Lee v R

1. [1]

   HOEBEN CJ at CL: I agree with R A Hulme J and the orders which he proposes.

2. [2]

   R A HULME J: Hing Nong Lee (“the applicant”) was found guilty by a jury of an offence against s 307.3 of the Criminal Code 1995 (Cth) of importing methamphetamine, a border controlled drug.

3. [3]

   Against a prescribed maximum penalty of imprisonment for 10 years and/or a fine of 2000 penalty units ($340,000 at the time of the offence) her Honour Judge Hock imposed a sentence of 6 years with a non-parole period of 3 years 6 months.

4. [4]

   Her Honour specified the commencement date of the sentence as 31 March 2016 which has the effect that the applicant will become eligible for release on parole on 30 September 2019.

5. [5]

   The applicant seeks leave to appeal against the sentence on the following grounds:

6. [6]

   Ground 3, which asserted that her Honour erred in finding that the applicant was the “importer” of the substance, was abandoned at the hearing of the application.

Facts

1. [7]

   A parcel described as containing a tea tray was sent to Australia from China in July 2014. It was inspected by Australian Border Force on 22 July and found to contain three plastic bags with a gross weight of 3.2 kg. The substance within the bags contained methamphetamine but it was destroyed before purity testing could be carried out.

2. [8]

   On 23 July 2014 the applicant booked a flight to China departing on 24 July and returning to Sydney on 12 August.

3. [9]

   The parcel was addressed to Bee See Tan, a cousin of the applicant. He asked her to receive the package as he would be overseas. He offered her payment of $4000 but she declined. She had no knowledge of the drugs secreted within the parcel.

4. [10]

   There was a controlled delivery on 31 July 2014 and Ms Tan took receipt of the parcel. The applicant had instructed her to contact “Sam” to collect it and she did. Later that day, the applicant told her to call “Sam” again and tell him not to collect the parcel.

5. [11]

   On 1 August 2014 the applicant brought forward his return flight to 5 August 2014. This change coincided with him learning from Ms Tan that the parcel had arrived. The applicant was arrested at his home later that day.

6. [12]

   The applicant was committed for trial on 23 July 2015 for the index offence as well as for an offence of possessing a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine. He was found guilty of the former and not guilty of the latter at a trial in April 2016. There was a sentence hearing on 15 July 2016 and the judge imposed sentence on 19 August 2016.

7. [13]

   During the sentence hearing, counsel for the applicant took issue with a submission by the Crown that his client was motivated by the hope of financial reward by way of a "substantial profit". He submitted that "the evidence in this case was that he stood to gain some $2000 to $4000". The judge concluded that the applicant's "motivation for committing this offence was financial gain but the amount that he was to receive was unable to be determined, certainly beyond reasonable doubt."

Grounds 1 and 2 – errors in relation to weight/quantity

1. [14]

   Grounds 1 and 2 concern the following portion of the sentencing remarks:

2. [15]

   Her Honour appears to have accepted a submission by the Crown that "given the gross weight of the substance and the effort and cost the offender undertook to import it … he must have been aware that he was planning to import a substantial quantity of methamphetamine". Counsel for the applicant took issue with the first part of that submission, arguing that "there is no evidence that there was any significant cost attributed to him to import it". He did not take issue with the "substantial quantity" submission.

3. [16]

   In written submissions, counsel for the applicant had argued that "the highest it can be put is that the total weight of a substance including packaging was around 3 kg and initial testing showed that it contained an unknown quantity of methamphetamine".

4. [17]

   In this Court, counsel for the applicant submitted that “very little reliance should have been placed on the quantity of the seized drugs in the sentencing exercise”. It was also said that the evidence in the trial was that the applicant did not pack or send the parcel, and had not seen it either before or after it was sent.

5. [18]

   The issue raised by the applicant in these two grounds is whether her Honour erred by concluding there was "a substantial quantity of a border controlled drug" by basing that conclusion on the gross weight of the substance imported. An issue raised by the Court was how her Honour took into account her finding that the applicant was aware there was “a substantial quantity”.

6. [19]

   Given all of the circumstances surrounding the importation, it is inconceivable that the actual amount of (pure) methamphetamine was trivial or insubstantial. If it was, for example, why would the applicant offer his cousin $4000 to take delivery while he was absent from the country? Moreover, assume that the methamphetamine purity in the admixture was a modest 10 per cent, the quantity would be 320 grams which is well within what might be called “a substantial quantity”. (It was likely more than that.)

7. [20]

   There is no merit in the applicant’s submission under Ground 1 that her Honour erred by reasoning from the gross weight of the substance that there was a substantial quantity of methamphetamine.

8. [21]

   Offences concerning the importation (and exportation) of border controlled drugs and plants are contained within Sub-div A of Div 307, Pt 9.1 of Ch 9 of the Criminal Code. There are offences concerning commercial quantities, marketable quantities and unspecified quantities.

9. [22]

   The Criminal Code Regulations 2002 provides in Sch 4 a list of substances which are a “border controlled drug” and specifies their prescribed commercial and marketable quantities.

10. [23]

    In relation to methamphetamine, the offences in Sub-div A of Div 307, Pt 9.1 of Ch 9 of the Criminal Code, prescribed quantities and maximum penalties are:

11. [24]

    Generally speaking (there are some qualifications but they are not presently relevant), Commonwealth drug offences rely on purity to determine the quantity and hence the applicable offence: s 312 of the Criminal Code.

12. [25]

    In this case, although there was an importation of 3.2 kilograms of a substance containing the drug, it was by reason of the failure to determine the purity of methamphetamine that the charge was brought under s 307.3.

