Wu v R [2018] NSWCCA 74

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Wu v R [2018] NSWCCA 74 Hearing dates: 16 April 2018 Date of orders: 27 April 2018 Decision date: 27 April 2018 Before: Hoeben CJ at CL at [1] Fullerton J at [2] Davies J at [3] Decision: Leave to appeal refused. Catchwords: CRIME – appeal against sentence – supply of large commercial quantity of methylamphetamine contrary to Drugs Misuse and Trafficking Act 1985 s 25(2) – applicant's role found to be that of courier – objective seriousness of offending - where offender used coded telecommunications to courier of drugs of significant weight and purity and was motivated by financial gain - principles applying to untested assertions to third parties – where offender relied on statements to psychiatrist inconsistent with agreed facts – sentence not manifestly excessive – no basis for any grounds of appeal Legislation Cited: Drugs Misuse and Trafficking Act 1985 Cases Cited: Collier v R [2012] NSWCCA 21 House v The King (1936) 55 CLR 499 Imbornone v R [2017] NSWCCA 144 Muldrock v The Queen (2011) 244 CLR 120 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 Vaiusu v R [2017] NSWCCA 71 Texts Cited: Nil Category: Principal judgment Parties: Jian Wu (Applicant) Crown (Respondent) Representation: Counsel: M Coroneos (Applicant) B Hatfield (Respondent)

Solicitors: Bo Yu Chi (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/233942 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 2 December 2016 Before: Acting Judge Delaney File Number(s): 2015/233942

Judgment 1. HOEBEN CJ AT CL: I agree with Davies J and the order which he proposes. 2. FULLERTON J: I agree with Davies J. 3. DAVIES J: The applicant pleaded guilty on 8 March 2016 in Central Local Court to one count of supplying a large commercial quantity of a prohibited drug being 5.98kg of methylamphetamine. The offence took place on 10 August 2015. The maximum penalty for this offence is life imprisonment and there is a standard non-parole period of 15 years. 4. He was sentenced by Acting Judge Delaney in the District Court on 2 December 2016 to imprisonment for nine years commencing 10 August 2015 and expiring 9 August 2024 with a non-parole period of five years nine months expiring 9 May 2021. 5. The applicant now seeks leave to appeal on the following grounds: (1) His Honour erred in the exercise of his discretion when sentencing the Applicant by wrongly determining: 1. the proven role of the Applicant; 2. the level of the Applicant (sic) objective culpability; 3. the prospect of the Applicant receiving a substantial reward; 4. the Applicant having a significant level of involvement in the execution of the organisation; 5. in imposing on the Applicant an onus to give evidence and persuade him without reservation that his role only as serious as appear in the agreed statement of facts (sic); 6. in concluding that the Applicants (sic) offence was just below midrange; 7. in failing to take into account as relevant to both the head sentence and non-parole period remorse and contrition, prospects of rehabilitation and prior good character which appear to have been left to be dealt with as special circumstances; and notwithstanding there was a plea of guilty and what was said in Muldrock v The Queen (2011) 244 CLR 120, appearing to have used the standard non-parole period as a guideline or indicator without particular consideration of the individual circumstances of the case. (2) Having regard to the totality of the circumstances the sentence is so excessive as to indicate error.

Background 1. The Joint Organised Crime Group, which is a multi-agency investigation group comprising the NSW Police Force, Australian Federal Police, Australian Customs & Border Protection Service, the NSW Crime Commission and the Australian Crime Commission was investigating a criminal syndicate involved in the distribution of drugs. Between 6 and 10 August 2015 the JOCG lawfully intercepted telecommunications services used by the applicant and engaged in physical surveillance of him. The applicant was using a falsely subscribed telecommunications service to maintain contact with an unknown male (UM1) who was a member of the criminal syndicate. When the applicant spoke with UM1, he used code words to refer to the drugs he was being asked to bring from Sydney to Melbourne. 2. There were a number of telephone calls between the applicant and UM1 in which they discussed the arrangements that were to be made for the applicant to travel to Sydney and collect the drugs. 3. He flew to Sydney on 10 August 2015 and was observed using the falsely subscribed phone to contact UM1 to obtain further instructions from him. He checked into the Capitol Square Hotel in Haymarket, and at that time he had with him a red mobile phone (the falsely subscribed service) and a large- screened white mobile phone. 4. After checking in, he drove a car he had hired at the airport to Milsons Point and was given instructions to buy a newspaper and hold it at a certain point so that somebody could approach him. 5. After driving the car to another location in Milsons Point the applicant got out of the car and spoke to an unknown Asian male who was carrying a blue nylon backpack with three orange stripes and white squares. Shortly thereafter the unknown Asian male opened the rear passenger door of the applicant's car and placed the blue backpack onto the rear seat of vehicle. The applicant, having made a further call to UM1, drove back to the car park of the Capitol Square Hotel. He was then approached by police and was arrested. 6. At the time of his arrest he was found to be in possession of a white Apple iPhone 6 and a red and black Telstra NextG mobile phone. He told the police that the white Apple iPhone 6 belonged to him and that the red Telstra NextG mobile phone had been given to him at about 3 o'clock that day by an unknown Asian male. The agreed facts disclosed that he had used that phone from at least four days before his arrest. He said he had used the phone once during the day of his arrest to call that unknown male and inform him of his whereabouts. In fact, the agreed facts record the applicant using the phone on some 13 occasions on that day to speak to UM1 and to attempt to speak to others concerning the arrangement.

