Shi v R

1. [1]

   HOEBEN CJ AT CL: I agree with Bellew J.

2. [2]

   ADAMSON J: I agree with Bellew J.

3. [3]

   BELLEW J: Zie Pie Shi (“the applicant”) pleaded guilty before the Local Court to an offence contrary to s. 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) in the following terms:

4. [4]

   The applicant adhered to that plea before the District Court and asked that a further offence of participating in a criminal group contrary to s. 93T(1A) of the Crimes Act 1900 (NSW) be taken into account on sentence.

5. [5]

   On 16 October 2015 the applicant was sentenced by Acting Judge Hosking SC to a non-parole period of 7 years imprisonment with an additional term of 3 years. He now seeks leave to appeal against his sentence on a single ground, namely that the sentence is too severe having regard to what is said to be an unjustified disparity with the sentences imposed upon his co-offenders.

The facts of the offending

1. [6]

   The sentencing judge found the facts of the offending to be as follows (commencing at ROS 2):

2. [7]

   It is important to emphasise, as the sentencing judge set out, that the charge to which the applicant pleaded guilty encompassed five (5) separate instances of supply as follows:

The applicant’s role in the offending

1. [8]

   The sentencing judge made the following findings regarding the role played by the applicant in the enterprise surrounding the various supplies (commencing at ROS 6):

The applicant’s co-offenders

1. [9]

   Three other persons were charged in respect of their involvement in the supply of the methylamphetamine in which the applicant took part.

San Sang Chan

1. [10]

   San Sang Chan (“Chan”) was found guilty by a jury in late 2016 following a trial in the District Court. The Court was informed on the hearing of the present application that he is to be sentenced later this year.

Moheen Mohammed

1. [11]

   Moheen Mohammed (“Mohammed”) appeared before his Honour Judge Bennett SC in the District Court on 15 July 2016, having pleaded guilty to the same charge (encompassing the same five instances of supply) as that brought against the applicant. Mohammed also asked the court to take into account the same matter contained on a Form 1.

2. [12]

   In sentencing Mohammed, his Honour found (at ROS 6) that Mohammed’s role was “as an employee of the group to deliver to customers prohibited drugs provided by his co-offenders”. That description of Mohammed’s role necessarily placed him at a level in the hierarchy below that of the applicant. His Honour then went on to say (at ROS 20):

3. [13]

   Mohammed was sentenced to a non-parole period of 5 years, with an additional term of 3 years. In imposing that sentence, Judge Bennett SC observed (at ROS 21):

Tony So

1. [14]

   Tony So (“So”) appeared before Acting Judge Hosking SC for sentence on 7 October 2016, having pleaded guilty to a charge of supplying a prohibited drug based solely upon his involvement in the supply on 16 April 2014.

2. [15]

   In assessing the role played by So, his Honour said (commencing at ROS 5):

3. [16]

   These findings necessarily placed So at a level in the hierarchy below that of both the applicant and Mohammed.

4. [17]

   His Honour imposed a non-parole period of 4½ years imprisonment, with an additional term of 2½ years of imprisonment.

5. [18]

   It is important to note that no direct challenge was made by senior counsel for the applicant, on the hearing of this application, to any of the factual findings made by the respective sentencing judges as to the roles played by any of the three offenders.

THE GROUND OF APPEAL

1. [19]

   The applicant advances a single ground of appeal which is expressed in the following terms:

Submissions of the applicant

1. [20]

   Senior counsel submitted that the applicant had a justifiable sense of grievance arising from the sentences which had been imposed upon both Mohammed and So. In advancing this submission, it was argued that the similarities between the offenders, both objectively and subjectively, did not justify what was said to be disparities in the sentences imposed between Mohammed and So on the one hand, and the applicant on the other. Senior counsel for the applicant submitted that the applicant’s justifiable sense of grievance arose, in particular, from the differing non-parole periods which were imposed.

2. [21]

   It was submitted that whilst the applicant was responsible for obtaining the quantities of the drug and passing them on to Mohammed, Mohammed had dealt directly with the undercover police, negotiated with them, and handed the drugs to them in exchange for money. Senior counsel emphasised that whilst the applicant and Mohammed were together on some occasions, there were other occasions on which Mohammed performed those tasks alone.

3. [22]

   It was further submitted that in respect of the supply on 16 April 2014, So had also played a significant role. Senior counsel submitted that on that occasion So had “acted as though he was in charge of the suppliers”. However, it was conceded that it was not alleged that So had played any part in any of the earlier instances of supply. Ultimately, It was submitted that properly analysed, each of So and Mohammed “played roles of similar seriousness”.

4. [23]

   Senior Counsel further submitted that the applicant had a justifiable sense of grievance arising from the manner in which the respective sentencing judges had addressed the issue of the drug use of the individual offenders. It was submitted that Acting Judge Hosking SC had concluded that the applicant’s drug addiction provided “little or no justification” for his offending, but that Judge Bennett SC had been “more sympathetic” to this issue in respect of Mohammed (although it should be noted that his Honour ultimately concluded that the extent to which such a factor might ameliorate any sentence was necessarily limited).

5. [24]

   Senior counsel accepted that the applicant had a more serious criminal history than Mohammed, but submitted that such history was less serious (at least in respect of drug offending) than that of So. He further submitted that excessive emphasis had been given to the applicant’s criminal record by Acting Judge Hosking SC, in circumstances where So had also previously had a significant sentence imposed in respect of drug supply. It was submitted that Acting Judge Hosking SC had been far more lenient towards So when dealing with that aspect of his sentence than he had been when sentencing the applicant, and that this reflected an inconsistent approach.

Submissions of the Crown

1. [25]

   The Crown submitted that there were a number of factors which justified the differences in the sentences imposed on each of the offenders. Primarily, the Crown relied on the fact that the applicant had been assessed as having had a substantially more senior role in the enterprise than either of his two co-offenders.

