Chan v R; Kwan v R

1. [1]

   BRERETON JA: I agree with Johnson J.

2. [2]

   JOHNSON J: The Applicants, Donald Chan (“Chan”) and Chun Man Kwan (“Kwan”), each seek leave to appeal with respect to sentences passed at the Sydney District Court on 10 May 2019 for offences of attempting to possess a substance, being an unlawfully imported border controlled drug, methamphetamine, in a commercial quantity contrary to ss.307.5(1) and 11.1(1) Criminal Code (Cth).

3. [3]

   On 26 October 2018, following a trial by jury, Chan and Kwan were each found guilty of this offence which was punishable by a maximum penalty of life imprisonment and/or a fine of $1,350,000.00 (7,500 penalty units).

The Sentences

1. [4]

   On 10 May 2019, his Honour Judge King SC sentenced each of Chan and Kwan to terms of imprisonment for 23 years with a non-parole period of 15 years commencing on 24 February 2017 and expiring on 23 February 2032, and a balance of term of eight years commencing on 24 February 2032 and expiring on 23 February 2040.

2. [5]

   A co-offender, Isireli Vakatalesau (“Vakatalesau”), pleaded guilty to the same charge at the commencement of the trial. He was sentenced as well by his Honour Judge King SC on 10 May 2019 to a term of imprisonment for 18 years with a non-parole period of 12 years commencing on 24 February 2017 and expiring on 23 February 2029, and a balance of term of six years commencing on 24 February 2029 and expiring on 23 February 2035.

Grounds of Appeal

1. [6]

   By Notice of Application for Leave to Appeal filed on 27 April 2020, Kwan relies upon the following grounds of appeal:

2. [7]

   By Notice of Application for Leave to Appeal filed on 1 July 2020, Chan relies upon the following grounds of appeal:

The Sentencing Proceedings

1. [8]

   The sentencing proceedings for Chan and Kwan (following the guilty verdicts on 26 October 2018) and Vakatalesau (after his guilty plea) proceeded together on 26 April 2019.

2. [9]

   There were differences in the factual material available to the sentencing Judge in the Crown’s bundle tendered in the case of Chan and Kwan and that tendered in a separate bundle in the case of Vakatalesau.

3. [10]

   In the cases of Chan and Kwan, the Crown tendered an Agreed Facts document (tendered at their trial under s.191 Evidence Act 1995) together with a summary of police surveillance evidence (which had also been tendered at the trial), a police statement concerning the value of the drugs seized in the Peoples Republic of China (if sold in Australia) and sentencing assessment reports concerning each of Chan and Kwan.

4. [11]

   With respect to Vakatalesau, a Statement of Facts was tendered which included references to his record of interview conducted on the day of his arrest. That interview was also tendered, together with his criminal history, a sentencing assessment report, and the same police statement about the value of the drugs as tendered in the Chan and Kwan proceedings. It was made plain that neither the Statement of Facts nor Vakatalesau’s record of interview was to be treated as evidence against Chan and Kwan.

5. [12]

   Subjective material tendered on behalf of Kwan included a report of Anita Duffy, psychologist, dated 10 April 2019 and a number of references and other material.

6. [13]

   Subjective material tendered on behalf of Chan included a report of Sam Borenstein, psychologist, dated 19 April 2019 and several references and other material.

7. [14]

   Subjective material tendered on behalf of Vakatalesau included a psychological report of Ms Duffy dated 29 January 2019 and other material.

8. [15]

   Written submissions on sentence were provided on behalf of the Crown, Kwan and Vakatalesau.

9. [16]

   No oral evidence was given at the sentencing hearing with counsel for the Crown and each of the three offenders addressing the court on sentence.

10. [17]

    At the conclusion of the sentencing hearing on 26 April 2019, his Honour Judge King SC remanded Kwan, Chan and Vakatalesau for sentence on 10 May 2019.

11. [18]

    Given the different factual material which was before the Court on sentence, his Honour sentenced Chan and Kwan in the same sentencing remarks (R v Chan; R v Kwan [2019] NSWDC 507) and Vakatalesau in separate sentencing remarks delivered the same day (R v Vakatalesau [2019] NSWDC 505).

Facts of Offences

1. [19]

   A convenient and accurate summary of the facts of the offences is contained in the Crown written submissions in this Court, from which the following account is drawn:

2. [20]

   As noted in this summary, Chan and Kwan each gave evidence at the trial. As the sentencing Judge observed, it was clear that the jury rejected the exculpatory accounts of Chan and Kwan, as did the sentencing Judge. His Honour had the advantage as well of having observed the complete trial of Chan and Kwan which assisted in the process of fact finding on sentence.

Sentencing Remarks Concerning Chan and Kwan

1. [21]

   Given the grounds of appeal, it is appropriate to set out parts of his Honour’s sentencing remarks with respect to Chan, Kwan and Vakatalesau.

2. [22]

   After reciting the facts of the offences, his Honour referred to the weight and nature of the border controlled drug in this case (R v Chan; R v Kwan at [34]-[36]):

3. [23]

   His Honour then addressed the role of Chan and Kwan in the offences (R v Chan; R v Kwan at [37]-[39]):

4. [24]

   The sentencing Judge stated that Chan and Kwan would be sentenced “on the basis of what they did, rather than any description of their role” (R v Chan; R v Kwan at [41]).

5. [25]

   The following findings were made concerning the role of Chan (R v Chan; R v Kwan at [42]):

6. [26]

   Having listed aspects of Chan’s involvement in the offence, his Honour made the following findings (R v Chan; R v Kwan at [43]):

7. [27]

   His Honour then made the following findings concerning Kwan (R v Chan; R v Kwan at [44]-[47]):

8. [28]

   His Honour then made a number of findings concerning Chan’s subjective circumstances: R v Chan; R v Kwan at [48]-[73]. Chan was born in Australia and is an Australia citizen. He was 40 years old at the time of sentence. He was married, but is now divorced and there is a daughter of the marriage aged 12 years (in 2019). Material was tendered at the sentencing hearing concerning health difficulties affecting Chan’s father. His Honour summarised the sentence assessment report, the psychological report of Mr Borenstein dated 19 April 2019 and references tendered in Chan’s case on sentence. Chan had no prior criminal history.

