Australia. It will be our submission that so far as Mr. Chen was concerned he was in fact recruited by Phillip He to assist and to assist at a time when it seems that apparently some source of supply overseas had been disrupted by various arrests there and that Mr. Chen, because he knew Liang through gambling and by reputation here, went to Hong Kong and on the material your Honour would be able to conclude that he went to Hong Kong to re-establish or call He some source of – or to establish with He some source of supply. He of course knew Liang as well and knew people in China but Liang was a particular friend of Mr. Chen. Liang had from time to time been in Australia and he and Chen were known to go gambling together and undoubtedly had discussions. It's quite open on the material that when a problem had arisen in relation to He's business and it was He's business, Phillip He's business, that it's then that Mr. Chen went to Hong Kong, went overseas. Indeed the belated surveillance material that we had in relation to his being seen with Mr. Liang is consistent with the notion that Chen was an intermediary for Phillip He to facilitate the importation into Australia for Phillip He and his partner so that they would distribute it. So the theme in the submission by the prosecution seems to be that they want to paint Mr. Chen as the principal. In my respectful submission the evidence does not make him out as the principal and does not establish a proprietary interest in the heroin by him. It establishes the role of a significant organiser obviously, that he went overseas as an intermediary between the persons who wanted the heroin, that is Phillip He and El Hussan and their organisation and the person Liang or cousin who were in a position to supply it and did supply it. Chen went over as the facilitator as it were and he did so on our instructions on the basis that he would receive a commission, that he would receive a commission of $2,000 per kilogram at this end and an equivalent commission at the other end in relation to the heroin." 31 The learned sentencing Judge raised with the applicant's counsel the apparent absence of any evidence capable of supporting the submission as to the $2,000 per kilogram commissions. Counsel conceded that there was no such evidence. He then put the following submissions: "Your Honour I appreciate that point that your Honour is making, it's obviously correct but what we would say is this. It's almost akin to the old days in which one had a situation where unsworn evidence for example was given. What I'm putting up is the instructions. We say that in terms of establishing him as the principal, as it were, rather than as an intermediary for He as the material tends to indicate. If the Crown wants to put him as the principal, it's their burden. I won't quarrel with the notion that he is a most significant player obviously but the role that's disclosed in the intercepts is essentially one of someone who goes over to negotiate as an intermediary. If they want to put him up as the principal in an aggravating sense then they need to prove that he is the principal." 32 There then ensued the following interchange between his Honour and counsel: "HIS HONOUR: Your submission is based on the fact that I won't conclude he was the principal. He was somewhere up the top, that's for me to determine but you say the evidence doesn't indicate to say he was right at the top of the pyramid. You say there were others at the top of the pyramid on this evidence. COUNSEL: And the evidence will not indicate that the heroin was brought in for him, indeed the evidence indicates that the heroin was brought in for He and for El Hassan and their organisation. HIS HONOUR: Just on that concept what about all the phone conversations on the day that things blew up as it were so far as the organisation was concerned. To ascertain what was in the package and all that. That seems to me more than just a facilitator. If he was a facilitator why should he really worry? COUNSEL: Well he would really worry because of course he's the one who organised it with the overseas connection. He's an ongoing intermediary. It's not Phillip He who has the conversations with them. The question arises when the stuff arrives, there's something wrong there, the packages don't seem to match et cetera. Who else but Chen would be required by He to make all these enquiries. He is the one who has got to make the enquiries – Mr. Chen is the one who has got to make these enquiries and yes he has an interest. He has an interest in it." 33 Those submissions are continued as part of the applicant's submissions on the present application. They, and all other competing submissions, can be dealt with conveniently in connection with the necessary consideration of the particular bases of the present application. These can be summarised as follows: · The sentence passed is manifestly excessive · The applicant has a justified sense of grievance arising out of the disparity between the sentence passed upon him and the sentence passed upon Phillip He. · The sentencing Judge made erroneous findings of fact · The sentencing Judge gave excessive weight to intended future activities. 