New South Wales Court of Criminal Appeal CITATION: Seng v Regina [2007] NSWCCA 335 HEARING DATE(S): 29 November 2007 JUDGMENT DATE: 7 December 2007 JUDGMENT OF: Giles JA at 1; Grove J at 25; Harrison J at 26 DECISION: Sentence quashed and in lieu thereof sentenced to imprisonment for 5 years commencing on 2 September 2006 with a non-parole period of 2 years 6 months. The applicant will be eligible for release on parole on 1 March 2009. CATCHWORDS: Sentencing - parity - co-offenders in drug importing - whether difference in parts played such that parity principles of sentencing were offended - no point of principle. CASES CITED: The Queen v Olbrich (1999) 199 CLR 270. PARTIES: Piseth Seng - Appellant The Crown FILE NUMBER(S): CCA 2007/2923 COUNSEL: D Carroll - Appellant R J Bromwich - Crown SOLICITORS: Legal Aid Commission of NSW - Appellant Commonwealth Director of Public Prosecutions - Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0956 LOWER COURT JUDICIAL OFFICER: Sweeney DCJ LOWER COURT DATE OF DECISION: 13 April 2007 (Sentence) LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Eir; Regina v Seng, 13 April 2007, Sweeney DCJ, unreported. IN THE COURT OF CRIMINAL APPEAL CCA 2007/2923 DC 06/11/0956 GILES JA GROVE J HARRISON J Friday 7 December 2007 PISETH SENG v REGINA Judgment 1 GILES JA: The applicant, Mr Piseth Seng, and a co-offender, Mr Marut Eir, each pleaded guilty to importation of a marketable quantity of heroin. On 13 April 2007 each was sentenced by Sweeney DCJ to a term of imprisonment. The applicant received a sentence of 5 years 6 months with a non-parole period of 3 years. Mr Eir received a sentence of 6 years with a non-parole period of 3 years. 2 The applicant applied for leave to appeal against his sentence. He relied on the single ground that he had a justifiable sense of grievance due to the sentence imposed on his co-offender. The judge's remarks on sentence 3 On 2 September 2006 the applicant and Mr Eir arrived in Australia on a flight from Cambodia. Each was carrying heroin concealed internally. The applicant had swallowed 71 "pellets" wrapped in water balloons and plastic. The pellets had a gross weight of 87.8 gms and a purity of 71.9 per cent, equalling 63.1 gms of pure heroin. The estimate wholesale value of the heroin was $30,000 and its estimated street value was in the range of $52,500 to $220,500. Mr Eir had swallowed 159 pellets wrapped in the same way. The pellets had a gross weight of 211.3 grams and a purity of 72.2 per cent, equalling 152 gms of pure heroin. The estimated wholesale value of the heroin was $75,000 and its estimated street value was in the range of $126,000 to $532,000. 4 A marketable quantity of heroin was 2 gms. A commercial quantity was 1.5 kilograms. The maximum penalty for the offence was imprisonment for 25 years and/or a fine of $550,000. 5 Shortly before the sentencing hearing the applicant and Mr Eir were interviewed by the Australian Federal Police ("the AFP"). The judge accepted the accounts they gave to the AFP of how they came to import the heroin into Australia, as recorded in letters from an AFP officer concerning the value of the information provided in the interviews, "as the basis of further factual information relating to the importation by each". 6 The applicant and Mr Eir were both New Zealand citizens of Cambodian heritage. The accounts included that they had been introduced to one Sothia Choun or Sothia Kua. The judge said that the AFP had "confirmed the existence of the person Sothia, who was previously suspected by the AFP of being involved in the importation and distribution of drugs". 7 The judge said as to the applicant's account - "Mr Seng said that in June 2006 he met a man named Sothia Choun in Wellington, New Zealand, as a brother of a friend of his. He said Sothia offered to pay for Mr Seng to travel to Cambodia. Mr Seng wished to go to Cambodia to see a woman, Ms Van, with whom he had formed a relationship. He decided to pay for his own air ticket to Cambodia but accepted Sothia's offer of accommodation and spending money. Mr Seng stayed in Cambodia for about three months. Sothia was also in Cambodia for part of that time but left and went to Australia. Sothia contacted Mr Seng from Australia and asked him to come to Australia at Sothia's expense. Mr Seng accepted because it would allow him to see his younger son who was living in Melbourne with Mr Seng's former wife. Sothia paid for Mr Seng's air ticket to Australia, through Mr Eir, and offered to pay Mr Seng's expenses in Australia. Shortly before he was due to leave Cambodia Mr Seng was asked to swallow the pellets. He said he felt an obligation to do so and take the concealed items to Australia in return for the hospitality provided to him by Sothia in Cambodia. Of course he had the choice and he admits the decision he made. No other money was offered to Mr Seng for the importation. The amount of money paid by Sothia in accommodating Mr Seng in Cambodia for three months was not quantified." 8 As to Mr Eir's account, the judge said - "Mr Eir told police, and confirmed in evidence, that in February 2006 in Cambodia he was introduced to Sothia Choun as the brother of a friend of Mr Eir from Wellington in New Zealand. Mr Eir was unemployed at the time that he met Sothia and unable to support his family. In June 2005 [sic: 2006] Mr Eir visited and stayed with Sothia in Australia. Approximately $35,000 in Australian dollars was deposited into a bank account for Mr Eir. In Cambodia Mr Eir withdrew about $16,000 of this money and gave it to Sothia. It was to be used to open a bar or restaurant in Cambodia in which Mr Eir would be employed. Mr Eir and Sothia travelled to New Zealand and Cambodia. Sothia pressed Mr Eir, because he had spent a lot of money on him, to swallow and import the objects, which Mr Eir agreed to do. Sothia paid for Mr Eir's ticket to Australia. Mr Eir was told he would be paid 30-35,000 Australian dollars for a successful importation." 