Piao v R

1. [1]

   BASTEN JA: The applicant seeks leave to appeal from a sentence of 9 years imprisonment with a non-parole period of 6 years imposed by the District Court (Maiden DCJ) on 31 August 2017. The sentence was back-dated to the date of the offender’s arrest, namely 13 April 2016. The substantive offence for which he was sentenced was a supply of not less than the large commercial quantity of methylamphetamine, an offence carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The judge considered an appropriate head sentence would have been 12 years imprisonment, a figure which was discounted by 25% in consequence of his early guilty plea.

2. [2]

   The principal ground of appeal for which there should be a grant of leave was based on a claim of unjustified disparity with sentences imposed by this Court on two co-offenders. Each of the co-offenders was sentenced by the same judge in the District Court to a far lighter sentence than that imposed on the applicant. However, in each case this Court allowed an appeal by the Director of Public Prosecutions and increased the sentences to 6 years imprisonment with a non-parole period of 4 years.

3. [3]

   The disparity between the resulting sentences could, in principle, be justified by the differing roles played by the three offenders in the supply of a single quantity of methylamphetamine, or by differences in their subjective circumstances. Any discrepancy must be judged by reference to the findings made in relation to the sentencing of each offender. As explained in PG v R, [1] there is no singular objective factual matrix. Thus, when the co-offenders Mr Yiu and Ms Yao were sentenced by this Court to a sentence significantly lower than that being served by the applicant, it was on the basis that the applicant was “higher up in the chain”, indicating a greater role in the criminal activity. [2] Whether that assessment of relative criminality was correct or not, it explains, at least in part, the disparity between the sentences imposed on Yiu and Yao and that imposed on the applicant. The discrepancy was also partly explained by Yiu’s and Yao’s personal circumstances, which were more favourable than those accepted in relation to the applicant. [3]

4. [4]

   Whatever the findings, this Court knew of the sentence imposed on the applicant when resentencing Mr Yiu and Ms Yao; the disparity was acknowledged and a different outcome was therefore justified in the eyes of that Court. This Court is not “bound” by that assessment but the assessment made in those proceedings is not before this Court for review.

5. [5]

   It has been noted on occasion that in sentencing different offenders, different submissions may be made on behalf of each, justifying disparate outcomes. However, the fact of a different submission is less important than the findings of fact made by the sentencing court and, if any findings are challenged, the evidence upon which the findings are based. Of course, if the judge was not asked to make a particular finding, it may not be possible to challenge the failure to make such a finding. To that extent, for example, the submissions may be significant.

6. [6]

   The applicant submitted in this court that “[a] comparison of the role played in the commission of the offence by the applicant to those of the co-offenders Yiu and Yao reveals that the applicant played a lesser role.” On one view, the submission assumes that there is a single objective assessment to be made of the role of each offender; that assumption is false for the reasons given above. On another view, if the evidence before the Court sentencing the applicant demonstrated that his relative criminality was lower, once the co-offenders were sentenced on a different basis to lower sentences, the applicant could raise a challenge based on disparity; if upheld, that in turn would allow the co-offenders to seek to lower their sentences. Of course, at some stage a court could refuse to intervene on a discretionary basis, but that is not the answer to the conundrum. The answer lies in the fact that each is to be sentenced once on facts as found. If the facts accepted at a separate sentencing hearing for the co-offenders justify disparate (lower) sentences, no game of downward leap-frog is available.

7. [7]

   In the course of sentencing the applicant, the judge stated:

8. [8]

   This statement recorded a submission; at no stage did the judge state whether he accepted the submission or not. Indeed, for the reasons already given, it would not matter if the judge did accept the submission on the basis of the evidence before him. However, the reference to the co-offenders being listed for sentence later in the year suggests that the judge was deliberately not making that comparison. He did not need to do so as they had not yet been sentenced; he may have wished not to do so in their absence. Questions of parity could only arise when he came to sentence them.

9. [9]

   As it turned out, the sentencing exercise in the District Court with respect to Mr Yiu and Ms Yao miscarried; the relevant sentencing exercise was undertaken by this Court. The result has already been noted.

