Kwok v R

1. [1]

   WARD JA: I agree with Bellew J.

2. [2]

   BELLEW J: On 23 July 2014 Yuk Ho Kwok (“the applicant”) pleaded guilty in the Local Court to the following offences:

3. [3]

   The offending in count 1 is contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DMT Act”). The offending in count 2 is contrary to s 25(2) of the DMT Act. Both offences carry a maximum penalty of life imprisonment with a standard non-parole period of 15 years imprisonment.

4. [4]

   The applicant adhered to his pleas of guilty when he came before the District Court on 19 August 2016 and was sentenced as follows:

5. [5]

   There was an accumulation of 3 years in the sentences which were imposed. The total term was one of 25 years imprisonment with a non-parole period of 17 years. The applicant will be eligible for release on parole on 16 June 2030. The applicant was sentenced along with two other co-offenders, Wai Man Wan (“Wan”) and Ka Ho Choy (“Choy”). A fourth offender, Chan Heng (“Heng”) was sentenced at a later time.

6. [6]

   The applicant now seeks leave to appeal on the grounds more fully set out below.

THE FACTS OF THE OFFENDING

1. [7]

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

THE APPLICANT’S SUBJECTIVE CASE

1. [8]

   The sentencing judge noted (at ROS 11) that the applicant had no criminal history in this state but had the following offences recorded against him in Hong Kong:

2. [9]

   In respect of the matters in (iv) and (v) the applicant was sentenced to terms of imprisonment of 10 years and 6 years respectively.

3. [10]

   By reference to a report of Patrick Sheehan, psychologist dated 9 June 2016, the sentencing judge recorded (commencing at ROS 16) that the applicant was 58 years of age. He was born into a poor family in Hong Kong, and was one of six siblings. The family lived in a form of public housing described as a slum. The family members were close, supportive and pro-social, notwithstanding that the immediate environs were highly anti-social and hostile. The applicant’s father died when he was 25 years old. He moved out of the family home when he was 27. He first married on that occasion and has lived independently since then.

4. [11]

   His early development was normal. He attended primary school but was unable to attend high school, so he went to work. He was employed from the age of 13 years working in a clothing factory until he was 20. He attended night school for two to three years, studying remedial literacy and numeracy, which allowed him to apply for better jobs. When he was 20 years of age he became a government employee at a local correctional centre and remained there for 14 years between 1978 and 1993. He attempted to operate a business to supplement his income, but failed. He developed a gambling disorder, and was convicted in 1993 of stealing and lost his job. Throughout the following years he became involved in criminal activity to raise money, eventually serving a 9 year prison sentence.

5. [12]

   Upon his release in 2004 the applicant undertook varied short term roles until 2010 when he found a role in Macau receiving commissions from casinos to bring gamblers from the mainland. He said that he unwittingly accrued a debt when he was held to account for a gambler’s unpaid debts which was said to be part of his motivation to offend as he did.

6. [13]

   The applicant has been married twice. There are two daughters from his first marriage, although the applicant is estranged from both of them. He remarried in 2005 but eventually separated in 2012. There was a one child of that marriage, in whose life he has remained active. He was diagnosed with Hepatitis B in 2010. He made no reports of any acute mental illness.

7. [14]

   The applicant expressed shame about his offending and said that the operation was organised by a person in Hong Kong whom he had come to meet in the gambling industry. He said that he was desperate for money to clear his debts and to leave some inheritance for his younger daughter.

8. [15]

   Mr Sheehan concluded that the applicant agreed to participate in the offending in the hope of settling his debts and ensuring financial security for his daughter. He said he expressed “authentic regret” for his offending. He appeared moderately depressed and somewhat socially isolated, making his conditions of custody more onerous. His self-esteem was assessed as low, and his rehabilitation prospects were regarded as limited.

9. [16]

   Also tendered in the applicant’s case was a report of Lia McInnis, psychologist, of 18 September 2014. His Honour made reference to that report (commencing at ROS 20), noting that Ms McInnis recorded that the applicant reported developing a gambling addiction during his first marriage which led him into debt.

