Li v R

HOEBEN CJ at CL: I agree with Barr AJ

SCHMIDT J: I agree with Barr AJ

BARR AJ: This is an application for leave to appeal against a sentence imposed in the District Court. The applicant, Patrick Li, pleaded guilty to one count of knowingly taking part in the supply of a prohibited drug, 3 4 - Methylenedioxy-phenyyl -2-propanone, known as MDP2P, in an amount of 2,217.612kg, being an amount not less than the large commercial quantity for that drug. Woodburne SC DCJ sentenced the applicant to imprisonment and set a non-parole period of 12 years 3 months and a balance of term of 7 years 3 months. At the time of sentence the applicant was serving a sentence imposed in the County Court of Victoria for trafficking in a drug of dependence in a quantity not less than the commercial quantity. Her Honour set the applicant's sentence to commence on a day 2 years 3 months after the commencement of the Victorian sentence. The resulting aggregate sentence was of 21 years 9 months, comprising a non-parole period of 14 years 6 months and a balance of term of 7 years 3 months.

A co-offender, Keng Chuan Koh, was charged with the same offence. He pleaded guilty and on 10 June 2011 her Honour sentenced him to imprisonment. Her Honour set a non-parole period of 11 years 10 months and a balance of term of 4 years 8 months. Like this applicant, Koh had been convicted in Victoria of trafficking in a drug of dependence in a quantity not less than the commercial quantity and was already serving a sentence imposed in the County Court of Victoria. Her Honour ordered his sentence to commence on a day 2 years after the commencement of the Victorian sentence. As a result, Koh's aggregate sentence comprised a non-parole period of 13 years 10 months and a balance of term of 4 years 8 months. Koh applied for an extension of time within which to seek leave to appeal to this Court against her Honour's sentence. If permitted, he would have relied on these grounds, namely -

On 14 October 2013 this Court refused Koh's application. In doing so it recorded its opinion that the grounds of appeal lacked merit.

The facts were agreed. They may be summarised thus -

In due course the applicant was sentenced in the County Court of Victoria to imprisonment for 6 years 6 months with a non-parole period of 4 years 6 months. Koh was sentenced to imprisonment for 6 years with a non-parole period of 4 years.

In the meantime, police made investigations in Sydney. They searched the applicant's house at Padstow and found taxi driver authority cards in his name. They searched a factory unit at Castle Hill. There they found almost 400 containers, each containing about 5 litres of liquid. The containers were packed in cardboard boxes and plastic tubs. The liquid in the containers was shown by analysis to be pure MDP2P. MDP2P is not itself generally used as a drug, but is used to make MDMA, a highly marketable drug of addiction.

The police received assistance from the manager of the factory unit. He described visits by two men. He identified papers which referred to Koh and a business name, Glory Trading. The papers bore a telephone number that matched one of the telephones found in the applicant's car at Geelong. It was agreed at the hearing that the applicant and Koh were the men who had visited the manager of the factory units.

Police established that a shipping container had been brought to the factory unit on about 18 December 2006 and that three Asian men had unloaded cardboard boxes and put them in the unit.

On 11 December 2006 a business name, Glory Trading, was registered at the offices of the Department of Fair Trading. The applicant and Koh were recorded on closed circuit television at that department's premises. In that way the applicant was identified retrieving the registration form. He could be seen watching Koh. The applicant paid the registration fee. The person lodging the applicant was stated in the form to be Koh. The address given was false but the telephone number matched a telephone found in the applicant's car at Geelong.

The van impounded in Geelong was rented from a hire company by Koh in his correct name. His date of birth and Singapore passport number were correctly recorded on the rental agreement. The car used by the applicant was rented from the same company. The applicant was recorded by name as the hirer and his date of birth was correctly recorded. A telephone number recorded on the papers matched a telephone found in the applicant's possession at Geelong.

Examination of mobile telephone records showed that the telephones possessed by the applicant and Koh were used between 15 and 18 December 2006 in the part of Castle Hill where the factory unit was situated, at the Department of Fair Trading where the business name application was lodged and at Padstow. In the same way police were able to establish that the users of the telephones travelled to Melbourne on 18 December 2006. The key found in the applicant's possession at Geelong opened the factory unit lock.

In due course the applicant and Koh were transferred from Victoria to continue serving their sentences in New South Wales. On 27 January 2010 they were charged with the offence now under consideration.