10. [10]

    There are two further matters to be noted. First, there was no challenge before this Court to any factual finding made by the sentencing judge in sentencing the applicant. Secondly, there is no challenge (nor could there be) to the finding of this Court in sentencing Mr Yiu and Ms Yao that the objective criminality of Mr Piao was higher than theirs. That finding alone justified the disparity in sentences. Accordingly the principal ground of appeal must be rejected.

11. [11]

    In all other respects, I agree with the reasoning of R A Hulme J and with the orders he proposes.

12. [12]

    R A HULME J: Jian Piao (the applicant) was sentenced by his Honour Judge Maiden SC in the District Court at Sydney on 31 August 2017 to imprisonment for 9 years with a non-parole period of 6 years for an offence of supplying methylamphetamine in an amount not less than the large commercial quantity.

13. [13]

    The offence is contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty is imprisonment for life (and/or a fine) and there is a standard non-parole period of 15 years prescribed under the Crimes (Sentencing Procedure) Act 1999 (NSW).

14. [14]

    In sentencing for this offence, at the applicant’s request, the judge took account of a further offence of knowingly participating in a criminal group contrary to s 93T of the Crimes Act 1900 (NSW). While the judge took the offence into account, he said it would not have any effect upon the sentence for the drug supply offence.

15. [15]

    The applicant seeks leave to appeal on the following grounds:

16. [16]

    An extension of time is required because the Notice of Application for Leave to Appeal was filed a few days after the life of a Notice of Intention to Appeal expired. The Crown did not oppose this application. An extension should be granted.

Evidence in the applicant’s proceedings

1. [17]

   The facts that were placed before the sentencing judge were agreed and were to the effect that the applicant played a key role in an attempt to sell a kilogram of methylamphetamine to a person who was acting as a police undercover operative (UCO). The applicant’s role included going to a car where the UCO was waiting and counting the money ($110,000) that was to be used in the transaction. He then went away and retrieved the drugs from his home nearby, then brought them back to the car where he and others were arrested.

2. [18]

   The applicant’s co-offenders included Mung Yi Yau and Cheuk Hang Yiu. The role they and others played in the transaction were included in the Statement of Agreed Facts. The description of their roles suggested that Yau and Yiu played a more senior or organisational role. They (and not the applicant) communicated with the UCO in the period leading up to the attempt to supply the methylamphetamine. Yiu gave the UCO directions as to where he was to pick up Yau; Yau directed the UCO to drive to Moore Park and then put him on the phone to speak with Yiu; Yiu directed the UCO to drive to a location in Zetland where the transaction was to occur. The agreed facts for the applicant included that Yau was acting as a "broker in the supply of methylamphetamine". They also included that the applicant was "acting on the instructions of Yiu in the supply of methylamphetamine". [5]

3. [19]

   The applicant’s subjective case comprised his oral evidence at the sentence hearing and the tender of a psychologist’s report. It is unnecessary to explore this in detail except to observe that at the time of the offence, the applicant was a 27 year old Chinese national who had no significant criminal history. He had pleaded guilty at an early stage and received a reduction of 25 per cent on that account. He was a user of methylamphetamine but the judge was doubtful about the extent of his claimed drug use. The judge was also sceptical about his evidence as to how much he stood to gain from participating in the transaction; he claimed he was to receive $2000 and 10 grams of ice.

The co-offenders’ proceedings

1. [20]

   The same judge (Maiden SC DCJ) sentenced the co-offenders Yiu and Yau on 12 March 2018. They had each entered early pleas of guilty to a charge of knowingly taking part in the supply of not less than a large commercial quantity of methylamphetamine and asked that an offence of knowingly participating in a criminal group be taken into account. Yiu also asked that an offence of supplying 20 grams of methylamphetamine some months earlier be taken into account. He was on bail for the latter at the time of his involvement in the large commercial supply offence.

2. [21]

   The agreed facts for Yau maintained the proposition that appeared in the applicant's agreed facts; that she was "acting as a broker in the supply of methylamphetamine". There was nothing to the effect that the applicant was acting under the instructions of Yiu.

3. [22]

   The agreed facts for Yiu also did not contain the proposition that the applicant was acting under Yiu's instructions and there was no reference to Yau acting as a "broker".

4. [23]

   Based on the evidence and submissions in their case, the judge concluded that they played a lesser role than the present applicant and that the objective seriousness of their offence was at the lower end of the range. His Honour was also impressed with the subjective case each co-offender presented. After a reduction of 25 per cent for their early pleas of guilty, he imposed sentences for both offenders of 3 years with a non-parole period of 2 years.