10. [17]

    In terms of the offending, the applicant told Ms Mclnnis that when he learned of his diagnosis of Hepatitis B in 2010 he began to worry that he would not live long enough to contribute to the life of his youngest daughter. He said a friend introduced him to a man who could help him make money. After the initial meeting with this man, the applicant was told he would be travelling to Australia to find affluent individuals who would travel to casinos in Macau. He told Ms Mclnnis that it was agreed he would be paid "a handsome sum" and "the training started". He described being shown and taught how to extract a substance from hardened wax by melting it down. At this time he realised that the job was not about finding business for a casino.

11. [18]

    The applicant reported to Ms Mclnnis that when he arrived in Australia he was given the address of a Beverly Hills property. He said he then met his co-offenders for the first time and commenced to undertake the process of “cooking”. He said that throughout the entire process he was following the directions of those in Hong Kong who organised the operation. The applicant reported to Ms Mclnnis that he knew about the risk associated with the venture prior to leaving, and that he understood that his actions were illegal and potentially harmful to the community, and to individuals in Sydney. However, he believed he was too far involved to withdraw from the venture, and desperately wanted the money for his daughter.

12. [19]

    Other material tendered on behalf of the applicant made reference to the fact that he was undertaking English classes whilst in custody. Letters from the prison chaplain and a senior corrections officer confirmed that he was employed as a sweeper at the Long Bay Hospital and was considered to be trustworthy, reliable and remorseful. Justice Health records confirmed that he was undergoing treatment for, and monitoring of, Hepatitis B.

The reasons of the sentencing judge

1. [20]

   Having dealt with the question of the hierarchy amongst the various offenders, the sentencing judge said (at ROS 52):

Submissions of the applicant

1. [21]

   Counsel for the applicant expressly acknowledged that questions of accumulation are matters solely within the discretion of a sentencing judge. However, he submitted that the remarks of the sentencing judge set out in [20] above reflected the fact that his Honour had failed to ask himself the correct question, namely whether the sentence for one offence could comprehend and reflect the criminality of the other. It was submitted that the treatment of this issue by the sentencing judge was “insufficient”, and that his Honour had done nothing more than note that supplying an illegal drug, and manufacturing it, were disparate offences which justified an appropriate measure of accumulation.

2. [22]

   Counsel for the applicant further submitted that the offending in count 2 was really a manifestation of, or an aggravating particular of, that in count 1. He submitted that the principal criminal purpose of all of the offenders was to manufacture methamphetamine for the purposes of supply, and that in those circumstances, one offence comprehended the other, to the point that the entirety of the offending could be justifiably viewed as a single course of criminality. It was submitted that by partially accumulating the sentences, the sentencing judge had erred in the exercise of his discretion, and that the sentences should have been wholly concurrent or alternatively, that the quantum of any accumulation should have been more modest than that applied by his Honour.

Submissions of the Crown

1. [23]

   The Crown submitted that in circumstances where the applicant had committed two very serious offences, it was necessary that any sentence adequately punish him for all aspects of his offending. It was submitted that in these circumstances, a substantial degree of accumulation was warranted, the extent of which remained a matter for the discretion of the sentencing judge. The Crown submitted that the offending in count 1 did not, and could not, comprehend the additional criminality involved in the offending in count 2.

2. [24]

   It was further submitted that his Honour’s observations at [20] above as to the disparate nature of the offending were not the sole basis upon which he determined that partial accumulation was warranted, and that it was evident from the detailed sentencing remarks that his Honour had gone to some lengths to identify the factual differences between the two offences. It was submitted that those differences necessarily had a bearing upon the degree of accumulation which was imposed.

3. [25]

   It was further submitted that although the same methamphetamine was involved in the commission of both offences there was an obvious distinction between the two, both in terms of gravamen of the applicant’s conduct, and its nature. It was submitted that the two offences represented separate phases of a sophisticated drug enterprise, in the sense that:

4. [26]

   The Crown submitted that viewed in this way, the two offences involved distinct and separate criminality which fell to be reflected in some level of accumulation.

