Reported Decision : 159 A Crim R New South Wales Court of Criminal Appeal R v Hung Lo [2005] NSWCCA 436 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 29 July 2005 JUDGMENT DATE: 16 December 2005 JUDGMENT OF: Hulme J at 1; Hidden J at 51; Latham J at 52 DECISION: Leave to appeal granted.; Appeal allowed in part.; Quash the sentences and non-parole periods imposed by McLoughlin DCJ.; On Count 2, sentence the applicant to imprisonment for a non-parole period of 4 years to date from 21 August 2003, expiring on 20 August 2007, with a balance of term of two years, expiring on 20 August 2009; On Count 1, sentence the applicant to imprisonment for a non-parole period of six and a half years to date from 21 February 2004, expiring 20 August 2010, with a balance of term of four years, expiring on 20 August 2014. CATCHWORDS: Sentence only - Special Circumstances - Partial Accumulation Drug Misuse and Trafficking Act 1985 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Holloway v McFeeters (1956) 94 CLR 470 R v Way (2004) 60 NSWLR 168 Wong v R (2001) 207 CLR 584 Le Cerf (1976) 8 ALR 349 Muanchukingkan (1990) 52 A Crim R 354 R v Laurentiu and Becheru (1992) 63 A Crim R 402 Fabian (1992) 64 A Crim R 365 R v Budiman (1998) 102 A Crim R 411 R v Behar (unreported, CCA, 14 October 1998) CASES CITED: Klein (2000) A Crim R 90 Wong v R (2001) 207 CLR 584 Power v R (1974) 131 CLR 623 R v Simpson (2001) 53 NSWLR 704 Hameed (2001) 123 A Crim R 213 R v Way (2004) NSWCCA 131 R v Sangalang (2005) NSWCCA 171 R v Street (2005) NSWCCA 139 R v Porteus [2005] NSWCCA 115 R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 PARTIES: Regina, Hung Lo FILE NUMBER(S): CCA 2005/807 Crown - Ms J Girdham COUNSEL: Applicant - Ms S McNaughton Crown - S Kavanagh SOLICITORS: Applicant - SE O'Connor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0305 LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ IN THE COURT OF CRIMINAL APPEAL 2005/807 HULME J HIDDEN J LATHAM J 16 DECEMBER 2005 REGINA v HUNG LO Judgment 1 HULME J: On 13 July 2004, the abovenamed Applicant for leave to appeal was sentenced by Judge McLoughlin in respect of 2 offences. The first was of supplying, on 21 August 2003, a large commercial quantity of heroin. The amount was 1,406.6 grams with a purity ranging between 65.6 and 71% and the circumstances of the offence itself were that in the course of police surveillance of the Applicant and others, he was seen at about 8.30pm to exit a vehicle YRN 301 shortly after another vehicle had parked nearby and soon afterwards walk back towards YRN 301 carrying a bag. A little later the vehicle, containing the Applicant and others was stopped by police, the bag seized and found to contain the heroin. The sentence imposed for this offence was imprisonment for 10 years and 6 months, including a non-parole period of 7 years, both such periods to commence on 21 August 2003 2 The second offence was of supplying, also on 21 August 2003, a commercial quantity of heroin. The amount was 834.9 grams of a purity varying between 71 and 72% and the circumstances of this offence were that at about 5.30pm on that day the Applicant had been involved in delivering that heroin to a co-offender who then delivered it to another in whose premises it was found that night. Telephone intercepts record the Applicant receiving instructions from a co-offender to effect the delivery and as to methodology to be used in that exercise. The sentence that Judge McLoughlin considered appropriate for this offence, considered in isolation, was imprisonment for 6 years including a non-parole period of 4 years. However in recognition of the principle of totality, Judge McLoughlin ordered that this sentence commence on 21 August 2008. The effective term of imprisonment was thus a total of 11 years, including non-parole periods totalling 9 years. 3 In arriving at these figures, Judge McLoughlin indicated that he was giving the Applicant a discount of 25% for an early plea and found special circumstances, reducing each of the non-parole periods in consequence. Grounds 1 and 3 4 In the first ground of appeal, it is contended that Judge McLoughlin erred in adopting the standard non-parole periods specified in the Crimes (Sentencing Procedure) Act as starting points in his determination of the final sentences. In the third, it is asserted that his Honour erred in failing to regard the partial accumulation of sentences as "special circumstances" within s44 of that Act. 5 So far as the first ground is concerned, I agree with Latham J that the manner in which Judge McLoughlin approached the use of the standard non-parole period was wrong. Furthermore, in circumstances where his Honour had found special circumstances and indicated sentences for each of the individual offences which included non-parole periods of less than three quarters of the respective total sentences for those offences, the final orders which had the result of an effective sentence of 11 years in total and 9 years non-parole lead to the conclusion that his Honour overlooked the consequences of what he was doing. Particularly is this so when he provided no reasons for the apparent inconsistency of approach. The first and third grounds of appeal are thus made out. Ground 4 6 The fourth ground of appeal was that "the learned sentencing judge erred in giving no weight to the Applicant's remorse or contrition". 7 In fact the only "evidence" of any remorse was a statement in a report of a Probation and Parole officer who had interviewed the Applicant that the latter "expressed regret for his actions and apologised for his 'greed' which he said extended to the hope of a return fare to Hong Kong". While his Honour referred to this statement he did not make any finding that he accepted that it genuinely expressed the Applicant's state of mind and the Applicant cannot succeed on this ground without establishing that his Honour was obliged to come to such a conclusion. Other information which was before his Honour demonstrates that his Honour was not so obliged. 8 The Applicant was interviewed by police shortly after his arrest. Although Judge McLoughlin found that some of the answers in this interview were false some of the statements the Applicant made in the interview are worthy of mention. He said that he came to Australia to visit some friends "if I can find them" and "there's no work at the moment – I would infer in Hong Kong - so I come here just to relax". He said that he "brought over approximately, approximately (sic) twenty thousand dollars, including Hong Kong currencies" and when asked, "Is that twenty thousand Australian", replied:- "Partly – most of it is Australian currency with a small amount of Hong Kong currencies." 9 When arrested the Applicant was found in possession of $595.80 of Australian currency, $3,000 Hong Kong dollars and a receipt for $1,000 for 14 days rental of premises at 352/303 Castlereagh St, Sydney. The Applicant told police he temporarily lived at those premises. 