Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tsai Yu v R [2016] NSWCCA 73 Hearing dates: 21 April 2016 Date of orders: 04 May 2016 Decision date: 04 May 2016 Before: R A Hulme J at [1] Garling J at [2] Wilson J at [61] Decision: Application for leave to appeal dismissed Catchwords: CRIMINAL LAW – appeal – sentencing – parity between co-offenders – where applicant and co-offender sentenced for possessing a commercial quantity of an unlawfully imported border control drug – where co-offender's role in the commission of the offence was greater than the applicant's – where the sentencing Judge imposed a lesser sentence on the applicant – whether the sentencing Judge gave proper consideration to the circumstances of the applicant and co-offender and their different degrees of criminality – whether the sentencing Judge failed properly to exercise the discretion reposed in her Legislation Cited: Criminal Code Act 1995 (Cth) (Criminal Code) Cases Cited: Green v The Queen, Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 House v The King (1936) 55 CLR 499 Lam v R; Lam v R [2015] NSWCCA 87 Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1996) 189 CLR 295 Tatana v R [2006] NSWCCA 398 Texts Cited: Not Applicable Category: Principal judgment Parties: Tsai Yu (Applicant) Regina – Respondent Crown Representation: Counsel: Mr A Webb (Applicant) Mr L Fernandez (Crown) Solicitors: Heenan & Co (Applicant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2014/174275 Publication restriction: Not Applicable Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 1 May 2015 Before: Hock DCJ File Number(s): 2014/174275 Judgment 1. R A HULME J: I agree with Garling J. 2. GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court of New South Wales by her Honour Judge Hock on 1 May 2015. 3. The applicant, Mr Tsai Yu, pleaded guilty in the Local Court to the offence of attempting to possess a commercial quantity of an unlawfully imported border control drug contrary to ss 11.1 and 307.5 of the Criminal Code Act 1995 (Cth) (Criminal Code). He was committed for sentence to the District Court. In the District Court he adhered to his plea of guilty. 4. The maximum penalty for the offence is imprisonment for life, or a fine of $1,275,000, or both. No standard non-parole period applies. 5. The sentencing Judge imposed a total sentence of 9 years imprisonment, with a non-parole period of 5 years and 6 months commencing on 11 June 2014, being the date upon which the applicant was arrested and bail was refused. Facts 1. A Statement of Facts was tendered to the sentencing Judge. A brief summary of those facts is as follows. 2. On 29 March 2014, a person using the name of Chung Chieh Hsaio entered into a rental agreement commencing 29 March 2014 and ending 29 June 2014, for the property at 5 Johnston Road Eastwood NSW. 3. On 31 May 2014, a consignment arrived in Sydney via sea cargo from China. It was described as containing five "Torque Testers", with a gross weight of 688kg. The consignee details identified the co-offender, Mr Hsiao Chen Lin, as the consignee, with an address at "5 Johnston Rd Eastwood 2122 AU". 4. On 2 June 2014, Australian Customs and Border Protection Officers examined the consignment. The officers drilled a small hole in the base of one of the Torque Testers, revealing a crystalline substance. Testing of the substance returned a positive result for methamphetamine. 5. On 3 June 2014, the Australian Federal Police ("the AFP") made enquiries with the freight forwarder, who provided a mobile telephone number for the co-offender. 6. On 5 June 2014, the applicant and the co-offender arrived in Sydney on a China Airlines flight from Taiwan. That same day, the freight forwarder received a phone call from the co-offender, who confirmed 5 Johnston Road Eastwood NSW as the address for delivery of the consignment. Also that same day, the co-offender booked himself and the applicant into accommodation at the Meriton Serviced Apartments in Zetland NSW. 7. On 6 June 2014, the freight forwarder received a phone call from the co‑offender to confirm the date for delivery of the consignment. The freight forwarder told the co-offender that he would deliver the consignment on 11 June 2014. The freight forwarder advised the AFP of this phone call. 8. On 10 June 2014, in intercepted telephone conversations between the co‑offender and an unknown female, it was confirmed that the consignment would be delivered to 5 Johnston Street Eastwood NSW on 11 June 2014, at around 10:00 or 10:30am. The co-offender was also informed that the consignment would be delivered by a truck with two drivers who would call in advance of delivery. 