New South Wales Court of Criminal Appeal CITATION: Zhang v R [2010] NSWCCA 105 HEARING DATE(S): 21 April 2010 JUDGMENT DATE: 21 May 2010 JUDGMENT OF: Allsop P at 1; Grove J at 2; Hislop J at 3 DECISION: Leave to appeal granted; appeal dismissed. LEGISLATION CITED: Criminal Code Act 1995 (Cth) Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 CASES CITED : Lowe v R [1984] HCA 46; (1984) 154 CLR 606 JOD v R [2009] NSWCCA 205 R v Boney [2001] NSWCCA 432 PARTIES: Wen Zhao ZHANG v R FILE NUMBER(S): CCA 2008/9317 COUNSEL: C. Loukas (Applicant) G. Farmer (Respondent) SOLICITORS: Legal Aid Commission (Applicant) Commonwealth Director of Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/9317 LOWER COURT JUDICIAL OFFICER: Berman DCJ LOWER COURT DATE OF DECISION: 5 September 2008 IN THE COURT OF CRIMINAL APPEAL 2008/9317 ALLSOP P GROVE J HISLOP J Friday 21 May 2010 Wen Zhao ZHANG v REGINA Judgment 1 ALLSOP P: I agree with Hislop J. 2 GROVE J: I agree with Hislop J. 3 HISLOP J: The applicant pleaded guilty to a charge that he attempted to possess a commercial quantity of a border controlled drug, namely methamphetamine, contrary to sub-s 307.5(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for the offence is life imprisonment and/or a fine of $825,000. 4 On 5 September 2008 the applicant was sentenced in respect of that offence by Berman DCJ to imprisonment for a non parole period of seven years commencing on 10 September 2007 and expiring on 9 September 2014 with a head sentence of 11 years. 5 The facts shortly were that in August 2007 police in Australia received information from Canadian law enforcement authorities regarding potential drug trafficking activities in Australia which were being organised from Canada and China. As a result of this information, Australian authorities obtained a warrant to intercept a mobile telephone used by the applicant. Various telephone calls intercepted on 10 September 2007 revealed that the applicant had contacted the co-offender, Shang Wen Fang, and they had made arrangements to meet at Wollstonecraft train station later that day. Police attended that location to observe the activities of the applicant and Mr Fang. Police saw the applicant seated in the driver's seat of a sedan, parked on Shirley Road, Wollstonecraft, in the vicinity of the train station. Subsequently police saw Mr Fang approach the car and enter the front passenger seat. The applicant then drove to a unit block at 54 Shirley Road. Mr Fang exited the car and walked to a nearby white Mitsubishi Lancer parked in the carpark of the unit block. Mr Fang opened the boot of the car and removed a box. There were five boxes in total in the boot. While this was occurring the applicant opened the boot of his car and then walked over to Mr Fang. Police then arrested both men. The boxes in the boot of Mr Fang's car were seized and examined by police. The boxes contained various items of glassware. The boxes themselves were found to have a large amount of white crystalline material secreted between their cardboard walls and felt fabric interiors. Subsequent forensic examination of the white crystalline substance determined that it contained methamphetamine. The bulk weight of the substance was 15.9 kilograms. The average purity of the substance was 66.2 percent, equating to 8218.7 grams of pure methamphetamine. The applicant met with Mr Fang so that he could take possession of a number of boxes containing the drugs secreted in the boxes. He was then going to take them to another place, presumably so that they could be then ultimately distributed to drug addicts. Police searched the garage of the Shirley Road premises. They saw 16 boxes in the garage. Mr Fang stated the boxes were delivered that morning by a delivery company and he had removed the five smaller boxes from one of the large boxes and placed the smaller boxes in the boot. 6 The co-offender was charged with possessing a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.5(1) of the Criminal Code Act 1995 (Cth). Mr Fang pleaded not guilty to the charge but was convicted by a jury. On 23 June 2009 he was sentenced by Sorby DCJ to imprisonment for a non parole period of 8½ years commencing on 10 September 2007 and expiring on 9 March 2016 with a head sentence of 14 years. 7 The applicant has sought leave to appeal against sentence on the ground that there is erroneous disparity between the sentence of the applicant and the sentence of the co-offender, Mr Fang. 8 The principles developed as to parity in sentencing may be briefly stated as follows: (a) "…the parity principle, as identified and expounded in Lowe v R [1984] HCA 46; (1984) 154 CLR 606 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 was otherwise appropriate and within the permissible range of sentencing options." – Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ. (b) "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account." – Lowe v R at 609 per Gibbs CJ. (c) "The test for determining the existence of a sense of grievance is objective. The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the offender's grievance as justified." - JOD v R [2009] NSWCCA 205 at [64]. (d) "…where there is a degree of disparity such as to invite a reduction in the sentence imposed, it is not necessary for this Court to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved." - R v Boney [2001] NSWCCA 432 at [15]. 9 Judge Sorby was aware that the applicant had been sentenced and of the need to have regard to parity principles in sentencing Mr Fang. He said in his remarks on sentence: "In Zhang's case there was a plea and the role of Zhang in the operation – as part of the distribution chain in the operation – is different from that of this offender before me. There are different subjective factors in relation to Zhang and this offender… This offender was responsible for looking after the boxes on their arrival in Australia and for ensuring the boxes were passed on to Zhang for distribution. There is a substantial difference between the two in the operation together with the early plea of Zhang. There is a clear difference in both cases… In my view, parity is a relevant consideration in this sentencing exercise but I have to take into account the early plea in Zhang's case and his role, that is distribution, and that of this offender, that is possession, and this offender's involvement in the importation of the drug." 10 There were some differences in the subjective cases of the applicant and Mr Fang but they were not of significance. The contrary was not argued. 