10 The Applicant himself gave no evidence on sentence. Such information as there was about him personally, came from the report of the Probation and Parole officer to whom I have referred. That officer reported that the Applicant's upbringing had been stable; he had never married but had been in a relationship for 2 years and had no dependent children. He had left school at age 13, worked in three industries for a total of about 24 years prior to 1997. The Applicant also claimed that he had no drug, alcohol, gambling, physical or mental health issues that could be identified as factors involved in the commission of his offence and that he had no prior history of offending. 11 The Probation and Parole report also records that the Applicant said that, due to the financial crisis in Asia, he had became unemployed in 1997 had been unable to secure work since and, although eligible for welfare benefits, had not applied for these and had been supported by his brother, sister and friends. However the Applicant also said that he had accrued a debt of about $HK 40,000 during his 6 years of unemployment. (To put this in context, it would be appropriate to take judicial notice of the fact that in mid 2003 $A1 equalled about $HK5.) 12 The Applicant, who arrived in Australia on 4 July 2003, told the officer that he had travelled here as a tourist, met a co-offender some 3 or 4 days after arriving in Sydney, told this person of his financial problems and the co-offender told him of an acquaintance who was starting up a business and needed help. The Applicant said he commenced working for this second co-offender some few days before his arrest and was initially unaware of the criminal nature of the co-offender's activities and unaware he had been involved in the supply of heroin until 2 days prior to his arrest. 13 The inherent improbabilities in much of what the Applicant has said are glaring. Unemployed for years, dependent on others, in debt, he comes to Australia as a tourist bringing with him about $20,000 and pays $1,000 for 2 weeks accommodation! Here to relax, he embarks on work in the hope of a return fare to Hong Kong! 14 His account of commencing work for a co-offender only a few days prior to his arrest is difficult, if not impossible, to reconcile with the evidence of police surveillance. Latham J has referred to some of that but it is worthy of note also that the surveillance evidence shows the Applicant to have been in the presence of persons who would clearly seem to have been co-offenders on 11, 14, 15, 17, 22 and 30 July and on 5, 12, 13, 15, 18, 19, and 21 August, the latter being the date of his arrest. On 3 of these days in July he was in the company of at least 2 co-offenders and on 5 days in August in the company of 3. During none of the surveillance of the Applicant does he appear to have been doing anything that could remotely be regarded as normal work. 15 The Applicant pleaded guilty but that is at least as probably the result of a desire to obtain the usual discount for so pleading as it is an indication of remorse and the legal principles as to the drawing of inferences – see Holloway v McFeeters (1956) 94 CLR 470 at 477 - mean that, there being nothing else relevant in this regard, remorse or contrition cannot be inferred from the plea. In the result, there was no credible evidence that the Applicant experienced any remorse or contrition and the fourth ground of appeal fails. Ground 5 16 The fifth ground of appeal was that the sentences are manifestly excessive. It is convenient to confine attention initially to the sentences his Honour indicated were appropriate to the offences considered in isolation, deferring for the present the issue of whether the accumulation which occurred led to other error. 17 I have set out the circumstances of the offences at the beginning of these reasons and it is unnecessary to repeat what is said there. I should however mention some findings his Honour made. He concluded that the Applicant "would appear to have (had) a minor role in the organisation of the heroin supply transaction, but was willing to place himself in a lead role in the physical aspects of receipt, holding and passing on by supplying". Elsewhere, his Honour described the Applicant as a "foot soldier" and his role that of a "controlled courier". So far as subjective factors were concerned his Honour found that the Applicant had no prior convictions, and was "unlikely to re-offend and must have some reasonable prospects of rehabilitation". 18 When regard is had to the fact that the Applicant did not give evidence, to the improbabilities to which I referred, to the finding his Honour made – which I interpolate was clearly justified – that some of the answers in the Applicant's ERISP were false, and to the fact that there was absolutely nothing to corroborate anything that the Applicant said in his own interests, the findings contained in the passage last quoted are unduly favourable to the Applicant. However as these findings were not challenged in the appeal, the appeal should be determined on the basis of them. 19 The Applicant's conduct was proscribed by ss25 and 33 of the Drug (Misuse and Trafficking) Act which, so far as is presently relevant, provides as maximum penalties, life imprisonment for the offence of supplying 1kg or more and 20 years imprisonment for supplying 250 grams or more but less than I kg of heroin. Also relevant to the determination of the appropriate penalties for the offences is Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act whereunder are provided standard non-parole periods of 15 years and 10 years respectively for offences of the nature of those committed by the Applicant. Of course those periods relate to sentences after a trial and do not reflect discounts for pleas of guilty – R v Way (2004) 60 NSWLR 168 at [68]. 20 The seriousness with which Parliament regards the supply of heroin is apparent in the penalties it has provided. The seriousness with which the courts regard such offending has been the subject of remark on numerous occasions. It is sufficient to mention but one. In Wong v R (2001) 207 CLR 584 at [64], Gaudron, Gummow and Hayne JJ remarked that, having regard to the great social consequences flowing from the importation of heroin, stern punishment will be warranted in almost every case. Supply is but another link in the chain of causing those great social consequences. 21 A number of features of the Applicant's offending should be mentioned. Firstly, he was not a principal in the operation nor was his involvement such as to merit sentences towards the top of the statutory ranges provided by the Drugs (Misuse and Trafficking) Act. As I have said, Judge McLoughlin described his role as that of "foot soldier" or "controlled courier". 