Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ge v R [2019] NSWCCA 41 Hearing dates: 26 October 2018 Decision date: 01 March 2019 Before: Hoeben CJ at CL [1] Davies J at [2] Button J at [3] Decision: (1) Leave to appeal granted. (2) The sentence imposed by Acting Judge Delaney in the District Court on 25 September 2017 date is quashed. (3) In substitution, the applicant is sentenced to a head sentence of 6 years 4 months, with a non-parole period of 3 years 6 months, each commencing on 24 August 2016, with the head sentence expiring on 23 December 2022, and the non-parole period expiring on 23 February 2020. (4) The first date upon which the applicant will be eligible for possible release to parole is 23 February 2020. Catchwords: CRIMINAL LAW — Appeal against sentence — Commonwealth offence — Importation of large commercial quantity — guilty plea — utilitarian value of guilty plea not explicitly taken into account at first instance — principle in Xiao v R (2018) 96 NSWLR 1 — Crown conceded error — Court exercised sentencing discretion afresh — utilitarian value of guilty plea taken into account upon resentence — lesser sentence warranted in law Legislation Cited: Commonwealth Criminal Code, s 307.11(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 98(3) Crimes Act (Cth), s 16A(2)(g) Cases Cited: Lehn v R (2016) 93 NSWLR 205; (2016) 262 A Crim R 537; [2016] NSWCCA 255 Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 Category: Principal judgment Parties: Yixing Ge (Appellant) Regina (Respondent) Representation: Counsel: P Lowe (Appellant) S Callan (Respondent) Solicitors: Tully & Chiper Lawyers (Appellant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2016/159599 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 25 September 2017 Before: Delaney A/DCJ File Number(s): 2014/359498 1. HOEBEN CJ at CL: I agree with Button J and the orders which he proposes. 2. DAVIES J: I agree with Button J. 3. BUTTON J: Introduction 1. On 25 September 2017, following a plea of guilty, Mr Yixing Ge (the applicant) was sentenced by Acting Judge Delaney in the District Court at Parramatta for an offence of importing a commercial quantity of ephedrine (a border controlled precursor), contrary to s 307.11(1) of the Commonwealth Criminal Code. That offence carries a maximum penalty of imprisonment for 25 years and a very large fine. 2. The applicant, at the time the offence was committed, was subject to a 15 month suspended sentence for dishonestly obtaining a financial advantage. He had 6 months left of that suspended sentence before it expired. Pursuant to s 98(3) (as it then was) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that sentence was revoked, and the applicant was resentenced by his Honour. 3. For the dishonesty offence, the applicant was sentenced to a fixed term of 1 year 3 months, to commence on 24 May 2016 and expire on 23 August 2017. For the import offence, the applicant was sentenced to imprisonment for 7 years, commencing on 24 August 2016 and expiring on 23 August 2023, with a non-parole period of 4 years 3 months, expiring on 23 November 2020. It can be seen therefore that the sentence for the import offence commenced three months after the sentence for the dishonesty offence. Grounds of appeal 1. In support of the application for leave to appeal against sentence, the following grounds were notified and pressed at the hearing: Ground 1: The learned sentencing judge erred in finding that he could not take into account for purposes of s 16A(2)(g) of the Crimes Act (Cth) the utilitarian value of the plea of guilty. Ground 2: The learned sentencing judge erred in not taking into account the evidence that the applicant would experience more onerous custody by reason of the fact he was a foreign national. Ground 3: The sentence imposed on the applicant was manifestly excessive having regard to the evidence of the applicant, the applicant's case on sentence, and the findings of fact made by the learned sentencing judge. 1. With regard to ground 1, error was conceded by the Crown, on the basis that the learned sentencing judge did indeed fail to take into account the utilitarian value of the plea of guilty. That was because such an approach to Commonwealth matters reflected the law as it was then understood. But as is well known, in the subsequent decision of this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4, it was explained that it is appropriate for the utilitarian value of a plea of guilty to be explicitly reflected in the sentence for a Commonwealth offence. 2. Nor was it denied by the Crown that this was a material error, calling for substantive resentence in accordance with Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 as opposed to a discrete error calling merely for corrective adjustment of sentence, in accordance with Lehn v R (2016) 93 NSWLR 205; (2016) 262 A Crim R 537; [2016] NSWCCA 255. 3. In my opinion, the concession of the Crown should be accepted, ground 1 should be upheld, and it is necessary for the Court to exercise the sentencing discretion afresh. 