9. At 10:01am on 11 June 2014, an AFP officer purporting to be a delivery driver called the co-offender and informed him that he would arrive at the Eastwood address in approximately 15 minutes. At about 10:05 am, AFP officers observed the applicant walking towards the property and talking on his mobile phone. The officers also observed the co-offender talking on his mobile phone in a station wagon parked at the top of Johnston Road. 10. At 10:08, 10:09 and 10:17am, the co-offender called the applicant to provide instructions on how to take delivery of the consignment. Among other things, he told the applicant to "find a spot" in the premises at 5 Johnston Road to store the drugs, to "lock the door" before leaving the property, and to "bring back the keys" to the co-offender. 11. At 10:17am, the officers attended the address, whereupon the applicant signed the delivery sheet in the co-offender's name and wrote the co‑offender's contact number. The applicant was then arrested. The co‑offender was arrested shortly thereafter. 12. Between 9 July 2014 and 11 July 2014, AFP forensic officers deconstructed the consignment and found that it contained 10.67kg of pure methamphetamine, with an estimated street value of $11.95M and wholesale value of $3.43M. Proceedings on Sentence 1. Sentence proceedings were held on 23 April 2014 before her Honour Judge Hock for both the applicant and his co-offender, Mr Lin. 2. The applicant gave evidence through an interpreter. He told the sentencing Judge that he was a citizen of Taiwan and lived in Taipei prior to travelling to Australia. He said that he was 24 years old, having been born in 1990. He was single. He gave a history of his family background, including his education and work. 3. He said that he met Mr Lin in a nightclub in January 2013. He was asked to give an account as to why he became involved in the offence. He said: "Because at that time I need money. I was lacking of money and also I have, I had a debt from my friends, I am owing my friends some money." 1. He went on to explain that his need for money arose because he had been gambling by playing cards, and had lost. He had borrowed money from a "loan shark" and needed to repay it. He told the Court that he knew that he was to be involved in dealings with a drug but he did not know the quantity. 2. He told the Court that he borrowed about $3,000 and anticipated that his participation in the events giving rise to the offence would result in having sufficient monetary reward to repay the debt. 3. He was asked about how his involvement in the offence had commenced. He said that there was a conversation with his co-accused, Mr Lin, to the following effect: "Mr Lin said 'I have a case for you to do', means a matter, a thing 'ask you to do'. Said 'if you want to repay the money you only needed to do once fix doing this matter for once'. And then I ask 'what's the matter', he told me this was a case about to sign, means a receipt, this drug, this kind of thing. 'I need you to do it'. And then I asked a few questions but he stopped talking the details and said 'you just need to go to Australia and over there you just listen to my order, means what I said to you'." 1. Mr Tsai then gave an account of what happened after he arrived in Australia. This account was not materially different from the agreed facts. 2. The co-accused, Mr Lin, then gave evidence and submissions were taken. Earlier in the proceedings, a number of documents were tendered in respect of each of the offenders. Remarks on Sentence 1. A little over a week after the sentence proceedings, on 1 May 2015, Hock DCJ sentenced the applicant and the co-offender, Mr Lin. 2. Her Honour, in careful and detailed Remarks on Sentence, first addressed the nature of the offence to which the applicant pleaded guilty and in particular noted that the maximum penalty for the offence was imprisonment for life. 3. Her Honour then set out the Agreed Facts as summarised above. She described the offence in the following terms, which the applicant accepts as appropriate: "The offence is extremely serious and was clearly the result of careful and sophisticated planning. Two important factors when considering the appropriate penalty for each offender are the quantity of the drug and the part each played. The methamphetamine had a pure weight of 10.673kg, the threshold for the commercial quantity is 0.75kg. The quantity is therefore more than 14 times the threshold, a very substantial quantity with an estimate value as I have already set out." 1. Her Honour also noted that the quantity of the unlawfully imported drugs had a street value of $11.95M or a wholesale value of $3.43M. 2. Her Honour then went on to consider the role that the applicant and his co‑offender, Mr Lin, each played in the commission of the offence. 3. She accepted that the applicant was subordinate to Mr Lin, and played a lesser role. She noted, however, that he travelled to Australia solely to take delivery of the drugs by signing for them on 11 June 2014, and then his job was to ensure that the drugs were secured in the premises. The applicant correctly points out in his submissions to this Court that securing the drugs in the premises consisted of locking the premises and returning the key to his co‑offender, Mr Lin. 4. Her Honour then recited the personal history and background of the applicant, and described him in this way: "The offender presented as a relatively immature young man who would be easily preyed on by a more forceful personality such as Mr Lin displayed. This is consistent with his minor role compared to his co-offender. The offender has expressed his remorse. On the basis of his evidence and Exhibit C, the confidential exhibit, I accept that he is genuine. In my view, he is unlikely to re-offend." 