22 However, the role of such persons low in a drug dealing hierarchy has been addressed in the authorities. Wells J said in Le Cerf (1976) 8 ALR 349, at 351:- "It is only because persons like him are ready, able and willing to do such a thing that the entrepreneur is able to ply his nefarious trade on a large scale. If there were not middlemen and underlings, there would be no top men in an organisation. If an organisation is starved of recruits it must collapse. … The simple truth, that a man who participates in such an organisation at any level – I repeat at any level – must expect, and will receive, a heavy penalty. I do not, in saying that, mean to imply that no distinction at all will be drawn between the upper and lower echelons of organised crime. But I wish it clearly to be understood that, given that a particular range of penalties is considered appropriate for those in the upper echelons, there is no inevitable correlation between the standing of an offender who is in the lower echelons and the severity of the punishment that he can expect and will receive." 23 That passage has received endorsement in this Court on numerous occasions – see e.g. Muanchukingkan (1990) 52 A Crim R 354 at 356; R v Laurentiu and Becheru (1992) 63 A Crim R 402; Fabian (1992) 64 A Crim R 365 at 376; R v Budiman (1998) 102 A Crim R 411 at 413-4; R v Behar (unreported, CCA, 14 October 1998); See also Klein (2000) A Crim R 90 at 95. 24 Secondly, the weight of drugs was substantial. The 834.9 grams involved in the second charge was up near the top of the range of commercial quantities for which a maximum penalty of 20 years is provided. The quantity the subject of the first charge was almost twice as much although one must recognise also that it was close to the bottom of the "large commercial" range. 25 I do not for one moment suggest that the weight of the drugs involved is the principal criteria by which the Applicant's criminality or punishment should be judged – see Wong v R (2001) 207 CLR 584 at [70]. Nevertheless, the provisions of the Drugs (Misuse and Trafficking) Act have been enacted in the belief that the use of the drugs referred to therein is harmful, and that the supplying of them contributes to that harm. Other things being equal, doubling the quantity is calculated to substantially increase both the illegal profits made and the harm that ensues. In that the Act provides for higher maximum penalties as quantities move from small, to trafficable to commercial to large commercial, it provides a clear indication that, even within a particular range, quantity should find some reflection in the sentence imposed. In Wong v R at [64] the relevance of quantity was accepted. 26 Thirdly, the purity of the drugs was high. At between 65 and 71%, it was over twice as high as the median purity of heroin seizures by the New South Wales police in 2002, 2003 and the first half of 2004 – see Technical Report No 211 of the National Drug and Alcohol Research Centre, page 28. 27 (Although I do not need to rely on it, and I do not, that report also indicates that "caps" are the most common purchase amount. Table 34 in the Australian Crime Commission Illicit Drug Data Report for 2003-04 indicates these commonly contain 0.1 to 0.3 grams. Suitably cut for street consumption, the 1.4 kilograms the subject of the first charge was thus sufficient to provide something of the order of 14,000 caps or shots. Such a calculation does not provide any argument for reducing the Applicant's sentence.) 28 Fourthly, the Applicant's criminality was deliberate. Even on the Applicant's statement to the Probation and Parole officer he became aware that he was involved in the supply of heroin 2 days before his arrest. There is nothing to suggest that, on becoming so aware, he was not free to cease association with the co-offenders who he said he had met only recently and who he had worked for, on his own version, 4 days in all. In this connection it may be mentioned that there was no credible evidence that he was in need of money. 29 Fifthly, carrying the quantities the subject of the charges, he must have had some awareness that they were not insubstantial. 1.4 kilograms, the weight of the heroin the subject of the first charge, is not much less than half the weight of a brick. 30 Sixthly, as Judge McLoughlin found, it is clear that the Applicant acted with others in carrying out his role and his offending was part of a planned and highly organised criminal activity. Section 21A of the Crimes (Sentencing Procedure) Act says these factors are aggravating features of any offence of which they are not elements. Clearly an offence of actual supply, as the second of the Applicant's was necessarily involved some other party, and to this extent I would ameliorate the weight I would give to the involvement of others. It not being clear what precise aspect of the definition of supply was relied on in relation to the first offence, I am prepared to treat that offence in the same way but there were obviously more persons involved in the Applicant's offences than the elements of the offences required and it is appropriate to regard his criminality as aggravated by the factors to which his Honour referred. 31 I do not forget that the Applicant pleaded guilty and was regarded as entitled to a 25% discount on that account, nor that Judge McLoughlin found that the Applicant had no prior convictions, and was "unlikely to re-offend and must have some reasonable prospects of rehabilitation". Nevertheless, when regard is had to the other matters to which I have referred, it is impossible to regard the sentence his Honour indicated as appropriate for the lesser offence when considering the offences individually – 6 years with a non-parole period of 4 years as manifestly excessive when compared against the statutory maximum of 20 years on the standard non-parole period of 10 years. 32 The sentence of 10 years and 6 months, including a non-parole period of 7 years both indicated and imposed for the first offence was manifestly excessive. This is most obvious in the case of the non-parole period when compared with the standard non-parole period of 15 years. Adding back the 25% discount his Honour said that he allowed for the Applicant's plea would result in a term of 9 1/3 years, a figure which is too close to the standard period for a quantity towards the bottom of the large commercial range and for an offender who was but a "foot soldier" or "controlled courier". Once that view is reached the total sentence of 10 years and 6 months also cannot stand. GROUNDS 5, 2 AND PROVISO 33 The remaining aspect of the fifth ground of appeal, viz. whether the overall effect of the sentences was manifestly excessive and the second ground of appeal, namely that there should have been greater concurrency in the sentences, may conveniently be considered together and with the issue of what sentence this Court should impose by way of re-sentence on the first count. 