Smith (a pseudonym) v R

1. [1]

   BELL CJ: On 20 February 2020, Mr Smith (a pseudonym) (the Applicant) was sentenced for four drug-related offences in the District Court, including one Commonwealth offence and three New South Wales offences. He had entered pleas of guilty in the Local Court to all four offences, and asked that two further offences be taken into account by the sentencing judge pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act). For each offence, the sentencing judge allowed a discount of 25% to reflect the utilitarian value of the Applicant’s guilty pleas, and a further discount of 20% for past and future assistance to law enforcement authorities. Consequently, the total sentencing discount was 45%.

2. [2]

   In relation to the Commonwealth offence, the sentencing judge imposed a sentence of six years and seven months, with a non-parole period (NPP) of four years and four months. In relation to the three New South Wales offences, the sentencing judge imposed an aggregate sentence, pursuant to s 53A(1) of the Sentencing Act, of nine years imprisonment, with an aggregate non-parole period of four years and ten months. In accordance with s 53A(2)(b) of that Act, he noted the indicative sentences that he would have imposed for each of these three offences, had separate sentences been imposed. The total effective sentence imposed upon the Applicant was 12 years and four months of imprisonment, with a non-parole period of eight years and two months, commencing on 28 June 2017.

3. [3]

   The offences, the maximum penalty applicable to each (including, where relevant, the standard non-parole period (SNPP)), and the sentence or indicative sentence for each of those offences are set out in the table below. As is reflected in the table, the offence on Form 1(a) was taken into account in connection with count 5, while the offence on Form 1(b) was taken into account in connection with count 4.

4. [4]

   In relation to Count 2, the sentencing judge indicated that he would have imposed a term of imprisonment of 12 years before the application of any sentencing discount. After applying a discount of 45%, the indicative sentence in respect of Count 2 was reduced to six years and seven months, with a non-parole period of four years and five months.

5. [5]

   The Applicant seeks leave to appeal from his sentence on the following ground of appeal:

6. [6]

   The co-offender, Liang Lou (Lou) was sentenced by Madgwick ADCJ QC on 25 July 2019 for a single offence in the same terms as Count 2. In sentencing Lou, Madgwick ADCJ QC also took into account a further offence of knowingly participating in a criminal group. The agreed statement of facts relied upon for the purposes of sentencing Lou bore some minor differences to that which formed the basis of the Applicant’s plea of guilty. These differences will be discussed in due course.

7. [7]

   Lou was ultimately sentenced to a term of imprisonment of four and a half years, with a non-parole period of three years. This sentence had been reduced from a notional starting point of six years’ imprisonment, by reason of Lou’s guilty pleas.

8. [8]

   The appeal was filed out of time, but leave to appeal out of time should be granted.

Factual background

1. [9]

   The Applicant was sentenced on the basis of agreed facts. The four offences involved the Applicant’s involvement in a criminal group which imported prohibited precursors and manufactured methylamphetamine. Given the limited scope of the ground of appeal, only the facts relating to Count 2 need be summarised in detail for present purposes.

2. [10]

   On 17 March 2017, a police surveillance device captured a conversation between the Applicant and an associate, Quoc Tran, at commercial premises in Seven Hills. Lou was also present at the location. The conversation concerned the methods and chemicals required for the manufacture of methylamphetamine. During the conversation a person advised that they had experienced difficulties with the completion of a step in the manufacturing process. He left the premises and returned shortly afterwards with a 20-litre drum containing a substance suspected to be a partially manufactured prohibited drug or precursor to methylamphetamine.

3. [11]

   The Applicant and Lou both left the location on foot. The Applicant was photographed carrying the 20-litre drum, while Lou was carrying a number of other items used to store and transport prohibited drugs.

4. [12]

   On 28 June 2017, police executed a search warrant at an address in Georges Hall where the Applicant’s mother and sister resided, together with Lou (the Georges Hall property). The Applicant did not reside at the house, but used a fourth bedroom there from time to time. In that bedroom, the police found 9.6 kilograms of crystal methylamphetamine distributed across seven resealable plastic bags. They also found a number of fans to cool the methylamphetamine, a spatula to turn the drug whilst drying, and a heat sealer.