5. [27]

   The Crown also pointed to the fact that in imposing sentence on the co-offender Wan, the sentencing judge had partially accumulated the sentence for the supply offence upon the sentence imposed for the manufacturing offence. The Crown specifically relied upon the fact that on the hearing of an appeal by Wan in this Court, it had been observed that by accumulating the sentences in that way, the sentencing judge had correctly recognised the separate and distinct nature of the offending: Wan v R [2017] NSWCCA 261 at [46]. The Crown submitted that this Court would reach a similar conclusion in respect of the applicant’s complaint in respect of ground 1.

Consideration

1. [28]

   Obviously, when a drug is manufactured, it is manufactured for the purposes of supply. In that sense, the offending in the two counts was related. However, I am unable to accept the submission advanced on behalf of the applicant that for the purposes of sentence, one offence was comprehended by, and reflected the criminality of, the other.

2. [29]

   Reference to the factual findings of the sentencing judge makes it clear that the two offences involved quite separate and distinct criminality. The applicant’s role in the manufacturing process included:

3. [30]

   It is evident that these activities were separate and distinct from those which centred upon the supply of the drug.

4. [31]

   In Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41, Howie J said the following at [27]:

5. [32]

   The sentencing judge was obviously mindful of these principles when determining an appropriate sentence in the present case. So much is clear from the passage of his remarks on sentence extracted at [20] above. In these circumstances I am unable to accept the submission advanced on behalf of the applicant that the sentencing judge had “asked himself the wrong question”. On the contrary, his Honour correctly concluded that the offending in the two counts was separate. Having done so, it followed that partial accumulation was required. Although his Honour did not expressly “ask” whether one offence could comprehend and reflect the criminality of the other, it is apparent that he was mindful of, and specifically considered, that very issue. His remarks on sentence bespeak no other conclusion. I am fortified in these views by the observations of this Court in Wan to which we were taken by the Crown and which are noted at [27] above.

6. [33]

   The submissions of counsel for the applicant correctly recognised that accumulation, concurrence and totality are all matters which fall squarely within the discretion of the sentencing judge. An appellate Court will not interfere unless there appears to be an error of principle, or if the sentence imposed is manifestly excessive (or inadequate): Kerr v R [2016] NSWCCA 218 at [108] per Bathurst CJ. For the reasons I have expressed, no error of principle is established in the present case. Further, as noted below, a ground asserting that the sentence was manifestly excessive was abandoned at the commencement of the hearing before this Court.

7. [34]

   It follows that this ground is not made out.

GROUND 4 – THE SENTENCE IMPOSED UPON THE APPLICANT FOR THE OFFENCE OF MANUFACTURE COMMERCIAL QUANTITY OF METHAMPHETAMINE WAS MANIFESTLY EXCESSIVE COMPARED TO THAT OF THE OFFENDER CHAN HENG FOR THE OFFENCE OF AID AND ABET MANUFACTURE OF A BOARDER-CONTROLLED DRUG AND THEREFORE SUCH DISPARITY GIVES RISE TO THE APPLICANT HAVING A JUSTIFIABLE SENSE OF GRIEVANCE.

1. [35]

   Given the issues raised by these grounds, it is convenient to deal with them together.

The sentences imposed upon the co-offenders

1. [36]

   Wan was charged with the same offences as the applicant. In respect of the supply count, the sentencing judge imposed a non-parole period of 9 years imprisonment and an effective sentence of 12 years imprisonment. In respect of the manufacture count, and having expressed the view that it was appropriate to partially accumulate the sentences by 3 years, his Honour imposed a non-parole period of 12 years imprisonment. The total sentence was one of 21 years imprisonment with a non-parole period of 15 years imprisonment.

2. [37]

   Chan Heng (“Heng”) pleaded guilty to one count of importing a commercial quantity of a border-controlled drug, namely methamphetamine (“the principal offence”) contrary to s 307.1(1) of the Criminal Code 1995 (Cth) (“the Code”). That offence carried a maximum penalty of life imprisonment. In addition, Heng asked the sentencing judge to take into account, pursuant to s 16BA of the Crimes Act 1914 (Cth), a further offence, namely that between 4 June 2013 and 17 June 2013 he aided and abetted the manufacture of a commercial quantity of a border-controlled drug, contrary to s 11.2(1) and 305.3(1) of the Code (“the additional offence”) which carries a maximum penalty of life imprisonment.

