Zhang v R

HOEBEN CJ at CL:

There was taken into account on sentence on a Form 1, an offence of knowingly participate in a criminal group and direct activities, contrary to s 93T(1A) Crimes Act 1900 (NSW) which carries a maximum penalty of imprisonment for 10 years.

The applicant was sentenced to a term of imprisonment with a non-parole period of 6 years and 9 months, commencing 3 October 2015 and expiring 2 July 2022, with a balance of term of 2 years and 3 months, expiring 2 October 2024.

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by King SC DCJ (the sentencing judge) in the Sydney District Court on 23 June 2017.

The applicant relies upon the following grounds of appeal.

In December 2014 police attached to the State Crime Command Organised Crime Squad commenced Strike Force Sylvia, an investigation into a co-offender, Li Wang, and his involvement in the supply of prohibited drugs. As part of this investigation, an authority to conduct a controlled operation was granted and a surveillance device warrant issued in respect of the applicant.

At the time the applicant resided in Naulty Place, Zetland. Li Wang was the registered owner of a black Mercedes Benz sedan, registration number BSA 64G.

At about 12pm on 14 May 2015, the applicant, Li Wang and Z Zhang met at the East Village Shopping Centre in Zetland. At about 1pm Li Wang and the applicant entered the Mercedes motor vehicle and travelled to Moore Park Supa Centa car park. During that time, Z Zhang, Junjie Liang and Bin Sun were standing on the eastern footpath of Gadigal Avenue. At about 1.15pm, Z Zhang walked across Gadigal Avenue and out of sight. Moments later he walked back towards the eastern footpath carrying a bag. Subsequently Junjie Liang and Bin Sun were both seen in possession of brown coloured bags, and Z Zhang was seen without a bag.

Z Zhang, Junjie Liang and Bin Sun walked to the Moore Park Supa Centa car park which was a short distance from Gadigal Avenue. Junjie Liang and Bin Sun were seen to walk a short distance behind Z Zhang. During this time physical and electronic surveillance monitored Li Wang meeting with a police undercover operative, “George”, seated in a vehicle.

A short time later, the applicant exited the Mercedes and approached Li Wang, who was seated in the passenger seat of the undercover operative’s vehicle, and appeared to have a conversation. The applicant then walked to the southern entrance of the car park where he met with Z Zhang. The applicant and Z Zhang walked north through the car park with Junjie Liang and Bin Sun following metres behind, each still in possession of a brown bag. The four persons congregated in the vicinity of the black Mercedes.

Li Wang exited the operative’s vehicle and approached the four co-accused before returning to the vehicle. Moments later the applicant approached the vehicle where Li Wang was seated in the passenger seat and appeared to have a conversation. He then walked towards the three co-accused, and indicated with his hand for them to walk over. Z Zhang and Bin Sun walked in the direction of the operative’s vehicle. Z Zhang raised his hand and indicated to Bin Sun to stop. Bin Sun stopped approximately four metres from the vehicle. The applicant and Z Zhang walked to the passenger side of the vehicle. At this point, it was clear that Z Zhang and the applicant were the facilitators of the sale of the prohibited drug and in control of the transaction.

Z Zhang entered the vehicle and sat in the rear seat behind the driver’s seat. Bin Sun walked to the vehicle carrying a brown bag and entered the rear passenger seat of the vehicle. Junjie Liang walked towards the vehicle, but hesitated and stopped metres from it, before stepping backwards. The applicant indicated for Junjie Liang to walk to the vehicle. As he was doing so, the applicant walked to the eastern wall of the car park and out of view. Junjie Liang handed Bin Sun a brown bag through the open door and walked towards the applicant, who was standing near the eastern wall of the car park. Bin Sun handed the two brown bags to the undercover operative who was seated in the driver’s seat.

During this transaction, Li Wang and Z Zhang were present in the vehicle. Li Wang and the operative then exited the vehicle. Police attached to the Tactical Operations Group intervened and detained all persons and arrested and cautioned the offenders.

Located within the two brown bags was 997.2 grams and 999.7 grams of methylamphetamine respectively. Also located in a grey bag were five BlackBerry smart phones.

The investigation revealed that Li Wang is a facilitator and distributor of encrypted BlackBerry mobile devices to a number of criminal syndicates for the purpose of avoiding detection from law enforcement agencies.