34 In my view the appropriate non-parole period in respect of the first count is one of 6 years. I appreciate that this is not substantially less than the 7 years I have held to be manifestly excessive. However it must be recognised that I so held because of what I saw as the constraining influence of the standard non-parole period. 35 But there is constraint in the other direction also. The sentence of 6 years with a non-parole period of 4 years is not excessive for the second count, involving the supply of 834 grams. The first count involved the supply of almost 70% more and, while I do not suggest that penalties should be proportional to quantity, a sentence of less than 6 years does not in my view adequately reflect the criminality involved in the supply of 1.4 kg, the other matters to which I have referred and the fact that Parliament has seen fit to categorise this as a large commercial quantity and impose the penalty it has for such an offence. 36 Judge McLoughlin imposed balance of terms equal to 50% of the non-parole periods he thought appropriate. There was no suggestion during the course of the appeal that this was too high and accordingly, for the purposes of determining an appropriate balance of term in the sentence for the first count (prior to considering totality) I am prepared to adopt the 50%. I am satisfied that a 9 years total sentence for the first count is not excessive. 37 The fact that the Applicant had committed 2 separate offences, involving the supply of wholly different parcels of heroin meant that some degree of accumulation of sentences was required. However, considerations of totality mean that, in this case, the sentences should not simply be added together. The total of the non-parole periods indicated above is 10 years. An appropriate reduction or concurrency to reflect considerations of totality is 2 years. That is half the non-parole period otherwise appropriate to be imposed on the lesser charge and, subject to an argument arising from the length of the parole period, when regard is had to the Applicant's criminality no higher reduction or lesser non-parol period than 8 years is justified. (By "parole period" I refer to that period when parole is available at the discretion of the relevant authorities.) 38 If the sentence for the second charge is ordered to be served first, that will mean that the Applicant will have the advantage of a 3 years balance of term or parole period in respect of the first count. Three years exceeds one third of a total non-parole period of 8 years and is sufficient to reflect his Honour's finding of special circumstances although of course it is not as great a proportion of the overall sentence as was urged on the Applicant's behalf. Nor is it 50% of the total non-parole period as Judge McLoughlin's sentences reflect. 39 However, there being no Crown appeal, it would not be a proper result of the Court's consideration of the matter to increase the Applicant's sentence so as to accommodate both the 8 years non-parole period and a longer parole period. Thus if the parole period is to be extended, it will have to be at the expense of the non-parole period. 40 In making a choice between leaving the non-parole and the parole periods where they are or increasing the parole period at the expense of the non-parole period, it is appropriate to have regard to the factors which each period is intended to serve and which inspire the distinction between them. It is sufficient for present purposes to identify those factors by repeating 2 passages from Power v R (1974) 131 CLR 623 at 628 and 629, cited in R v Simpson (2001) 53 NSWLR 704 at 717 where a number of references on the topic are to be found, and one from R v Simpson itself:- "… In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention." "… the legislative intention… [is] to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence." 41 In R v Simpson the Chief Justice, with whom at least 3 of the other members of the Court agreed said:- "The reasoning in Power indicates that it is not appropriate to determine the non-parole period primarily from the perspective of the length of the period of supervision on parole. Indeed, the primary perspective should be the length of the minimum period of actual incarceration. Be enacting a provision that only works one way – requiring specific justification for a lower proportion but not for a higher proportion – Parliament has, in my opinion, reinforced this as the primary perspective. This has the effect that the scope of the considerations relevant to the determination of "special circumstances" must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole." 42 See also Hameed (2001) 123 A Crim R 213 at [59]. 43 As I have indicated, I regard actual incarceration for 8 years as appropriate for the criminality involved in the Applicant's offending – in the words from Power v R which I have quoted, "the minimum period of imprisonment to be served because (I) consider the crime(s) committed call for such detention". 44 There is nothing inherently wrong with a non-parole period of 3 years. In many cases, parole periods are shorter and often much shorter than this. Parliament has not legislated for a minimum parole period and the frequency with which the courts order periods shorter than 3 years indicate that there is nothing necessarily inadequate or faulty about that period. Of course I do not ignore the fact that the length of a sentence may well have some impact on the length of the parole period desirable but there are so many variables that also bear on the length of the parole period appropriate in a particular case that there are significant limits to the weight to be given to this consideration. 45 Furthermore, there is nothing in his Honour's reasoning or in the special circumstances he found which provides a persuasive reason to reduce that non-parole period below the 3 years to which I have referred. Particularly is that so if one considers the way in which his Honour went about the sentencing exercise. So far as is presently relevant what he said was as follows. (For ease of later reference I have numbered the paragraphs.):- (i) As aggravating factors, the offender acted with others in carrying out his role in both matters. He went to the restaurant, placed the heroin, and in the second received the bag, carried the bag and put it in the car. It was a part of a planned and highly organised criminal activity. As to mitigating factors the accused has, as I have indicated, no prior convictions. He is unlikely to re-offend and must have some reasonable prospects of rehabilitation. This coupled with the fact that the offender pleaded guilty at the first available opportunity. (ii) The offender has not provided any assistance to the law enforcement authorities. (iii) In my view the offences are in the middle range of objective seriousness as the offender was not involved