In dealing with the objective seriousness of the applicant's offence, her Honour began by drawing attention to the amount of MDP2P involved, 2.2 tonnes, a quantity 4,000 times the prescribed large commercial quantity for the drug. Her Honour described the amount as "staggering" but correctly observed that the amount itself was not determinative of the sentence to be imposed. Comparing the two cases, her Honour said at RS 22-26 -

Having weighed the relative objective seriousness of the criminality of the applicant and Koh, her Honour brought subjective features into the balance. Her Honour continued at RS 34 -

Her Honour discussed general deterrence and continued at RS 34-35 -

Her Honour referred to the sentence previously imposed on Koh and continued at RS36 -

It is convenient to deal with the first two grounds of appeal together. They are -

Mr Odgers, SC, for the applicant, submitted in this Court that after noting the parties' respective positions. Her Honour erred in going on to identify what the applicant did rather than where in the hierarchy his role lay. Attention was drawn first to certain passages in the Remarks on Sentence extracted above. It was submitted that her Honour's reasons were not entirely clear, but should be understood to be -

The quoted words were extracted from the remarks on sentence. It was submitted that this reasoning involved error. First, her Honour failed to determine the objective seriousness of the applicant's offence. Secondly, her Honour elided the application of the principle that a sentence should be determined by an instinctive synthesis of all relevant factors with the application of the parity principle. Thirdly, her Honour's reasoning was inconsistent and illogical in that, having found that the applicant's role and level of participation were not substantially greater than those of Koh, her Honour concluded that the appropriate starting point of the applicant's sentence should be the same as that for Koh, even though the applicant's favourable subjective circumstances were much more strongly in his favour than Koh's were in his.

Mr Odgers began by citing Director of Public Prosecutions (C'wealth) v Gregory [2011] VSCA 145; (2011) 211 A Crim R 147 and the error exposed there. That was a Crown appeal against a sentence imposed in the Supreme Court of Victoria. The respondent's offence was a criminal conspiracy. A co-conspirator, one Wheatley, had already been sentenced and it became relevant for the sentencing judge to compare his and the respondent's respective parts in the conspiracy. The method adopted by the sentencing judge was to use Wheatley's sentence as a starting point and to add to or subtract from it factors which aggravated or mitigated the respondent's criminality. The instances of the process are set forth in the Judgment at [30]. The sentencing judge concluded thus -

The members of the Supreme Court of Victoria (Court of Appeal) disapproved of that approach. Their Honours said this at [36] -

Mr Odgers submitted that her Honour erred in precisely the way the sentencing judge had erred in Director of Public Prosecutions (C'wealth) v Gregory. That was because her Honour had essentially begun with the sentence previously imposed on Koh and had compared similarities and differences before concluding that the applicant's sentence should have the same starting point as Koh's. Mr Odgers submitted that her Honour never determined the degree of objective seriousness of the applicant's criminality. Whereas her Honour had to work out the applicant's position in the hierarchy relative to Koh's, her Honour merely focussed on what the applicant did. There was no finding as to his position in the hierarchy.

Mr Odgers referred the Court to the judgement of Simpson J in Tyler and Chalmers v R [2007] NSWCCA 247; (2007) 173 A Crim R 458). Her Honour said this at [78] - [81] -

Having referred to other authority, her Honour continued at [83] -

I do not agree with the applicant's characterisation of her Honour's enquiry and conclusion. Having summarised the positions taken first by the applicant, that he was just an interpreter and a mover of goods, and by the Crown, that his involvement was greater than Koh's and that he was higher in the hierarchy, her Honour considered what the applicant did as compared with what Koh did. Her Honour pointed out things done by the applicant and not by Koh and referred to the greater role the applicant had played in obtaining premises, paying rent and the like, and avoiding the risk of detection while exposing Koh to the same risk. Her Honour concluded that there was a basis for concluding that the applicant was in a slightly superior position in the hierarchy.

What her Honour was doing is clear from her stated intention to assess his role and level from what the applicant did. It was on those findings that her Honour concluded, in the passage I have extracted above, that there was a basis to conclude that the applicant's position was slightly superior to Koh's.

That last finding was, in my opinion, the very one Mr Odgers submitted had not been made. Her Honour could not have come to the conclusion that the applicant occupied a superior position without finding what he had done. Moreover the evidence would not have enabled her Honour to find out more about his position in the hierarchy than that it was above Koh's.

Accordingly, I would not accept Mr Odgers' submission that her Honour failed to determine the applicant's role, that is to say, his position in the hierarchy.

I return to Mr Odgers' last submission under these grounds. Essentially it amounted to this, that the applicant's subjective case was so much better than Koh's and the finding as to the objective seriousness of the applicant's case, as gauged by his position in the hierarchy, was so little worse than Koh's that her Honour could not, taking them both into account for each offender, properly have come to the conclusion that the starting point of the sentences for both men should be the same.