4. In that regard, counsel for the applicant made it clear that he was content for this Court not to determine grounds two and three, but rather to take into account all that was said by both parties about them in the exercise of resentencing. Again, I consider that that approach is soundly appropriate, and will adopt that approach with regard to the submissions of each. Resentence Objective features, and objective seriousness 1. The following is derived from the agreed facts tendered at first instance, and the remarks on sentence of the sentencing judge. 2. On 18 May 2016, Australian Border Force (ABF) officers examined a consignment of goods from Kuala Lumpur in Malaysia. It was declared as being "folding bucket" and weighed 31 kilograms. Inside the consignment, 40 plastic folding buckets were located, with a crystallised substance concealed inside the base of each them. After forensic analysis, it was determined that that substance was 8.33 kilograms of pure ephedrine, a well-known precursor in the manufacture of amphetamines. 3. On 19 May 2016, the courier company DHL received a phone call from a person identified as "Shahien", enquiring about the consignment. That person was notified that delivery was expected the next day. 4. On 20 and 23 May 2016, ABF officers attempted to deliver the consignment to an address on Anzac Parade, but no one answered the door. Later on 23 May, DHL received a phone call from a person advising that that person would be at the address on Anzac Parade to accept delivery of the consignment. 5. On 24 May 2015, ABF officers delivered the consignment to that address. The applicant was seen to be in the vicinity of that address prior to the delivery. Subsequently, he stated that his name was "Xiaoming Chen", signed the delivery sheet, and accepted delivery of the consignment. 6. At about 11 am, the applicant carried the consignment to a 7-Eleven petrol station next door, where he was intercepted by ABF officers. At 11.10 am, the applicant was placed under arrest for the importation of ephedrine. He was found to be in possession of a DHL delivery card, an iPhone, and six sim cards. 7. Examination of the phone of the applicant showed that, within the app "WeChat", the applicant had spoken of the importation of the consignment, stated that it was worth $90,000, and said that he could resell its contents for $140,000. 8. The sentencing judge found "that the offender was a trusted importer in the syndicate", as he "organised the delivery, tracked the consignment, falsely presented himself to the delivery driver, signed the consignment in a false name and took possession of it". 9. His Honour also remarked that the importation was undertaken for financial gain, and that the applicant's role in the importation was "significant". 10. His Honour found that "[t]his was a serious example of the offence of importing a commercial quantity of border control precursor for which appropriate condign punishment is to be imposed". 11. However, his Honour concluded that "his offending is not nearly as serious as many who come before the Court charged with the same offence, who have been involved to a great degree for a greater period, and were likely, if not detected, to have been involved in a very significantly more serious offence". Subjective features 1. Turning now to the subjective features of the applicant, the following is derived from the remarks on sentence of the sentencing judge. 2. The applicant "pleaded guilty at the earliest opportunity"; as discussed above, his Honour did not provide a discount for the utilitarian value of the plea. 3. His Honour stated that the applicant demonstrated genuine remorse and acceptance of responsibility in this case: "I am satisfied that he is remorseful and contrite." 4. His Honour also observed that "it is unlikely that he will offend again" and "I find that he has undertaken rehabilitation". 5. Turning to matters of background, the offender was born in China in August 1987. He was aged 28 at the time of the offences, and aged 30 at the time of sentence. He grew up in China "under strict disciplinary conditions". He was "strictly controlled" by his father, but his mother was more caring. 6. At school, he did very well and was well liked by peers and teachers. He enrolled in a Bachelor's Degree in China, graduating with a distinction average in 2011. 7. In 2012, he travelled to Australia to study a Master's Degree in accounting to "further his studies, learn to be independent and build his own career and raise a family in Australia without influence from his family in China", and with a plan of applying for a permanent visa here after graduating. 8. In 2014, things began to sour when he failed two of his units due to his difficulty in understanding English. 9. The applicant's parents borrowed money to fund his tuition, and the applicant worked casually. 