9. [29]

   His Honour concluded the examination of Chan’s subjective matters as follows (R v Chan; R v Kwan at [71]-[73]):

10. [30]

    The sentencing Judge then considered Kwan’s subjective matters (R v Chan; R v Kwan at [74]-[103]). Kwan was born in Hong Kong in 1975 and was 44 years old at the time of sentence. He had no prior criminal history.

11. [31]

    His Honour referred to the psychological report of Ms Duffy dated 10 April 2019 with respect to Kwan. The report recounted Kwan’s personal history of being married, then divorced, with a daughter born in 2008. His Honour referred, as well, to the sentence assessment report concerning Kwan and a number of references tendered on his behalf. The sentencing Judge noted “in the circumstances of his clearly false evidence at trial the need to be circumspect in relation to anything said by Mr Kwan” (R v Chan; R v Kwan at [88]).

12. [32]

    After summarising the references tendered on behalf of Kwan, the sentencing Judge concluded (R v Chan; R v Kwan at [101]-[103]):

13. [33]

    His Honour then returned to aspects concerning the objective seriousness of the offences (R v Chan; R v Kwan at [104]-[110]):

14. [34]

    His Honour then found that “this was an objectively serious breach of the relevant section”, stating (R v Chan; R v Kwan at [111]-[112]):

15. [35]

    His Honour made the following findings concerning the risk of reoffending, specific deterrence and general deterrence (R v Chan; R v Kwan at [114]-[115]):

16. [36]

    His Honour had regard to Kwan’s limited English skills and that he would continue to have limited access to his family whilst in custody in Australia, but noted “that those are circumstances that ought to have been taken into consideration by Mr Kwan before he came to Australia to commit this serious offence” (R v Chan; R v Kwan at [116]).

17. [37]

    His Honour had regard to parity bearing in mind the sentence to be imposed on Vakatalesau later that day (R v Chan; R v Kwan at [119]):

18. [38]

    The following finding was made with respect to the prospects of rehabilitation of Chan and Kwan (R v Chan; R v Kwan at [120]-[121]):

19. [39]

    His Honour then proceeded to pass sentence with respect to Chan and Kwan.

Sentencing Remarks Concerning Vakatalesau

1. [40]

   Early in the sentencing remarks with respect to Vakatalesau, his Honour explained why he had sentenced Chan and Kwan separately earlier in the day (R v Vakatalesau at [5]):

2. [41]

   His Honour then made detailed findings of fact drawn from the Agreed Statement of Facts tendered with respect to Vakatalesau. After making those findings, his Honour referred to the quantity, purity and estimated wholesale and street value of the methamphetamine (R v Vakatalesau at [51]-[53]):

3. [42]

   His Honour noted a number of admissions made by Vakatalesau in his record of interview and referred to what he had said concerning his knowledge of Chan and Kwan (R v Vakatalesau at [57]-[59]):

4. [43]

   His Honour noted that the shipment contained 81.4 kilograms pure of methamphetamine which was more than 108 times the threshold for the commercial quantity. Whilst noting that the legislation makes no distinction between different border controlled drugs other than by way of quantity, his Honour noted the devastating effects of methamphetamine use in New South Wales (R v Vakatalesau at [61]-[62]).

5. [44]

   The sentencing Judge referred to admissions made by Vakatalesau in his interview where he admitted that he had been asked to sell drugs and that he had been provided by Chan with two mobile phones for the purpose of the importation and had been cautioned by Chan, at one stage, to turn the phones off because the police would track him via the phone (R v Vakatalesau at [63]-[64]).

6. [45]

   His Honour found that Vakatalesau was aware that methamphetamine was to be imported (R v Vakatalesau at [65]-[66]):

7. [46]

   The sentencing Judge then made detailed findings concerning the role of Vakatalesau (R v Vakatalesau at [69]-[70]):

8. [47]

   After reciting further matters, the sentencing Judge observed that it was “clear that he cannot be regarded as some simple unpacker” (R v Vakatalesau at [74]).

9. [48]

   His Honour made the following further findings concerning the role of Vakatalesau in the commission of the offence (R v Vakatalesau at [76]-[81]):

10. [49]

    With respect to the respective roles of Vakatalesau, Chan and Kwan, his Honour said (R v Vakatalesau at [83]-[84]):

11. [50]

    With respect to the benefit which Vakatalesau was to obtain from his involvement in the offence, his Honour said (R v Vakatalesau at [87]-[89]):

12. [51]

    His Honour noted Vakatalesau’s criminal history and domestic violence related offences committed in New South Wales in 2016 which his Honour did not regard as having any significant relevance in relation to sentencing for this offence (R v Vakatalesau at [91]).

13. [52]

    His Honour noted that Vakatalesau had written a letter to the Court which, in the absence of cross-examination, must be treated with some circumspection where the offender stated that he took responsibility and understood the seriousness of the offence or expressed remorse and contrition. His Honour noted that Vakatalesau’s plea of guilty was entered only upon the first day of the scheduled trial. His Honour noted in Ms Duffy’s report Vakatalesau’s expression of remorse and concluded (R v Vakatalesau at [96]):

14. [53]

    Reference was made to other materials before the Court concerning Vakatalesau’s undertaking courses in custody which bore on the question of prospects of rehabilitation.

