Lim v R

1. [1]

   HARRISON J: I agree with Bellew J.

2. [2]

   ADAMSON J: I agree with Bellew J.

3. [3]

   BELLEW J: Benjamin Lim (the applicant) pleaded guilty to a number of offences in the Local Court. Those offences, together with the applicable maximum penalties and the indicative sentences given by the sentencing judge, are set out in the following table provided by the Crown:

4. [4]

   The applicant appeared for sentence with a number of other persons including Allan So (So). Another co-offender, Dundee Wei (Wei) was sentenced on a separate occasion by the same sentencing judge.

5. [5]

   The sentencing judge imposed an aggregate sentence of 7 years and 6 months imprisonment with a non-parole period of 4 years and 11 months imprisonment. That sentence incorporated a discount of 40%, 25% of which was referable to the applicant's early pleas of guilty, and the remaining 15% of which was referable to his assistance to authorities.

6. [6]

   The applicant now seeks leave to appeal against that sentence on the grounds more fully considered below.

7. [7]

   The applicant requires an extension of time in which to bring the application for leave to appeal, which was not opposed by the Crown.

THE FACTS OF THE OFFENDING

1. [8]

   A statement of agreed facts was before the sentencing judge. [1] Those facts may be summarised as follows.

Sequence 1 - Supplying 139.1g of methylamphetamine on 26 July 2018

1. [9]

   Between 19 July 2018 and 24 July 2018, So and an Undercover Operative (UCO) engaged in an exchange of messages which culminated in a meeting taking place between them on 26 July 2018. Following that meeting, So and the UCO travelled in the UCO’s car to a car park in Wolli Creek where the UCO stopped and counted a quantity of cash in So’s presence. [2]

2. [10]

   A short time later, an Audi motor vehicle (the Audi) entered the car park. So then took a phone call, went over the Audi and entered the passenger seat. The UCO saw a male sitting in the driver’s seat of the Audi whom she recognised as Wei. So then returned to the UCO's car and was on the phone with Wei. The UCO had a short conversation with Wei in which he provided his mobile telephone number. [3]

3. [11]

   Wei then drove the Audi to an apartment building in Arncliffe where the applicant lived. Wei entered the building and was seen a short time later leaving the building with the applicant, who was carrying a plastic bag. The applicant and Wei then got into the Audi and drove back to the car park in Wolli Creek where the UCO and So were waiting in the UCO’s car. So got out of the UCO’s vehicle and met with Wei and the applicant before returning to the UCO's vehicle in possession of the plastic bag which had previously been carried by the applicant. The applicant was seen pacing back and forth in front of the UCO's car before having a conversation with the UCO in which he introduced himself as “Max”. The applicant then returned to the Audi. [4]

4. [12]

   So then handed the plastic bag to the UCO who looked inside and saw a clear resealable plastic bag containing a white crystalline substance which was later confirmed to be 139.1g of methylamphetamine with a purity of 74%. The UCO then handed So $17,500.00. [5]

5. [13]

   The Form 1 offence which the applicant asked the Court to take into account in respect of this charge involved the supply of 9.7g of methylamphetamine on 12 July 2018. On that day, So had supplied a bag of methylamphetamine to the UCO which weighed less than a full ounce. When the UCO insisted on being provided with the full amount which had been negotiated (i.e. 1 ounce), the applicant provided Wei with a bag containing a crystalline substance which represented the “shortfall”. [6]

The search of the applicant’s premises

1. [14]

   The remaining charges to which the applicant pleaded guilty are set out below. All of those charges arose out of items seized in the course of a search of the applicant’s premises. It is noted that in addition to the items giving rise to those additional charges, police also seized 18 mobile phones.

Sequence 7 – Supplying 158.32g of methylamphetamine on 30 August 2018

1. [15]

   Police located 158.32g of methylamphetamine, contained in three separate bags, in a safe in the applicant’s bedroom. [7] The applicant asked the sentencing judge to take into account three additional matters when sentencing him for this offence, namely:

Sequence 9 – Supplying 9.92g of methylamphetamine on 30 August 2018

1. [16]

   Police located 9.92g of methylamphetamine in a tall boy in the applicant’s bedroom. [11]

Sequence 10 – Supplying 51.48g of heroin on 30 August 2018

1. [17]

   Police located 51.48g of heroin in the safe (and elsewhere) in the applicant's bedroom. [12]

2. [18]

   The applicant asked that the sentencing judge take into account an additional matter when sentencing him for this offence, namely the supply of 4.78g of methorphan. [13]