34 It is convenient to deal first with a number of findings of fact which the applicant submits to have been erroneously made by the learned sentencing Judge. 35 The first alleged error concerns the following findings: "Finally I am satisfied beyond reasonable doubt that as a result of this conspiracy commercial quantities of heroin weighing between 16.9 and 17.2 kilograms of pure heroin, were illegally imported into Australia on two occasions between the 29 February 2000 and the 9 April 2000 and that had this operation not been thwarted by the efforts of the Joint Task Force to which I have previously referred further quantities of heroin would have been brought into Australia on an ongoing basis pursuant to that conspiracy." 36 His Honour's calculations were, with respect, demonstrably incorrect. The correct quantities, expressed in pure heroin weights, were respectively 2.8 kilograms and 9.8 kilograms, yielding a total of 12.6 kilograms rather than the total, as calculated by his Honour, of between 16.9 and 17.2 kilograms.. 37 What might be the ultimate effect of this error in calculation, cannot be concluded until the remaining alleged erroneous findings have been examined. 38 The second alleged error concerns what is submitted to have been an erroneous emphasis placed by his Honour on the aspect of contemplated future importations of heroin. 39 In the passage quoted above at paragraph 34 his Honour mentions this factor. In a later passage of the remarks on sentence his Honour says: "As I have previously indicated both this Court and the Courts of Criminal Appeal have repeatedly stated that the offence of importing illicit and prohibited drugs into Australia in commercial quantities is among the most serious criminal offence under Commonwealth Law. Both the concepts of specific and general deterrence requires a court dealing with such cases to impose condign sentences on offenders convicted of such offences except in the most exceptional case. This is not such an exceptional case as the criminality displayed by this offender in orchestrating this operation in my opinion was of an exceptionally high order not only because it involved the importation into Australia on at least two separate occasions of commercial quantities of pure heroin within a short period of time but it also contemplated the importation of further quantities of heroin into this country thereafter and was only brought to an end by the effort of the Joint Federal State Task Force to which I have previously referred ." [emphasis added] 40 And, a little later in the remarks on sentence, his Honour lists ten factors, the combined effect of which is seen by his Honour as justifying "a most severe and extreme sentence". The second of those factors is "that the operation was to be a continual one". 41 In my opinion the short answer to the applicant's submission is stated correctly and as follows in the Crown's written submissions: "The essence of conspiracy is incohate and the criminality is not to be judged merely by reference to those objectives which are actually achieved." 42 The sentencing Judge was well entitled, in my opinion, to assess the applicant's objective criminality upon a basis that took realistic account of the undoubted facts that the applicant when arrested was actively negotiating a further importation; and that the applicant, had he not been arrested, would, beyond any reasonable doubt, have gone on negotiating further and regular importations. 43 The third alleged error concerns the learned sentencing Judge's assessment of the applicant's standing in the hierarchy of the conspiracy in which he was an admitted participant. 44 There are, in the remarks on sentence, two passages of particular relevance to his Honour's assessment. 45 The first passage is: "From the material that has been placed before me in the course of these proceedings, I am satisfied beyond reasonable doubt that the offender Chen was the principal behind this enterprise/conspiracy, firstly because he had direct links with the Chinese suppliers (who the authorities have been unable to positively identify but who they refer to by the pseudonym "cousin") secondly because his dealings with a man named Liang Zhi Xiaong in Hong Kong to my mind established not only that the offender was involved with Xiaong in negotiating the acquisitions of the heroin in question from "cousin" in China and the payment therefore but also that in conjunction with Xiaong he was responsible for the packages containing the heroin being consigned from Hong Kong to ICF in Australia and thirdly because from the numerous legally intercepted telephone conversations and the material in the surveillance videos it is clear to me that the