3. [38]

   Heng was sentenced to 23 years imprisonment with a non-parole period of 15 years and 9 months.

The findings of the sentencing judge in respect of the applicant and Wan

1. [39]

   As noted at [5] above, the applicant and Wan were sentenced together. In dealing with their respective levels of criminality, the sentencing judge said (commencing at ROS 46):

2. [40]

   His Honour then returned to the issue (commencing at ROS 51):

3. [41]

   In terms of the respective criminal histories of the applicant and Wan his Honour said (commencing at ROS 11):

4. [42]

   In terms of the applicant’s subjective case, his Honour said (commencing at ROS 16):

5. [43]

   In terms of Wan’s subjective case, his Honour said (commencing at ROS 23):

The findings of the sentencing judge in respect of Heng

1. [44]

   In dealing with the facts of Heng’s offending, his Honour said (commencing at ROS 2):

2. [45]

   In terms of Heng’s role, the sentencing judge said (commencing at ROS 49):

3. [46]

   His Honour continued (at ROS 51):

4. [47]

   When sentencing Heng, his Honour said the following in terms of parity (commencing at ROS 44):

Submissions of the applicant

1. [48]

   Counsel for the applicant submitted that the differing sentences imposed upon the applicant and Wan arose from the fact that the sentencing judge had erroneously placed excessive emphasis upon what he saw as the established hierarchy of offenders, at the apex of which he had placed the applicant. Counsel submitted that a full and proper appreciation of the respective roles of the applicant on the one hand, and Wan on the other, made it clear that such roles were “symbiotic”, to the point that any differences were “titular”. In support of that submission, counsel for the applicant pointed to the following factors:

2. [49]

   It was submitted that in all of these circumstances the only difference between the applicant and Wan was that the applicant appeared to have fulfilled the role of the “cook”, a process in which he had assisted and directed Wan. It was submitted that this difference was counterbalanced by Wan’s earlier activities setting up the criminal enterprise well before the arrival of the applicant in Australia, and that in these circumstances the respective roles of the applicant on the one hand, and Wan on the other, reflected equal levels of criminality when viewed holistically and objectively. Counsel for the applicant further submitted that there was a specific unjustified disparity arising out of the respective sentences imposed for the offence of supply upon the applicant and Wan, in circumstances where they were arrested together in possession of the drug.

3. [50]

   Counsel for the applicant then turned to what he submitted was an unjustified disparity between the sentence imposed upon the applicant and that imposed on Heng. Counsel submitted that although, if the sentence were “deconstructed”, it would be open to infer that the greater part of the sentence may have been a reflection of the objective gravity of the principal offence, the sentence necessarily incorporated punishment for the additional offence. It was submitted that if it were to be assumed that the sentence imposed was apportioned 50% in respect of the principal offence and 50% in respect of the additional offence, it would follow that the sentence for the additional offence was significantly less than that imposed upon the applicant. It was submitted that in these circumstances, the applicant had a justifiable sense of grievance.

Submissions of the Crown

1. [51]

   The Crown submitted that the conclusions reached by the sentencing judge as to the respective roles played by the applicant and Wan were amply supported by the facts, and that the sentence which had been imposed upon the applicant was justified because his position was clearly more senior, and his role clearly greater, than that of Wan.

2. [52]

   The Crown took particular issue with the submission advanced on behalf of the applicant that the roles played by the applicant and Wan were “symbiotic”. The Crown submitted, in particular, that the applicant:

3. [53]

   It was submitted that when viewed in this way, the applicant could have no justifiable sense of grievance and that the sentences imposed reflected the fact that his role was greater than that of either Wan or Heng.

4. [54]

   To the extent that the applicant submitted that he had a justifiable sense of grievance arising from the sentence imposed on Heng, the Crown submitted that the applicant’s position was both misconceived and contrary to principle. The Crown pointed out that Heng was sentenced for the principal offence (i.e. the importation of a commercial quantity of border controlled drug) and had asked the sentencing judge to take into account the additional offence (i.e. aiding and abetting the manufacture of a border-controlled drug). The Crown submitted that it was no part of the role of the sentencing judge to determine an appropriate sentence for the additional offence. It was further submitted that the sentencing judge was obviously aware of the correct approach to be taken, having stated on several occasions that the additional offence would be taken into account on the usual basis.