5. [24]

   The Crown appealed against the inadequacy of the sentences imposed upon Yiu and Yau. The facts and circumstances relating to the offence and the subjective cases of the co-offenders are set out in detail in a judgment of this Court (Rothman J, Meagher JA and Garling J agreeing) dated 27 July 2018: R v Yiu; R v Yau [2018] NSWCCA 155. In short, the strength of the subjective case for each offender was accepted, but the Court held (at [117]) that the judge had imposed sentences that were not within the range of sentences available or appropriate in the circumstances. The Court resentenced each respondent by imposing sentences of imprisonment of 6 years with a non-parole period of 4 years.

6. [25]

   The sentence of 9 years with a non-parole period of 6 years imposed upon the applicant might have seemed appropriate and within range when assessed in light of the evidence placed before the sentencing judge and the findings he made. His Honour had no occasion to consider parity because Yiu and Yau were yet to appear for sentence. It is therefore unsurprising that the applicant did not pursue an appeal in the immediate aftermath. However, subsequent to the sentencing and resentencing of Yiu and Yau, the applicant filed his Notice of Application for Leave to Appeal in December 2018.

Ground 2 – error in relation to remorse

1. [26]

   Ground 2 of the proposed appeal asserts that the sentencing judge erred in not taking the applicant’s remorse into account. The ground has no merit. The evidence to support a claim of remorse comprised a single answer given by the applicant in his oral evidence at the sentence hearing. It was clearly not a sufficient basis for a finding to be made in the applicant’s favour that he was genuinely remorseful, and no submission was made to the sentencing judge that he should so find.

Ground 1 – a legitimate sense of grievance arising from disparity

1. [27]

   Ground 1 asserts that the applicant has a justifiable sense of grievance arising from the sentences imposed upon the co-offenders Yiu and Yau.

2. [28]

   The parity principle was described in the joint judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 as follows:

3. [29]

   In Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 623-4, Dawson J said:

4. [30]

   In Fenech v R [2018] NSWCCA 160 at [32]-[33], after referring to that passage of Dawson J's judgment, I observed:

5. [31]

   There is no obligation upon a court of criminal appeal to respond to an excessively disparate sentence by reducing it to one which is inadequate: Green v The Queen; Quinn v The Queen at [33]. However, in this case, the Crown did not contend that the sentences imposed upon Yiu and Yau by this Court were inadequate.

6. [32]

   It sometimes occurs that co-offenders are sentenced by different judges and disparate sentences are imposed. That is why it has been said to be desirable that co-offenders be sentenced by the one judge and preferably in the same sentence hearing: for example, Lowe v The Queen at 617 (Brennan J) and 622 (Dawson J). Sometimes when this occurs, the co-offenders are sentenced on the basis of different facts, evidence, and submissions.

7. [33]

   In PG v R [2017] NSWCCA 179, the co-offenders were sentenced on different occasions by the same judge, but there were different agreed facts and different evidence. Basten JA, with the concurrence of Button and N Adams JJ on this point, explained:

8. [34]

   In the course of explaining that the disparity in the sentences under consideration in that case was warranted, his Honour added:

9. [35]

   The findings made by the sentencing judge as to the role played by the applicant and the objective seriousness of his offence are encapsulated in the following from his Honour’s judgment:

10. [36]

    That assessment, based upon what was before the court in terms of evidence and submissions, is not suggestive of the applicant having played a greater role in the offending than Yau and Yiu. For example, it can be inferred from the finding that the applicant was “not the prime mover” that his Honour accepted the applicant was not involved in arranging the transaction. The agreed facts contained no suggestion of the applicant doing anything other than the physical steps required to effect the transfer of the money and the drugs. Accordingly, it is not possible to regard the applicant’s culpability as greater, thereby warranting a higher sentence than what was later imposed upon the co-offenders Yiu and Yau, although of course, no question of parity arose at the time the applicant was sentenced.

11. [37]

    The judge made a different assessment when he later came to consider the cases of Yau and Yiu, having regard to the brief but significant differences in the statements of agreed facts referred to earlier as well as their unique subjective cases. He appears to have regarded the subjective cases for Yau and Yiu as more favourable than the subjective case for the applicant (although he said nothing of the fact that Yiu was on bail).