offender Chen was both giving instructions to and seeking clarification from Phillip He as to the ongoing progress of the operation as it unfolded following the arrival of the heroin into Australia. In the circumstances and in the light of all the material that has been placed before me in these proceedings, I reject Mr. Richter QC's submissions that Phillip He was higher up in the hierarchy of those involved in the operation than the offender Chen." 46 A second passage is: "As previously indicated Mr. Richter QC has contended that the culpability of his client is less than that of his co-offender Phillip He. In other words it is contended on behalf of the offender then that although his role in the operation was a significant one it was subservient to those behind that operation namely Phillip He and Fouad El Hassan. In support of this contention Mr. Richter QC submitted that the evidence herein establishes that it was Phillip He and Fouad El Hassan who fine tuned a pre-existing scheme and who were responsible for enticing the persons involved in that scheme and others to participate in and facilitate the distribution of the heroin the subject to importations in question. The Crown has joined issue with these contentions and has submitted that the evidence herein and in particular the material contained in the various telephone intercepts and on the video tapes together with the evidence of the movements of the offender both in Sydney and into and out of Hong Kong clearly indicate that the offender was the principal and brains behind the operation and that he utilised the services of Phillip He and Fouad El Hassan to further it and organise the receipt and distribution of the heroin once it had arrived in Australia. I agree with the Crown's contentions in this regard as I am satisfied by the evidence that has been placed before me in these proceedings particularly as to the movements of the offender and from what he said in the intercepted telephone conversations, and from what is shown on the video tapes that the offender Chen was the principal behind the operation and that both Phillip He and Fouad El Hassan the others employed by them in the operation did what they did in an attempt to facilitate the movement of what they thought was the heroin that had been imported into Australia onto the illicit drug market and I propose to sentence him on that basis." 47 Earlier herein, and at paragraphs 29, 30 and 31, the basic submissions put for the applicant at the sentence proceedings have been noted. It was not then, and it is not now, disputed by the applicant that he was "a significant organiser" in the hierarchy of the conspiracy. The applicant gave no evidence at the sentence proceedings, and the sentencing Judge had, therefore, to make findings of fact without any direct oral evidence from the applicant as to his alleged true standing in the conspiracy; or as to the circumstances of his initial adherence to the conspiracy. 48 In the result, the learned sentencing Judge had to draw rational inferences from a mass of materials which established quite clearly, in my opinion, each of the particular matters of which his Honour speaks in the passage quoted earlier herein at paragraph 44. 49 It is submitted for the applicant that his Honour's findings are consistent with the proposition, central to the applicant's case, that the applicant was no more than an intermediary, or facilitator, between two groups of principals being, effectively, "Cousin" and Liang at the China/Hong Kong end, and He and El Hassan at the Australian end. 50 The learned sentencing Judge rejected that case, and I am not prepared to say that it was not open to his Honour to do so. A fair view of the course of relevant dealings seems to me to establish that the applicant was more, and a good deal more, than a mere agent shuffling between two groups of principals to whom he was subordinate. The applicant was, in truth, the lynch-pin of the whole conspiracy in the sense that it was he who did the whole of the negotiating with the Asian suppliers. He's telephone contacts with the applicant, concerning the consignments earlier herein examined, have the flavour of someone reporting to a superior rather than that of someone giving directions to a mere agent or other subordinate. There was no evidence, so far as I can see, that He had contacts, independent of the applicant, with the Chinese/Hong Kong suppliers, so as to open up a reasonable possibility that the applicant was no more than a convenient commission agent for He. There was no evidence of what exact profit or advantage the applicant stood to gain from his participation in the on-going conspiracy; but, even had the evidence shown no more than that, as suggested in the submissions put on sentence, he was to skim off, so to speak, a "commission" from both the Chinese/Hong Kong suppliers and the He/El Hassan recipients, that would not have been at all inconsistent with his having been the effective lynch-pin of the whole operation. 