10. By October 2014 he was in debt. The applicant recounted that he was arrested and placed on bail for the matter that led to the suspended sentence, after being given the opportunity to make quick money by a friend. Thereafter, he worked three jobs. 11. In May 2016, a friend of the applicant contacted him repeatedly "about earning money quickly", offering $2,000 if he were to assist in taking delivery of "an ingredient for flu medicine". By that time, the applicant had accumulated legal fees for an AAT application to review his visa extension, and had come to owe a lot of money. He eventually "succumbed to the temptations". 12. The applicant claimed that he had never taken any form of illegal drugs or non-prescription medication. 13. Since arrest, he had undertaken work programs in prison and sought to rehabilitate himself. 14. The sentencing judge also considered that the documents tendered in the applicant's case on sentence showed that he is "of good character and that they are prepared to support him". 15. Finally, a psychiatric report of 1 August 2017 assessed the applicant's likelihood of re-offending as "extremely low to non-existent". Submissions of the applicant regarding resentence 1. Counsel for the applicant submitted that the imprisonment of the applicant would be more onerous than usual because he is a foreign national. He relied upon the affidavit of the applicant of 4 August 2017 and read on resentence, and submitted that it was clear that the entirety of the family of the applicant remain in China, and he is deprived of visits from them. 2. Furthermore, counsel submitted that the sentence imposed by the primary judge is more severe than was warranted by the findings about subjective matters. Such findings included: the psychiatrist's assessment that his chances of re-offending were extremely low to non-existent; the evidence that showed that he was otherwise of good character, remorseful, and contrite; the rehabilitation that had already occurred; his Honour's finding that the offending was "not nearly as serious" in comparison to others who come charged with the same offence; his relative youth; and that this is his first custodial sentence. 3. The affidavit of the applicant, upon which he was not cross-examined, was said to provide an explanation for the offences, further evidence of remorse, and evidence of a new-found recognition of the harm caused by prohibited drugs. 4. Furthermore, it was submitted that all of the comparative cases relied on by the Crown featured offenders who played greater roles in arranging the importation, and facilitation of the manufacture, of drugs. 5. It was also said that those sentences were "comparatively lenient compared with the sentence imposed on the applicant", bearing in mind that there was no evidence the applicant played a role in arranging the import. 6. Finally, counsel submitted that the applicant is using his time in custody as quietly and constructively as he can: he has been employed as a tailor and a gardener, is unofficially studying for the two remaining subjects in his Master's Degree, and has incurred no infractions against prison discipline. Submissions of the Crown regarding resentence 1. As I have said, all that the Crown put forward in written submissions with regard to grounds 2 and 3 is to be taken into account on the question of resentence. 2. The Crown stated in its written submissions that the Court in exercising its resentencing discretion must take into account the matters under s 16A of the Crimes Act (Cth) and the general sentencing principles concerning federal drug offences articulated in R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 at [72]. 3. In accordance with these matters, the Crown submitted that the following should be taken into account upon resentence: the serious nature of the offence and the need for adequate punishment as reflected by the maximum penalty of 25 years' imprisonment; the offender's significant role in the syndicates; the amount of the precursor involved (7 times the commercial quantity); the offender's awareness of the contents of the consignment; and that the applicant was motivated by financial gain. 4. The Crown also submitted that general deterrence is certainly a fundamental consideration in sentencing drug importation offences. 5. As to the subjective circumstances of the applicant, the Crown submitted that whilst his circumstances attracted sympathy, it is undercut by the applicant's motivation of financial gain and awareness that the importation was for the manufacture of ice. 6. The Crown also highlighted that the applicant had a criminal record and had committed the offence whilst on a bond. 7. Further, the Crown emphasised that the applicant's status as a foreign national should be given limited consideration because it was not suggested by the applicant that he could not speak English; the applicant had conceded there were no exceptional circumstances regarding hardship to his family; and the applicant knew his involvement in the importation risked incarceration in Australia. 