Li Wang, Z Zhang, Bin Sun and the applicant were conveyed to the Surry Hills Police Station where they participated in electronically recorded interviews. The applicant refused to answer questions asked by the detectives, as was his right. He was then charged with the offence now before the Court.

The sentencing judge found that:

The sentencing judge assessed the objective seriousness of the matter insofar as the applicant was concerned as at least in the midrange, and that the applicant had a significant role in relation to the offending.

The sentencing judge observed that although methylamphetamine is not distinguished from other prohibited drugs, in recent years it had become a serious problem of an increasing nature for the community. There was no level of society or geographical area in New South Wales where it had not penetrated and its adverse effects on those who use it and on the community itself were well known.

In relation to subjective matters, the sentencing judge had before him a pre-sentence report written by Lucinda Bennett, dated 19 April 2017, a psychological report from Mr Gorrell, dated 17 June 2017, a number of TAFE completion certificates, letters from Chaplain Bazan, employed by Corrective Services and from Mr Jack Simpson, dated 20 January 2017, congratulating the applicant on completing the “Great Truths of the Bible” course, together with a certificate as to its completion.

The applicant did not give evidence on sentence.

The sentencing judge reviewed the applicant’s criminal history. In March 2015 the applicant was dealt with in respect of an offence committed in August 2014 of supplying a prohibited drug and sentenced to imprisonment for 14 months, commencing 4 August 2014. The non-parole period was 8 months, concluding on 3 April 2015 with release to be subject to supervision. Accordingly, at the time of this offence on 14 May 2015, the applicant was at conditional liberty having been granted parole on 3 April 2015. This offence was committed within six weeks of his release to parole. As a result of the applicant’s arrest in respect of this matter, the balance of his parole was revoked from 15 May 2015 and the balance of that sentence expired on 4 October 2015.

His Honour regarded the commission of offences while on parole as a significant aggravating circumstance. His Honour noted that offences committed while on parole demonstrate that rehabilitation, which parole is designed to assist, has failed. His Honour was not prepared to proceed on the basis of some expectation of rehabilitation in this case.

His Honour regarded as a matter of serious concern, that the offence in respect of which the applicant was on parole was an offence of the same nature as this offence and that this offence occurred within such a short period after having been released to parole. It was for that reason that his Honour declined to make the sentence in relation to this matter concurrent or partially concurrent with the revoked parole period.

His Honour noted that the applicant was aged 22 at the time of the offence and was now aged 25. He was born and raised initially in Mongolia as part of the Peoples’ Republic of China. His parents separated in 2004 and his father migrated to Australia with him to join up with his paternal grandparents, who were already residing in Australia. His father died of cancer in 2011, his grandfather died in 2013 and an aunt died of cancer in 2015. His only relative currently residing in Australia is his grandmother.

During his six weeks of liberty on parole, the applicant was casually employed as a gyprocker. He is the only child of his parents, who had good jobs, and the family was financially sound. His parents separated when he was aged 12 and he went with his father because of the opportunity of migrating to Australia and the better opportunities that that might afford.

On migrating to Australia, he attended an English language school for 12 months. Following expulsion from high school, he attended the Liverpool TAFE where he studied to complete the school certificate and thereafter the Ultimo TAFE where he undertook studies in business administration.

It was reported in the psychological report that when the applicant was aged 19 he did not cope well with his father’s death and was introduced to methylamphetamine by a fellow gyprocker, having never been involved with illicit substances before that. The applicant claimed to have ceased using ice for 12 months in 2012 but in 2013 after his grandfather’s death, he relapsed into ice use and his addiction developed to a point where he was unable to work. Having lost his job, he began working for a methylamphetamine dealer in order to support his habit. He was detected in 2014, arrested and imprisoned as already indicated.

Within six weeks of being released on parole, the applicant reconnected with his past drug associates and was again using ice, and was again working for his dealer. He claimed to the psychologist that his role in the offence was to simply do what others told him to do and that he was to receive 2g of ice by way of payment.