Consideration

1. [55]

   The parity principle requires that like offenders be treated in a like manner. However, the principle also allows for different sentences to be imposed on like offenders to reflect different degrees of culpability, and/or different circumstances: Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 at [28] and the authorities cited therein. The 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. It is not simply a question of imposing different sentences for the same offence, but rather a question of proportion being structured between those sentences. That is a matter which is determined having regard to the different circumstances of the co-offenders, and their different degrees of criminality: Postiglione v R (1997) 189 CLR 295; [1997] HCA 26 at 301; Lowe v R (1984) 154 CLR 606; [1984] HCA 46 at 610-611.

2. [56]

   The applicant’s submissions as to the asserted disparity between the sentences imposed upon himself and Wan concentrated on the fact that Wan had arrived in Australia prior to the applicant and had, during that period, engaged in a number of preparatory steps directed towards establishing the enterprise. That much is clear. However, what is also clear is that once the applicant arrived, he assumed what was clearly a supervisory role in which Wan was his subordinate. This was reflected, principally, in the fact that the applicant was the “cook” and trained Wan in that role.

3. [57]

   The mere fact that Wan took preparatory steps prior to the applicant’s arrival in Australia does not lead to the conclusion that his role was greater. Whilst Wan’s role was not insignificant, it remains the case that without the applicant’s arrival and subsequent involvement, the enterprise would never have become operational. On the evidence, the applicant travelled to Australia specifically for the purpose of manufacturing and supplying large quantities of methamphetamine. In order to perform his role, the applicant necessarily had to have the skills required to extract the methamphetamine, and prepare it for supply.

4. [58]

   It is also clear that the applicant was responsible for liaising with members of the syndicate in Hong Kong, and that he acted in accordance with their instructions. Importantly, in terms of the offence of supply, it was the applicant who confirmed the order for the supply of 16 kilograms, and planned and arranged the circumstances in which the supply was to take place.

5. [59]

   I am also unable to conclude that there is a specific and unjustified disparity, between the respective sentences imposed upon the applicant and Wan in relation to the supply count. Quite apart from the applicant’s activities leading up to the time of his arrest, the evidence established that it was he and not Wan who had confirmed the order for the supply with the syndicate members in Hong Kong. That necessarily rendered his criminality greater than that of Wan in respect of that offending.

6. [60]

   It follows that in my view, his Honour’s conclusion that the applicant’s role was greater than that of Wan was soundly based, and led to the necessity to impose a greater sentence upon the applicant than Wan. It follows that the applicant’s complaint of disparity in this regard is not made out.

7. [61]

   The sentencing judge was required to sentence Heng for the principal offence. He was not required to determine any sentence for the additional offence. It is evident from his Honour’s remarks that he was well aware of the correct approach. Such approach, as it applies to Form 1 offences which are taken into account on sentence, was set out by Spigelman CJ in Attorney General’s application under s 37 of the Crimes (Sentencing Procedure Act) 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [39]:

8. [62]

   It is clear that a similar approach is to be adopted for the purposes of s 16BA of the Crimes Act 1914 (Cth): R v Lamella [2014] NSWCCA 122 per Price J at [48]; Director of Public Prosecutions (Cth) v KMD [2015] VSCA 255; (2015) 254 A Crim R 244.

9. [63]

   The applicant’s submission that there is an unjustified disparity between the sentence he received, and that which was imposed upon Heng, relied upon an attempted “unravelling” of Heng’s sentence, in an effort to determine what portion of it may have been referable to the principal offence, and what proportion may have been referable to the additional offence. Such an approach is contrary to the authorities cited above. It was not part of the task of the sentencing judge to determine an appropriate sentence for the additional offence. The submissions of counsel for the applicant invited this Court to engage in an analysis of Heng’s sentence which was simply not permissible.

10. [64]

    For all of those reasons, this ground is not made out.

11. [65]

    It is noted that ground 3 of the application which asserted that the sentence was manifestly excessive was abandoned at the hearing

CONCLUSION

1. [66]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

2. [67]

   BEECH-JONES J: I agree with Bellew J.