8. The Crown also relied upon comparative cases as an indication that the sentence imposed upon the applicant was unremarkable (as I say that submission was actually made with regard to ground 3, but I transpose it to the question of resentence). 9. In oral submissions, the Crown generally conceded the characterisation of the offender's role by counsel for the applicant, but emphasised that the applicant's role was a necessary one in respect of the importation. 10. The Crown also highlighted the limited relevance of the applicant's status as a foreign national, given that his level of isolation would be reduced owing to his working knowledge of English. 11. In recognising the limited role of the comparable cases referred to in its written submissions, the Crown emphasised that in the particular circumstances of the applicant, there was the aggravating factor of offending whilst serving a suspended sentence. 12. In relation to the guilty plea, the Crown submitted there were three ways in which a guilty plea could be taken into account by the Court: the demonstration of contrition and remorse; the willingness to facilitate the course of justice; and the utilitarian value of the plea. In addition, the Crown stated that it did not resist a 25 per cent discount for the utilitarian value of the applicant's plea of guilty. Determination of question of resentence 1. I turn to the question of resentence afresh, and "unanchored" to the sentence imposed at first instance. I do not propose to refer explicitly to the many factors to be taken into account pursuant to s 16A of the Crimes Act 1914 (Cth); I have referred myself to the section, and in my opinion all of the applicable factors are discussed in this judgment. In similar vein, in accordance with the submission of the Crown, I have reminded myself of what was said by this Court in R v Nguyen; R v Pham, and will not repeat here those well-known considerations. 2. On the one hand, the offence was undoubtedly serious, not least because of the maximum penalty provided by Parliament, and the value of the precursor involved. Furthermore, the applicant played an important, indeed essential, role in attempting to bring it to fruition. 3. On the other hand, objectively, there was nothing to suggest a greater role than that of receiver of the delivery. The role was in the nature of providing a simplistic service to the criminal enterprise that could have been provided by countless other persons. 4. Subjectively, there were some compelling features; having set them out above, I shall not repeat them. It is true that the applicant was subject to conditional liberty at the time of the offence. Nevertheless, speaking generally, I think one is entitled to take the view that this was a grave error of judgment committed by a still young man in isolated and straitened circumstances, and that one that can have a guarded optimism that nothing of the kind will occur in his life again. 5. I also accept that gaol has been and will be a difficult, lonely process for this man, and that he is trying to make the best of a bad situation. 6. I appreciate that this is a Commonwealth matter, and that all of the learning about appropriate discounts for the utilitarian value of pleas of guilty pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW) is not of direct application. Nevertheless, I consider that a discount of 25% is appropriate; as I have recounted, the Crown did not seek to argue otherwise before us. 7. Exercising the sentencing discretion afresh, I would adopt a starting point of 8 years 6 months. Applying a 25% discount to that putative head sentence, one arrives at a head sentence of 6 years 4 months. Unfettered by any "statutory ratio" pertaining to Commonwealth matters, I would impose a non-parole period of 3 years 6 months, as a reflection of the favourable objective and subjective features of this matter. There is no reason to depart from the commencement date adopted by the sentencing judge. 8. As a final step, comparing that sentence to the head sentence and non-parole period imposed at first instance, one can see that my opinion is that a lesser sentence is indeed warranted in law, and accordingly the applicant should be resentenced. Conclusion and proposed orders 1. In accordance with the above analysis, I propose the following orders: 1. Leave to appeal granted. 2. The sentence imposed by Acting Judge Delaney in the District Court on 25 September 2017 date is quashed. 3. In substitution, the applicant is sentenced to a head sentence of 6 years 4 months, with a non-parole period of 3 years 6 months, each commencing on 24 August 2016, with the head sentence expiring on 23 December 2022, and the non-parole period expiring on 23 February 2020. 4. The first date upon which the applicant will be eligible for possible release to parole is 23 February 2020. ------------------------------ 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: 01 March 2019