5. [13]

   In other locations in the house, police located:

   1. (1)

      a homemade cooking system suspected of being used in the drug manufacturing process, which consisted of a ventilation system covered in plastic wrap, a cook top and a frying pan;

   2. (2)

      a large amount of chemicals, containers and other equipment used in the manufacture of methylamphetamine; and

   3. (3)

      several dozen empty 20-litre drums of acetone, which is used in the manufacture of methylamphetamine.

6. [14]

   DNA belonging to both the Applicant and Lou was detected on the inside of a breathing respirator and on used disposable gloves located in the store room under the house.

7. [15]

   Lou participated in an interview with police, in which he said he was visiting Australia as a tourist, and that he did not know who manufactured or owned the drugs. He admitted to stealing some of the drugs in the Applicant’s bedroom and using them for personal use.

8. [16]

   After the Applicant was arrested on 28 June 2017, he provided a written statement to the police, and participated in three electronically recorded interviews with investigating officers. The Applicant made admissions to police regarding his involvement in all four offences, and the role of various co-offenders to each offence. He also gave an undertaking to give evidence at the trial of any co-offender (although such assistance was never required, as all the co-offenders pleaded guilty).

9. [17]

   In the course of his interviews with police, the Applicant was asked about his and Lou’s involvement in the offending which was charged as Count 2. The transcripts of these interviews were in evidence before the sentencing judge, but were not in evidence before Madgwick ADCJ QC when sentencing Lou.

10. [18]

    The Applicant told police that he was responsible for the manufacture of methylamphetamine at the Georges Hall property. He said that he was provided with a certain precursor to methylamphetamine by another co-offender (who was not Lou). He would then use that precursor to manufacture crystal methylamphetamine, which he would return to the co-offender in exchange for payment. He said that he had been paid between $200,000 and $250,000 for manufacturing methylamphetamine for the criminal group.

11. [19]

    The Applicant said that Lou worked for him by assisting him with the manufacturing and transportation of the drug. More specifically, he said that the Applicant was responsible for the “crystallising” and “packaging” of the methylamphetamine, and that Lou’s role concerned the “washing” of various items involved in the manufacturing process, and the delivery of the drug to another member of the criminal group. He would pay Lou out of the money that he was paid. At the time of his arrest, he had paid Lou around $20,000 to $30,000.

12. [20]

    When asked about Lou’s knowledge of processing the drugs, he had the following exchange with the investigating officer:

13. [21]

    The Applicant’s subjective case was outlined by the sentencing judge, drawing upon a sentencing assessment report, a psychological report, and a character reference provided by the Applicant’s wife. The findings of the sentencing judge with respect to the Applicant’s personal circumstances are not challenged on appeal, and are summarised below.

14. [22]

    The Applicant was 33 years old when he first became involved in the present offending, and was 36 years old at the time of sentence. He had no history of prior offending.

15. [23]

    The Applicant was born in Shanghai, where he was raised primarily by his father and paternal grandparents. His parents separated when he was young, and his mother left China when he was five to six years old after his parents separated. At the age of 11, he was sent to Australia to live with his mother and her new partner.

16. [24]

    He did not have a good relationship with his stepfather, and moved out of the family home in late adolescence to live with his then partner. He subsequently separated from that partner and returned to live with his mother in around 2007-2008. Around that time he developed a debilitating anxiety disorder. He became fearful of going out in public, and was unable to continue working.

17. [25]

    The Applicant attended high school in Australia, where he completed his Higher School Certificate. After leaving school, he was employed on a full-time basis for approximately five to six years in his stepfather’s fire rating business, until he began to suffer from the anxiety disorder. He has not been in lawful employment since 2009.

18. [26]

    He told the psychologist that he began to use prohibited drugs in 2009, including cannabis, methylamphetamine and cocaine, to manage his anxiety and depressed moods. He used ice and cocaine approximately two to three times per week, although stopped using drugs for periods of time when he returned to China. In 2009 he sought assistance from general practitioners, and was prescribed medications including Xanax to manage his anxiety. In 2016, he was referred to a psychiatrist and was prescribed further medications to treat his mental health conditions.

19. [27]

    The Applicant is married, and has a son who was 8 years old at the time of sentence. After meeting his wife in 2007, her family assisted the couple to purchase a property. At the time of the offending, he was living with his wife in the family home. The Applicant’s wife remains supportive of him, and has regularly visited him in custody. She provided a letter of support, which was in evidence, and which indicated that the Applicant’s incarceration has had a detrimental impact on her and their child.