51 Leaving aside for the moment the particular parity argument now urged by the applicant as between himself and He, it does not seem to me to matter what job description is given to the applicant within the overall frame-work of the conspiracy. He was, on any realistic reckoning, a major player in a major heroin importing enterprise. As such, his objective criminality demanded an end result that was, and that was seen clearly to be, towards, and well towards, the top of the statutory range of imprisonment. 52 It is convenient to proceed from that conclusion to the parity point upon which the applicant now relies. 53 The applicant's co-conspirator, He, was not prosecuted for conspiracy to import heroin. He was charged, rather, with two substantive offences; one under the Commonwealth Customs Act, and the other under the NSW Drug Misuse and Trafficking Act. The Commonwealth charge was one of having been knowingly concerned in an importation of heroin. The State charge was one of supply heroin, the supply having that character by reason of the extended statutory definition of supply. 54 He was sentenced to two cumulated sentences of imprisonment. On the State charge, which concerned the consignment that Ho had picked up, He was sentenced to a fixed term of imprisonment of 3 years. On the Commonwealth charge, which concerned the consignment that Li picked up, He was sentenced to imprisonment for 20 years, with a non-parole period of 15 years. The sentences were based, as to objective criminality, upon a finding that the applicant had stood higher than He in the relevant chain of command. 55 The Court of Criminal Appeal refused leave to appeal. 56 In Postiglione v The Queen (1996-7) 189 CLR 295, Dawson and Guadron JJ say at 301-2: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a "justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." 57 Had He been sentenced upon the basis that he had stood higher than the applicant in the relevant chain of command, then these principles would have called, clearly, for the adjustment of the applicant's sentence. 58 But He was sentenced upon the basis that he stood lower than the applicant in that chain. That consideration alters significantly the focus of the applicant's parity argument; for the question then becomes whether the applicant's sentence of 40 years with a non-parole period of 26 years gives him a justifiable sense of grievance when compared with the effective sentence of 23 years with a non-parole period of 18 years that was passed, not upon his superior in the chain of command, but upon his inferior in that chain. 59 The answer to that question seems to me to depend, at least in part, upon an analysis of the reasoning that resulted in his Honour's fixing of a term of 40 years as that of the head sentence. 60 This reasoning is exposed in the penultimate paragraph of the remarks on sentence: "I arrived at that sentence I have particularly kept in mind the principals (sic) of parity and the sentences imposed on Aryris (sic), Bourchas, Ho, Li and Phillip He all of whom pleaded guilty to specific subjective charges and were not dealt with on the basis that their criminal activity involved an ongoing criminal conspiracy to import commercial quantities of pure heroin into Australia. In addition I have kept in mind that the sentence will not be subject to any remission and in this circumstance have reduced a potentially "life sentence" to one of 45 years and then reduced it by a further 10% because of his plea of guilty herein and his prospects of rehabilitation and so have arrived at the head sentence of 40 years imprisonment and the non parole period of 26 years which is approximately two-thirds of that head sentence." 61 I have difficulty with the concept that "a potentially 'life sentence' " can be reduced to some determinate sentence by reason of the provisions of section 16G of the Crimes Act 1914 (C'th). This concept seems to me to be untenable in light of the decision of the High Court of Australia in Lee Vanit & ors. v The Queen (1997) 190 CLR 378. 62 In my opinion his Honour was required to consider whether the objective gravity of the offence was so great that, notwithstanding relevant subjective and other statutory factors including the plea of guilty, a life sentence, i.e. a head sentence of imprisonment for the term of the offender's natural life, should be passed. 