His Honour observed that there was no independent evidence as to what the applicant was going to receive, either by way of drugs or payment. His Honour was of the opinion that the applicant, who was on parole for an offence of supply, must have anticipated a more significant reward for his participation in this serious offence than simply being provided with 2g of ice for his own consumption. Because the applicant did not give evidence on sentence, his Honour determined that what he had said at various times to a psychologist or in a pre-sentence report must be carefully scrutinised and the court must be highly circumspect as to what statements it accepted as correct. By way of illustration, his Honour quoted some parts of the pre-sentence report and commented as follows:

His Honour found that the applicant had made a clearly false statement to the pre-sentence officer, at least in part. He sought to explain that to the psychologist engaged on his behalf by claiming that his false statement was as a result of poor advice and that he was confused. His Honour commented:

His Honour noted that the applicant had written a letter to the court, which was tendered subject to weight. In that letter he expressed remorse and contrition for his offending. His Honour did not place much weight on the letter because the applicant had not given evidence and was not cross-examined on the assertions in the letter. As a result, his Honour concluded:

His Honour accepted that the applicant had a history of polysubstance abuse and that at the time of committing this offence, he was using ice on a regular, if not daily, basis. His Honour accepted that the applicant was dependent on ice and was continuing to use illicit substances during his current period of incarceration.

For that reason, his Honour was unable to find that there were good prospects of rehabilitation nor could his Honour find that there was a low prospect of re-offending. His Honour then proceeded to sentence the applicant.

On 12 March 2018 the Registrar of the Court of Criminal Appeal supplied the parties with a document, signed by the sentencing judge, which purported to be a report made in accordance with s 11 of the Criminal Appeal Act. The report seeks to explain why it was that the sentencing judge did not refer in his sentence judgment to allowing a 25 per cent discount in favour of the applicant in respect of his early plea of guilty.

Section 11 relevantly provides:

The content and purpose of such a report was considered by this Court in R v Sloane [2001] NSWCCA 421; 126 A Crim R 188 where Wood CJ at CL (with whom Studdert and Bell JJ agreed) said:

Section 11 was considered by this Court in Vos v Regina [2006] NSWCCA 234 (Spigelman CJ, Hoeben and Rothman JJ). In that case a report was received from the sentencing judge explaining his reasoning for arriving at the sentence which he did. The Court cited R v Sloane with approval and concluded:

The same can be said of the report from the sentencing judge in this case. The report does not meet any of the purposes for which s 11 was enacted and I propose to disregard it.

The applicant submitted that although two grounds were relied upon, the basis for the second ground was the failure of the sentencing judge to note and take into account the fact of the plea of guilty. The applicant submitted that a sentencing judge however experienced has a duty in the individual case to acknowledge that there has been a voluntary plea of guilty by the offender and to take that fact into account. The applicant submitted that this would normally involve some reduction in the otherwise appropriate sentence, or an explanation why in exceptional cases such a reduction would not be appropriate.

The applicant relied specifically upon Edwards v R [2017] NSWCCA 160. There the sentencing judge had failed to refer to and apply a discount of 25 per cent, or any discount at all, in recognition of the applicant’s early entry of a plea of guilty.

Garling J (with whom Hoeben CJ at CL and Fullerton J agreed) said:

The applicant submitted that in the present matter there was no acknowledgment by the sentencing judge in his sentence judgment of the fact of the plea of guilty in the matter before him. No doubt he knew the history of the case but remarks on sentence delivered some days after evidence and arguments are the appropriate opportunity for the sentencing judge to expose his reasons for the sentence.

The applicant submitted in relation to the second ground of appeal that it was another aspect of the same problem. He submitted that his Honour adopted a view of contrition which was at odds with the longstanding practice of sentencing courts in that he could not find any “acceptable evidence of genuine remorse or contrition”. In that regard, the applicant relied upon an exchange which occurred at the sentence hearing where the sentencing judge said:

The applicant submitted that because his Honour did not acknowledge the plea of guilty in the sentence judgment, he could not have properly turned his mind to whether the plea of guilty in this case did express genuine contrition and remorse.

The applicant submitted that since clear error has occurred it was necessary, pursuant to Kentwell v The Queen [2014] HCA 37; 252 CLR 601, for him to be re-sentenced. On re-sentence the applicant submitted that proper regard should be had not only to the fact of the early plea of guilty but to the extent that the early plea was indicative of genuine contrition and remorse. The applicant submitted that the cause of his offending was his polysubstance abuse and in particular his ice addiction. The applicant referred specifically to the disruption which had been caused to his life by the separation of his parents, his migration to Australia and the premature death of family members such as his father and grandfather. The applicant also submitted that the Court should exercise its discretion in his favour so that any sentence it imposed in respect of this offending should be made partially concurrent with the revocation of the applicant’s parole in respect of the earlier supply offence.