11 The applicant submitted: "In summary, Fang and the applicant were both involved in the same criminal enterprise. Both were convicted of an offence under s 307.5(1) carrying life imprisonment. The applicant pleaded guilty at an early stage and Fang was convicted after trial. Importantly, Fang was found to have played a more significant role in the crime. A comparison between the sentences of the applicant and Fang demonstrates that the differential does not adequately reflect these significant differences between the two co-offenders." 12 The applicant's plea of guilty occurred at an early stage and Berman DCJ found the applicant was, as a result, entitled to a benefit on the basis that he had shown a willingness to assist in the course of justice. His Honour was not satisfied however that the plea of guilty was any evidence of remorse given the strength of the case against the applicant, his arrest at the scene and the telephone calls that had been intercepted. The difference between the sentences is explicable by the applicant's plea. 13 The applicant did not give evidence during his sentence proceedings. Judge Berman found: (a) The objective criminality of the applicant's conduct was high. He was "…knowingly involved in the [intended] distribution of a large quantity of a very dangerous drug…" (b) His role in the offence was not a limited and minor one. His Honour was not satisfied the applicant was a "mere courier". The applicant's role involved the [intended] transport of the drugs but was not limited to that act alone; (c) The applicant was in contact with people overseas. He not only took directions and orders from those in Australia but was also involved in contact with people in other countries, which tended to suggest that the applicant's involvement extended beyond simply doing what he was told by others; (d) The evidence demonstrated that the applicant had knowledge of the mechanisms by which the drugs were ultimately being distributed to drug users which went beyond that which would be required in a mere courier; (e) The evidence established that the applicant was involved in the offence to the extent that he "…knew full well that what he was transporting was a substantial quantity of a prohibited drug" and it was not the case that the applicant was "simply reckless as to what he was transporting". 14 Mr Fang did not give evidence during his sentencing proceedings. Sorby DCJ made the following findings: (a) [Mr Fang] "knew, or believed, of the existence that the 16 large boxes he had in his possession and stored in the Shirley Road garage to which he had the key, concealed a border controlled substance." His Honour did not accept that Mr Fang was simply reckless in that regard; (b) On his arrest, Mr Fang told police he had been asked by a friend from Canada to take possession of a shipment of boxes from Canada, to pass those boxes to a friend in Australia; (c) Mr Fang's role in the offence was crucial. He was in charge of the boxes on their arrival into Australia via first Brisbane and then Sydney. He dealt with the carrier using a false name. He paid the charges. He arranged for the boxes to be delivered to the Shirley Road address and stored in the garage. He had unloaded the five smaller boxes from one of the large 16 boxes in the garage into the boot of his car and then assisted in the loading of these smaller boxes into Mr Zhang's car. To the point of the boxes being handed to the applicant, Mr Fang's role was critical in keeping the boxes under view and tracking them from Sydney to the Shirley Road garage. (d) Mr Fang's role was "that of a link in the chain of the drugs coming into Australia and distributed by Mr Zhang. His role in the enterprise was…higher than a dupe or a courier but not as high as those overseas who secured the drugs." He was at the "…mid level of the operation". He was involved in the scheme to bring the drugs into Australia. 15 The respondent submitted that Sorby DCJ did not make a finding that Mr Fang had played a more significant role in the crime than the applicant. The distinction noted by him related to the obvious differences in the respective activities each had carried out in the enterprise and was not a finding regarding the degree of culpability that such activities may have demonstrated. This was evident in his Honour's remarks that "There is a substantial difference between the two in the operation…" 16 The respondent submitted that the objective criminality of each was, in fact, quite similar. Each was considered to have performed a role above that of a mere courier or a person at the very bottom of the enterprise. Both had knowledge and awareness of the importation process. Both knew they were dealing with a substantial amount of an illegal drug. Both were aware that the drug was to be further distributed into the community. Berman DCJ found the applicant's criminality to be high. The same description would apply to Mr Fang. Sorby DCJ found Mr Fang's role to be at the mid level of the operation and that his criminality was not as high as those overseas who had secured the drugs. The same description would apply to the applicant. The actions of the applicant and Mr Fang demonstrated moral culpability of a high order. 17 I accept the respondent's submissions. In my opinion, the applicant has not established that there is a marked disparity between the sentence imposed upon him and that imposed upon his co-offender such as to give rise to a justifiable sense of grievance. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal. Orders 18 I propose the following orders: 1. Leave to appeal granted; 2. Appeal dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.