13. [26]

    It would have been erroneous for her Honour to take into account a matter that would have rendered the applicant liable for a more serious offence than that for which he was found guilty; for example, importing a marketable or commercial quantity of the drug: The Queen v De Simoni [1981] HCA 31; 147 CLR 383.

14. [27]

    The High Court recently in Nguyen v The Queen, [2016] HCA 17; 256 CLR 656 (Bell and Keane JJ at 666-7 [28]; Gageler, Nettle and Gordon JJ at 676 [60]) referred to the principle in The Queen v De Simoni by reference to the judgment of Gibbs J at 389:

15. [28]

    The written submissions for the Crown (at [30]) implicitly alluded to the principle in The Queen v De Simoni by referring to a possible range of quantity up to the marketable quantity threshold:

16. [29]

    The problem with that submission, however, is the failure to notice that the marketable quantity threshold is only 2 grams.

17. [30]

    Counsel for the applicant took the position that her Honour erroneously took into account that the amount of methamphetamine imported was 2.0 grams or more. On the other hand, in oral submissions, counsel for the Crown very skilfully sought to persuade the Court otherwise.

18. [31]

    First, counsel for the Crown pointed out (correctly) that there is no maximum quantity of drug for the purpose of the offence in s 307.3; in fact the prosecution is not required to prove any particular quantity, merely that there was a border controlled drug (or plant) that was imported.

19. [32]

    Secondly, Parliament had allowed for a prosecution under s 307.3 where there was an importation of less than the marketable quantity but the offender intended, or mistakenly contemplated, that the quantity was of a marketable or even commercial quantity. An inference to this effect was said to arise from the provision of the commercial intent defence in s 307.3:

20. [33]

    It was submitted that where the quantity of drug is less than the prescribed marketable quantity (2 grams for methamphetamine) it would be unusual for there ever to be an intention to sell. So, by providing for this defence, Parliament was conscious of the fact that a prosecution could be brought under s307.3 where the contemplation or intention was to import a larger quantity.

21. [34]

    The third step in the argument sought to focus upon the sentencing judge's use of the word "aware" in the expression of her finding that "the offender was aware that the item contained a substantial quantity of a border controlled drug". It was submitted that this indicated that her Honour was conscious that she could only take into account that the quantity was less than the marketable quantity but regarded it as relevant that the applicant thought the amount he had imported exceeded that amount.

22. [35]

    It was at this third step that the argument broke down. Nowhere in the proceedings on sentence or in her Honour's sentencing remarks was anything said about the need to ensure the applicant was not sentenced on the basis that the amount imported was 2 grams or more. No reference was made to the prescribed marketable quantity, the need to distinguish the offences from those in s 307.1 and s 307.2 involving commercial and marketable quantities, or the need to ensure there was no infringement of the principle in The Queen v De Simoni.

23. [36]

    It is, of course, important when reviewing a sentencing judgment not to scrutinise minutely in search of error. In this case, however, the reasoning of the judge seems clear. In the passage in question (above at [14]), her Honour said (relevantly) that the weight of the drug and the role of the offender, while not determinative, were two of the important factors in the sentencing exercise. She proceeded to discuss each of those two factors. In relation to weight she referred to the gross weight of 3.2 kg, the fact that purity testing was not carried out but then expressed her finding that that the applicant was aware there was "a substantial quantity".

24. [37]

    As I have said, this finding as to the applicant's awareness was clearly open. However, if her Honour was mindful of the fact that she could not take into account that a quantity of 2 or more grams was imported it would be expected that she would say so. The only conclusion is that she took into account that the importation was of an actual quantity that was "substantial"; and by that term it must be that her Honour had in mind 2 grams or more, likely considerably more.

25. [38]

    None of this should be taken to be a criticism of the sentencing judge as it is any easy error to fall into. No-one drew her Honour’s attention to the fact that the marketable quantity of methamphetamine was as low as 2 grams. The submissions for the both parties appear to have been oblivious to the issue. Even the written submissions in this Court (see the Crown’s above at [28]) appear to have be made without noticing it.

26. [39]

    This ground must be upheld. That has the effect that it is unnecessary to deal with the other grounds because the Court is required to re-exercise the sentencing discretion afresh in order to determine whether a lesser sentence was warranted and should have been passed: s 6(3) Criminal Appeal Act 1912 (NSW); Kentwell v The Queen [2014] HCA 37; 252 CLR 601.

Resentencing

1. [40]

   A relevant matter to take into account is the sentencing judge’s finding that the offender was “the importer”. This was the subject of Ground 3 which was abandoned. The judge said:

2. [41]

   The label "importer" was a shorthand description of the applicant's offending. It was more important, however, for her Honour to consider "the involvement of the offender in the steps taken to effect the importation": R v Lee [2007] NSWCCA 234 at [27] (McClellan CJ at CL, Howie and Hall JJ agreeing). That is what her Honour did and I agree with her Honour’s finding.

3. [42]

   Whilst it is necessary to have regard to the quantity imported as being less than 2 grams, it is undoubtedly the case and a highly relevant matter that the applicant’s intention was that a far more substantial amount of the drug be brought into the country. His moral culpability is greater for that reason.

4. [43]

   There was no complaint about the manner in which the sentencing judge referred to and took into account the applicant’s subjective case and other matters pertaining to the assessment of sentence. It will suffice to quote from her judgment:

5. [44]

   Other matters relevant to the assessment of sentence include the important need for general deterrence in drug importation offences (see R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at [72](g), (h) and (i)) and the guidepost of the maximum penalty of 10 years imprisonment.

6. [45]

   I assess the appropriate sentence as being one of 3 years. There should be an order releasing the applicant on recognizance after having served 1 year and 9 months.

7. [46]

   The sentence will date from 31 March 2016.

Orders

1. [47]

   I propose the following orders:

2. [48]

   WILSON J: I agree with R A Hulme J.