12. [38]

    This Court made some significant findings in dealing with the Crown appeal against the inadequate sentences imposed upon Yau and Yiu. The Court had the same evidence as was before the sentencing judge, but there had no doubt been different submissions both before the primary judge and before this Court. As set out in the judgment of Rothman J, the findings included the following:

13. [39]

    In the course of discussing matters relevant to resentencing, Rothman J said:

14. [40]

    At the conclusion of his reasons, Rothman J added:

15. [41]

    The last statement that there would be no (unjustifiable) disparity in relation to any co-offender may be taken to include a reference to the applicant.

16. [42]

    The applicant relied upon Wright (a pseudonym) v R [2017] NSWCCA 289 for the proposition that the findings made by this Court in the case of each of the co-offenders do not pose a barrier to the Court coming to different conclusions in the present proceedings. [6] However, the question before the Court on that occasion was somewhat different. A co-offender had received the same sentence as the applicant on the same occasion and had unsuccessfully raised a parity issue on appeal. The Crown sought to rely upon the Court's conclusion in the co-offender's appeal that there was no unjustifiable disparity. Simpson JA rejected the proposition, explaining (at [42]):

17. [43]

    Hamill J agreed, adding (at [46]):

18. [44]

    In the present case, neither party sought to rely upon the findings of the Court in the Crown appeal against the co-offenders' sentences.

19. [45]

    What this case comes down to is the fact that different courts have sentenced the applicant and his co-offenders. They have done so on largely the same agreed facts but with an important distinction that was pertinent to the respective roles the three played in the offence. Each court also had before it evidence and submissions that were not identical. Based upon these differences, the courts reached conclusions that, on the bare surface, appear to conflict and give rise to the grievance of which the applicant now complains.

20. [46]

    However, for the reasons given by Basten JA in PG v R, a state of affairs such as this, unfortunate as it may appear, sometimes occurs. Part of what was earlier quoted from Green v The Queen; Quinn v The Queen at [31] (French CJ, Crennan and Kiefel JJ) was that "the sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria" and "the application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity". The "objective criteria" in the present case are the different materials and submissions before the two courts.

21. [47]

    I propose the following orders:

22. [48]

    FAGAN J: I agree with the orders proposed by R A Hulme J. I agree with his Honour’s reasons for rejecting Ground 2.

23. [49]

    With respect to Ground 1, the agreed facts before the learned sentencing judge showed that several individuals were involved on the supply side of this sale of 1kg of methylamphetamine, each fulfilling a limited role. This is a common modus operandi in drug supply cases, plainly intended to minimise the risk of detection of any of the participants.

24. [50]

    Ms Yau was the UCO’s initial contact for the supply. She arranged for the UCO to speak with Mr Yiu. He instructed the UCO to pick up Ms Yau in his vehicle and follow her directions to the place where the transaction would take place. Ms Yau directed the UCO to a location in Moore Park. From there she phoned Mr Yiu several times and had him speak directly to the UCO, whereby an instruction was communicated from Mr Yiu to drive to a street in nearby Zetland. The UCO drove to the new location and parked. The applicant approached the vehicle soon after and entered the rear seat. He was shown the $110,000 that the UCO was to pay for the drug. He required the UCO to drive around the block so that he could count the money.

25. [51]

    When the applicant had satisfied himself about the money, the UCO drove back to his original parking place and told the applicant he would remain there until the drug was brought to him. The applicant had the keys to an apartment in a building in an adjoining street. He went there with another man, Mr Lin, collected a single package containing 1kg of methylamphetamine and returned to the UCO’s vehicle. Mr Lin followed slightly behind the applicant, apparently keeping a lookout. At the vehicle the applicant spoke with Ms Yau in Chinese, then told the UCO that he “had it” and showed him the package of methylamphetamine. Police arrested Ms Yau and the applicant at this point.

26. [52]

    There was no agreed fact nor any finding by the learned sentencing judge as to who was the principal in the transaction, that is, the person who owned the methylamphetamine and who would derive a profit from the sale. His Honour expressly found that the applicant was “not the prime mover”. The statement of facts characterised Ms Yau as “a broker in the supply” and the applicant as “acting on the instructions of [Mr] Yiu”. The latter proposition did not entail that Mr Yiu was giving instructions in the capacity of principal.