15. [54]

    His Honour noted the significant age difference between Vakatalesau, Chan and Kwan, stating at [103]:

16. [55]

    The sentencing Judge then recounted Vakatalesau’s personal history in Fiji including the existence of learning and literacy problems in his early education and the use of harsh physical discipline during his childhood. He had come to Australia at the age of 18 years to play football and later found work as a steel fixer. He entered into a relationship with a young woman in 2014 and there were two sons born in 2016 and 2017. His partner remains supportive and had visited and kept in contact with him whilst he had been in custody.

17. [56]

    The sentencing Judge recounted evidence concerning Vakatalesau’s intelligence assessment, his risk of reoffending and prospects of rehabilitation (R v Vakatalesau at [120]-[122]):

18. [57]

    His Honour allowed a discount for the utilitarian value of Vakatalesau’s plea of guilty (R v Vakatalesau at [123]-[124]):

19. [58]

    His Honour did not quantify the discount for the plea of guilty in the sentencing remarks, but noted by way of addendum that there was a “discount in the order of 10%” allowed. The parties proceeded in this Court upon the basis that his Honour had allowed a 10% discount for Vakatalesau’s plea of guilty, noting submissions which had been made at the sentencing hearing concerning the appropriate discount to be allowed to him in this case, with arguments extending from 5% to 15% in this regard.

20. [59]

    His Honour had regard to specific and general deterrence in the following way (R v Vakatalesau at [130]-[131]):

21. [60]

    In part of his Honour’s sentencing remarks which came under scrutiny in this Court because of the parity grounds, his Honour said (R v Vakatalesau at [132]-[134]):

22. [61]

    After passing sentence, his Honour said to Vakatalesau (R v Vakatalesau at [141]):

Principles to be Applied when Determining Parity Grounds of Appeal

1. [62]

   Before moving to consider the parity grounds raised on behalf of Chan and Kwan, it is appropriate to set out principles to be applied in assessing grounds which assert the existence of a legitimate sense of grievance because of a sentence passed for a related offender.

2. [63]

   In accordance with proper practice, each of the three offenders was sentenced by the same sentencing Judge. In Adams v R [2018] NSWCCA 139, with the concurrence of Simpson AJA and Adamson J, I said at [81]:

3. [64]

   The importance of this practice has been emphasised recently by this Court: R v Lembke [2020] NSWCCA 293 at [55].

4. [65]

   In Lam v R [2014] NSWCCA 50, Davies J (R A Hulme and Adamson JJ agreeing) said at [42]:

5. [66]

   It has also been emphasised that there may be different evidence to be considered in sentencing different offenders, even though they are related offenders, so that the substratum of facts upon which sentence is to be passed concerning both objective and subjective considerations may shed light on differences in sentencing outcomes: Rae v R [2011] NSWCCA 211 at [54].

6. [67]

   The principles to be applied in considering the parity ground were addressed in Adams v R at [78]-[80]:

7. [68]

   This Court has emphasised that a parity ground seeks to challenge a discretionary assessment by a sentencing Judge in the imposition of sentence upon related offenders. In Adams v R, the Court said at [83]-[87]:

8. [69]

   As R A Hulme J observed in Lloyd v R [2017] NSWCCA 303 at [97] and as reaffirmed recently in Bond v R [2020] NSWCCA 277 at [51], the question to be answered when determining a parity ground is - was the differentiation made by the sentencing Judge one that was reasonably open in the exercise of discretion?

9. [70]

   With these principles in mind, it is appropriate to move to consider the grounds of appeal.

Chan Ground 1 - Parity Ground by Reference to the Sentence Imposed on Vakatalesau

1. [71]

   Ms Carroll, counsel for Chan, in support of Ground 1(a), pointed to his Honour’s reference to parity in R v Chan; R v Kwan at [119] (see [37] above) and submitted that the sentencing Judge had not given any indication in that judgment of where he had assessed Vakatalesau in the hierarchy of offenders as compared to Chan and Kwan. Counsel noted his Honour’s findings with respect to parity in R v Vakatalesau (at [81] and [133]) where his Honour indicated that there was no substantial distinction between the seriousness of the roles played by each of the three offenders.

2. [72]

   Ms Carroll noted that a 10% discount was extended to Vakatalesau so that the starting point before sentence in his case was a head sentence of 20 years’ imprisonment. It was submitted that the 10% discount should be interpreted as covering not just the utilitarian discount for Vakatalesau’s plea of guilty, but also other features which his Honour took into account in his favour.

3. [73]

   Counsel for Chan submitted that, despite his Honour’s conclusion that the three offenders were effectively indistinguishable as to their involvement in the offence, there remained a significant difference between the starting point head sentence of 20 years’ imprisonment for Vakatalesau and a head sentence of 23 years’ imprisonment imposed on Chan. It was submitted that the subjective features which his Honour said served to differentiate Vakatalesau from Chan and Kwan did not operate to explain reasonably the difference between these periods.

4. [74]

   In support of Ground 1(b), counsel for Chan submitted that Vakatalesau was in fact more senior and had a greater involvement in the attempt to possess the methamphetamine than Chan or Kwan. Reference was made to features of Vakatalesau’s conduct in support of this submission.

5. [75]

   It was submitted that there was ample evidence before the Court of persons more senior to Chan and Kwan in the importation and that this included Vakatalesau. It was submitted that the facts before the Court demonstrated that Vakatalesau was integrally involved in the organisation of both containers into Australia as consignee, and that the roles of Chan and Kwan were more isolated to the unpacking process and as couriers of the packages.

6. [76]

   Upon the basis that the sentencing Judge indicated he was to sentence the offenders “for what they did”, counsel for Chan submitted that Vakatalesau should have received a higher sentence before discount.

7. [77]

   It was submitted that Chan is left with a justifiable sense of grievance arising from the difference between his sentence and that passed on Vakatalesau.

8. [78]

   The Crown submitted that the difference between the sentences imposed upon Vakatalesau and Chan was explained by different findings made by the sentencing Judge and different factual material before the Court at the sentencing hearing concerning those separate offenders.