in the organisation and appears in fact to be a foot soldier, his involvement is, in my view, a little less than mid range. The offender's role was that of a controlled courier. (iv) I then take, as a starting point in sentencing the offender, by commencing with the standard non-parole period of fifteen years and ten years respectively for the middle range of objective seriousness. The utilitarian value by way of discount should, in my view, reduce such periods, after the twenty-five percent application, to eleven years three months and seven and a half years respectively for the non-parole period. (v) I have regard to the offender's role in these transactions, to his prior good conduct. Those matters may also be dealt with in relation to special circumstances, it is my view, that the non-parole periods I have referred to should be further reduced because of the offender's role, as Mr Bellanto has quite rightly pointed out, and his prior good conduct and I reduce the non-parole period for those matters to eights years and six years respectively. (vi) There are further matters which are to be taken into account, they are the prospect of rehabilitation and the likelihood of re-offending. I have made comments in relation to those matters but not as yet taken them into account in dealing with the appropriate non-parole period to which the offender should be sentenced. (vii) For those matters it is my view that the non-parole period should again be reduced and I do so to seven years and four years respectively. (viii) This brings me to the question of totality. Both offences were committed on the same day, however, they were two different transactions and in my view because of that the sentences should be partly cumulative and partly concurrent. (ix) As to the charge of supplying a large commercial quantity of heroin, 1,406.07 grams, the first count, the offender is convicted and sentenced to a term of imprisonment which is to consist of a non-parole period of seven years and a total term of ten years and six months. My findings as to special circumstances I have utilised in relation to the non parole period and I am of the view that there are no other circumstances nor reason as to why the total term should not be ten years and six months. (x) Both terms are to date from 21 August 2003, the date of the offender's arrest with a non-parole period expiring on 20 August 2010, the balance of sentence expiring on 20 February 2014. (xi) As to the second charge of supplying a commercial quantity of heroin, namely 834.9 grams, you are convicted and sentenced to a term of imprisonment which is to consist of a non-parole period of four years and a total term of six years to reflect totality. As I have said the term of imprisonment must be partly concurrent and partly cumulative. Such period will commence on 21 August 2008 with a non-parole period expiring on 20 August 2012 upon which date I recommend release on parole. The balance on the 20 February 2014. 46 His Honour's remarks inspire a number of comments. Firstly, although in paragraph (ix) his Honour seems to be saying that he had found special circumstances, in fact he had not, the only earlier reference to "special circumstances" being in paragraph (v). Secondly, if those paragraphs do amount to findings of "special circumstances" the only matters identified as leading to that conclusion were the Applicant's role and prior good conduct. I very much doubt that those matters could on their own amount to special circumstances but the Crown did not challenge the finding, taking the stance that, firstly, whether or not his Honour erred in his approach to special circumstances, the ultimate question was whether a lesser sentence should have been imposed and, secondly, that no lesser sentence was warranted. 47 Given the Crown's approach, I have been content to proceed on the basis of the finding of special circumstances. However, in judging the weight to be given to the finding, it is appropriate to have regard to the extent to which the factors that inspired the finding argue in favour of a longer parole period or a shorter non-parole period. At best, that weight is slight. It is not significantly greater if one regards his Honour's reference to "unlikely to re-offend and must have some reasonable prospects of rehabilitation" as also a factor he took into account in that connection. On the issue of the length of the parole period, that statement is a two-edged sword. 48 In the result, I am not persuaded that his Honour's finding of special circumstances justifies any reduction in the 8 years effective non-parole period I favour. My conclusions also make it unnecessary for me to consider further the complaints that the overall effect of the sentence was manifestly excessive and that there should have been a greater degree of concurrency. 49 I should also observe that I have also considered the sentences imposed on the Applicant's co-offenders and read the remarks on sentence relating thereto. I agree with Latham J that they raise no issue of parity. 50 The orders I would propose are: (i) Grant leave to appeal; (ii) Allow the appeal; (iii) Quash the sentences imposed by Judge McLoughlin on 13 July 004 and in lieu thereof; (iv) In respect of the offence of supplying on 21 August 2003 a commercial quantity of heroin, sentence the Applicant to imprisonment for a non-parole period of 4 years commencing on 21 August 2003, with a balance of term of 2 years, commencing on 21 August 2007; (v) In respect of the offence of supplying on 21 August 2003 a large commercial quantity of heroin, sentence the Applicant to imprisonment for a non-parole period of 6 years commencing on 21 August 2005, with a balance of term of 3 years, commencing on 21 August 2011. ********** 51 HIDDEN J I agree with Latham J 52 LATHAM J The applicant seeks leave to appeal against the severity of the sentence imposed in the District Court on 13 July 2004. The applicant had pleaded guilty on 11 March 2004 at Central Local Court to one count of supply a large commercial quantity of heroin (1,406.6 grams), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 53 That offence carried a maximum penalty of life imprisonment. A standard non parole period of 15 years imprisonment applied at the relevant time (Count 1). The applicant also pleaded guilty to one count of supply a commercial quantity of a prohibited drug, namely 834.9 grams of heroin. That offence carried a maximum penalty of 20 years imprisonment and a standard non parole period of ten years imprisonment applied (Count 2). 54 The applicant confirmed his pleas in the District Court on 18 June 2004. The applicant was sentenced to a non parole period of seven years, with a balance of three years six months, in respect of Count 1. A non parole period of four years was imposed on Count 2, with a balance of two years. These sentences were partially accumulated to producing an aggregate sentence of eleven years imprisonment with a non parole period of nine years. 