63 An affirmative answer would have entailed his Honour's giving consideration to the fixing of a non-parole period pursuant to the provisions in that behalf of section 19AB of the Commonwealth Crimes Act. 64 A negative answer would have entailed the need to fix, according to proper principle and without further reference to a "life means life" sentence, of a determinate head sentence, and an appropriate, if any, non-parole period. At that time it would have been, indeed, necessary to allow for the requirements of section 16G; and of any other statutory requirements, in particular those established by section 16A and by section 17A. 65 I take his Honour's remarks as quoted above at paragraph 59 to convey that his Honour did in fact entertain a "life means life" sentence, but "reduced" it to a determinate head sentence of 45 years,because of an erroneous perception that he was obliged to take some such course in order to comply with section 16G. 66 That error, coupled with the error earlier discussed as to the calculation of weights, requires, in my view, that this Court consider, in the exercise of its power and duty pursuant to section 6(3) of the Criminal Appeal Act 1912 (NSW), whether some other and more lenient sentence is warranted in law. 67 The applicant is now aged 44-1/2 years. A decision, albeit one reached upon an erroneous basis, not to pass a "life means life" sentence, cannot properly be disturbed on the present application and in the absence of a Crown appeal. That being so, it would not be proper, in my opinion, to uphold a head sentence having the effect of achieving a de facto life sentence. If a life sentence is to be imposed at all, it should be imposed frankly and directly. A head sentence of 45 years, after proper discounting, passed upon a man aged 43 years when sentenced is, in terms of practical future probabilities, a de facto life sentence. 68 In calculating the way in which this Court should now intervene, I would adopt the "instinctive synthesis" approach as discussed in the joint judgment of Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584: see in particular paragraphs 75, 76 and 77; adding the consideration, recognised by Gleeson CJ in paragraph 12 of his Honour's judgment in the same matter, that "Judges are generally capable of entertaining two or more ideas at the one time". . I would allow 10 per cent for the plea and about 20 per cent for the section 16G factor. I would set, accordingly, a head sentence of 31 years. I would set a non-parole period of 23 years. 69 I observe as to the foregoing calculations: [1] I would not disturb the 10 per cent discount allowed by the learned sentencing Judge; but I consider that the applicant is thereby treated generously when it is remembered that for a month or so he defended himself upon a basis that he knew to be false; and that he only changed his plea when he had to face up to the fact that that particular game was up. [2] A discount of 20 per cent for the section 16G factor is less than the normal range of 30-33 per cent. There is, however, nothing lapidary about that range. If that range would produce an end result that would not be "of a severity appropriate to the circumstances of the offence" then it is proper, in the spirit and the letter alike of section 17A, to make a fair adjustment. [3] For the same reason, I would set the non-parole period at, in practical terms, 75 per cent of the head sentence rather than at a point in the range 60-66 per cent. [4] The foregoing calculations seem to me to meet fairly any justified grievance that the applicant might otherwise have felt on account of the sentences passed upon He. [5] An additional ground, not previously canvassed herein, was taken by the applicant and was put as follows in the applicant's written submissions: "It is submitted that a procedural unfairness occurred by the failure to supply relevant and cogent evidence to the Applicant and those advising him at the committal stage. That defect was remedied at trial immediately prior to the re-arraignment and plea of guilty. Having regard to what happened at trial upon disclosure, it seems highly probable that if disclosure had been made at the committal, the Applicant would have pleaded guilty to the substantive charge he then faced and that plea would have been accepted. He would then have been sentenced with Phillip He in circumstances which would have allowed parity considerations to be given immediate and full effect. In those circumstances, the principles in Cameron v The Queen (2002) 76 ALJR 382 of "facilitating the administration of justice" would have operated in the Applicant's favour by further reducing the sentence imposed." 70 In my opinion, the thrust of this argument, as spelled out in the third sentence of the written submission, is wholly unsupported by any, let alone any credible evidence, from the applicant or otherwise. I would not uphold it. 71 I propose the following orders: [1] That leave to appeal against sentence be granted; [2] That the appeal against sentence be allowed and that the sentence passed in the District Court be quashed; [3] That the applicant be sentenced to imprisonment for 31 years, to commence on 9 April 2000 and to expire on 8 April 2031; with a non-parole period of 23 years to expire on 8 April 2023 72 KIRBY J: I agree with the orders proposed by Sully J and the reasons provided. ********** ********** Last Modified: 12/05/2003 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.