Subjective matters 1. The applicant did not give evidence at the sentence proceedings. He wrote a letter to the Court expressing his sincere regret for the crime he had committed, and he acknowledged that his actions caused harm to others for which he said he was truly sorry. There was a letter from his father who accepted that he had a responsibility for the applicant's offending in that he and his then wife did not give enough care and time to the applicant when he was growing up. Moreover, they did not support the applicant when he indicated that he wanted to pursue a career in street dancing. 2. Finally, the sentencing judge had a report from Dr Allnut of 23 June 2016. Dr Allnut reported that the applicant's upbringing was disturbed because his parents divorced when he was aged about 13 or 14. Before that time he grew up in a household where his parents argued a great deal. Moreover, the applicant was teased and bullied at school in his middle and later years because his parents' divorce was a scandal in the area. 3. The applicant came to Australia from China in 2011 when he was 20 years of age. At the time of the offending he worked as chef at a café restaurant and had done so for about 18 months. He lived with his girlfriend. It appears that finances were rather tight. 4. As to the circumstances of the offending, Dr Allnutt reported that the applicant told him that he was asked to deliver something for a friend of one of his students at a dance studio. He agreed to help this person out because that person had been helping him out at the dance studio. When he asked what was inside the bag, he was told there was some medicine and nothing else - nothing illegal. He said that when he reached his hotel in Sydney he was told to go to a train station and, that when he arrived there, a person said hello to him and jumped on the train. Another person dropped a bag saying "This is what your friend wants". He said that he drove back to the hotel, unpacked the car and was arrested by the police in the lobby. He told Dr Allnutt that he did not know what was in the case. 5. Dr Allnutt said that at the time he saw the applicant, the applicant was manifesting symptoms of a chronic adjustment disorder with a depressed and anxious mood characterised by reduced self-esteem, poor concentration and loss of confidence in his decision making. Dr Allnutt said that the applicant did not manifest the usual characteristics of an individual at a high risk of reoffending.

Remarks on Sentence 1. The sentencing judge said that there was considerable criminality in the offending. His Honour found that it was a very serious offence, committed for a financial motive, showing a significant level of involvement of the applicant in the execution of the organisation. 2. His Honour noted that the Court was given no evidence from the applicant directly about what he was doing and why he did it. His Honour said that the Court was left with material which was of a hearsay nature seeking to explain matters "which should have been explained and dealt with in a manner that the Court could accept without reservation". 3. His Honour noted the Crown submissions accepting that the applicant was a courier. His Honour also noted the Crown submissions about the amount of the drug which was six times the large commercial quantity, and about the high purity of the drug. 4. The Crown submitted further that the applicant was motivated by financial gain and that the nature of the operation was sophisticated on the basis of the use of code words, telecommunications services, discussion about disposal of relevant phones, or alternatively about using other phones that had stopped being used previously. His Honour also noted the submissions on behalf of the applicant which was said to have placed the offending at the lower level of criminality. 5. His Honour found that the matter was just below the mid-range of objective criminality. 6. In relation to what appeared in Dr Allnut's report, the sentencing judge found that some of the material in that report could be accepted but, in the absence of the applicant giving evidence about the manner in which the offence occurred and his connection with that offence, his Honour said that what appeared about that in the report could only be taken with a significant degree of reservation. His Honour noted that the parts of Dr Allnut's report relating to the events and the offending were completely contrary to what appeared in the intercepted phone messages. 7. His Honour said that general and specific deterrence were relevant. His Honour accorded a 25% discount for an early plea. His Honour noted that both the maximum sentence and the standard non-parole period had to be considered but that, because the applicant had pleaded guilty, the standard non-parole period was not strictly applied but remained as a guidepost or reference point. 8. His Honour considered that, if the applicant was being sentenced after a trial, the head sentence would be 13 years. Applying the 25% discount for the early plea, his Honour considered that the applicant should receive a sentence of nine years imprisonment. His Honour made a finding of special circumstances because this was the applicant's first time in custody and he had no previous convictions. His Honour found that the applicant would require assistance to deal with his life after he was released. In those circumstances his Honour imposed a non-parole period of five years and nine months.