9. [79]

   It was submitted that his Honour had regard to Vakatalesau’s plea of guilty for which a 10% discount was extended, together with his youth and immaturity, his remorse and contrition, reasonable prospects of rehabilitation and his low-to-medium risk of reoffending.

10. [80]

    By way of contrast, Chan had gone to trial and been convicted, was not remorseful, was 40 years of age at the time of the offence and with no favourable assessment of his prospects of rehabilitation being made.

11. [81]

    The Crown submitted that the complaint in Ground 1 related to the weight that his Honour attributed to the factors mentioned when sentencing Vakatalesau and that questions of weight lay within the exercise of discretion of the first-instance Judge with this Court approaching with caution a challenge to such a finding: R v Baker [2000] NSWCCA 85 at [11].

12. [82]

    The Crown submitted that Chan had not demonstrated a legitimate sense of grievance arising from the different sentence imposed upon Vakatalesau and that no error had been demonstrated by Chan in the factual findings made by his Honour when sentencing Vakatalesau.

13. [83]

    There are two components to Ground 1 advanced on behalf of Chan.

14. [84]

    With respect to Ground 1(b), it is sufficient to observe that his Honour had regard to the evidence at the sentencing hearing of Vakatalesau and that arising from the trial and sentencing hearing of Chan in reaching the findings of fact and assessments made as to the relative roles of those persons for the purpose of sentence.

15. [85]

    Chan has not demonstrated that the findings made by the sentencing Judge with respect to Vakatalesau were not reasonably open. There were particular features arising from the conduct of each of the three offenders and what was known (and not known) to the sentencing Judge concerning their roles in the offence.

16. [86]

    The sentencing Judge emphasised the limited information emanating from Chan and Kwan concerning their roles in the offence with their exculpatory accounts given to the jury being rejected and put to one side. Vakatalesau, on the other hand, provided considerable information to police which was before the sentencing court in his case and which painted a fuller picture of his involvement in the offence as opposed to that available at the Chan and Kwan sentencing hearing.

17. [87]

    The Court should keep in mind statements made by the Victorian Court of Appeal in Pham v R; Tang v R [2012] VSCA 101 concerning the approach of a sentencing court where there is a paucity of evidence as to the offender’s position within a criminal organisation. Redlich JA said at [5]-[6]:

18. [88]

    In Pham v R; Tang v R, Harper JA expressed similar sentiments at [28]-[29].

19. [89]

    The sentencing Judge in the present case had acquired a deep understanding of the offences having presided at the trial of Chan and Kwan and then at the sentencing hearing with respect to all three offenders.

20. [90]

    His Honour explained the difference in the sentencing outcomes for Vakatalesau, Chan and Kwan when sentencing Vakatalesau (see [60] above). His Honour had observed when sentencing Chan and Kwan that he had taken into account the sentence which he proposed to pass on Vakatalesau later that day in seeking to achieve parity between the three offenders, a process his Honour described as being “not without difficulty”: R v Chan; R v Kwan at [119] (see [37] above).

21. [91]

    The challenge for Chan is to demonstrate that it was not reasonably open to the sentencing Judge to impose the sentence on Chan given the sentence imposed for Vakatalesau. This involves a challenge to the exercise of sentencing discretion with a wide range of factors being taken into account in that regard: Adams v R at [83]-[87] (see [68] above).

22. [92]

    As noted during the hearing in this Court (T20, 9 October 2020), the submission made by counsel for Chan (referred to at [72] above) does not accord with principle nor a fair reading of his Honour’s sentencing remarks. The 10% discount should be treated as a discount only for the utilitarian value of Vakatalesau’s plea of guilty: Bae v R [2020] NSWCCA 35 at [49]-[57]; Kaurasi v R (Cth) [2020] NSWCCA 253 at [39]-[40].

23. [93]

    There was a significant age differential between the 22-year old Vakatalesau and Chan (40 years old) and Kwan (42 years old). In R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238, with the concurrence of Macfarlan JA and R A Hulme J, I noted general propositions emerging from the authorities where sentence was to be passed for an offence of attempting to possess a quantity of unlawfully imported border controlled drug contrary to s.307 Criminal Code (Cth). Amongst the propositions (stated at [72](k) in that judgment) (see [122] below)), reference was made to circumstances where (in that case) the offenders were not young (being 42 and 32 years old respectively) so that youth could not be claimed as a factor bearing upon their transgressions. Here, Vakatalesau was a young man with a level of immaturity with additional evidence indicating below average intelligence. As the sentencing Judge observed (see [54] and [56] above), this was an important differentiating factor between him and the other two offenders.

24. [94]

    There was an absence of remorse on the part of Chan and Kwan. To the contrary, a favourable finding was made with respect to that of Vakatalesau concerning his contrition and remorse.

25. [95]

    The subjective factors which his Honour found were favourable to Vakatalesau were clearly different to Chan and Kwan, and were not to be discounted in quantified terms for the purpose of sentence: Bae v R at [57]. However, the sentencing Judge was required to take those matters into account under s.16A(2) Crimes Act 1914 (Cth) in sentencing Vakatalesau and these were significant factors which operated in his favour on sentence in addition to the quantified discount of 10% for the utilitarian value of his guilty plea.

26. [96]

    In my view, it was open to the sentencing Judge to differentiate between the three offenders in the way in which he did by reference to different and significant features which operated in favour of Vakatalesau on sentence and which were absent with respect to Chan and Kwan. Chan has not demonstrated that it was not open to the sentencing Judge to reach this conclusion.

27. [97]

    I would reject Chan’s first ground of appeal.

Kwan Grounds 1 and 2 - Alleged Error in Assessment of Kwan’s Objective Criminality and a Parity Ground

1. [98]

   The parties directed submissions to these grounds jointly and it is appropriate to address them in a similar way in this judgment.