Sequence 14 – Possessing a prohibited weapon

1. [19]

   In the course of the search of the applicant’s premises, police located a black hand held Taser on top of the applicant’s bed. [14]

Sequence 16 – Dealing with the proceeds of crime

1. [20]

   Police located a total of $27,685.00 in cash, part of which was in the safe in the applicant’s bedroom, and part of which was in a bag containing documents in the applicant’s name. [15]

Sequence 18 – Possessing an unauthorised pistol

1. [21]

   Police located a replica black handgun with an empty magazine. [16]

The sentence proceedings

1. [22]

   In the course of giving evidence before the sentencing judge, the applicant described his role in the supply of prohibited drugs as that of a “housekeeper”. [17] When cross-examined, he was asked: [18]

2. [23]

   The applicant was later asked: [19]

3. [24]

   The Crown submitted to the sentencing judge that the applicant was “a principal in a small and well organised network of drug suppliers”. [20] That submission was advanced on the basis that the applicant:

4. [25]

   Counsel for the applicant on sentence (who was not counsel before this Court) variously submitted to the sentencing judge that the applicant’s role amounted to “supplementing something [that was] already in progress” and that he was a “permanent custodian” and a “warehouse”, but not a “mastermind”. [21] Counsel further submitted that the applicant was not responsible for any decision making, and that he was doing nothing more than “fulfilling a need”. [22]

The findings of the sentencing judge

1. [26]

   In assessing the role of the applicant, the sentencing judge found that: [23]

2. [27]

   In rejecting the applicant’s assertion that he was nothing more than a “housekeeper”, her Honour said: [24]

3. [28]

   In the course of specifically addressing the submissions which had been made on the applicant’s behalf regarding his role, her Honour said: [25]

Submissions of the applicant

1. [29]

   Counsel for the applicant submitted that there was no evidence that the applicant had been responsible for setting up or managing the supply network, and that there was no evidence to distinguish between the role of the applicant on the one hand, and the respective roles of Wei and So on the other. It was further submitted that there was no evidence which contradicted the applicant's assertion that he simply lived in premises where drugs were kept, in what was described by counsel as a “warehouse-type scenario”.

2. [30]

   Counsel further submitted that the evidence, even at its highest, established no more than the fact that the applicant had assisted others in isolated instances of supply, in circumstances where he had not undertaken any organisational role, was not responsible for sourcing customers, was not responsible for determining the price of the drugs, and did not derive any significant profit. Counsel further submitted that the applicant’s possession of the firearm and the mobile phones did not permit her Honour to reach the findings that she did regarding the applicant’s role.

3. [31]

   It was submitted that in all of these circumstances, her Honour’s findings reflected error.

Submissions of the Crown

1. [32]

   The Crown submitted that it had been open to the sentencing judge to reject the evidence of the applicant and that having done so, it was open to her Honour to reach the findings that she did. The Crown submitted that those findings were supported by the agreed facts, particularly those facts surrounding the applicant’s possession of drugs, cash and weapons at his premises. In advancing these submissions, the Crown specifically relied on the factors set out at [24] above which had been the subject of submissions made to the sentencing judge.

Consideration

1. [33]

   In my view, this ground is not made out for a number of reasons.

2. [34]

   Firstly, I would agree that the applicant’s possession of a firearm and multiple mobile phones was not, by itself, capable of supporting her Honour’s findings as to the applicant’s role. However, the evidence was not limited to those factors. Her Honour, quite properly, took into account the entirety of the evidence in reaching her findings, which extended to evidence of the applicant’s activities, and his possession of large amounts of drugs and cash at his premises. In my view, the entirety of the evidence amply supported her Honour’s findings.

3. [35]

   Secondly, it is evident that in reaching her findings her Honour largely rejected the applicant’s evidence. In my view, it was well open to her Honour to do so. The applicant’s assertion that his role was “just to sit, and watch and get a message” was fundamentally at odds with the active role that he undertook in each of the instances of supply on 12 July 2018 [26] and 26 July 2018. [27] Such an assertion was also at odds with his possession of large amounts of cash and drugs, along with a prohibited weapon and a firearm, all of which her Honour properly regarded as indicia of drug supply. Further, the applicant’s assertion that he was not involved in weighing the drugs was contrary to his provision of the shortfall in the original amount supplied to the UCO on 12 July 2018. In light of the entirety of this evidence, I am unable to accept the submission that there was no evidence to contradict the proposition that the applicant was nothing more than a “warehouse”.