Submissions 1. The applicant submitted that his role as proved was critical to proper sentencing. The applicant submitted that the sentencing judge appeared to have applied an erroneous principle in holding that the applicant had an onus to show his role was minimised and to require him on sentence to persuade the Court beyond reasonable doubt. The applicant submitted that what his Honour did was not an exercise of caution in refusing to accept untested statements to a third party, but was an example of his Honour finding facts adverse to the applicant not open to be found. 2. The applicant submitted that there was no evidence of any financial benefit to him exceeding that which would have been likely available to a mere courier. The applicant submitted that his Honour erred in concluding that the financial motive of the applicant showed a significant level of involvement of the offender in the execution of the organisation. 3. The applicant submitted that, at the sentence hearing, the Crown Prosecutor had submitted that the objective seriousness of the offence could be determined or principally determined by sheer quantity and purity of the drug. The applicant acknowledged that the sentencing judge did not accept that submission but submitted that his Honour concluded that the matter was objectively just below mid-range, because of those matters and the use of code and telecommunications services,. The applicant submitted that his Honour was in error in so concluding because the primary focus should have been on the role of the applicant rather than the sophistication of the techniques used by the syndicate members. 4. The applicant submitted that a starting point of 13 years was well in excess of that which was appropriate to the applicant's role. The applicant submitted that it did not appear that his Honour took into account, as relevant to both the head sentence and non-parole period, remorse and contrition, prospects of rehabilitation and prior good character, matters which his Honour appeared to deal with as special circumstances. The applicant submitted that his Honour appeared simply to have applied the standard non-parole period.