55 A statement of facts was tendered on the sentencing proceedings. The applicant arrived in Australia on 4 July 2003, allegedly for a two months holiday. He was residing in a rented apartment, paying $500 per week. He has no family in Australia and is a national of Hong Kong. On the afternoon of 21 August 2003, the police obtained information by means of lawfully obtained telephone intercepts, in the course of which, a co-offender by the name of Lam, gave instructions to the applicant to get two "movies" and bring them out. The police had reason to believe that the "movies" referred to blocks of heroin and that a person by the name of Tran was to be supplied with two of the relevant blocks. 56 A surveillance team followed Lam and a co-offender, Fung, in a vehicle to the Cabramatta area. At that time, the applicant and a further co-offender by the name of Hoang travelled to a restaurant at Canley Vale. At about 5:30pm the co-offender, Lam, was heard to say to the applicant "order beef noodles and place the video under the noodle". 57 Lam and Fung travelled in a vehicle to the Canley Vale restaurant where they met the applicant and Hoang. Fung got out of the vehicle and Hoang got into the driver's seat. Hoang and Lam were followed by police to Tran's residence. Lam got out of the car and entered Tran's residence carrying a plastic bag which was believed to contain the two blocks of heroin. Hoang left the area and returned to the Canley Vale restaurant. 58 At about 6:15pm Lam informed Fung that Tran only wanted one (block of heroin). At about 6:25pm Lam and Tran were seen to leave Tran's residence and enter a car registered to Tran, which was subsequently followed to Canley Vale. Lam left Tran's car carrying a yellow shopping bag and walked towards Hoang, who was standing near another vehicle. Hoang opened the boot and Lam placed the shopping bag in the boot of the vehicle. Police were of the impression that the bag contained one block of heroin that was surplus to requirements. 59 A short time later Hoang, Lam, Fung and the applicant entered a vehicle and travelled to Regis Towers at 303 Castlereagh Street Sydney, which was the applicant's residence at the time. While en route, the co-offender, Fung, spoke to an unknown male about picking up "two articles" at some later time. 60 The vehicle parked outside the Regis Towers whilst Lam and Fung remained in the car. Shortly thereafter, Hoang and the applicant left the Regis and entered the vehicle occupied by Lam and Fung. The vehicle was followed to Star City Casino, where Lam and Fung left the vehicle. The vehicle continued on to a bowling alley in Liverpool Road Enfield, where Hoang and the applicant were seen to enter the bowling alley and return a short time later. The applicant walked on to Liverpool Road for a short time. When he returned to the vehicle, the applicant was carrying a white plastic shopping bag. Hoang and the applicant returned to the vehicle and were followed by police to an address in Ashfield, where they were arrested. The plastic bag was found in the vehicle. That bag contained blocks of heroin, with a total weight of 1.4 kilos, with a purity ranging between 65.6 and 71 percent. That heroin is the subject of the first charge, to which the applicant pleaded guilty. Also found in the vehicle were three mobile phones and $2,000 in cash. 61 The applicant and Hoang were taken to Burwood Police Station, where the applicant was electronically interviewed. He stated that he had met a friend at Enfield so that he could receive a gift of wine. He further stated that he had been with Hoang the entire afternoon and had not left the Sydney CBD. He stated he had not been with Lam since the previous day. The movements of the applicant in the Canley Vale area in the company of Lam were put to the applicant, whereupon he refused to answer any further questions. He was then charged. 62 A search of the co-offender, Tran's, premises revealed a quantity of 834.9 grams of heroin with a purity ranging between 71 and 72 percent. That heroin is the subject of the second count to which the applicant pleaded guilty. 63 It is clear that the applicant was directly involved in the supply of large quantities of high grade heroin. The fact that he may have acted under the direction of Lam and Fung does not detract from the objective criminality of such substantial supplies in the course of one day. Ground 1 – Error in the Adoption as the "Starting Point" of the Standard Non Parole Period 64 The applicant asserts error in that the sentencing judge adopted the standard non parole period as the relevant "starting point", despite a finding that the applicant's involvement was "a little less than mid range" and in the face of the applicant's plea of guilty. 65 The relevant passage in the remarks on sentence appears below:- In my view the offences are in the middle range of objective seriousness as the offender was not involved in the organisation and appears in fact to be a foot soldier, his involvement is, in my view, a little less than mid range. The offender's role was that of a controlled courier. I then take, as a starting point in sentencing the offender, by commencing with the standard non parole period of fifteen years and ten years respectively for the middle range of objective seriousness. 66 His Honour then went on to refer to the utilitarian value of the plea and to indicate a reduction of the relevant standard non parole period in the order of 25 percent, thereby producing eleven years and three months in respect of Count 1 and seven and a half years in respect of Count 2. 67 However, they were not the non parole periods subsequently imposed by his Honour. His Honour in fact arrived at a non parole period of seven years in respect of Count 1 and a non parole period of four years in respect of Count 2, after taking into account the applicant's prior good character, his prospects of rehabilitation and the likelihood of re-offending. I return to this aspect of the matter when considering Ground 3. 68 The applicant accepts that his Honour determined that the standard non parole period should not apply, except as a reference point or benchmark. However, the applicant asserts that, in referring to the standard non parole period as a "starting point", his Honour had fallen into the error identified by this Court in R v Way (2004) NSWCCA 131 at par 131: What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender's guilt was established after trial or by a plea), at the standard non parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act. 69 It cannot be disputed, given the remarks set out above, that his Honour did adopt the standard non parole period as the "starting point". The same complaint was made and upheld in this Court's decision in R v Sangalang (2005) NSWCCA 171, albeit the sentencing judge in that case did not refer in terms to a "starting point". In Sangalang, the sentencing judge reduced the standard non parole period there applicable by a percentage, said to be appropriate to an offence falling just below the mid range of objective seriousness for offences of that type, and then further reduced that period by 25 percent on account of the offender's plea of guilty. In those circumstances, Hunt AJA (with whom Johnson J agreed) held that the sentencing judge had used the standard non parole period as a starting point "rather than as a reference point for determining the appropriate non parole period for this case". 