1. Her Honour noted that both of the offenders would be isolated in custody because English was not their first language, and they would be unlikely to have visits from family or friends. Her Honour, however, noted that such a factor ought to be given little weight. This remark accords with authority. 2. With respect to the applicant, her Honour noted the following: "Mr Tsai provided assistance which was of limited value. I have reduced his sentence by 30% for the plea and his assistance. The plea indicates an acceptance of responsibility and a willingness to facilitate the course of justice." Her Honour reduced Mr Lin's sentence by 25% to reflect his early plea of guilty. 1. Her Honour then proceeded to impose the sentence. The applicant, as I have earlier noted, was sentenced to a term of imprisonment for 9 years with a non‑parole period of 5 years and 6 months. 2. Mr Lin, the co-accused, was sentenced to imprisonment for 11 years with a non-parole period of 7 years. Grounds of Appeal 1. On 13 November 2015, the applicant lodged a Notice of Application for Leave to Appeal. 2. Two grounds of appeal were nominated: 1. The sentence fixed in the District Court does not adequately reflect the different levels of criminality in the offender Lin and the appellant Tsai Yu. 2. The sentence imposed on Tsai Yu is manifestly excessive. 1. At the start of the hearing of the application, Ground 2 was abandoned by counsel for the applicant. Applicant's Submissions 1. In his submissions, the applicant did not contend that the learned sentencing Judge failed to take into account any relevant fact or that, in describing the applicant's subjective circumstances, the objective criminality involved in the offence, and the role which he played, her Honour fell into error. The applicant accepted that the sentencing Judge had, in her Remarks on Sentence, demonstrated a careful consideration of all of the relevant factors, and that she had addressed the need to impose differential sentences on the applicant and his co-offender, and in fact did so. 2. The applicant submitted, however, that the following factors considered together warranted a much greater differential between the sentences than that which the learned sentencing Judge actually imposed: 1. the discrepancy in age and maturity of the applicant, who was 24 years old at the time of the offence, and his co-offender, who was 32 years old and considerably more mature; 2. the significant difference in the roles which each of them played in the offence; and 3. the relatively favourable subjective circumstances of the applicant. 1. In particular, counsel for the applicant drew attention to her Honour's remark that the applicant was relatively immature and would have been easily preyed upon by a more forceful personality such as that displayed by his co-offender. Crown Submissions 1. The Crown submitted that the sentences which were imposed properly reflected the similarities and differences between the applicant and the co‑offender. The Crown drew attention to the obligation of this Court to have regard to the "… qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders." : Green v The Queen, Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [32] per French CJ, Crennan and Kiefel JJ. 2. The Crown submitted that the learned sentencing Judge's Remarks on Sentence demonstrated careful attention to the similarities and differences between the applicant and co-offender, and that it was apparent from her Honour's remarks that she had appropriately distinguished between them. 3. The Crown also submitted that the learned sentencing Judge was in the best position to assess the relative criminality between the applicant and his co‑offender and to distinguish the circumstances relevant to each of them. The Crown noted that the sentencing Judge was in the best position to form an impression of both the applicant and the co-offender, both of whom gave evidence before her. 4. Ultimately, the Crown submitted that the discrepancy between the sentences was an appropriate one and not one which gave rise to a justifiable sense of grievance. Discernment 1. Where, as here, an applicant contends that the disparity between the sentence which he and his co-offender received has given rise to a justifiable sense of grievance, the norm expressed in the phrase "equality before the law" falls for consideration. As French CJ, Crennan and Kiefel JJ said in Green at [28]: "Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances." (footnotes omitted) 1. The parity principle recognises that equal justice requires that, as between the co-offenders, there should not be a marked disparity which gives rise to a "justifiable sense of grievance": Lowe v The Queen (1984) 154 CLR 606 at 610 per Gibbs CJ, at 613 per Mason J, and at 623 per Dawson J; Postiglione v The Queen (1996) 189 CLR 295 at 301 per Dawson and Gaudron JJ. 2. As Dawson and Gaudron JJ observed in Postiglione at 301-302: "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." 