20. [28]

    The author of the psychological report considered that the Applicant presented with generalised anxiety disorder, panic disorder, major depressive disorder with anxious distress, and poly-substance use disorder. He also expressed the opinion that there was a relationship between the diagnosed disorders and the Applicant’s offending.

The sentencing judge’s findings

1. [29]

   With respect to the objective seriousness of Count 2, the sentencing judge said the following:

2. [30]

   In an important passage of the remarks on sentence, the sentencing judge made direct reference to the sentence that had been imposed upon Lou (who is incorrectly referred to in the transcript as Liang Wu):

3. [31]

   The sentencing judge discussed the diagnoses made by the forensic psychologist, and noted the opinion expressed in his report that the diagnosed disorders had a relationship to the current offences. He then continued, “[t]hat relationship really is a tenuous one, in my view, in that it is clear that the offender involved himself in the offences from an expectation of a substantial financial gain.” His Honour did, however, make a finding of special circumstances when fixing the non-parole period for the State offences, on the basis that the Applicant’s time in custody was likely to be more arduous than usual due to his assistance to authorities, together with his anxiety and panic disorders.

4. [32]

   The sentencing judge voiced some scepticism about the Applicant’s expressions of remorse to the authors of the sentencing assessment report and psychological report. In this context, his Honour said, “I view those comments in something of a sceptical light, given the offender, on the material before me, first involved himself in significant drug activity in 2012.” Nonetheless, in light of the Applicant’s early pleas of guilty, assistance to authorities, and behaviour in custody, his Honour found “that there is some genuine evidence of remorse”.

5. [33]

   Noting that the Applicant had no criminal history and had commenced rehabilitation in custody, his Honour found that the Applicant “has reasonable prospects for rehabilitation”.

6. [34]

   With respect to the Applicant’s assistance to law enforcement authorities, his Honour found that the information the Applicant gave to authorities “provided greater detail of material matters that was not previously known to the investigators insofar as the importation investigation is concerned.” He noted that the police considered the Applicant’s evidence to have “had a significant impact upon the prosecution of those charged with involvement in the importation and decisions by some persons to enter pleas of guilty”.

7. [35]

   As already noted, the sentencing judge allowed the Applicant a discount of 25% by reason of his guilty pleas, and a further discount of 20% to reflect his assistance to law enforcement authorities.

The sentence imposed on Lou

1. [36]

   Lou was sentenced in the District Court on 25 July 2019, on the basis of a statement of facts that was substantially similar to that which was before the sentencing judge in this matter. To the extent that there were differences between the two sets of statements of facts, neither party submits that they are material for present purposes.

2. [37]

   While the material before Madgwick ADCJ QC did not include the evidence outlined above at [18]-[20] concerning the payments received by the applicant and Lou, the agreed facts recorded the following:

3. [38]

   Also in evidence was a psychological report, which included conflicting information about the benefit Lou derived from his participation in the offending. That report recorded that Lou had told the psychologist that “he was offered free drugs in exchange for assisting… in [the] manufacturing activities”, and that, as he was addicted to methylamphetamine, he “couldn’t resist”. Madgwick ADCJ QC did not make an express finding as to whether he accepted Lou’s account to the psychologist, or that of the applicant recorded in the statement of facts. He did indicate, however, that Lou’s untested statements to the psychologist should be “taken with no small grain of salt”.

4. [39]

   Madgwick ADCJ QC also noted other aspects of Lou’s subjective case which were recorded in the psychological report. These are summarised as follows. Lou was 39 years of age when he committed the relevant offending, and 41 years old at the time of sentence. He was from Shanghai, where he had run a used car dealership. He reported a comfortable and supportive upbringing, and had no history of mental health conditions. The psychologist diagnosed him with substance use disorder on the basis of his presentation, but said that he had overcome his dependency while in prison.

5. [40]

   Lou reported having been married twice, and had a son who was 12 years of age. He separated from his second wife shortly after arriving in Australia in January 2017, and moved into the Georges Hall property with the Applicant’s family, who were his only Chinese contacts in Sydney. He told the psychologist that he became addicted to methylamphetamine after trying it at a party in 2015, and began using it about twice per week. He ceased using methylamphetamine when he first arrived in Australia, but soon resumed when he stayed at the Georges Hall property.