70 Having determined that such an approach revealed error, Hunt AJA said: A sentencing judge should state no more than that he or she has used the standard non parole period as a reference point or guide post, and then identify the appropriate non parole period, describing where significant any particular matters taken into account in doing so. That appropriate non parole period should never be described as a percentage of the standard non parole period. 71 For these reasons, the applicant's first ground of appeal has been made good. However a determination of whether any lesser sentence was warranted in law requires a consideration of the applicant's remaining grounds. Grounds 3 and 4 may be dealt with discretely, before returning to Grounds 2 and 5. Ground 3 – Error in Failing to Regard the Partial Accumulation of Sentences as a Special Circumstances 72 This ground of appeal may be shortly dealt with. It is accepted that his Honour found special circumstances in that the applicant's prior good character, his prospects of rehabilitation and the likelihood of his re-offending justified the reduction of the non parole period below that which was otherwise required. 73 The ultimate imposition of a non parole period of seven years in respect of Count 1, resulted in a non parole period which was 66.6 percent of the head sentence. Similarly, the imposition of a non parole period of four years in respect of Count 2 resulted in a non parole period which was also 66.6 percent of the head sentence. However, in commencing the sentence in respect of Count 2, five years after the commencement of Count 1, his Honour effectively increased the proportion of the aggregate non-parole period relative to the aggregate head sentence to 82 percent. 74 In view of his Honour's stated intention to find special circumstances, it would appear that his Honour has fallen into the error identified by this Court in R v Street (2005) NSWCCA 139, in that he has overlooked the effect of the partial accumulation of the respective sentences. Accordingly I would uphold Ground 3 of the applicant's appeal. Ground 4 - Error in Giving No Weight to Remorse or Contrition 75 This ground may also be dealt with shortly. 76 The applicant's principal complaint in respect of this ground appears to be that the discount of 25 percent for the utilitarian value of the plea was insufficient to reflect the applicant's remorse and contrition. The submission assumes that there was evidence of remorse and contrition beyond that inherent in the plea of guilty. 77 In fact, there was no evidence of remorse, other than the hearsay statements contained within the Probation and Parole Report of 17 June 2004, namely "Mr Lo expressed regret for his actions and apologised for his 'greed' which he said extended to the hope of a return fare to Hong Kong". In the light of counsel's concession that the applicant did have a return ticket (see par 31 below), it is difficult to know what to make of this aspect of the report. Moreover, an expression of "regret" hardly qualifies as cogent evidence of any contrition on the part of the applicant arising out of his involvement in the offences. It is also worth observing that the pleas of guilty came in the face of a strong Crown case and that, in those circumstances, the pleas were not eloquent of remorse and contrition. 78 I do not regard either his Honour's failure to refer to remorse as a mitigating factor under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, nor his Honour's failure to further reduce the applicant's sentence beyond that allowed for the pleas of guilty to demonstrate any error in his Honour's approach. Ground 2 – Error in the Extent of the Partial Accumulation Ground 5 - Manifestly Excessive Sentence 79 One cannot have regard to the extent of the accumulation in this case without considering whether the effective sentence of eleven years was manifestly excessive in all the circumstances. It is convenient, therefore, to deal with Grounds 2 and 5 together. 80 In order to understand his Honour's characterisation of the criminality of the applicant, some reference to the applicant's then senior counsel's submissions on sentence and his Honour's findings in relation thereto is necessary. 81 The applicant's senior counsel submitted that his Honour should find: i) That the applicant travelled to Australia as a tourist and met one of the co-offenders some three to four days after arriving in Sydney. That he had accumulated debts in Hong Kong and was approached by the co-offender to assist in the minding of the heroin and in the collection of a further 1.4 kilograms of heroin for supply to another. ii) That the applicant's remuneration for that involvement was a return trip to Hong Kong. iii) That the applicant did not gain financially from the transaction. iv) That the applicant's role was at the lower end of the scale and that he did not supply any specific knowledge or expertise to the venture. 82 As to (i), the learned judge declined to make such a finding on the basis that the evidence of the applicant's movements on the day in question differed significantly from the account the applicant gave to the police on interview. In the absence of any evidence from the applicant, there was no evidence of a credible nature justifying the proposition advanced on the applicant's behalf. 83 As to (ii), the sentencing judge indicated he could not be satisfied that he could make such a finding. In any event, despite what the applicant's counsel's written submissions might have contained, his Honour had earlier been told in the course of submissions on sentence that the applicant did have a return ticket, but that his debts in Hong Kong had provided the motive for his journey to Australia, in order to make contact with acquaintances from whom he may be able to obtain some employment (Transcript 18 June 2004 page 3 lines 27 to 34). 