2. [99]

   Mr Rajalingam, counsel for Kwan, argued the parity ground by reference to the sentence imposed on Chan and not the sentence imposed on Vakatalesau.

3. [100]

   Mr Rajalingam submitted that it was not reasonably open to the sentencing Judge to consider that Kwan was in a position of authority. Criticism was made of his Honour’s approach to findings of objective criminality with respect to Chan and Kwan. It was submitted that there was a significant difference in the identifiable criminality of Kwan as compared to Chan and that the identical sentences imposed upon them breached the parity principle.

4. [101]

   Counsel for Kwan submitted that his Honour should have treated as unknown whether Kwan committed the physical acts of his involvements as a mere unpacker or someone with a degree of managerial responsibility beyond that which the evidence disclosed. It was submitted that, after listing the acts of Chan, his Honour made a finding in that regard, but that he did not adopt a similar approach after listing the acts of Kwan.

5. [102]

   Counsel for Kwan submitted that the sentence imposed on Kwan gave rise to a justifiable sense of grievance by comparison with the identical sentence passed for Chan given the latter’s extended and active involvement in the preparatory stages of the offence.\

6. [103]

   The Crown submitted that Kwan’s Ground 1 was based upon a misunderstanding of the principles in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 and that his Honour had made findings concerning Kwan which were available on the evidence and with no finding disclosing error. The sentence to be passed on Kwan depended not only on what he had done, but on who he was in the context of the offence: The Queen v Olbrich at [21].

7. [104]

   Notwithstanding the fact that what Kwan did involved fewer physical acts than Chan, the Crown submitted that the sentencing Judge was entitled to conclude that their purposes and objects were the same and that the two men were to be treated in the same way.

8. [105]

   With respect to the parity argument in Ground 2, the Crown noted that Kwan’s submissions were confined to a comparison with the sentence imposed on Chan and not Vakatalesau. It was submitted that Kwan had not demonstrated an objective foundation for a legitimate grievance arising from the identical sentence imposed upon both himself and Chan.

9. [106]

   The sentencing Judge made findings by reference to the acts of Kwan and Chan with conclusions being reached, to the extent permitted by the evidence, concerning their roles in what was a very substantial criminal enterprise.

10. [107]

    I am not persuaded that any factual error has been demonstrated in his Honour’s approach to assessment of the objective gravity of Kwan’s offence. Some features of Kwan and Chan were different and some were similar. Both men went to trial and were convicted by the jury in circumstances where their exculpatory accounts were clearly rejected. Both offenders played a significant role in the commission of the offence in different respects.

11. [108]

    In considering the claim of error in Kwan’s first ground of appeal, it is necessary to read fairly the entirety of his Honour’s sentencing remarks. It is necessary to keep in mind that the characterisation of the degree of objective seriousness of an offence is classically within the role of a sentencing Judge in performing the task of finding facts and drawing inferences from those facts so that this Court is very slow to determine such matters for itself or to set aside the judgment made at first instance in the exercise of a broad discretion: Mulato v R [2006] NSWCCA 282 at [37]. The question is whether the particular characterisation of objective seriousness of an offence is open to the sentencing Judge. The findings of fact made concerning Kwan were open to the sentencing Judge in this case.

12. [109]

    Kwan has not made good this first ground of appeal.

13. [110]

    Kwan’s second ground of appeal claims a legitimate sense of grievance because his sentence was not lower than that imposed upon Chan. The sentencing Judge had regard to the objective circumstances of the offences committed by each man and their subjective circumstances, before reaching the conclusion that an identical sentence should be passed upon each of them.

14. [111]

    Kwan has not demonstrated that this finding was not reasonably open to the sentencing Judge. I would reject the second ground of appeal.

Chan Ground 2 and Kwan Ground 3 - Claim that the Sentence was Manifestly Excessive in Each Case

1. [112]

   Similar submissions were advanced by counsel for each of Chan and Kwan in support of the claim of manifest excess. Reference was made to sentencing statistics and other sentencing decisions in support of an argument that the sentence imposed upon each of them was manifestly excessive.

2. [113]

   Ms Carroll referred to a number of sentencing decisions and contended that, despite the quantity of methamphetamine involved in this offence, an appropriate assessment of the objective gravity of Chan’s offence and his subjective circumstances would lead the Court to conclude that the sentence imposed was manifestly excessive and that the Court should intervene and resentence him.

3. [114]

   Mr Rajalingam referred to a number of sentencing decisions, which were said to bear similarities to Kwan’s case, in support of an argument that the sentence was manifestly excessive.

4. [115]

   Counsel for Chan submitted that the head sentence of 23 years’ imprisonment lay well outside of the upper end of the range of sentences for attempted possession of a commercial quantity of a border controlled drug. It was submitted that the sentencing statistics show that over 80% of cases in that category received a head sentence between six and 18 years. It was submitted that only three cases were recorded as exceeding head sentences of 20 years in Judicial Commission of NSW statistics and that these comprised the cases of Chan and Kwan and the sentences imposed in Kuo, Huang and Shih v R [2018] NSWCCA 270, to which further reference will be made shortly.

5. [116]

   Counsel for each of Chan and Kwan referred to other sentencing decisions in support of a submission that the sentence imposed upon each of their clients was manifestly excessive.

6. [117]

   Once again, even allowing for the quantity of methamphetamine and findings made concerning Kwan’s actions and role in the offence, it was submitted that the sentence was unreasonable or plainly unjust. Counsel for Kwan submitted that a sentence comprising a head sentence of about 18 years’ imprisonment with a non-parole period of 12 years would be an appropriate disposition in all the circumstances of the case.

7. [118]

   The Crown submitted that the sentences imposed upon Chan and Kwan may be regarded as stern, but that it had not been demonstrated that either sentence was manifestly excessive.