9 Her Honour said that - " … the role of each of Mr Eir and Mr Seng was to import the drugs into Australia on behalf of Sothia for payment of accommodation and an air ticket for Mr Seng and the offer of $30,000 to $35,000 for Mr Eir in addition to what money Sothia had previously spent on him, which has not been quantified." 10 The findings did not, with respect, entirely reflect the accounts as recorded in the letters. As examples, in the account in the letter concerning the applicant Sothia asked the applicant to accompany him to Cambodia for a holiday – it was not an offer to pay for the applicant to go to Cambodia to see Ms Van; and in the account in the letter concerning Mr Eir the initial $35,000 "was said to be Mr Kau's" – it was not deposited "for Mr Eir" in the sense of becoming his money. Of more importance to the present application, in the account in the letter concerning the applicant, after the applicant agreed to go to Australia Sothia told the applicant to contact Mr Eir "who was also in Cambodia and had been travelling with [the applicant] and Sothia Choun", Mr Eir subsequently gave the applicant money to buy an airline ticket to Sydney, and when the applicant was staying at a hotel the night before the flight he was told by Mr Eir that Sothia wanted the applicant "to bring something back to Sydney" and was instructed by Mr Eir on how to swallow the pellets. 11 The applicant gave evidence, and in cross-examination said - "Q. So while you were still in Cambodia before you came to Australia you were asked to swallow some rubber balls? A. That's correct. Q. Who asked you to do that? A. Is Satir (sic: Sothia) he has you know five day before I came to Australia and before I decide to come to Australia he asked, when I say yes I come over and then he's asking me to bring something over for him." On this account, Sothia rather than Mr Eir asked the applicant to bring something back to Sydney. The judge did not resolve the discrepancy. 12 The findings were also unclear in some respects. It is not clear whether in the passage from the remarks on sentence last set out the judge meant the money previously spent on the applicant or the money previously spent on Mr Eir. The letter concerning the applicant said that he swallowed the pellets "as a result of feeling obliged to return a favour to Sothia Choun", and speaking of importing "for payment of accommodation and an air ticket for Mr Seng" is obscure. I understand the judge to have accepted that the applicant agreed to swallow the pellets and bring them to Sydney only from a sense of obligation, but the sense of obligation must have arisen from both the Cambodian hospitality and the free trip to Australia. 13 For the purposes of this application it is not necessary to detail the offenders' subjective circumstances as found by the judge, save that according to a psychological report the applicant suffered from "severe depression, moderate anxiety and mild stress, likely related to his being in custody and anticipating these proceedings", and Mr Eir had been diagnosed with depression in 2004, was suffering "a major depressive episode", was on medication for that condition and whilst in custody had been considered at risk of self-harm. The judge said that Mr Eir's depression "continues in serious form, with serious risks to him in custody, and that is relevant to the effect on Mr Eir of a period in custody". 14 The judge recorded that each of the applicant and Mr Eir "had asked that I sentence him on the basis that he was a courier not a principal". Referring to the confirmation of Sothia's existence as a suspected importer and distributor of drugs, she said - "On the basis of the account provided by each of Mr Eir and Mr Seng, confirmed on oath by them, and confirmed to the extent I have noted by the AFP, I am satisfied on the balance of probabilities that each imported the drug as a courier not a principal." 15 The judge said as to parity between the offenders - "Mr Evenden [sic: Mr Everson] submitted on the issue of parity I should distinguish between Mr Eir and Mr Seng although the difference may not be significant. The factors he pointed to were the quantity of drug imported, that Mr Eir was offered $30,000 for the importation whereas Mr Seng only had his expenses paid, and that the subjective circumstances of the two men were different. Mrs Nash, on behalf of Mr Eir, objected to any such distinction being made, submitting that subjectively there was little difference between the two men or their circumstances. I am of the view that subjectively, on balance, there is little to distinguish the two men. Mr Eir's depressive condition seems to be more severe than Mr Seng's. The amount of expenses paid by Sothia for Mr Seng over three months in Cambodia is unquantified and so I am unable to say how much of a difference financially there was in their positions. Their roles were identical but for the amount of heroin swallowed and imported. I think that that factor, the quantity of heroin imported, should be reflected in Mr Seng's favour by a small difference in the total sentence I impose." 