There are some additional factual matters which need to be kept in mind. On 23 June 2017 as well as sentencing the applicant, the sentencing judge also sentenced his co-offenders, Li Wang, Ming Chun Wu and Bin Sun. In the reasons for sentence for each of the co-offenders the sentencing judge specifically referred to and made allowance for a discount for an early plea of guilty (Li Wang at p.1.6 and 16.15, Ming Chun Wu at p.2.3 and 15.9, Bin Sun at p.4.9 and 9.5). In point of time the last judgment handed down was that of the applicant.

In his reasons for judgment in respect of the applicant his Honour specifically referred to the applicant’s plea of guilty when setting out why the explanation given by the applicant to the pre-sentence reporter traversed his plea of guilty (at [30] hereof). Finally the oral submissions on sentence are replete with references to the applicant pleading guilty:

It is significant that those last exchanges between Mr Ainsworth and the sentencing judge took place four days before judgment was handed down.

A further matter of relevance is the mathematical neatness which occurs if one engages in the process of “reverse engineering” referred to in Edwards v R. The sentence imposed by his Honour was imprisonment with a non-parole period of 6 years and 9 months, with a balance of term of 2 years and 3 months. If one adds 25 per cent to those figures, one obtains a starting point of a non-parole period of 9 years with a balance of term of 3 years, i.e. a total sentence of 12 years compared to the total sentence of 9 years actually imposed on the applicant.

Although quantification of the discount for an early plea of guilty is preferable, a failure to do so does not necessarily by itself establish error: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [82]-[83]; R v DF [2005] NSWCCA 259 at [15]; R v Henare [2005] NSWCCA 366 at [26]. Whether a failure to explicitly state that a guilty plea has been taken into account indicates that the plea was not given weight depends on the circumstances of the particular case and the content of the reasons: Woodward v The Queen [2014] NSWCCA 205 at [6]. Where there is a real possibility that the plea was not properly considered, failure to refer to the issue in the judgment should be treated as a material error: Lee v R [2016] NSWCCA 146 at [37].

The decision in Edwards v R needs to be looked at against the background of those cases. For the reasons set out by Garling J, it was not appropriate to assume in the absence of any specific reference to the discount for an early plea, that the sentencing judge had applied a discount. The only matters which the Crown could rely upon in Edwards v R were the apparent mathematical neatness, i.e. reverse engineering, in the sentence actually imposed and a single reference in the sentence proceedings to the fact of the plea.

The situation in this case is different. There are a number of references in the sentencing proceedings to the fact of the early plea, the most recent of which were made four days before judgment was handed down. There was an explicit reference to the fact of the early plea in the sentence judgment itself. Most importantly, this sentence judgment was handed down as one of four sentences imposed on the applicant and three co-offenders. It was the fourth and last sentence handed down on 23 June 2017. In the three earlier sentence judgments his Honour had expressly referred to the discount for an early plea of guilty. Those indicia, taken with the mathematical neatness to which reference has already been made, persuade me that there was no “real possibility” that his Honour did not properly consider and apply an appropriate discount in respect of this applicant’s plea of guilty.

In relation to the second ground I am satisfied that it was open to his Honour in the absence of any evidence from the applicant to reject his letter to the court and his assertions to the pre-sentence reporter and the psychologist that he was genuinely contrite and remorseful in respect of his offending. The contrast between what he told the pre-sentence reporter and what he told the psychologist provided an appropriate basis for his Honour to be “very circumspect” in relation to statements of the applicant provided by way of hearsay evidence.

Reports from third parties may profess remorse on the part of offenders but it is well established that sentencing judges are entitled to treat such reports with considerable scepticism, particularly (as in this case) in circumstances where the applicant does not give evidence in the sentence proceedings: R v Qutami [2001] NSWCCA 353; 127 A Crim R 369, R v Harrison [2006] NSWCCA 185 at [68]; Butters v R [2010] NSWCCA 1 at [18]; Pfitzner v R [2010] NSWCCA 314 at [33]; Imbornone v R [2017] NSWCCA 144 at [55]-[59].

It follows that the applicant has failed to make out either ground of appeal. The orders which I propose are:

FULLERTON J: I agree with Hoeben CJ at CL.

DAVIES J: I agree with Hoeben CJ at CL.