8. [119]

   The Court was invited to have regard to relevant sentencing principles for offences of this type as summarised in R v Nguyen; R v Pham at [70]-[72] (see [122] below). The Crown referred to the sentencing decisions upon which Chan and Kwan sought to rely and submitted that, upon examination, the decisions did not assist them in demonstrating that the present sentences were manifestly excessive.

9. [120]

   The Crown responded to submissions addressing features of the cases in support of a submission that examination of these sentencing decisions did not support Chan and Kwan in their claim of manifest excess.

10. [121]

    In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) summarised the principles to be applied on a sentence appeal where there is a claim of manifest excess at [443]:

11. [122]

    In approaching these grounds of appeal, it is helpful to keep in mind the general sentencing principles summarised in R v Nguyen; R v Pham at [70]-[72]:

12. [123]

    The principal arguments advanced in support of the manifest excess grounds related to sentencing decisions in other unrelated cases. It is necessary to keep in mind the approach to sentencing decisions when assessing a claim of manifest excess.

13. [124]

    In The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [50], Bell and Gageler JJ said that “comparable cases decided by intermediate courts of appeal provide the most useful guidance to a sentencing judge” and that those “reasons reveal the mix of factors that were taken into account and will usually involve consideration of the appropriateness of the sentence imposed at first instance”.

14. [125]

    Whilst there is no single correct sentence or range of correct sentences, sentencing Judges must have regard to what has been done in other cases with consistency in the application of relevant legal principles so as to achieve reasonable consistency in treating like cases alike to be achieved through intermediate appeal court decisions: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]-[50], [53]-[56].

15. [126]

    In Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41, Gageler and Gordon JJ said at [83] (footnotes omitted):

16. [127]

    With those principles in mind, I will consider the cases relied upon by the parties in this case.

17. [128]

    In R v Hong and Lee [2012] NSWDC 267 (Cogswell SC DCJ), the offenders pleaded guilty to a single count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, heroin. The starting point head sentence was one of 20 years, reduced to 15 years once a 25% discount had been applied for the offenders’ pleas of guilty. The quantity of border controlled drug (“nearly 25 kilograms of pure heroin”) was less than one-third of the level involved in the present case. The pleas of guilty at an early stage in R v Hong and Lee allowed a finding to be made of genuine remorse, a finding which is not open to Chan and Kwan. It should be noted that this decision was the subject of a recent appeal to this Court (Hong v R [2020] NSWCCA 225) in which the Crown conceded error in accordance with the principles in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4. Owing substantially to positive progress during the significant portion of the original sentence which had been served, Hong’s sentence was reduced to one of 14 years’ imprisonment with a non-parole period of nine years on appeal. These decisions do not assist the Applicants.

18. [129]

    Counsel for Chan relied upon Dao v R [2011] NSWCCA 183, although counsel for Kwan did not press his reliance upon that decision. In Dao v R, the offender pleaded guilty at the first available opportunity to attempting to possess a commercial quantity of an unlawfully imported border controlled drug, 22.3 kilograms of pure methamphetamine. The offender was sentenced to imprisonment for 10 years with a non-parole period of six years. The starting point prior to the application of a discount was therefore in the order of 12 years and six months. The quantity involved in Dao v R was less than one-third of the quantity involved in the present case so that the decision provides no assistance to Chan in this Court.

19. [130]

    Counsel for Chan relied upon Lau v R [2014] NSWCCA 179. In that case, the Applicant was found guilty of an offence of attempting to possess 102 kilograms of pure heroin contrary to ss.307.5(1) and 11.1(1) Criminal Code (Cth). The offender was sentenced to imprisonment for a term of 11 years with a non-parole period of seven years. The sentencing Judge accepted that the offender had “something of an intellectual disability so that general deterrence was not of quite the same importance as it would otherwise be” (at [118]). The sentencing Judge found that although the offender’s role “was a crucial role it was a role at a low level in the enterprise” (at [115](e)). The Court held that the sentence imposed upon a co-accused (“Mrs Ma”) was manifestly inadequate (at [124]). Where the Crown had not brought an appeal against Mrs Ma’s sentence, the Court upheld the offender’s parity ground and reduced his sentence to one of imprisonment for a period of nine years with a non-parole period of six years. The circumstances in Lau v R are significantly different to those in the present case and I do not consider that this decision assists the present Applicants.

20. [131]

    In R v To (2007) 172 A Crim R 121; [2007] NSWCCA 200, the offender was found guilty after trial of aiding and abetting the importation of a commercial quantity of methylamphetamine. The quantity involved was 34.8 kilograms of pure methylamphetamine, well under half the quantity involved in the present case. The sentencing Judge found that the offender had a managerial role in the importation and should be sentenced as a principal who stood to benefit as such from the importation. At first instance, the offender was sentenced to imprisonment for 17 years with a non-parole period of 10 years and six months. On a Crown appeal, the offender was sentenced to imprisonment for 25 years with a non-parole period of 15 years. I do not consider that this decision assists the present Applicants in particular given the difference in quantity of the drug and the role of the offender.

21. [132]

    In R v Moore [2005] NSWCCA 212, the offender pleaded guilty to possession of 92.442 kilograms of pure MDMA contrary to s.233B(1)(a)(vi) Customs Act 1901 (Cth). His role was to take delivery of drugs imported from the Netherlands, communicating with his co-offenders concerning the importation and performing other steps in Australia including taking delivery of the MDMA which he took to his premises. After application of a 25% discount for his plea of guilty and assistance, the offender was sentenced to imprisonment for 20 years with a non-parole period of 15 years. His appeal against severity of sentence was dismissed. The starting point sentence, before application of the 25% discount, involved a head sentence of 26 years and eight months. This decision does not assist the present Applicants in their claim of manifest excess.

