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District Court 9 May 2013

R v Lim, R v Tan

[2013] NSWDC 327

Drugs
CRIMINAL

Citation: R v Lim, R v Tan [2013] NSWDC 327
Court: District Court of New South Wales
Date: 9 May 2013
Judge(s): S Norrish QC DCJ

Background

Two co-accused, referred to as Mr Lim and Mr Tan, appeared for sentencing on four charges of supplying prohibited drugs in New South Wales in July and August 2011. Mr Tan, described in intercepted calls as working under Mr Lim as his boss, had been cultivated by undercover police sources over several months beginning in February 2011. Both men had travelled to Australia from Malaysia and were under close police surveillance throughout the relevant period.

The offences involved the supply of 685.3 grams of heroin (a commercial quantity), two separate supplies of approximately 998 grams and 996.5 grams of methylamphetamine (each a commercial quantity), and a final supply of 1,381 grams of heroin (a large commercial quantity). The large commercial quantity heroin offence carries a maximum penalty of life imprisonment and a standard non-parole period of fifteen years.

Several co-accused involved in overlapping aspects of the criminal enterprise had already been sentenced by other District Court judges. Those prior sentencing remarks were relevant to the parity principles the court was required to consider when determining appropriate sentences for Mr Lim and Mr Tan.

  • What were the appropriate sentences for each of the four supply offences, having regard to objective criminality and the maximum penalties and standard non-parole periods under the Drug Misuse and Trafficking Act 1985?
  • Should Mr Lim and Mr Tan receive identical sentences, given their respective roles and subjective circumstances?
  • How should the sentences for four separate offences be structured and accumulated to reflect overall criminality without resulting in a crushing total sentence (the totality principle)?
  • What discount was warranted for the utilitarian value of each prisoner's guilty plea?
  • Did special circumstances exist to justify departing from the standard ratio between non-parole period and head sentence under s 44 of the Crimes (Sentencing Procedure) Act 1999?
  • How should parity with previously sentenced co-offenders be managed?

Decision

His Honour imposed identical total sentences on both prisoners: fourteen years imprisonment with a non-parole period of ten years. The court found that, while Mr Lim appeared to occupy a higher role as Mr Tan's boss, the evidence did not permit confident findings of fact at the level required to differentiate their objective criminality in a way that would justify different sentences. Both prisoners received a twenty-five per cent discount for the utilitarian value of their guilty pleas.

The court structured the four sentences in a partially cumulative, partially concurrent arrangement. The first offence (commercial quantity heroin) attracted seven and a half years with a five-year non-parole period, running from the date of custody. The two commercial quantity methylamphetamine offences each attracted nine years, running concurrently with each other but commencing eighteen months into the first sentence. The large commercial quantity heroin offence attracted ten years and six months, commencing two years after the start of the methylamphetamine sentences.

Special circumstances were found on two bases: the accumulation of sentences and the need for an extended period of supervised adjustment to community living upon release. These justified reducing the non-parole period relative to the head sentence beyond what would ordinarily apply. The court also noted that, while both prisoners would be deported upon release, that fact did not remove the obligation to consider and apply special circumstances principles where relevant.

The court carefully reviewed the sentences imposed on co-offenders by other judges, including those sentenced in relation to the first, second, third and fourth offences. This exercise was necessary to ensure the sentences imposed on Mr Lim and Mr Tan were not unjustifiably disproportionate to those received by persons with comparable or greater involvement, consistent with the parity principle.

Orders Made

  • Mr Tan and Mr Lim each convicted on all four charges.
  • First offence (supply commercial quantity heroin, 28 July 2011): sentenced to 7 years 6 months imprisonment, non-parole period of 5 years, commencing from date of first entering custody.
  • Second and third offences (supply commercial quantity methylamphetamine, 28 July and 3 August 2011): sentenced to 9 years imprisonment each, non-parole periods of 6 years each, sentences concurrent with each other, commencing 9 February 2013.
  • Fourth offence (supply large commercial quantity heroin, 7 August 2011): sentenced to 10 years 6 months imprisonment, non-parole period of 6 years 6 months, commencing 9 February 2015.
  • Total effective sentence: 14 years imprisonment with a 10-year non-parole period.
  • Special circumstances found in relation to each sentence where a non-parole period was required to be fixed.
  • Both prisoners noted as eligible for release to parole on 8 August 2021, after which they were expected to be transferred to immigration detention and deported.

Key Takeaways

  • The District Court imposed identical sentences on two co-offenders despite one being described as the other's superior, because the evidence did not support findings of sufficiently differentiated objective criminality to justify different outcomes.
  • A twenty-five per cent guilty plea discount was applied to reflect the utilitarian value of the pleas, consistent with the approach in Thomson and Houlton [2000] NSWCCA 309.
  • Where multiple sentences are accumulated, special circumstances may be found on that basis alone, permitting a reduced ratio between the non-parole period and the total head sentence under s 44 of the Crimes (Sentencing Procedure) Act 1999.
  • Parity with co-offenders sentenced by other judges is a significant consideration in multi-accused drug supply matters; the sentencing court reviewed all prior related sentencing remarks before fixing the current sentences.
  • Anticipated deportation upon release does not relieve a sentencing court of the obligation to properly consider whether special circumstances exist and make appropriate adjustments to the non-parole period.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- Thomson and Houlton [2000] NSWCCA 309
- Pearce v R (1998) 194 CLR 610
- R v Cahyadi (2007) 168 A Crim R 41
- R v XX (2009) 195 A Crim R 38
- Wong v The Queen (2007) 207 CLR 484
- The Queen v Olbrich [1999] 199 CLR 270
- R v Buttrose [2011] NSWCCA 35
- Markarian v The Queen [2005] HCA 25
- R v Muldroch [2011] 244 CLR 120
- Jimmy v R [2010] NSWCCA 60
- Lau v The Queen [2010] NSWCCA 43
- Le v R [2006] NSWCCA 136
- Lee v R [2007] NSWCCA 234