2. [26]

   It was also pointed out that the applicant had a prior history of commercial drug supply (and other offences) for which he had received full time custody. It was submitted that in those circumstances, specific deterrence was necessarily an important consideration in the applicant’s case.

3. [27]

   The Crown also pointed out that the finding of special circumstances made in favour of the applicant had been imposed as a consequence of the extra curial punishment arising from the injuries sustained in the course of his arrest, and not on the basis of any particular need for rehabilitation (the latter having been the basis for the finding of special circumstances made in respect of each of the two co-offenders).

4. [28]

   To the extent that the applicant asserted that the sentencing judge had given “excessive emphasis” to his criminal history, the Crown submitted that such an assertion, properly viewed, raised an issue regarding the weight to be given to subjective factors on sentence. It was submitted that this Court had, on many occasions, highlighted the difficulty involved in advancing a ground of appeal based on the proposition that insufficient weight had been given to a particular factor.

5. [29]

   Ultimately, the Crown submitted that the applicant had failed to demonstrate that there was a marked, clearly unjustifiable, or manifest discrepancy between the respective sentences so as to engender a justifiable sense of grievance on the part of the applicant.

Consideration

1. [30]

   In Why v R [2017] NSWCCA 101 Walton J (with whom Hoeben CJ at CL and RA Hulme J agreed) summarised the principles relating to parity as follows (at [43]-[45]);

2. [31]

   For a number of reasons, the application of these principles in the present case leads to the conclusion that the ground relied upon by the applicant is not made out.

3. [32]

   As I have noted, senior counsel for the applicant did not take specific issue with any of the factual findings reached by Acting Judge Hosking SC when sentencing the applicant. Significantly, these factual findings included that the applicant:

4. [33]

   These factors led his Honour to conclude (inter alia) that whilst the applicant was not “at the top of the supply chain, he was not at the bottom of it either”. His Honour went on to observe that the applicant was “not simply a courier of these various amounts of methylamphetamine, he was actively sourcing them from Chan”. His Honour’s ultimate conclusion was that even if evidence given by the applicant on sentence was accepted, he was actively acting as a middle man in ongoing methylamphetamine supplies for profit.

5. [34]

   Clearly, the position occupied by the applicant in the hierarchy was higher than that of either Mohammed or So, and the tasks that he performed were far more significant. In the case of Mohammed, Judge Bennett SC found that he was “an employee of the group to deliver to customers prohibited drugs provided by his co-offenders”. It is self-evident that one of the co-offenders who supplied the drugs to Mohammed was the applicant. In terms of So, Acting Judge Hosking SC was not prepared to reach any precise conclusion as to his role, or his position in the hierarchy. He did, however, conclude that it was probable that So was “closer to the bottom of the hierarchy than he was to the top”. That was completely consistent with the fact that So’s involvement in the enterprise was limited to the supply which took place on 16 April 2014, he having played no role whatsoever in the earlier supplies which took place on 5 February 2014, 5 March 2014, 26 March 2014 and a 8 April 2014. I am unable to accept the submission advanced on behalf of the applicant that the earlier instances of supply were inconsequential. Clearly that is not the case, given the amounts involved. The finding as to So’s role was also completely consistent with what he actually did on the occasion of the supply on 16 April 2014.

6. [35]

   It follows that on any view of the evidence, the role played by the applicant was substantially greater than that of either Mohammed or So. That alone tends against the proposition that the applicant should have a justifiable sense of grievance.

7. [36]

   As I have previously noted, in oral submissions before this Court senior counsel for the applicant focussed upon the non-parole periods imposed and effectively submitted that the disparity in those periods highlighted the unjustifiable sense of grievance held by the applicant. In the applicant’s case, his Honour adjusted the statutory ratio between the non-parole period and the head sentence to 70% on account of the extra curial punishment suffered by the applicant at the time of his arrest. His Honour (at ROS 14) expressed some uncertainty as to the applicant’s prospects of rehabilitation, and whether he was likely to re-offend. Accordingly, there was no basis on which it was open to his Honour to make any finding of special circumstances so as to further adjust the statutory ratio.

8. [37]

   When sentencing Mohammed, Judge Bennett SC found (at ROS 17-19) that various aspects of that offender’s subjective case supported a finding of special circumstances “requiring a longer period on parole to allow the prospects of rehabilitation, such as they might ultimately be, to evolve under appropriate supervision”. Similarly, when sentencing So, Acting Judge Hosking SC found, notwithstanding the fact that this was the second occasion on which So was to be sentenced to a term of imprisonment, that special circumstances were made out. His Honour concluded (at ROS 13) that So required a long period of post-release supervision in order to address his long standing drug and gambling habits. The differing circumstances which were found to exist in the respective cases explain why the non-parole periods differ.

9. [38]

   Finally, reliance was placed by the applicant on the treatment of his criminal history by the sentencing judge, compared with the treatment of the respective histories of the two co-offenders. The applicant’s record included previous convictions for commercial drug supply, malicious wounding in company and kidnapping. Although Mohammed had a conviction for trafficking drugs in the Australian Capital Territory, Judge Bennett SC found that the applicant’s antecedents were “far worse” (at ROS 21). A comparison of the respective criminal histories justifies that conclusion.

10. [39]

    So’s record was significant. In particular, it included two previous instances of commercial drug supply. However, even if it were accepted that his record was worse than that of the applicant, it must be emphasised that that was not the only relevant factor on sentence. As I have already pointed out, So’s offending was far more limited, and was carried out at a level substantially below that of the applicant.

11. [40]

    For all of these reasons, the ground of appeal relied on has not been made out.

ORDERS

1. [41]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.