27. [53]

    His Honour noted the Crown’s submission “that the persons who were higher up the chain and who arranged the supply were [Ms] Yau and [Mr] Yiu”. He did not expressly accept the submission. In any event and with due respect, a description of the participants’ roles in terms of position higher or lower on a “chain” was not useful or self explanatory as a way of assessing objective culpability in this case. All of the participants identified in the facts were on a plane below that of principal. Amongst them, greater and lesser parts were played. The scope of the applicant’s actions determined the degree of objective seriousness of his offending, which was the matter with which his Honour was concerned.

28. [54]

    Mr Yiu’s role was that of overall coordinator of movements. Ms Yau undertook direct and immediate liaison with the buyer, accompanying him to the place where the exchange with the applicant would take place. The applicant’s role was, firstly, to hold the drug pending delivery in premises to which he had access and that were under his control. The premises were referred to in the agreed facts as a safe house, which conveys a clearer meaning than the learned sentencing judge’s term “halfway house”. The applicant also had the role of carrying the drug to the point of exchange and receiving the cash payment.

29. [55]

    Self-evidently, whoever was the ultimate owner of the drug had reposed considerable trust in the applicant: to store it until sale, to handle it safely to the point of exchange and to receive, count and hold the purchase money. Completion of the transaction depended upon the applicant’s willingness to assume the risk of being caught in physical possession of the drug while it was stored or while he was carrying it. In order for the transaction to work, the applicant also had to assume the risk of being caught in possession of the proceeds, following the exchange.

30. [56]

    His Honour, of course, did not have to decide the relative objective culpability of Mr Yiu and Ms Yau, compared to that of the applicant, in order to arrive at the sentence for which leave to appeal is sought. Having now considered the applicant’s claimed sense of grievance arising from comparison of his sentence with the sentences subsequently passed upon Mr Yiu and Ms Yau, on the facts as they stood before his Honour, I would assess the applicant’s physical role and his assumption of risk, responsibility and trust as more objectively serious than the participation of either of the other two. All participants were acting cooperatively. The fact that the roles of Mr Yiu and Ms Yau involved orchestration of the actions of the applicant and the UCO did not, in the absence of any evidence or assertion that they were principals, elevate the seriousness of their offending above that of the applicant. The significant and responsible part played by the applicant, taken into account with his subjective case, fully justified the sentence passed by his Honour.

31. [57]

    The findings upon which this Court resentenced Mr Yiu and Ms Yau included the following, concerning the objective seriousness of their conduct and the relative culpability of themselves and the present applicant. These passages are quoted from the judgment of Rothman J in the Court of Criminal Appeal:

32. [58]

    These findings were based upon statements of facts in relation to Mr Yiu and Ms Yau, respectively, which were summarised by the Court at [14]-[23] in Rothman J’s judgment. The statements of fact included descriptions of the activities of all offenders to substantially the same effect as my summary at [49]-[52] above. The sentencing judge accepted that Ms Yau and Mr Yiu were to receive $5,000 each for their part in the transaction and this was not disputed on the appeal. That was positive confirmation that Mr Yiu and Ms Yau were both on a plane below that of the (unidentified) principal.

33. [59]

    The Court’s acceptance that the applicant was “higher up the chain” (in the words of the sentencing judge) was apparently intended in the sense that he had a more significant and responsible role than either of Mr Yiu and Ms Yau. The applicant submitted that he played a lesser role than they did and that the imposition upon himself of a greater sentence has given rise to a justifiable grievance. As Basten JA and R A Hulme J have pointed out, it is an unavoidable consequence of separate proceedings for the sentencing of co-offenders that different assessments may be made of the roles of individuals from one proceeding to the next, where the facts and submissions differ. The seriousness of the applicant’s conduct and the level of his penalty has to be measured from the evidence and submissions in his own sentence proceedings. But in any event, putting aside the imprecision of the expression “higher up the chain” and the variable senses in which it may have been used, the applicant’s offending was more objectively serious than that of his co-offenders on the facts presented to the learned judge in each sentence proceeding. Also, the applicant’s subjective case was less compelling. I do not consider that the applicant has any legitimate basis for grievance about the relatively higher sentence he received.