Mr Odgers pointed to these favourable features and submitted that the comparison between them and Koh's subjective circumstances was stark -

Her Honour was obliged to impose a sentence commensurate with the objective seriousness of the applicant's crime. While the amount of the drug could not determine the sentence, it was a matter her Honour had to take into account. It was accepted that the Crown could not prove that the applicant knew the quantity of the drug with which he was concerned, but he could not have failed to realise that the amount was enormous. That was bound to be of considerable weight in the determination of the sentence. Her Honour had to give appropriate weight to subjective features as well, but not so as to produce a sentence that failed to reflect the objective seriousness of the offence.

The result criticised by Mr Odgers shows that her Honour gave more weight to the applicant's subjective features than to Koh's. In the applicant's favour were findings as to his prior good character, his good prospects of rehabilitation, his age (56 years as against Koh's 31 years), his poor health and concerns about his family.

In Koh's favour were lack of intelligence and education and a consequent vulnerability to criminal exploitation. Koh had not seen any of his family since his arrest in 2006. His mother and paternal grandparents had died while he was in custody. His wife had divorced him. He had no family or friends in Australia. He had not been visited in prison.

Both offenders were motivated by financial gain. Mr Odgers submitted that the applicant had a better case for leniency because his motivation for participating in the crime was to pay off a gambling debt of $10,000. Although her Honour recited the fact and extracted portion of a psychological report dealing with the applicant's addiction to gambling and his anxiety about it, I think that her Honour did so only as a recitation of the underlying facts. While her Honour accepted the applicant's proffered reason for his desire to raise money, she did not treat that expressly as a mitigating feature. Nor, in my opinion, was her Honour obliged to do so. Her Honour referred to the applicant's need to overcome his addiction and the desirability of assistance from others to do so in support of his eventual reintegration into the community.

My impression is that on balance, the applicant had a better subjective case for leniency than Koh, but I would not describe the difference between the cases as stark.

In my opinion her Honour's conclusion that the different objective cases and the different subjective cases warranted the same starting point lay within the proper limits of her Honour's discretion. I do not think that the applicant has a justifiable sense of grievance by reference to the sentence imposed upon Koh.

In my opinion these grounds of appeal have not been made good.

The third ground of appeal asserts that her Honour erred in applying the totality principle.

As I observed earlier in these reasons, her Honour fixed the commencement of the applicant's sentence to effect a partial accumulation of two years 3 months upon the Victorian sentence. In Koh's case her Honour accumulated the sentence by two years. The reason for the difference was that the period of accumulation was in each case equivalent to 50% of the non-parole period fixed by the County Court of Victoria.

It was submitted in this Court that the degree of accumulation was impermissibly high and that, if that were not so, the period of accumulation of the applicant's sentence ought not have exceeded that of Koh's.

It was common ground in the District Court that the drugs in the van came from stock in the premises at Castle Hill. Mr Odgers submitted that in driving the drugs to Victoria, all the applicant and Koh had done was move 12% of the total stock from one place to another. If all they had done had been to move 12% of the stock from one factory to another in Sydney, he submitted, it would be hard to imagine that any significantly longer sentence would have been imposed. Mr Odgers referred to remarks in the Judgement of Howie J, with which Adams and Price JJ agreed, in Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41. At [27] his Honour said:

Mr Odgers submitted that the circumstances comprehended by the New South Wales and Victorian offences amounted to a single course of criminal conduct in relation to the total amount of the drug. He drew attention to the effect of the accumulation, which was to increase a sentence of 19 years 6 months to an aggregate sentence of 21 years 9 months. He submitted that a sentence of 19 years 6 months would have been sufficient to reflect the whole of the applicant's criminality.

In effect, Mr Odgers' final submission was that the applicant had a justifiable sense of grievance by comparing the partial accumulation of 2 years 3 months in his sentence with the accumulation of only 2 years for Koh's sentence.

I note that counsel for the applicant who appeared before her Honour asked her Honour to "accumulate or run the sentences as concurrently (as) possible". It would not be correct, I think, to characterise the events in Geelong as tantamount to a local movement of part of the drug stock from one premises to another. The events could be understood, I think, as no less than a significant step in the distribution of the drug interstate. The applicant's knowingly taking part in the supply of the drug at Castle Hill could not comprehend and reflect the criminality involved in the events that took place in Victoria. I do not think that the principle explained in Cahyadi assists the applicant.

Mr Odgers' second submission really amounted to an argument that her Honour's sentence was excessive, given the totality of the criminality comprehended by the two offences. In my opinion it fell well within the limits of her Honour's sentencing discretion.

In accumulating the applicant's sentence by 2 years 3 months and Koh's by 2 years, her Honour's intention was to allow the distinction the Victorian Court had drawn to continue to have some effect. In my opinion her Honour was entitled to do so. In the result her Honour discriminated in a way that did justice to both offenders.

In my opinion the third ground of appeal has not been made good.

I propose the following orders -