22. [133]

    In Kuo v R; Huang v R; Shih v R, each of the offenders pleaded guilty to attempting to commit an offence contrary to s.307.5 Criminal Code (Cth), namely to possess 142 kilograms of pure methylamphetamine with a wholesale value of $46,138,000.00 and a street value of $147,420,080.00. Kuo and Huang were involved in unpacking the drugs and were found by the sentencing Judge to have played an essential role in the drug importation syndicate (at [69]).

23. [134]

    At first instance, Kuo and Huang were each sentenced to imprisonment for 22 years with a non-parole period of 14 years and six months with Shih being sentenced to imprisonment for 27 years with a non-parole period of 18 years. Kuo and Huang were found to be “well aware of the number of packages” they were to possess and to have known that “they were to execute and illicit drug importation of a very significant size” (at [72]). Kuo was aged 21 years at the time of the offence (at [61]).

24. [135]

    In circumstances where Xiao v R error was conceded with respect to the offenders’ pleas of guilty, each of Kuo and Huang was resentenced to imprisonment for 19 years with a non-parole period of 12 years. The offender Shih was resentenced to imprisonment for 22 years with a non-parole period of 14 years. In each case, the benefit of the plea of guilty was assessed to be “about 10-15%” (at [90]).

25. [136]

    It may be seen that the quantity of methamphetamine in this case is substantially higher than the quantity in the present case. However, each offender pleaded guilty at an early stage and received a significant discount on sentence as a result.

26. [137]

    In my view, the decision in Kuo v R; Huang v R; Shih v R constitutes the high water mark of the argument advanced by Chan and Kwan. A substantially larger quantity of drug was involved in that case. However, each offender pleaded guilty and there were other features (such as Kuo’s age) which are absent in the case of the present Applicants. It is important to bear in mind that a claim of manifest excess is not to be assessed by comparison with a single sentencing decision.

27. [138]

    I will return to this decision when expressing a conclusion by reference to all the other sentencing cases upon which reliance was placed.

28. [139]

    In Pham v R; Tang v R, the offender Tang pleaded guilty to three counts of importing a border controlled drug under s.307.1(1) Criminal Code (Cth) and the offender Pham was found guilty on three counts of attempting to possess a commercial quantity of a border controlled drug under s.307.5 of the Code. The quantities of drug involved were 71.564 kilograms of cocaine, 9.757 kilograms of ecstasy and 29.285 kilograms of methylamphetamine. Each offender was involved in organisational aspects of the importation and physically unpacking the container when they were arrested. Tang, who pleaded guilty, had been involved in the enterprise for a longer period of time. Pham pleaded not guilty and was convicted at trial. Each offender was sentenced to imprisonment for 19 years with a non-parole period of 14 years.

29. [140]

    In the course of dismissing an appeal against the severity of the sentences, Redlich JA held that the sentences imposed “were towards the bottom of the range of sentences open to the sentencing judge” (at [7]). I do not consider that the sentencing outcomes in this case provide any assistance to the present Applicants.

30. [141]

    In R v Le [2010] NSWDC 101 (Berman SC DCJ), the offender was found guilty after trial of an offence under s.307.5(1) Criminal Code (Cth) involving importation of 10 kilograms of pure methamphetamine. The offender had travelled to Australia for the purpose of taking delivery of the drugs. He was sentenced to imprisonment for 18 years with a non-parole period of 12 years.

31. [142]

    In circumstances where the case of the present Applicants involves more than eight times the quantity of drug to that involved in R v Le, I do not consider that this decision provides any assistance to the Applicants.

32. [143]

    In R v Pham, Tran and Dang; ex parte Director of Public Prosecutions (Cth) [2017] QCA 46, the offenders Pham and Tran were found guilty after trial of attempting to possess 33.667 kilograms of pure heroin. Pham and Tran were involved in unpacking a container once it had been subject to a controlled delivery from Vietnam to Australia. Pham was sentenced to imprisonment for 12 years with a non-parole period of seven years whilst Tran was sentenced to imprisonment for 10 years with a non-parole period of six years. Each offender was found to be “a low level participant” (at [20]-[22]) and each offender was held to have made significant admissions during the course of the trial (at [20]-[21]). The sentencing Judge was unable to conclude from the evidence whether Tran was initially aware of what was involved, but concluded that at some point he became aware of the presence of drugs (at [21]).

33. [144]

    Noting the significant difference in the quantity of the drug and what I consider to be significant differences as well in the acts of the present Applicants as opposed to the more limited acts of the offenders in that case, I do not consider that this decision provides any real assistance to the Applicants.

34. [145]

    In R v Yuan (2015) 252 A Crim R 422; [2015] NSWCCA 198, the offender was found guilty after trial of importing approximately 55 kilograms of pure methamphetamine. The sentencing Judge characterised the offender’s role as that of a “supervisor or executor in the enterprise”, well above that of a mere courier or recipient, but not operating at a high level. The offender was sentenced to imprisonment for 10 years with a non-parole period of six years. On a successful Crown appeal, the offender was sentenced to imprisonment for 15 years with a non-parole period of 10 years.

35. [146]

    It is the case that the offender in R v Yuan was heavily involved in aspects of the importation of the drug into Australia, but the quantity of drug was significantly less than that in the case of the present Applicants.

36. [147]

    In Director of Public Prosecutions (Cth) v Peng [2014] VSCA 128, the offender pleaded guilty to importing 23.154 kilograms of pure amphetamine. The offence involved importation of three crates with the offender being involved in its delivery to him in Australia and its subsequent dissemination. The offender pleaded guilty prior to committal and was found to have expressed remorse. At first instance, he was sentenced to imprisonment for 11 years with a non-parole period of seven years and six months. Following a successful Crown appeal, the sentence was increased to a term of imprisonment for 13 years with a non-parole period of 10 years, calculated after application of a discount to a starting point of 17 years and four months.