6. [41]

   Madgwick ADCJ QC noted that Lou’s “time in prison will be harder to cope with than that of the average prisoner”, as he had no friends or family in Australia and received no social visits.

7. [42]

   Although Lou made expressions of remorse to the psychologist, Madgwick ADCJ QC considered that “expressions of remorse which cannot be tested by cross-examination carry little weight and I do not believe that he has proven that he is truly remorseful at all”.

8. [43]

   Madgwick ADCJ QC found that the offending fell at “something less than in the mid-range of seriousness”, but considered it to be “in an absolute sense quite serious and deserving of serious punishment”. He considered a starting point of six years to be appropriate, but allowed a discount of 25% by virtue of Lou’s early guilty plea, reducing the head sentence to four and a half years. He also made a finding of special circumstances on the grounds that Lou was lonely and isolated, and had not previously been in custody. As a result, he fixed the non-parole period at three years.

The ground of appeal

1. [44]

   The application of the parity principle was explained by French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen [1] in the following terms:

2. [45]

   When a question of parity arises on appeal but it is a matter which, as in the present case, has been the subject of attention by the sentencing judge, House v The King error must be established. [2] As was said by Basten JA, Adamson J and Bellew J in Afu v R, [3] “[w]here a sentencing judge recognises the importance of the parity principle and ostensibly gives effect to it, this Court will be cautious to intervene.”

3. [46]

   In determining whether a disparity in sentences between co-offenders is justified by differing circumstances, an appellate court must have regard to the discretionary and qualitative nature of the process of drawing relevant distinctions between co-offenders. [4] Accordingly, the proper enquiry for an appellate court is that put by R A Hulme J in Lloyd v R: [5] “was the differentiation made by the judge one that was open to her [or him] in the exercise of her [or his] discretion?”

4. [47]

   A complicating factor in this appeal arises from the fact that the Applicant relies upon a comparison between the indicative sentence noted by the sentencing judge in relation to Count 2, and the sentence imposed on Lou by Madgwick ADCJ QC for a single offence in the same terms.

5. [48]

   Although it is well-established that an appeal lies from an aggregate rather than indicative sentence or sentences, this Court has held that it is permissible to have regard to indicative sentences in determining whether the parity principle is engaged. [6] As was said by McCallum J in R v Clarke: [7]

6. [49]

   Nonetheless, it is clear that reference to indicative sentences serves only as a guide in determining whether a sentencing disposition offends the parity principle. As Payne JA held in Vu v R [8] in the context of the parity principle, “[t]he indicative sentences imposed may be a guide to whether the aggregate sentence is excessive, but it is the aggregate sentences which must ultimately be compared.”

7. [50]

   The sentencing judge adverted to considerations of parity as between the applicant and Lou, albeit briefly, in the section of his sentencing remarks extracted above at [30]. He concluded, “[i]t is clear that [Lou’s] role was far less than [the Applicant’s] in that manufacture”. That conclusion was not challenged on appeal. Indeed, counsel for the Applicant conceded on appeal that the Applicant played a greater role in the manufacturing process than Lou, but contended that “the difference was not so great so as to justify the applicant receiving a notional head sentence which is 100% greater than that imposed upon Lou”. [9] Counsel for the Applicant also contended that the Applicant’s subjective case was significantly stronger than Lou’s, by reason of his diagnoses for several mental health conditions.

8. [51]

   With respect to the first of these arguments, some reliance was placed on the similarity in the assessments of objective seriousness made by the sentencing judge and by Madgwick ADCJ QC. The sentencing judge considered the Applicant’s offending to be at the “low end of the mid-range of objective seriousness”, while Madgwick ADCJ QC considered Lou’s offending to be “something less than in the mid-range”. While these assessments are similar on their face, limited weight can be attributed to a direct comparison of the words used to describe impressionistic assessments of objective seriousness made by different judges. A comparison of criminality and moral culpability is better drawn from the specific findings made about the nature of the offending in each case.

9. [52]

   Such a comparison reveals what is, in my view, a significant difference between the two offenders’ involvement in the criminal enterprise. That difference arises from, among other things, the following matters:

   1. (1)

      the Applicant personally recruited and paid Lou to participate in the criminal scheme;

   2. (2)

      the Applicant derived a substantially greater monetary benefit from the offending than Lou;

   3. (3)

      the Applicant provided the premises for the manufacture;

   4. (4)

      the Applicant sourced manufacturing equipment and chemicals required for the manufacturing process; and

   5. (5)

      the Applicant was largely responsible for undertaking the manufacturing process, whereas Lou had no knowledge or expertise in the manufacture of methylamphetamine.