Consideration

Ground 1 1. In my opinion there is no substance to the matters put forward on behalf of the applicant in relation to this ground for the following reasons. 2. The sentencing judge accepted that the applicant's role was as a courier, but that finding did not of itself result in the objective criminality being towards the bottom of the range. To challenge successfully the sentencing judge's assessment of the applicant's role, it would need to be established that his Honour's conclusion of considerable criminality was not open to him. An error of the House v The King (1936) 55 CLR 499 type would need to be shown. 3. A number of matters provided strong support for his Honour's conclusion. 4. First, the applicant had a falsely subscribed telephone which he used frequently to contact UM1 to be given instructions. Secondly, the agreed facts show that the applicant was well-acquainted with the code language being used in the intercepted phone calls between him and UM1. 5. Thirdly, contrary to the applicant's submissions, so far from the Crown submitting that the objective seriousness could be determined from simply the weight and purity of the drugs, the Crown's written submissions identified eight matters to assist in determining the objective seriousness. However, it is unrealistic to think that the applicant would have been entrusted with so large and pure a quantity of the drug concerned if he had been a mere courier with little idea of what he was carrying. That is an additional reason why the weight and purity of the drugs was a significant, although not determining, matter in the assessment of objective seriousness. 6. Fourthly, a further matter of significance was the applicant's motive for being involved, that is, for financial gain. As the applicant told Dr Allnutt, he did not have enough money to put on his dancing shows, and that was behind his getting involved in the offending. Further, the applicant's counsel at the sentence hearing quite properly conceded that the financial motive was significant. He said: It is clear from the facts that the offender knowingly involved himself in the collection of this large commercial quantity of drugs, exclusively for a financial motive. Counsel also spoke of: The temptation that he yielded to to obtain a financial benefit and involve himself in these matters. In submitting that the conduct fell somewhere below the mid-range "towards the lower end of the scale", counsel spoke of the applicant's involvement as "significant". 1. I do not consider that his Honour was reversing the onus of proof, nor that he found facts adverse to the applicant because the applicant did not give evidence. It seem clear to me that where his Honour said that "matters should have been explained" he intended to say "matters could have been explained". All that the sentencing judge was doing was restating the well-known principle about untested statements made to doctors and psychiatrists discussed in R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59], and Imbornone v R [2017] NSWCCA 144 at [57]. The sentencing judge was saying no more than: if the applicant wished to demonstrate how insignificant his role was, there would need to have been some direct evidence of that. 2. In any event, however, nothing flows from this. His Honour was faced with agreed facts and concessions from the applicant's counsel on the one hand, and an account given to Dr Allnutt on the other which was at considerable variance from the agreed facts. It was the applicant's right not to give evidence to explain those differences, but he cannot be heard to complain if the sentencing judge rejected his untested account, and found facts in accordance with the agreed facts. 3. In relation to remorse, contrition, prospects of rehabilitation and prior good character, there is nothing to support the applicant's submission that these were only dealt with by the sentencing judge as special circumstances. Well before his Honour identified the sentence he intended to impose, he said: I am satisfied that he is remorseful and contrite and it may well be, depending upon what happens after his release, that he may not re-offend. The Crown further submitted that the offender had been in custody since 10 August and this was his first offence, and first time in custody, he having no previous criminal convictions. 1. These were favourable findings for the applicant because, apart from the plea, his Honour had little direct evidence on which to find remorse and contrition. Indeed, the story the applicant told Dr Allnutt, which involved considerably minimising his role in the offending, might have led his Honour to a different conclusion about those matters. 2. When his Honour came to deal with special circumstances, his Honour treated the applicant favourably by seemingly finding that such circumstances existed only by reference to the fact that it was the applicant's first time in custody and that he had no prior convictions. Nevertheless, that was an appropriate matter to consider at that point, even though this Court has suggested that more is needed to make such a finding. 3. Finally, the submission concerning the standard non-parole period and what was said in Muldrock v The Queen (2011) 244 CLR 120 is difficult to understand. His Honour quite correctly said that the maximum penalty and the standard non-parole period remain as guideposts or reference points for consideration, notwithstanding the plea, as Muldrock said. 4. The applicant made three points, in this regard, in his submission about the sentence imposed. First, the starting-point of 13 years was well in excess of that which was appropriate for the applicant's role. That submission assumes the correctness of earlier submissions about the determination made by the sentencing judge concerning the applicant's role. I have indicated that his Honour made no error in determining the applicant's role. 5. Secondly, the applicant submitted that his Honour left remorse, contrition, prospects of rehabilitation and prior good character to be dealt with as special circumstances. For the reasons I have given, his Honour did not do this. 6. Thirdly, the applicant submitted that his Honour simply applied the standard non-parole period. The standard non-parole period for the offence was 15 years. His Honour chose 13 years as the starting point, not for the non-parole period but for the head sentence. Then he reduced it by 25% for the plea. Such a reduction would have resulted in a head sentence of nine years and nine months. However, his Honour rounded that down to nine years. In fixing the non-parole period his Honour reduced the statutory ratio to 63.8% resulting in a non-parole period of five years and nine months. The figures only have to be stated to understand why the submission should be rejected. 7. This ground, and each of its parts, should be rejected.

Ground 2 1. No separate submissions were made in support of Ground 2. Rather, the written submissions suggested that it was the asserted errors in Ground 1 that led to a manifestly excessive sentence being imposed. 2. In considering this ground, I have had regard to the principles recently summarised by RA Hulme J in Vaiusu v R [2017] NSWCCA 71 at [28]-[29]. I also have regard to what was said by McClellan CJ at CL (RA Hulme and Schmidt JJ agreeing) in Collier v R [2012] NSWCCA 21 at [40] concerning the need for sentences of sufficient severity in drug supply matters in order to denounce the offending and deter others. 3. When regard is had to the applicant's role in the offending, the planning involved and the weight and purity of the particular drug concerned, there is nothing in the sentence imposed suggesting error. Indeed, at a number of places the Sentencing Judge has been shown to be making determinations favourable to the applicant. 4. This ground should be rejected.

Conclusion 1. No basis is shown for any of the grounds of appeal. The appeal should not have been brought. I would propose in the circumstances that leave to appeal be refused. 2. I propose the following order: (1) Leave to appeal refused.

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