37. [148]

    Given the very significant difference in the quantity of drug in this case to that involved in the case of Chan and Kwan, this decision provides no real assistance to the Applicants.

38. [149]

    The Crown observed correctly that the circumstances of Chan and Kwan share a number of the common features identified by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) at [209] as representing “the most serious cases” with head sentences ranging from 25 years to life.

39. [150]

    As McClellan CJ at CL observed, cases in the first group identified by his Honour include a high or very high commercial quantity of drugs “frequently numbering in the tens if not hundreds of kilograms” and the “street value of the drugs is frequently (and unsurprisingly) in the hundreds of millions of dollars” (at [209]). As noted earlier, the estimated street value in the Applicants’ case was between $50,848,000.00 and $152,544,000.00.

40. [151]

    Further, the cases in the second group nominated by McClellan CJ at CL in De La Rosa (at [210]-[211]) show a range of head sentences from 18 years to 24 years and six months for cases which, the Crown submitted, bore similar characteristics to the findings made in the case of the present Applicants.

41. [152]

    In his written submissions, counsel for Kwan referred to the judgment of McClellan CJ at CL in De La Rosa and pointed to the decision in R v Bartle; R v Roberti (2003) 181 FLR 1; [2003] NSWCCA 329 where the offenders received similar sentences to those imposed on Kwan and Chan after conducting a trial, but the quantity of drug in that case was much higher, being 383 kilograms of pure cocaine.

42. [153]

    The Crown noted that the decision in R v Bartle; R v Roberti concerned seven co-offenders involved in varying degrees with the importation of cocaine. Two of the offenders in R v Bartle; R v Roberti received sentences of life imprisonment with a non-parole period of 25 years. The remaining offenders, who were assessed as having a lesser role, received sentences of imprisonment for 24 years with a non-parole period of 16 years. This decision does not assist the present Applicants.

43. [154]

    I have considered the particular submissions made by counsel for each of Chan and Kwan in support of this ground of appeal. Mr Rajalingam accepted as being accurate the sentencing Judge’s description of the importance of Kwan’s role as being “significant” and “highly significant”. He submitted, however, that the sentencing Judge had fallen into error by concentration upon the label to be attached to Kwan rather than an examination of what Kwan actually did in committing the offence. I am not persuaded that his Honour fell into this error. His Honour made express and detailed findings concerning what each of Chan and Kwan did in committing the offences, with labels or descriptors being used as shorthand terms as part of a summary in a manner which was orthodox and not revealing error.

44. [155]

    In considering the comparable cases, counsel for Kwan relied in particular upon an examination of the sentences imposed upon Kuo and Huang in Kuo v R; Huang v R; Shih v R and the sentence in R v Yuan. He submitted that the circumstances of the offences of Kuo and Huang involved a much larger quantity of pure drug and the circumstances of Yuan’s offence involved an offender who was more heavily engaged in organisational aspects of the offence. He submitted that the sentences imposed in cases such as Peng, Dao and Pham, Tran and Dang where the offenders’ involvement was not as prolonged, support the claim of manifest excess in Kwan’s case.

45. [156]

    I have considered the submissions made by reference to other sentencing decisions and the factual circumstances of the present cases of Chan and Kwan. In my view, it has not been established that the sentence imposed upon each of Chan and Kwan goes beyond what might be considered a stern sentence (which was available in the exercise of discretion of the sentencing Judge) so as to become a sentence which is manifestly excessive (which was not so available): Conte v R (2018) 86 MVR 239; [2018] NSWCCA 209 at [6] (Payne JA and Button J).

46. [157]

    I am not persuaded that examination of these sentencing cases supports Chan and Kwan in their claim that the sentences imposed upon each of them were manifestly excessive. As would be expected, there are significant differences in the circumstances of other cases when compared to the present matters. Even then, there are few cases where the pure quantity of methamphetamine is in the order of that involved in the present cases. Chan and Kwan were far from being minor participants in these offences. The sentencing Judge characterised accurately their involvement in the commission of an objectively very serious offence.

47. [158]

    Although the scheme under the Criminal Code (Cth) determines the commercial quantity of a border controlled drug without distinguishing between different types of drugs, it was relevant on sentence for his Honour to have regard to the particular vices of methamphetamine, a drug with especially detrimental consequences demonstrated daily in the criminal courts in this State (see [22] above). What was said in Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15 at [2]-[3], concerning the nature of a quantity-based offence regime, does not stand in the way of a sentencing Judge having regard to the highly damaging properties of a particular drug (such as methamphetamine) in passing sentence for an offence under the Criminal Code (Cth).

48. [159]

    Having considered the various sentencing decisions to which reference was made, it has not been demonstrated that the sentences imposed upon Chan and Kwan lay outside the exercise of reasonable sentencing discretion in this case. The sentencing of Chan and Kwan involved appropriate application of relevant legal principles, with differences in sentencing outcomes when compared with Vakatalesau being accounted for sufficiently by the factual differences in the findings made concerning the subjective circumstances of the three offenders.

49. [160]

    Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a purely mathematical exercise.

50. [161]

    Sentencing is a discretionary exercise and involves a process of instinctive synthesis leading to the formulation of a value judgment as to the appropriate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J). In Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38, French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ said at [59] (footnotes omitted):

51. [162]

    The sentences imposed upon Chan and Kwan are substantial and may be described accurately as stern. However, more than that needs to be demonstrated before the Court upholds a ground asserting manifest excess. Neither Chan nor Kwan has demonstrated that the sentence imposed upon him was unreasonable or plainly unjust. I would reject the ground of appeal advanced by each of them that the sentence was manifestly excessive.

Conclusion

1. [163]

   Neither Chan nor Kwan has made good any ground of appeal.

2. [164]

   I propose the following orders:

3. [165]

   DAVIES J: I agree with Johnson J.