10. [53]

    In addition, evidence was led before Madgwick ADCJ QC that Lou was addicted to methylamphetamine, and engaged in the offending at least partly in exchange for drugs. As I have noted, however, his Honour made no express findings about what payment Lou received for the offending conduct.

11. [54]

    On the part of the Applicant, the factors I have outlined are consistent with a thoroughly planned course of criminal conduct, motivated by a desire for a significant financial reward, and in the context of close involvement in organised crime. The Applicant occupied an indispensable place in a criminal group responsible for the production of large amounts of methylamphetamine. Lou, on the other hand, appeared to have little involvement in the criminal group other than by virtue of the relatively menial tasks he performed for the Applicant. His offending was motivated by, on the Applicant’s account, a modest financial incentive, and on his own account, his addiction to methylamphetamine. In either case, I consider there to be very significant differences in the nature and degree of criminality inherent in each offender’s conduct.

12. [55]

    With respect to the Applicant’s subjective case, it may be accepted that the Applicant’s personal circumstances were in some respects more compelling than Lou’s. Evidence before the sentencing judge established that the Applicant experienced a difficult childhood, and that he suffered from a number of psychological conditions. Lou, on the other hand, was raised in a comfortable and supportive familial environment, and had no diagnosed mental health conditions other than a substance use disorder, which he has overcome in custody.

13. [56]

    The force of this submission is significantly reduced, however, by the sentencing judge’s finding that the asserted relationship between the Applicant’s diagnosed conditions and his offending was a “tenuous one”. In any case, the Applicant’s moderately stronger subjective case does little to detract from his significantly more serious offending, particularly in circumstances where, as the sentencing judge recognised, the need for general deterrence is considerable. Further, as I have noted at [31], his Honour did have regard to the Applicant’s mental health conditions in making a finding of special circumstances when fixing his non-parole period for the State offences.

14. [57]

    Finally, in oral argument, counsel for the Applicant drew attention to remarks made by the prosecutor before the sentencing judge, which he contended amounted to a concession that the indicative sentence for Count 2 should be only “modestly lengthier” than that which was imposed by Madgwick ADCJ QC on Lou. Those remarks were as follows:

15. [58]

    One difficulty which arises from this passage is that it is unclear whether the prosecutor was referring to the indicative sentence before or after the application of any relevant sentencing discounts. The prosecutor’s reference to the Applicant’s disclosures to law enforcement authorities, in the context of the deemed supply offence, suggests that he may have been referring to the appropriate indicative sentence after allowing discounts for assistance. If this is so, it is arguable that the discounted indicative sentence attributed to Count 2 (being six years and seven months) in fact was only “modestly lengthier” than the head sentence imposed upon Lou (being four years and six months). In any case, the sentencing judge’s discretion was not bound by the prosecutor’s submissions as to the appropriate sentence relative to co-offenders. I do not consider these comments to be material to the present appeal.

16. [59]

    For the reasons I have outlined, the disparity between the sentences is plainly capable of being “justified by differences between… the part each has played in the relevant criminal conduct or enterprise”, [10] notwithstanding the Applicant’s slightly stronger subjective case. To the extent that the indicative sentence attributed to Count 2 provides some guidance as to the application of the parity principle, I am satisfied that any disparity is not such as to warrant appellate intervention. More pertinently, the indicative sentence reveals no relevant disparity affecting the aggregate sentence imposed by the sentencing judge for Counts 2, 4 and 5. In this respect, it is relevant that the aggregate sentence imposed by the sentencing judge was consistent with a substantial degree of concurrency between the indicative sentences, had they been imposed as separate sentences.

17. [60]

    Having regard to the differences in the offending conduct, and bearing in mind the discretionary nature of the sentencing process, the sentence imposed by the sentencing judge was plainly open to him.

Disposition

1. [61]

   For these reasons, I would grant leave to appeal but dismiss the appeal.

2. [62]

   BUTTON J: I agree with the Chief Justice.

3. [63]

   N ADAMS J: I agree with Bell CJ.