1. The phrase "justifiable sense of grievance", which appears in the judgment of the Chief Justice in Lowe, is assessed by reference to objective criteria. The application of the parity principle does not involve a judgment about the subjective feelings of the person complaining of disparity: see Green at [31] per French CJ, Crennan and Kiefel JJ. 2. A differential in the sentences imposed on co-offenders for the same offence may be justified by differences between the co-offenders "… such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise" : see Lowe at 609 per Gibbs CJ, Green at [31] per French CJ, Crennan and Kiefel JJ. 3. Consideration of whether error has been demonstrated can, in this application, commence with a consideration of the notional total sentences imposed on each of the applicant and co-offender. That is because her Honour correctly applied a different discount to each sentence before arriving at the ultimate difference in the notional total sentences of about 22 months. 4. The effect of the applicant's submission is that this differential cannot be regarded as objectively justified because of the significant difference in age, maturity, subjective circumstances and the role played by each in the offence. It is not to the point that another sentencing Judge may have imposed sentences with a greater differential, or with a lesser one. What the applicant must show is that his sentence is unreasonable or plainly unjust, and that it does not reflect the norm of equal justice. 5. In Tatana v R [2006] NSWCCA 398, Howie J (with whom Sully and Latham JJ agreed) remarked, with reference to a ground of appeal based on parity, this at [28]: "28 That leaves a consideration of the issue of parity between the applicant and the co-offenders. This is a ground where there are considerable obstacles placed before the applicant in circumstances where the sentencing judge is fully aware of sentences imposed upon co-offenders, the reasons for those sentences, and in the remarks indicates why the judge is departing from the sentences imposed upon the others. Those obstacles became even greater where, as here, the difference is a result of legitimate fact finding on the part of the second judge." 1. In Lam v R; Lam v R [2015] NSWCCA 87, this Court considered an appeal based on the parity principle but in circumstances where, as here, a single sentencing Judge had dealt with all of the co-offenders. Schmidt J (with whom Meagher JA and Bellew J agreed) described the task confronting an appellant in these terms: "12 As discussed in Tatana v Regina [2006] NSWCCA 398 at [28], an offender faces considerable obstacles, when a sentencing judge is fully aware of sentences imposed upon co-offenders, the reasons for those sentences, and explains why the sentences imposed upon them, are departed from. Here the differences in the sentences imposed on the three offenders were the result of legitimate fact finding by the one sentencing judge and the exercise of discretions in relation to the utilitarian discount and the finding of special circumstances in each case. As discussed in R v Do [2005] NSWCCA 209 at [17] – [19], different findings in relation to such discounts cannot readily give rise to a conclusion that disparity has resulted." 1. Her Honour's careful Remarks on Sentence do not reveal any error. She applied the parity principle by taking into account differences between the applicant and his co-offender in the areas of age, maturity, subjective circumstances and the role each played in the offence. There is simply, in my opinion, no room for legitimate criticism of her Honour's Remarks or the result she reached. 2. The difference between the sentences imposed on the applicant and his co-offender was well within the discretionary range open to the learned sentencing Judge. The difference is justified by the legitimate fact finding and assessment of the Judge. Accordingly, no justifiable sense of grievance has been established. 3. It follows that if leave were granted, the appeal would be dismissed. 4. As this is not an appeal which raises a matter of principle, but simply contends that the discretion reposed in the sentencing Judge has been exercised in a way which must be taken to be demonstrative of error, and the applicant has been unable to demonstrate such error, the appropriate course is for this Court to refuse leave to appeal. Orders 1. I propose the following order: Application for leave to appeal dismissed. 1. WILSON J: I agree with Garling J. ********** 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. Decision last updated: 04 May 2016