4. [36]

   Thirdly, I am unable to accept the submission that there was no evidence to suggest that the applicant had derived any significant profit from his activities. That submission is entirely contrary to the large amount of cash found in his bedroom.

5. [37]

   Fourthly, the absence of any evidence to support a conclusion that the applicant was responsible for setting up the scheme did not preclude her Honour from making the findings that she made. A person can obviously be a major participant in a scheme of organised drug supply without being responsible for that scheme’s inception.

6. [38]

   Fifthly, it was entirely open to her Honour, in reaching the findings that she did, to reject the applicant’s assertion that he was in possession of 18 mobile phones simply as a result of acquiring them over the course of his lifetime. That explanation was, in my view, entirely fanciful, particularly in light of the other items seized at the time, all of which occurred against a background of the applicant having taken an active role in two actual supplies of methylamphetamine.

7. [39]

   For all of these reasons, her Honour’s findings as to the applicant’s role do not disclose error.

8. [40]

   This ground is not made out.

GROUND 3 – THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE

1. [41]

   It is appropriate to address ground 3 in advance of ground 2, in circumstances where ground 2 raises a parity issue. [28]

The applicant’s subjective case

1. [42]

   Tendered before the sentencing judge was a joint report of Hasan Cinar and Ann-Marie De Santa Brigida, Psychologists, which followed an assessment of the applicant on 12 September 2019. The following background is drawn from that history.

2. [43]

   The applicant was born on 6 September 1985. He was raised by both of his parents until they divorced when he was aged 12. He arrived in Australia from Malaysia in 1987 with his mother and sister. At the age of 16, the applicant's mother moved interstate in order to be with her partner, at which point the applicant commenced living with his father. [29]

3. [44]

   The applicant was educated to Year 10. He suffered numerous difficulties in his schooling, reflected in regular truanting, engaging in fights and failing to comply with homework and assignments. Upon leaving school, he commenced a real estate course but did not complete it due to a worsening drug problem [30] which had commenced with the recreational use of MDMA and methamphetamine in his teens, but which subsequently escalated to daily use. [31]

4. [45]

   The applicant said that he “never had a chance” to engage in rehabilitation, and that he did not consider that he had ever really addressed the aetiology of his drug addiction. In terms of his plans for the future, he said that he was considering employment opportunities in the construction industry and had completed a Certificate III in Fitness whilst in custody. [32]

5. [46]

   Mr Cinar and Ms De Santa Brigida concluded that the applicant was suffering from an amphetamine-type substance disorder, as well as a gambling disorder. [33] They also concluded that the results of tests which were administered to the applicant demonstrated “some risk” of ADHD. [34] They further concluded that attachment problems from the applicant’s childhood and his subsequent substance abuse were the background to his psychological difficulties. They reported that the applicant posed a low to moderate risk of re-offending, and expressed the view that this level of risk could be further reduced by appropriate rehabilitation centring upon his addiction to illicit substances. [35]

6. [47]

   In his evidence, the applicant was asked about the reference to ADHD in the report: [36]

7. [48]

   A sentencing assessment report was also before the sentencing judge which noted that the applicant accepted full responsibility for his offending and had demonstrated a desire to do better in life. However, the report also noted that the applicant had reported that he considered that his addiction to illicit drugs continued to “take control of him”. [37] The report further noted that the applicant had a lengthy history of illicit drug abuse and that at the time of the offending, he was consuming approximately 1.5g of methylamphetamine daily. [38]

8. [49]

   Whilst the sentencing assessment report made reference to the fact that the applicant had demonstrated remorse for his offending behaviour, and had stated that he wanted to “change” and “make a better life”, the author of the report expressed the view that the applicant's expressions of remorse could be considered superficial, in circumstances where he had not elaborated on the position of the victims of his offending, and had stated only that he felt “bad” and knew that “what he did was wrong”. [39] That said, the report did note that the applicant had demonstrated a willingness to undertake intervention to address his offending behaviour. [40] The applicant was assessed as having a medium risk of re-offending. [41]

9. [50]

   A letter from the applicant was tendered to the sentencing judge, [42] in which he made reference to his previous drug addiction. The applicant expressed shame and remorse for his offending, stating that he was now drug free. A letter from the applicant's mother made reference to his remorse, and expressed ongoing support for him. [43] A number of other documents were tendered confirming the applicant’s completion of various TAFE courses. [44]

10. [51]

    In giving evidence, the applicant expressed a willingness to take prescribed medication to address his issues, saying that his “life has been held back because of ice” and that he was “at the point where [he] had enough”. [45] He said that his main goal was to “better himself” and be a valuable member of the community. [46] He expressed a willingness to undertake rehabilitation which he said that he “never had a chance to do”, and a preparedness to engage in ongoing psychological treatment. [47]

11. [52]

    The applicant’s criminal history [48] included a number of driving offences, in respect of some of which he was sentenced to terms of imprisonment. More significantly, in September 2015 he was sentenced to imprisonment for 3 years and 9 months for supplying a prohibited drug in an amount greater than the indictable quantity. At the time of the present offending, he was on parole for that offence.