84 As to (iii), his Honour found that whilst it may have been true to assert that the applicant had not gained financially from the transaction at the time of arrest, the evidence as to what he may have expected to gain was characteristically absent from the proceedings. Accordingly, his Honour declined to make the finding contended for. 85 As to (iv), his Honour accepted that the applicant could not be considered pivotal, and that he did not supply any specific knowledge or expertise to the enterprise. His Honour also accepted that his role could have been filled by anyone of a number of people. However, his Honour did not accept that for those reasons alone, the applicant could be said to be at the lower end of the scale in relation to either of the counts to which he had pleaded guilty. His Honour drew attention to the fact that the applicant had given no evidence, and that the applicant's version as to how he came to participate in the offences lacked cogency. 86 Finally his Honour noted that the offences were generally prevalent and of the "utmost seriousness". His Honour indicated that both of the offences required lengthy periods of imprisonment and that those who sought to participate in the supply of heroin, by no matter what means, were responsible for the infliction of significant suffering upon the community. 87 Having rejected the findings of fact urged upon him by the applicant's senior counsel, his Honour referred to the importance of general deterrence in the sentencing exercise, whilst noting that the applicant's plea of guilty entitled him to a 25 percent discount on the sentence which would have otherwise been appropriate. His Honour then said: "I take into account that the standard non parole periods apply to matters after conviction at trial". There followed some general remarks in relation to the objectives of sentencing, pursuant to s 3A of the Crimes (Sentencing Procedure) Act and to the applicant's subjective circumstances. His Honour found that the applicant acted together with others in the course of a planned and highly organised criminal activity. His Honour referred to the fact that the applicant had no prior convictions, that he was unlikely to re-offend and that he had some reasonable prospects of rehabilitation. 88 The applicant complains that the commencement of the sentence in respect of Count 2, five years after the commencement of the sentence in respect of Count 1, thereby producing a non parole period of nine years and an effective head sentence of eleven years, constitutes error in the exercise of the sentencing discretion. The applicant points to the fact that both transactions occurred on the same day, involved largely the same personnel, and demonstrated no relevant difference in the role of the applicant on each occasion. The applicant does not point to any specific error in the exercise of his Honour's discretion, such as the failure to take into account a relevant consideration or taking into account an irrelevant consideration, rather the applicant asserts that the extent of the accumulation itself is unreasonable in all the circumstances. 89 The applicant points to the range of sentences, disclosed by the Judicial Commission statistics, imposed for the supply of a large commercial quantity of heroin before 1 February 2003 and notes that the applicant's sentence on Count 1 (assuming a plea of guilty and no prior convictions) fell within the top 26 percent of those sentences. Similarly, the sentence imposed on Count 2 fell within the top 33 percent of sentences for like offences before 1 February 2003. 90 This submission must be assessed against the observation of this Court in R v Way that the effect of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act is that the pattern of sentencing will move above the range demonstrated by sentences imposed for some offences before 1 February 2003. (See also R v Porteus [2005] NSWCCA 115 at par 49). The offences to which the applicant pleaded guilty fall into that category. 91 That said, it is also relevant that both the quantity of the heroin and the role of the applicant in the commission of the offences play an important part in determining where the offences sit within the range of offences of this type. Arguably, the applicant's role and level of participation in the offences is more determinative than the amount of heroin supplied : R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 at 50. 92 At the end of the hearing of the appeal, the Court was informed of the fact that the applicant's co-offenders had been sentenced and that questions of parity may arise. The Crown agreed to forward to the Court the remarks on sentence pertaining to the co-offenders. The applicant's counsel was given leave to file further submissions on the question of parity, if that was considered necessary. 93 Having received and considered the remarks on sentence of the co-offenders, and in view of the absence of any further submission from the applicant's counsel, I do not regard questions of parity to arise in the determination of this appeal. The only co-offender to have been sentenced for the same two offences faced by this applicant, Kwai Chen Lam, received a sentence far in excess of the aggregate sentence imposed on the applicant. No doubt, that result persuaded the applicant's counsel that no useful purpose was to be served by filing further written submissions. 94 The quantity of heroin the subject of Count 1 was slightly less than half a kilogram above the large commercial quantity, being 1 kilogram. The quantity of heroin the subject of Count 2 was 3 times the prescribed commercial quantity. As against that, the applicant was appropriately characterised as a "foot soldier". Taking these matters into account and notwithstanding the confined period of criminality, I have reached the view that the overall head sentence, whilst stern, was within his Honour's sentencing discretion and does not justify the intervention of this Court. 95 In order to give effect to his Honour's finding of special circumstances, I would quash the non-parole period imposed in respect of Count 1 and substitute a non-parole period of six and a half years. A partial accumulation of the sentence in respect of Count 1 upon the sentence in respect of Count 2 to the extent of six months produces an outcome consistent with the totality of the applicant's criminality, whilst at the same time recognising the commission of both offences on the same day. The applicant's earliest date for release to parole would be 20 August 2010. 96 The orders I propose are: 1) Leave to appeal granted; 2) Appeal allowed in part; 3) Quash the sentences and non-parole periods imposed by McLoughlin DCJ; 4) On Count 2, sentence the applicant to imprisonment for a non-parole period of 4 years to date from 21 August 2003, expiring on 20 August 2007, with a balance of term of two years, expiring on 20 August 2009; 5) On Count 1, sentence the applicant to imprisonment for a non-parole period of six and a half years to date from 21 February 2004, expiring 20 August 2010, with a balance of term of four years, expiring on 20 August 2014. ********** 27/01/2006 - - Paragraph(s) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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