16 This also is not entirely clear. "Subjectively" in the third of the paragraphs did not properly include the roles of the two offenders. I take it to have referred only to the subjective circumstances previously found, and the first two sentences in the paragraph should be understood as expressing substantially similar subjective circumstances except that Mr Eir's depressive condition was more severe than that of the applicant. That gains support from the finding of special circumstances in the case of each offender - "In Mr Eir's case I have found circumstances which warrant a reduction of the non-parole period below the usual two thirds by reason of this being his first custodial sentence, it being served in a country not his adopted home, separated from his wife and two young children, and his major depressive illness which includes suicidal ideation, which will make his time in custody more difficulty than for a person without such an illness. In Mr Seng's case, I have found circumstances which warrant reducing the non-parole period below the usual two-thirds ratio, being that this is his first custodial sentence, served in a country other than his adopted home, away from his mother, sister and older son's support. His depression is less severe than Mr Eir's although it will also make his sentence more difficulty than for persons who are not depressed, but he has not been assessed as at risk of self-harm." The submissions 17 The applicant submitted that, even if both could be labelled as couriers, Mr Eir played a significantly greater role in the importation than he did. Mr Eir imported more than twice the quantity of heroin. He was the contact person for providing the airline ticket to Australia, and gave the money to the applicant to buy it. It was submitted that Mr Eir obtained the pellets in Cambodia; it was not shown that he sought them out and purchased them, but he was the person into whose possession they went and who provided the applicant with the applicant's ration. On the account in the letter concerning the applicant it was Mr Eir, not Sothia, who told the applicant that Sothia wanted him to bring something back to Sydney. When the judge accepted the accounts in the letters and did not resolve the discrepancy with the applicant's evidence, for the applicant's sentencing that should be taken to have been the position. 18 Further, it was submitted that while the applicant acted from a sense of obligation, Mr Eir was promised $30,000 to $35,000 and stood to gain financially to a much greater extent than any financial benefit to the applicant from a free trip to see his son. It was submitted that the difference in the parts played by the applicant and Mr Eir called for greater differentiation in their sentencing, and that the applicant should not have been sentenced to a non-parole period equal to that of Mr Eir and representing a greater percentage of his overall sentence than the percentage in the case of Mr Eir. 19 The applicant submitted also that there was no evidence that he knew that the pellets contained heroin, and that he could have been but reckless. Implicitly, this was contrasted with Mr Eir knowing that the pellets contained heroin. The judge made no finding as to either offender, and in my opinion this submission should be put aside because the evidence did not properly permit a distinction between the knowledge of the two offenders. 20 The Crown submitted that the different percentages were appropriately explained by the judge's opinion to the effect that Mr Eir's special circumstances were more special than those of the applicant because Mr Eir had a major depressive illness whereby his imprisonment would bear more harshly upon him. It was submitted that her Honour's conclusion that the roles of the applicant and Mr Eir "were identical but for the amount of heroin swallowed and imported" was open to her, with the amount of heroin swallowed being appropriately reflected in the six months difference in the overall sentences, and that on the material before the judge she could properly not have been satisfied (the burden being on the offender: The Queen v Olbrich (1999) 199 CLR 270 at [24]) that Mr Eir's part in the importation was greater than that of the applicant beyond the greater amount of heroin swallowed and imported. 21 The Crown further submitted that a difference was not shown between the promised financial reward to Mr Eir and the unquantified benefits to the applicant giving rise to his sense of obligation, and that in that respect also it was open to the judge to decline to draw a meaningful distinction between the two offenders. Decision 22 In my opinion the parts played by the applicant and Mr Eir were materially different, to the extent that I respectfully consider that the judge's sentencing discretion miscarried in leaving the applicant and Mr Eir with the same non-parole periods. Mr Eir participated in the importation for significant reward, and was the vehicle for obtaining the applicant's agreement to swallow the pellets for his travel to Australia and providing the money for him to purchase the airline ticket. The promised significant cash in hand to Mr Eir indicated a different order of participation from that involved in Sothia prevailing on the applicant's sense of obligation. 23 In re-sentencing I take account of the affidavits of the applicant and his Legal Aid Commission solicitor. Their thrust is that the applicant is a model prisoner, repentant of his offence, and that his imprisonment bears harshly upon him because his New Zealand citizenship means deportation at the end of his sentence and in consequence a classification such that he can not work outside the gaol. It should be said that the judge found that the applicant and Mr Eir were genuinely contrite, and Mr Eir is also a New Zealand citizen. 24 In my opinion, the sentence imposed on the applicant should be quashed and in lieu thereof he should be sentenced to imprisonment for 5 years commencing on 2 September 2006 with a non-parole period of 2 years 6 months. He will be eligible for release on parole on 1 March 2009. The applicant's legal representatives are directed to explain to him the purpose and consequences of the setting of the non-parole period as specified in s 16F of the Crimes Act 1914 (C'th). 25 GROVE J: I agree with Giles JA. 26 HARRISON J: I agree with Giles JA. ********** 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.