The findings of the sentencing judge

1. [53]

   The sentencing judge said: [49]

2. [54]

   Her Honour concluded that the evidence fell short of establishing a formal diagnosis of ADHD in any event, [50] saying that she found the psychological report “unhelpful”. [51] Her Honour expressly took into account the TAFE records which had been tendered, the applicant’s letter to the Court, the letter provided by his mother, and the sentence assessment report, before concluding that the applicant had demonstrated little contrition or remorse. [52]

3. [55]

   Her Honour recognised the need to apply principles of totality and proportionality and concluded that there should be an added degree of accumulation in the respective sentences to be imposed. [53] She applied a discount of 40%, 25% of which was referable to the applicant's early pleas of guilty, and the remaining 15% was referable to the applicant’s assistance. [54] Her Honour also found special circumstances in light of the applicant's need for rehabilitation, supervision and guidance to address his addiction issues. [55]

Submissions of the applicant

1. [56]

   In advancing this ground, counsel for the applicant relied, to a large extent, upon the submissions advanced in support of ground 1. The essence of counsel’s position was that, on a proper assessment of the applicant’s role, and taking into account his subjective case, the sentence imposed was unreasonable or plainly unjust.

Submissions of the Crown

1. [57]

   The Crown submitted that having regard to the totality of the applicant’s criminality, the sentence imposed was not unreasonable or plainly unjust. In support of that submission, the Crown relied upon a number of matters. These included the applicant’s role and his criminal history. The Crown emphasised in particular, the need to assess the sentence which was imposed in light of the totality of the applicant’s offending.

Consideration

1. [58]

   In Goodbun v R this Court summarised the relevant principles applicable to a ground of appeal asserting manifest excess of sentence as follows: [56]

   1. (1)

      appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

   2. (2)

      intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

   3. (3)

      it is not to the point that an appellate court might have exercised the sentencing discretion differently;

   4. (4)

      there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

   5. (5)

      it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

2. [59]

   In addressing this ground in accordance with those principles, two observations should be made at the outset. Firstly, I have found that ground 1 has not been made out. That is obviously significant in circumstances where, in support of the present ground, counsel for the applicant relied largely upon the submissions advanced in support of ground 1. Secondly, and leaving aside the challenge to her Honour’s findings as to the applicant’s role (which I have rejected in dealing with ground 1) no issue was taken with any of her Honour’s remaining findings.

3. [60]

   For a number of reasons, I am not satisfied that the sentence imposed upon the applicant is unreasonable or plainly unjust.

4. [61]

   To begin with, the applicant was sentenced for seven separate offences, four of which carried maximum penalties of 15 years imprisonment, and two of which carried maximum penalties of 14 years imprisonment, with prescribed non-parole periods of 5 years imprisonment and 4 years imprisonment respectively. Those penalties, without more, reflected the seriousness of the applicant’s offending, and provided important guideposts for the sentencing judge. In addition, the applicant asked the sentencing judge to take into account a number of serious Form 1 offences. That required the sentencing judge to give greater weight to the need for personal deterrence, and the community’s entitlement to extract retribution for serious offences, with a view to increasing the penalty that would otherwise have been appropriate. [57] The relevance of personal deterrence was heightened by the fact that at the time of the offending the applicant was on parole for an offence of drug supply. General deterrence was also a significant consideration.

5. [62]

   Any sentence imposed was required to reflect the significance of the applicant’s role, not only in the two specific instances of supply, but in the broader sense reflected in his possession of the cash, drugs, the prohibited firearm and the prohibited weapon. For the reasons I have already set out in addressing ground 1, all of this evidence supported the conclusions reached by her Honour as to the applicant’s role. The applicant’s possession of the firearm, in particular, was significant.

6. [63]

   Further in my view, and aside from his pleas of guilty and his assistance (both of which were appropriately reflected in the significant discount applied by her Honour), the applicant’s subjective case was generally unremarkable. Her Honour was not prepared to find, in the absence of a formal diagnosis, that the applicant suffered from ADHD and thus rejected the proposition that any such disorder was causally related to his offending. Given the applicant’s criminal history, and the fact that he was on parole for the same offending at the time of commission of these offences, her Honour was justifiably guarded about his prospects of rehabilitation and found that he had displayed little contrition or remorse. As I have noted, none of these findings were challenged before this Court. Her Honour also made a finding of special circumstances in favour of the applicant which could be regarded as somewhat generous in light of his previous failures to engage in any successful drug rehabilitation. Finally, it is evident that her Honour was mindful of the need to (and did) apply principles of totality and proportionality.

7. [64]

   In circumstances where the offending was wide ranging and objectively serious, where the applicant’s role was significant, and where there was little of substance in his subjective case, I am not persuaded that the sentence imposed was unreasonable or plainly unjust.

8. [65]

   It follows that this ground is not made out.

The sentences imposed on the co-offenders

1. [66]

   Annexure C to the written submissions of the Crown was the following table setting out the sentences imposed upon the applicant, Wei and So respectively, as well as a notation of the findings of the sentencing judge in respect of each of them, both in terms of their respective roles and subjective cases.

Submissions of the applicant

1. [67]

   The submissions of counsel for the applicant in support of this ground centred upon the sentence imposed upon Wei. Counsel submitted in particular, that Wei had been involved in the two instances of supply with the applicant as well as a further instance of supply which he (Wei) had organised. Counsel also pointed out that So had pleaded guilty to a charge of ongoing supply as well as an individual instance of supply.

2. [68]

   Counsel submitted that there was “very little reasoning offered” in terms of differentiating between the roles of the applicant on the one hand, and each of the two named co-offenders on the other, which might justify the disparity in the sentences which were imposed.

Submissions of the Crown

1. [69]

   The Crown submitted that although the sentencing judge had been faced with a difficult sentencing exercise (particularly in circumstances where none of the offenders who appeared for sentence had pleaded guilty to precisely the same offences even though they had been involved in similar conduct) it was important to recognise that her Honour was obviously fully aware of the circumstances of each offender at the time of imposing their respective sentences.

Consideration

1. [70]

   The principle of equal justice requires, so far as the law permits, that like cases be treated alike. Equal justice also requires, where permissible, the different treatment of persons according to the differences between them. Consistency in the punishment of offences against criminal law finds its expression in the parity principle which requires that like offenders should be treated in a like manner, and which allows for different sentences to be imposed on like offenders to reflect different degrees of culpability and/or different circumstances. [58]

2. [71]

   The parity principle also recognises that equal justice requires that as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance. The question is always one of due proportion being structured between those sentences which is to be determined having regard to the different circumstances of the co-offenders and their different degrees of criminality. [59]

3. [72]

   It is also important to bear in mind that the sense of grievance necessary to attract appellate intervention with respect to sentences which are said to be unjustifiably disparate is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. As a consequence, this Court will refuse to intervene when disparity is justified by differences between co-offenders. [60]

4. [73]

   Whilst there is disparity in the sentence imposed on the applicant when compared with the respective sentences imposed upon Wei and So, I have come to the view that such disparity is entirely justified, having regard to the objective circumstances of the offending of each of them, and their respective subjective cases. This is so for a number of reasons.

5. [74]

   Fundamentally, the offences to which the applicant pleaded guilty covered a far broader range of criminality than was the case with either of his co-offenders. The applicant’s criminality included his possession of an unauthorised pistol. That was, of itself, serious offending which necessarily had to be encompassed by any sentence which was imposed. No such offence was alleged against either So or Wei.

6. [75]

   There was also a marked difference between the criminal history of the applicant on the one hand, and those of each of Wei and So on the other. The applicant’s history was far more significant, and his offending was aggravated by the fact that he was, at the time of the offending, on parole for precisely the same offence, as opposed to Wei (who was also on parole, but for a driving offence) and So (who was not on parole at all).

7. [76]

   Finally, as I have previously noted, her Honour found that the applicant had demonstrated little remorse or contrition for his offending. The opposite finding was made in the case of each of Wei and So.

8. [77]

   For all of these reasons, the applicant has failed to establish that he has a justifiable sense of grievance.

9. [78]

   It follows that this ground is not made out.

ORDERS

1. [79]

   I propose the following orders:

   1. (1)

      The time in which to file the notice of application for leave to appeal against sentence is extended to 8 December 2020.

   2. (2)

      Leave to appeal against sentence is granted.

   3. (3)

      The appeal is dismissed.